Joshua Fox
Associate
Joshua S. Fox is an associate in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.
As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh assisted with the successful representation of the Toronto Blue Jays in their case against All-Star Josh Donaldson, which was the largest club victory in salary arbitration in recent years. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations, as well as similar claims brought on behalf of scouts. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.
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As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers’ handbook policies in relation to employees’ Section 7 rights, when it issued its decision in The Boeing Company, 365 NLRB No. 154 (2017). Boeing established a balancing test that takes into account the employer’s … Continue Reading
The NLRB rang in the New Year by examining what constitutes an impression of unlawful surveillance. In Dignity Health d/b/a Mercy Gilbert Medical Center, 370 NLRB No. 67 (January 6, 2021), the Board reaffirmed helpful guidance for employers regarding the dos and don’ts in the context of union organizing campaigns. Specifically, the Board held that … Continue Reading
In adopting the ALJ’s Recommended Order in S&S Enterprises, LLC d/b/a Appalachian Heating, Case No. 09-CA-235304, the NLRB found that a leaflet distributed by the employer during union organizing efforts, which stated that it is against federal law for a labor union to threaten employees, did not violate the NLRA because it did not constitute … Continue Reading
When an employee is disciplined and then claims the employer acted on account of union animus in violation of Section 8(a)(3) of the Act, evidence to support such a claim either can be proffered through direct evidence, such as “smoking gun”-type statements made by a supervisor or top-management that the discipline was implemented due to … Continue Reading
As we have often discussed, there is a fine line between protected and unprotected activity. Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting employees to lawful disciplinary action by their employers. On December 7, 2020, the Board reaffirmed its prior decisions holding that an employer’s discharge of … Continue Reading
On November 30, 2020, the NLRB Regional Director issued a Complaint against the Yotel Boston hotel and Unite Here Local 26, alleging the Hotel unlawfully recognized and provided improper assistance to the Union. The Hotel and the Union were parties to a neutrality agreement. As is common in such agreements, the Hotel agreed to provide … Continue Reading
On October 23, 2020, the D.C. Circuit granted Davidson Hotel Company’s petition for review of unfair labor practices resulting from its refusal to bargain with two newly-certified bargaining units, and denied the NLRB’s cross-petition for enforcement of an order to engage in collective bargaining with those units. The Circuit also remanded the underlying unit certification … Continue Reading
The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer … Continue Reading
On November 24, 2020, the Board held that a high-level executive’s tweet violated Section 8(a)(1) of the NLRA by interfering with or restraining employees’ protected, concerted activity. In FDRLST Media, LLC, 370 NLRB No. 49 (2020), the Board reaffirmed its longstanding principle that a violation of Section 8(a)(1) does not depend on the employer’s motive … Continue Reading
As employers faced with a representation petition filed during the COVID-19 pandemic can attest, Regional Directors of the National Labor Relations Board have been incredibly reticent to hold in-person elections. Indeed, since April 1st, when the Board resumed processing representation petitions, approximately ninety percent (90%) of elections have been held by mail rather than in-person. … Continue Reading
An age old question under the National Labor Relations Act is what constitutes “picketing”? By the Supreme Court’s definition, picketing is inherently coercive and may not be directed against a neutral employer. An issue that has vexed employers for the last several years has been the use of stationary protests, such as inflatable rats and … Continue Reading
In an Advice Memorandum released Thursday, the NLRB’s Division of Advice concluded that employees who discussed an employer’s tip-pooling practices engaged in protected concerted activity, such that discharging the employees for this activity violated Section 8(a)(1) of the NLRA. Employees working at a steakhouse in New York City often complained about the restaurant’s tip-pooling system. … Continue Reading
On September 11, 2020, a three-member National Labor Relations Board panel unanimously ruled that a trade group representing sign language interpreters did not violate Section 8(a)(1) of the Act by removing its members’ posts on its closed Facebook page. The posts, made by individual members of the trade group, discussed the interpreters’ work conditions and … Continue Reading
On September 15, 2020, the National Labor Relations Board (the “NLRB” or “Board”) Division of Advice (“Advice”), published four Advice Memoranda addressing an array of issues ranging from COVID-19-related unilateral actions to non-work political advocacy and the legality of confidentiality provisions in separation agreements. The Memoranda were drafted by Advice last month, and join the … Continue Reading
The National Labor Relations Board recently cancelled a union election at a Las Vegas casino that suspended its operations and laid off employees amid the COVID-19 pandemic. In NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, 370 NLRB No. 11 (2020), the Board found that … Continue Reading
The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation. On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the agency’s internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the … Continue Reading
On July 29, 2020, the United States Court of Appeals for the Second Circuit (the “Second Circuit”) handed down what amounts to a significant win for the collectively-bargained dispute-resolution process set forth in the agreement between ABM Industry Groups, LLC (“ABM”) and its Union, the International Union of Operating Engineers, Local 30 (“Local 30” or … Continue Reading
In a package deal, the U.S. Senate confirmed the appointments of two members to the National Labor Relations Board (“Board” or “NLRB”). Lauren McFerran, who previously served as a member of the NLRB for five years until her term expired on December 16, 2019, will rejoin the current Board as its only Democrat. Current Republican … Continue Reading
On Tuesday, July 28, 2020 the National Labor Relations Board (NLRB or “the Board”) published a Notice of Proposed Rulemaking in the National Federal Register. With its latest foray into rulemaking, the Board is looking to make two amendments to the current rules governing representation elections held under the National Labor Relations Act. Both these … Continue Reading
In another long-anticipated decision, on July 21, 2020, in General Motors LLC, 369 NLRB No. 127 (2020), the Board replaced three context-specific rules for determining whether certain abusive conduct committed by employees is protected under Section 7 of the National Labor Relations Act (the “Act”) with the Wright Line standard that is traditionally used to … Continue Reading
On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices. While a majority of the Memoranda were drafted within the past month, a few were originally issued months or years ago. Advice is the agency’s internal think tank and the … Continue Reading
After a brief delay where the NLRB suspended all representation elections from March 19 through April 6, 2020 (see here and here), NLRB Regional Directors have since largely required elections to be held via mail ballot to curb the spread of COVID-19. Earlier this week, the Office of the General Counsel of the NLRB published … Continue Reading
In late May, on the eve of the effective date of the NLRB’s sweeping changes to the election process, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that certain of the new rules were substantive—not procedural—in nature, and were improperly implemented without affording the public an opportunity to … Continue Reading
The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace. (See our prior blog posts here, here and here for a few recent examples.) On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned Total Security Management … Continue Reading
NLRB Finds Social Media Policies Lawful, Sheds Light on Impact of Boeing
By Makenzie D. Way, Mark Theodore and Joshua Fox on Posted in Uncategorized
Employer Leaves Lasting Impression…of Unlawful Surveillance
By Mark Theodore, Joshua Fox and Makenzie D. Way on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
NLRB Holds that Leaflet Outlining Consequences for Threatening Workers Is Not Unlawful
By Joshua Fox, Jacob P. Tucker and Mark Theodore on Posted in Uncategorized
NLRB: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line
By Elizabeth Dailey, Joshua Fox and Mark Theodore on Posted in Uncategorized
NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected Activity
By Joshua Fox, Mark Theodore and Scott Tan on Posted in Uncategorized
A Bias against Neutrality Agreements: NLRB Regional Director Issues Complaint against Hotel for Supporting Organizing Union
By Michael Lebowich, Joshua Fox and Heylee Bernstein on Posted in Uncategorized
D.C. Circuit Remands Hotel Certification Decision and Reminds Board to Explain Its Reasoning
By Mark Theodore, Joshua Fox and Samantha Shear on Posted in Uncategorized
Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB: Employer Tweet Unlawfully Restrained Protected Activity
By Mark Theodore, Joshua Fox and Scott Tan on Posted in Uncategorized
NLRB Establishes Pathway to Holding More In-Person Manual-Ballot Elections during the COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Yonatan Grossman-Boder on Posted in Uncategorized
NLRB Seeks Comment: Rats, Banners and Neutrals, Oh My!
By Mark Theodore, Joshua Fox and Rachel Therese Gulotta on Posted in Uncategorized
NLRB Advice Memorandum: Firing Employees Because of Discussions Related to Tip-Pooling Violates Section 8(a)(1)
By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in Advice, NLRA, NLRB, Protected activity, Section 8(a)(1)
NLRB: Members Of Trade Group Are Not “Employees” Covered By The NLRA
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, Section 7
NLRB Issues Several Advice Memoranda Providing Guidance on COVID-Related and Other Workplace Issues
By Steven Porzio, Joshua Fox, Dominique Kilmartin and Jordan Simon on Posted in Uncategorized
No Reasonable Expectation of Recall? No Election: Board Cancels Union Election at Casino Closed During COVID-19
By Mark Theodore, Joshua Fox and Dominique Kilmartin on Posted in Coronavirus, COVID-19, NLRB Election Rules, Uncategorized
NLRB Division of Advice Dishes Some Guidance With Respect to COVID-Related ULP Charges
By Mark Theodore, Joshua Fox and Abigail Rosenblum on Posted in Advice, Coronavirus, COVID-19, NLRB, Uncategorized
Overruling District Court, Second Circuit Affirms Individual Employees Are Bound By Arbitration Award Prosecuted By Their Union
By Paul Salvatore, Joshua Fox and Jacob P. Tucker on Posted in Uncategorized
Senate Confirms Pair of Appointees to National Labor Relations Board
By Steven Porzio, Joshua Fox and Samantha Shear on Posted in NLRB, Uncategorized
National Labor Relations Board Announces Another Proposed Rule Regarding Representation Elections
By Steven Porzio, Joshua Fox and Samantha Shear on Posted in NLRB, NLRB Election Rules
NLRB Upends Context-Specific Tests for Profane Conduct, Folding Such Discipline Into Traditional Motivation Tests For Evaluating Lawfulness
By Mark Theodore, Joshua Fox and Caroline Guensberg on Posted in Uncategorized
NLRB Division of Advice Releases Deluge of Advice Memoranda Discussing COVID-Related ULP Charges, Confidentiality Rules, Information Requests, and Other Topics
By Mark Theodore, Joshua Fox, Rachel Therese Gulotta, Elizabeth Dailey and Caroline Guensberg on Posted in Uncategorized
NLRB General Counsel Announces “Suggested” Protocols for Conducting Manual, In-Person Elections Amidst the COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
Update: Federal Judge Amends Prior Order Concerning 2019 Election Rules, Affording Deference to the NLRB, but Appeal to D.C. Circuit Remains
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract
By Peter D. Conrad, Joshua Fox and Dominique Kilmartin on Posted in Uncategorized
