George Cohen, Esq.
Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
George Cohen, Esq.
Interviews conducted by: Roger Pollak, Esq.
October 13 and November 16, 2021
January 18, April 21, June 22, November 3, 2022
January 26 and March 16, 2023

ORAL HISTORY OF GEORGE COHEN, ESQ.
TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
George Cohen, Esq… …………………………………………………………………………………… iii
Roger Pollak, Esq…………………………………………………………………………………………..v
Oral History Transcripts of Interviews
October 13, 2021 ……………………………………………………………………………………………1
November 16, 2021 ………………………………………………………………………………………38
January 18, 2022 ………………………………………………………………………………………….83
April 21, 2022 ……………………………………………………………………………………………118
June 22, 2022 …………………………………………………………………………………………….160
November 3, 2022 ………………………………………………………………………………………195
January 26, 2023 ………………………………………………………………………………………..236
March 16, 2023 ………………………………………………………………………………………….289
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
George Cohen, Esq ………………………………………………………………………………….C-1
Roger Pollak, Esq…………………………………………………………………………………… D-1

NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2023 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
transcripts.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.

The Historical Society of the District of Columbia Circuit
Oral History Donation Agreement of Interviewer
Roger L. Pollak
I, Roser L. Pollak do hereby grant and convey to The Historical Society of
the District of Columbia Circuit, Washington, D.C. and its employees, agents, successors and
assigns (hereinafter collectively, o’the Society”) all my rights, title, and interest in the voice
recordings (including but not limited to digital recordings and cassette tapes) and transcripts of the
oral history interviews I conducted with Gqarce I{‘ C!hau , as described in
Sctredule A liereto, inciuding iiterary r’ights anci copyrights, ibr rite purposc of preservarion anci
publication of his oral history.
A11 copies of such recordings and transcripts are subject to the same terms herein provided.
I understand that the Society may duplicate, edit, or publish such recordings and transcripts in any
form or format, including publication on the Internet. I permit the use of such recordings and
transcripts in any manner that the Society considers appropriate.
I waive any claims I may have or acquire to any royalties from such use.
I agree that I will make no use of the oral history, or the information contained therein, until it is
concluded, edited and published by the Society, or
Society.
ve earlier permission from the
rA 0
ollak
+.
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SUBSCRIBED bef’ore me this I til dav of A,ub4z’y .ZO A3
d*t*.,i l*>*r;-
Notary Public
My Commission expires: & ?-1
ACCEPTED this
The Historical Society of the District of Columbia Circuit.
dou, or’ {Jnp 2A: by James E. Rocap, III, President of
z EXF.
2-t4-27
;:.*.: Jr;
Rocap, III
Schedule A to C)ral History Donation Agreement of Interviewer
Roser L. Pollak
Voice recordings (including but not limited to digital recordings and cassette tapes) and
transcripts resulting from the oral history interviews of Georse H. Cohen conducted
by Roser L. Pollak on the following dates:
Interview No. Date
Description of
Media Containing
Voice Recordings
Transcript Page
Numbers
1 October 13,2021 Digital File 1-37
2 November 16,2021 Digital File T-45
J January 18,2022 Digital File 1-3 5
4 April2l,2022 Digital File r-42
5 June22,2022 Digital File 1-35
6 November 3,2022 Digital File
7 January 26,2023 Digital File 1-53
8 March 16,2023 Digital File t-22
t-40
1
Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at Mr. Cohen’s residence on Wednesday,
October 13, 2021. This is the first interview.
MR. POLLAK: George, you can start off by saying your full name and where you were
born, and then let’s move into talking about your family a little bit, about
where your ancestors came from, any immigration story that you want to
share, and then history of your most interesting childhood.
MR. COHEN: Thank you, Roger. First, I want to say what I told your dad when he
called me that, not having argued a case before the U.S. Circuit Court of
Appeals for the D.C. Circuit for about 25 years now, I viewed this as
nothing less than a great honor. And the added attraction is having you as
Steve’s son and my former colleague and partner makes it all the more
pleasurable. Let the record show I’m 87 years old and trying to resurrect
what happened to me so many years ago is a bit of a fascinating challenge.
MR. POLLAK: Well the great thing is there’s nobody around to question whatever you
want to say.
MR. COHEN: This is true, but I have fact checkers in the family. Both my son Bruce
and daughter Julie, as you know, are in the entertainment industry, and
they will also be checking.
MR. POLLAK: And note that once it’s transcribed, the transcription will come back to
you, and you can share it with them, and you can make whatever changes
you wish or deletions or additions.
MR. COHEN: That is a sine qua non, a quid pro quo! Thank you.
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So, for the record my name is George H. Cohen. I have rarely
used my middle name Herbert because I like initials better. I was born on
January 3, 1934, in Brooklyn, New York, and lived in Brooklyn for the
first six years of my life. Then my folks moved to a summer resort town
about 30 miles from New York City named Long Beach, Long Island, on
the Atlantic Ocean. I grew up there until I left for college at age 17 years.
But Long Beach was a fascinating town because the winter population of
10,000 people increased manyfold every summer because the ocean and
its lovely beaches was a great attraction. We had summer residents,
weekly renters, and daily visitors. It created quite a fascinating
environment in terms of my summer employment, which we’ll discuss.
MR. POLLAK: Great.
MR. COHEN: So you also asked me about my family. That was my dad, Leonard,
known as Len, my mom, Gladys, and my younger sister Jane, four years
my junior. My grandparents also offered a fascinating story. I can show
you a four-generation photo from my father’s side. That’s me sitting on
the lap of my dad. I am about four years old. Dad was 32 when I was
born, so he’s about 36. His dad, my grandfather, was an amazing
character named J. Moe Cohen, who I met on many occasions. He was
probably then in his mid- to late-80s. The remaining person is my greatgrandfather,
who I barely knew, except to have had the good fortune of
being photographed with him in Brooklyn at some point in my life in the
1930s.
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MR. POLLAK: It’s an extraordinary photograph, George. Let the record reflect that it’s a
black-and-white photo of the four people who George described, with
George in the middle looking like he’s about age 2 ½ and his greatgrandfather
with a very long white beard and of advanced age and looking
as if he came from Eastern Europe a long time ago.
MR. COHEN: The most fascinating story about my grandfather, J. Moe Cohen, is he
came alone from London, probably originally from Poland. I don’t know
if his parents preceded him here or followed him here, but all I do know of
the story is that he arrived at Ellis Island circa 1870 at age 11 or 12. The
Immigration Officer asked for his name, and he said my name is J. Moe
Kaley, to which the Immigration Officer asked him what his religion was.
He said I’m Jewish. The Officer said Kaley sounds too much like Kelly.
Kelly is an Irish name, so you’re “Cohen.” In fact, that seems to be an
accurate story because my father’s brother at some point in his life chose
to go back to the name Kaley. My family stayed with Cohen even though
my dad was a sportswriter and at that time in history it might have been
more desirable to be Kaley. Out of respect to my family, I have remained
“Cohen.”
Now that story, Roger, is outdone by my mother’s side. My mom,
Gladys Winner, was born in the United States. Her father, Louis, was also
born in the United States, which was a little unusual for a Jewish person in
those days. My mom’s maternal mother was Lutheran. She died during
childbirth a year or so after my mother was born. So, as an aside, in Israel
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today, I am not Jewish because you must be 100% Jewish on your
mother’s side. What this also means is that I am one-quarter Lutheran.
But that fact was not disclosed to me by my parents until I was 42 years
old! When I inquired why they waited for 42 years to tell me, my mom
said there didn’t seem to be any right time to tell me. My wife Phyllis,
who was with me at the time, responded that it would have been the
“right” time years before when we were naming our first son Bruce after
whom we thought was my grandmother Bella. To me, this entire incident
was humorous, not traumatic. So my reply to my parents was if you had
told me sooner, I might have been in Theta Beta Chi, a Christian fraternity
at Cornell, but instead, I was in Tau Epsilon Phi.
MR. POLLAK: So going back for a moment, your mom’s dad’s last name was Winner?
MR. COHEN: What genes I acquired indirectly through my mom’s father, it’s quite
extraordinary. He was about 6 foot 3, red hair, rugged, a long-distance
swimmer, and when he got together with my other grandfather, J. Moe
Cohen, who was about 5 foot 5 and 135 pounds and a bookkeeper in the
New York City Diamond District, it was quite a scene to behold. Grandpa
Winner was as close to an atheist as you could get, and he was very
influential during the early part of my life. In marked contrast, J. Moe was
a practicing Jew and became a bigshot in the Masons. He was known
affectionately as “Right Worshipful.” Grandpa Lou died before I left for
college. Grandpa J. Moe was alive and in his mid-80s when I left for
college. In my second year at Cornell, in 1952, at the fraternity house I
5
posted the first letter he wrote me that year. It read something like “My
Dearest George, I know you are dealing with the challenges caused by the
vicissitudes of life and you may find it hard to acclimate yourself to all the
ambiguities that you will be confronting. Please understand I have total
confidence that you will be able to do so.” The letter was penned in
beautiful handwriting worthy of being read by all my friends. And that
was Grandpa J. Moe.
MR. POLLAK: So he came to the U.S. when he was eleven, went through Ellis Island,
then his father, who’s in the picture that you showed me, did they come
together?
MR. COHEN: They apparently did not arrive at Ellis Island together, but I don’t know
why.
MR. POLLAK: Got it. So he got here at some point and lived the balance of his life in
Brooklyn?
MR. COHEN: Yes. Well that’s another beautiful story. My grandfather’s home was
given the name “Hotel No Dough,” and there was a definitive explanation
which meant anybody in our family who is homeless or had no money or
was fighting with their parents and needed another place to live was
welcome at Hotel No Dough. My father actually was a mentor to a cousin
of his who was probably a young teenager when my dad was in college.
That cousin, Eddie, moved to Washington as an adult and became an
“uncle” of mine who befriended Phyllis and my children.
6
Bottom line, I had an amazingly interesting group of characters in
my immediate family whom I loved at the time and even more now
thinking back about them.
MR. POLLAK: So J. Moe came over when he was 11 or 12. What year was that?
MR. COHEN: I’d say 1875 or so.
MR. POLLAK: That was a better time to come than later. My relations also came prior to
the Second World War.
MR. COHEN: Not enough was told to me about all of those events, which was sad. On
the other hand, I know a lot about Leonard, or Len, as he was
affectionately called. He had an amazing life at the time, and in
retrospect, it’s even more amazing as I’ve done some of the research to
find out more about him. He was born in Brooklyn in 1902 and went to
Boys High. I knew nothing about Boys High, but a lot of people knew
that it was a great place to go. And then he went to NYU, and he
graduated in 1923. He was an English major, and he immediately decided
to write for the NYU daily newspaper which had a very good reputation.
Around his sophomore or junior year, it turned out, of all things, that NYU
was a football powerhouse, playing Army, Michigan, Notre Dame,
Columbia, and other schools. The word spread that they’re going to be
ranked as one of the best college football teams. So my dad, who was in
the sports department assigned to cover NYU football, was the innocent
beneficiary of something called the “Stringer” system. A stringer is a
writer for a periodical who gets assignments from other newspapers
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around the country that didn’t want to spend the money to send a reporter
to come to New York City and cover NYU football; but they were more
than happy to pay my father by the line or the word to write a story about
those games.
The bottom line was my dad, at that age 20 or 21, was being paid a
total of about $100 a week from twenty or thirty newspapers combined
during the football season 1921. And he translated this into believing the
following, which affected him for the rest of his economic life – that being
a sportswriter was going to be an economically rewarding career. And
you know what I’m now going to tell you. He graduated NYU. At that
time, there was a wide variety, twenty or so, newspapers in New York
City. He was hired by The Evening World. Why do I know that? I know
that because I have a memo he wrote telling the following. When he was
23 years old and had been at The Evening World for a year or two, he was
called into the office of the sports editor in the summer of 1926, who said
Len, here’s our situation. The writer who for years has been covering the
New York Yankees on the road has had an emergency operation. He can’t
go on the trip starting Sunday, so would you be able to go on the road with
the 1926 New York Yankees? Can you arrange your schedule? The
Yankees consisted of Babe Ruth, Lou Gehrig, Miller Huggins, the
manager, and all of the most incredibly great players you could ever
imagine. My dad not only said yes, but he realized at that time this was
such an extraordinary event in his life, he wrote a two-page memo and left
8
it in his file. I found it a few years ago. It set out verbatim what the sports
editor said to him, what he said back, and what he went and then did.
From1926 to 1941, that’s 15 years. Unlike the world of sports
writing today where there’s all these specialists, my dad learned how to
cover virtually every sport extant with the exception of thoroughbred
horse racing and boxing. That meant baseball, basketball, football,
hockey, and tennis. He was one of the very early writers to pay attention
to tennis. I’ll walk you into my hallway and show you a picture of dad
interviewing Billie Jean King when she was a young star. The great Don
Budge wrote a beautiful tribute to dad after he died.
He left the Evening World after a few years and went to work for
the New York Post where he stayed for his whole career. I think it was 40-
some odd years. In 1941, in recognition to his journalistic skills, they
promote him to the disaster of all disaster positions, the composing room
editor, which meant he left the sports beat. He followed the teletype that
was coming out minute after minute about the war and had to decide what
should be the headline on the front page of the New York Post every day.
He worked around the clock, 7 days a week, 18 hours a day, because if
you ever did not have the right headline when you went to press, and The
Times, The News, The Mirror, The Evening, The World, The Herald, The
Tribune, etcetera, you were in trouble. This meant that from the time I
was seven years old until eleven, I hardly ever saw my father. I became
the “man” of the house, and my mother and I, as a result of that, had a
9
very special relationship. I did all the shopping, I did all the routine work
that a father or husband would do. I didn’t pay any attention to that. I
loved doing it, and my mom and I bonded in a very unusual way.
In either 1944 or 1945, dad was rewarded by being promoted to be
the Sports Editor of the New York Post, which, of course, he immediately
takes. Now there’s a side story. The owner of the New York Post,
Dorothy Schiff, was a fascinating lady that everybody knew about in
New York because she had, I believe, seven different husbands over the
course of about twenty years, and what they apparently had in common
was they were all ne’er-do-well guys. All were given major roles to play
for the New York Post, which ended up having a detrimental effect on my
father’s career.
So it’s 1944. I’m ten. I’m in the 5th grade or 6th grade. Until I
left for Cornell in September 1951, those seven years, my life was sports
for two reasons. One, upon assuming the role of sports editor, dad
immediately started having a daily column called, “The Sports Parade” by
Leonard Cohen, which appeared six days a week, not Sunday. As the
sports editor and because he loved all these different sports, he also
assigned himself to cover the World Series in baseball, the NFL and NBA
playoffs, and the U.S. Open tennis tournament, to name a few major
events. And for me, virtually every weekend throughout the year, I went
with dad. We lived in Long Beach Long Island. He did not own an
automobile, which made him quite famous. We lived one block from the
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railroad station, which was the last station on the LIRR, 50 minutes to
Brooklyn or 54 minutes to Penn Station, New York City. We then got on
a subway to Ebbets Field Brooklyn or Polo Grounds or Yankee Stadium in
New York City, which from 1945 to 1951, was the hub for every major
sport, college and professional.
During this period, I not only went to Brooklyn Dodger games, but
I went to Brooklyn Dodger training camps – 1946 at the Bear Mountain
Inn near West Point. One incredibly important event took place. Jackie
Robinson was placed on the Montreal roster after having been hired by
Branch Rickey as the first “negro” in major league baseball. Rickey
didn’t like the idea of trying out Jackie Robinson to go directly to the
majors, so he sent him to the Montreal Royals. The Royals and the
Dodgers trained together in 1946, and I was present the first day he ran out
onto the field in a competitive game between two major league teams. I
watched Dixie Walker, the legendary right fielder, try to start a boycott to
keep Jackie Robinson from playing second base. He probably might have
succeeded but for the fact that Pee Wee Reese, the Louisville Colonel
captain, and the Dodger shortstop walked over, put his arm around Jackie
Robinson, and that was the end of the potential boycott. That scene was
repeated in 1947 when Jackie Robinson went out on the field in many
major league ballparks, such as Cincinnati, St. Louis, and Philadelphia.
Same thing would happen. Incidentally, Dixie Walker was traded by
Branch Rickey that year to avoid that problem and to show the world he
11
was supporting Jackie. Branch Rickey was a genius. He knew Robinson
was not the best “negro player” at the time, but he was, in Rickey’s mind,
the right guy for the right time, the combination who Jackie Robinson was
as an individual and his amazing wife who he met at UCLA. Jackie
Robinson was an All-American halfback. Off the field, as a young Army
lieutenant, he refused to sit in the back of a bus. He just started playing
baseball with the Negro League after college. That was not his major
sport. Amazing story.
I had the honor of reading my dad’s April 11, 1947 column the
first day that Jackie Robinson played in a major league game. I’m pleased
to say that dad was not only supportive of Jackie Robinson, but the end of
his article, he said, “Jackie Robinson has been quoted as saying, ‘If the
Army says I’m good enough to have a rifle and shoot somebody, the
baseball owners should conclude likewise.” So that was, as you might
imagine, a major event in my life.
I became a diehard Dodger fan, and in 1947, I must have seen
Jackie Robinson steal home plate 6 to 8 times. I watched him get on base
and steal second. I watched everybody at Ebbets Field stand and start
yelling because they were waiting for him to steal third. Once he did, the
pitcher panicked. Robinson was a pigeon-toed speedster. That’s what he
was famous for. He would walk off third base about 30 or 40 feet between
third base and home, just staring at the pitcher who would try to figure out
what the hell he was going to do, and then Jackie would steal home.
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So as you can imagine, those were monumental memories. And
then there was football. I attended NFL Giants games. Basketball was
amazing in the winter because all of the great colleges, NYU, CCNY,
St. John’s, Fordham, LIU, St. Joseph’s, all played in Madison Square
Garden. Every major tournament ended up in Madison Square Garden. I
was at many NIT and NCAA finals. I saw CCNY, the only team in
history to win both of those tournaments in one season. I was present
when the Wyoming coach in a game against NYU in Madison Square
Garden referred to “those dirty Jews,” and pointed at two players from
NYU. My dad wrote a feature story about that incident. My eyes were
opened to racial discrimination and anti-Semitic behavior.
Madison Square Garden was like a second home. The Knicks also
played there, so I went to their games. I went to Track and Field meets
there. I went to the U.S. Open. Tennis at Forest Hills. I went to polo. I
saw Sugar Ray Robinson fight in an attempt to be the only fighter in the
history of major boxing to win three titles at the same time. He was
already lightweight and middleweight champ. He went for the light
heavyweight championship at Yankee Stadium against the light
heavyweight champion of the world named Joey Maxim. Robinson beat
the heck out of Maxim for 13 rounds. It was 105 degrees at ringside, and
Robinson couldn’t answer the bell for the 14th round. It was a TKO. I
saw Gionfriddo’s phenomenal catch of Joe DiMaggio’s “almost” home
run over the left field fence. I saw Jackie Robinson in his famous battle
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against Sal “The Barber” Maglie. Maglie threw at Jackie’s head three
times in a row, knocking him down. Robinson got up each time, dusted
himself off, and got back in the batter’s box. On the next pitch, Robinson
responded by dragging a bunt down the first baseline. When Sal Maglie
bent down to pick it up, Jackie hit him full speed and Sal Maglie flew up
in the air and came down on his ass. But he just walked right back to the
mound. He never complained, never yelled. Jackie won that battle.
Another unusual facet of my life in sports is where I sat during the
games. I sat in the press box next to dad at all the baseball and football
games, and at mid-court in basketball. I was at center ice at the hockey
games. I was in the best seats at tennis. I was able to talk to all the
writers. It was all just part of my life. They were just wonderful people.
All my friends came with me because my father had tickets for them. The
politicians in Long Beach went because of my father. They drove him on
some occasions because he didn’t drive, and the joke in Long Beach,
which you’ll appreciate, was until Billy Crystal came along 15 years
younger than me, my father was probably the most celebrated person in
Long Beach. In that tiny population, everybody read his articles,
everybody knew who he was, and he treated everybody warmly. So it was
a beautiful experience.
MR. POLLAK: At that time when you were going to basketball games, were the
basketball teams integrated? What was the history there.
14
MR. COHEN: Great question. The answer is really fascinating. The vast majority of the
public colleges, CCNY, NYU, LIU, were all white and mostly Jewish,
with one exception, Sherman White at LIU. Sidney Tannenbaum, Danny
Forman, Dolph Schayes. I knew them all because they used to come to
Long Beach in the summer and play in the public courts across the street
from my house before they went to swim in the ocean. They all knew my
dad, so they’d all come to my house, and my mom would bring them
lemonade and iced tea and a hose and after they played basketball, they’d
drive to the ocean and swim.
The Catholic schools, St. Johns and Fordham, were primarily Irish
Catholic and almost all white players. There are some sad stories about
the “shaving” of points scandal and how college players started doing that
and were subject to criminal investigations. One of them went to jail,
Sherman White, the one Negro. But that’s who was playing in those days.
MR. POLLAK: Fascinating. Tell me a little bit more about the Long Island town you
grew up in and also what it was like to grow up Jewish in that community.
MR. COHEN: Well, in my mind, I had the greatest childhood. We were a very small,
diversified town. If I had to guess, a third Jewish, a third Catholic (Irish
and Italian), and a third Protestant, with a very small number of black
residents. It appeared that everyone got along quite well. There was a
Catholic school that some Catholics went to, but the high schools were
totally integrated, as were the teams. The community was very sportsoriented.
15
I left this out. I went to public school where, like all people my
age in my group, I did very well in school. I paid only a little attention to
schoolwork, but nevertheless regularly received high grades. I didn’t do
anything that you would call intellectual. I left school at 3:00 in the
afternoon, and I either played stickball, three-on-three basketball, or touch
football. Because I was obsessed with trying to be an athlete, I started
devoting myself to basketball. I had to overcome being 5’ 7”, 130 pounds.
I made the freshman basketball team. I made the JV basketball team, and
one of the great good fortunes of my life, in my senior year I made the
varsity team. I was part of what were known as the “five little guys” who
came in as a unit for the last four minutes of every game. We were a very
good team, and a number of the first-string players got scholarships to
play basketball in college. NYU, Tom De Luca. Harvard, Harry Sachs
played center. Two others got college scholarships. They were all great
guys. The coach, Bobby Gerstein, is a wonderful person. He’s still alive.
He’s 90-plus years old. Remember Snuffy Stirnweiss, the New York
Yankees superstar shortstop; our coach played second with him at college.
I think it was North Carolina. Bobby Gersten was one of the most
knowledgeable people about the game of basketball, about how to teach
people how to play, how to strategize, and how to beat the zone defense.
It was an honor to be in his presence. At our high school reunions, he’d
bring all the guys back to his house, pull out all the old yearbooks, and
then joke about us individually. I don’t mind telling this about myself. I
16
didn’t score many points. I kept a yearbook. My son Bruce at some early
age said Dad, why the heck are you keeping these yearbooks. You’re only
scoring three points a game. I said you know, in those days, 35 to 40
points could win a game and guards didn’t shoot very much. I think in the
last game in my senior year I get fouled five times while shooting, and I
made most of my foul shots. I figured out I had scored eight points in two
minutes, and at the “letter” ceremony, Bobby Gersten announced that if
George had played that whole game, he would have scored 78 points.
That was the standard joke about my basketball career.
MR. POLLAK: So it sounds like your dad stayed pretty busy throughout your childhood,
even after that particularly rigorous time during the war. Was he ever
home?
MR. COHEN: Yes. Well don’t forget I left home in 1951. Dad was still Sports Editor
around that time. I left out one thing I wanted to say about Phyllis and me.
When Phyllis met me four years later in 1955, all my friends were telling
her about these stories. This was Phyllis’s assessment of me to anybody
who we met here in Washington starting 1957 when they asked, how
about George. She would get a smile on her face, and staccato, she would
announce “sports, sports, sports, sports, sports.” Just the way I’m saying
it. Five times in a row. It’s all she ever said to describe me. And
everyone who knew about me encouraged it because they wanted to see if
she would say something different. But no.
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So you asked me the question about my dad. I went to Cornell in
1951. I knew girls existed, but I had no girlfriend in high school, and
when I arrived at Cornell, there were five men to one woman. My
daughter Julie’s documentary about “RBG” quoted RBG’s mother as
saying, “Well Ruth, if you can’t find a man there [Cornell], you are never
going to find a man.” And that was the social setting.
Back to dad. In the early 50s, after I went to college, he had the
most unfortunate experience of his career. His daily column was a huge
success. He focused on interesting oral histories of athletes. He never
wrote about anybody’s social life that wasn’t favorable. As far as he was
concerned, his focus was to report on what athletes were doing on the
field. He didn’t care what they drank the night before, who they were with
the night before. He didn’t think that was anybody’s business. And he
would be rolling over in his grave knowing what we now know is the
standard operating procedure for any writer to describe a person’s most
private life. In this connection, we should understand that the social
relationship between athletes, coaches and managers and writers was very
close. For example, everyone knew that after every major sports event at
Madison Square Garden, you went to one of two places, Leone’s for
Italian food or Toots Shor for drinks and entertainment. The managers
went, the coaches went, and the writers went and everyone befriended
each other.
18
MR. POLLAK: It’s interesting. It’s kind of like how political writing used to be in D.C. I
grew up here, and that’s obviously the sports of this town.
MR. COHEN: Yes. So early in the 1950s, Dorothy Schiff had a new husband. It doesn’t
matter who he was, but he comes on the scene, and he wants to expand the
circulation of the New York Post. At that time, the New York Post sports
section was very extensive, maybe twenty pages, devoted both to postgame
coverage and feature stories, and sports were very popular, and so
was the Post’s sports section. The day newspapers, the New York Mirror
and the New York News, also had major sports coverage. The New York
Times had sports coverage with great writers, but much fewer pages. The
New York Herald Tribune was competing with The New York Times.
In any event, Dorothy Schiff’s new husband tells my dad we need
to do something to increase circulation, so we have decided that you are
going to put on the back page of every daily newspaper the morning line
on betting odds for major league baseball games. My dad is reputed to
have replied what does that have to do with sports? He’s told a lot of
readers bet on games, and we want to make it easier for them to do so. To
make a long story long, my dad said in essence “not on my watch.” He
was not fired, but he was demoted and sent to Siberia, i.e., covering
harness racing!
My dad was the classic Depression guy. He thought anybody that
made $50,000 a year was doing real well. He was very concerned about
security for my mom and his family, so he accepted the demotion. But
19
here’s the beautiful part of the story. He was only in Siberia part of the
year. He also ended up covering the Dodgers, the Giants, the Yankees,
football, hockey, tennis as a “fill-in” when the regular assigned writers
were on vacation or sick. And that I think was the saving grace for him.
He never said to me the demotion was the end of the earth. I accepted
what happened to him, and in retrospect, I think it played a role in
encouraging me to become a labor lawyer. So let me stop there. Do you
have anything you want to ask me about that?
MR. POLLAK: It sounds like that was influential on you going forward.
MR. COHEN: I think it was.
MR. POLLAK: Do you remember experiencing anger or confusion about what happened?
MR. COHEN: I didn’t have confusion. I had admiration. It turned out it was not a
catastrophe. And to this day, if you go to the harness racing track in
Yonkers, New York, I think the track is still there, and if you go up to the
top floor where the press and the announcer are located, you’ll see “Len
Cohen’s Corner,” a suite where all the writers and guests congregate to
socialize and dine. That was really how my father did everything in life.
He always adapted. He never really had the fighting back instinct, which I
would have preferred. But that was his life and his judgment, and it did
influence me a little bit.
MR. POLLAK: Do you remember anything about the unions at the newspaper?
MR. COHEN: Oh I know a lot about that.
MR. POLLAK: That you experienced growing up, like strikes?
20
MR. COHEN: No. There were no strikes. You realize these were the war years, and a
strike in the newspaper industry would have been a “no-no.” But when
dad was getting close to retirement in 1974, the question of his pension
and health care arose. I joined Elliott and Mike in 1966, so I already had
had eight years of experience as a labor lawyer when this all came to pass.
I learned two things which were fascinating. The workers in every major
newspaper in New York City, besides The Newspaper Guild, TNG, which
was basically just the journalists, were represented by between seven and
ten unions. They were all crafts. Every time management wanted to
implement some kind of an initiative, to make an operation “more
efficient,” one or more union rules came into play, jurisdictional disputes
galore. What came to my mind is my dad told me, and the managing
editor of the New York Post I think also told me this at an awards
ceremony, that dad’s claim to fame was when he was the composing room
editor during World War II, if there was two minutes to go to deadline for
the front page, the particular craft union workers most responsible for
skillfully handling the little pieces of lead allowed my father, even though
he was management, to do their work. This was unheard of, and it was
only because of their relationship with and respect for my dad.
In 1974, I also learned how tough the Dorothy Schiff family had
been on the unions with respect to basic economic benefits. After 45 years
at the Post, dad didn’t get a monthly pension benefit. He received a lump
sum payment based upon the number of years of service multiplied by a
21
certain amount of money. That’s what you received on your retirement,
with two choices. You can get a lump sum payout, in which case your
surviving spouse will get very little, or you can receive an actuarily
reduced amount in which case your spouse will continue to receive a
pension after you die. You can imagine which one my dad picked for
mom. That experience was just another reason why I was so committed to
represent working men and women. I was already a committed guy who
loved “reverse snobbery.” To this day, I love aiding the underdog. I think
it’s just wonderful what you’re doing and my colleagues are doing.
MR. POLLAK: Are there other events you remember from your childhood that you see as
formative to your what you call reverse snobbery, but I would call just
getting with the unions and fighting the good fight?
MR. COHEN: No.
MR. POLLAK: Are there any other jobs from your teen years?
MR. COHEN: Yes. In Long Beach. Well, I actually had the job that led to my meeting
my wonderful wife. I went to Cornell for three years. I was
undergraduate in liberal arts. I was what was called a government major.
Yale might have called it Poli-Sci. I had three amazingly productive years
at Cornell. I wrote for the Cornell Daily Sun sports section. I was in a
fraternity that was the only non-sectarian fraternity of the 57 fraternities
on campus. I didn’t know that at the time, but I learned it afterward. I had
the great pleasure of meeting fellow students who were Chinese, Japanese,
French Canadian, etcetera. But there were virtually no undergraduate
22
black students at Cornell, which was a bit misleading because there was a
significant number of blacks on the campus, all in graduate schools –
Africans, Asians, Caribbeans, but no undergraduates. The few blacks
were probably on athletic scholarships. I later learned that there was an
implied quota for Jews as well, which was never discussed.
I loved my undergraduate three years, but still had not met Phyllis.
I finished three years and was told that Cornell Law School would allow
you to “double register” in law school, waive your senior year of college,
and go directly to law school. After one year in law school, you would
receive a BA, provided your first year law school grades were satisfactory.
About 20 in my law school class of 125 or so were double registrants. I
was friendly with a number of them. Most were government or economics
majors, and we knew each other from the Liberal Arts college. I didn’t
enroll in law school because my mind was made up that I wanted to be a
lawyer. My decision was a more practical one. Why not see what it’s
like? I have nothing to lose if I don’t like it, and I will save one year
tuition if I remain for two more years. I walked into law school. I’m 21
years old. I immediately realized many of my classmates were 25-30
years old, some married, some parents, all very serious about their futures.
A couple of them had been football stars or were war veterans. I really
felt I had made a dramatic mistake. What was my mistake? I gave up
being the Sports Editor of the Cornell Daily Sun and maybe the chancellor
of my fraternity. I was giving all this up to do something I didn’t know
23
whether I wanted. So I was not a happy camper. And then I found the
first year of law school to be very boring and very intimidating. But there
was one professor, Rudy Schlesinger, who made a distinct impression on
me because of his brilliant spellbinding lectures. I forgot to mention my
undergraduate professors. The quality of the faculty that I took classes
from was beyond superb. I had Vladimir Nabokov for Russian literature.
I had Robert Cushman for Constitutional Law. I had Clinton Rossiter for
State and Local Governments and Alfred Kahn, chair of the CAB in later
life, taught Federal Regulation of Business. I had probably the best course
I took in my first three years, not given by a Cornell faculty member, but
by a distinguished professor who was on sabbatical from Columbia named
Fritz Stern. At Columbia, he taught a course covering the History of
Western Civilization. Back to Fred Kahn. You went into one of his
classes, he’s wearing a World War II Eisenhower jacket. It’s now 1953.
Fred Kahn would shop at these little, what do you do when your wife sells
clothes out on her lawn and brings out all the old clothes. What do we call
those?
MR. POLLAK: A tag sale?
MR. COHEN: Yes. And that’s where he bought his clothes. That was only the
beginning. In an early lecture, he’d inquire how many of you own cars.
There’s 30 or 35 in the lecture, and 5 to 10 raised their hands. I did not
own a car. Here’s what I want you to do as your economics professor.
There’s a place, Horseheads, New York, about 37 1/2 miles from here.
24
You’ll get there in 39 minutes, and it’s 37 miles back, so it’s only 75-miles
roundtrip. They’re selling gas at three to five cents a gallon less than
Esso, Sonoco, et cetera, and you owe it to keep this independent gas
station in business. And we all sat there mesmerized.
MR. POLLAK: Before we leave your childhood behind, is there anything you want to say
about your mom and influences that she had on your life?
MR. COHEN: My mom had phenomenal practical skills and knowledge, and then this
whole relationship I had with her when I became the “man of the house”
was in retrospect a fabulous thing to have happened. She was totally
supportive, totally encouraging, never had a negative thing to say, was
beloved by all her friends. When they wanted advice, Gladys was the
person to talk to. She and my father had a beautiful, loving relationship.
She supported him in everything he did, and he was 110% her husband.
One great story about them. Dad comes home one night, and he’s
sleeping. In the middle of the night, my mother gets up and starts shouting
and screaming what happened to you, what happened to you? My dad was
bald at the time. That night, he was covering a boxing fight at ringside
and a fighter spit blood on his bald head, and he’s got red blood caked all
over his head. My mother thinks he’s been injured. My father wakes up
startled. Everyone in the family gets up. Everyone starts laughing like
hell. You can’t ask for more than that. That was perfect.
25
MR. POLLAK: It sounds like your parents didn’t push you in any particular direction, so
what on earth, other than the other guys were doing it at Cornell, led you
to want to go to law school?
MR. COHEN: I had in the back of my mind two conflicting thoughts. I’ve got sports, but
I didn’t want to be my father’s son. He was always putting my name out
there, right? George is doing this, George is doing that. And everybody
in the sports world that knew him knew me, and I was putting two and two
together and saying I don’t know how much talent I really have as a
writer. Second, if I’m getting a job offer to be a sportswriter because I’m
Len Cohen’s son, I guess I had enough independence in me at age 21 or 22
to say you know what, I think I ought to go out and try to make it on my
own. And I was always that kind of a person. I never said to myself, I’m
in my third year of college and I really want to be a lawyer. I didn’t say
that. Everyone said you know that going to law school is great. Once you
have a law degree, you can do anything. That was definitely thought
about in those days. You want to go into business? Great. There’s
nothing wrong with having a law degree. If you’re asking me if I had
graduated in 1955 instead of going to law school, would I have applied to
Harvard Law School or Columbia Law School? I don’t really know the
answer to that. I think I probably would have, but this is so easy for me to
say now.
MR. POLLAK: One other question about the pre-law school period. Did you travel with
your family? It sounds very New York-centric.
26
MR. COHEN: Well think about my father.
MR. POLLAK: Right. He was working right 24/7.
MR. COHEN: I went to Dodger spring training in Vero Beach. I went to the Borscht Belt
with him to see the college basketball players play in the summer. You’ve
got to understand what 1947 to 1951 were like. People were finally
coming out of the WWII doldrums, getting a car, spending money. Unless
you were really well fixed for money, you weren’t thinking about
traveling, and then there wasn’t that much available. Who was doing
those trips? I don’t know anybody that was flying around the world in
1948 or 1949, certainly not my family. I don’t know what your dad would
say about 1947 to 1951 in his life
MR. POLLAK: Probably the same. If the Yankees were in the World Series, would you
go to Chicago?
MR. COHEN: No. I didn’t do that. I didn’t have to. Nobody thought of going out of
New York. Seriously, no. Because sports meant New York. I didn’t
think about that. Years later I took a couple of friends to Philadelphia for
the World Series.
MR. POLLAK: Never a dull moment.
MR. COHEN: Never a dull moment, and all just enjoyment with the people. I was 15,
and writers were stopping and talking to me in the press box. It was all
quite extraordinary.
MR. POLLAK: That’s fantastic. So we heard a little bit about college. Is there anything
else you want to cover?
27
MR. COHEN: Yes. Well I have to cover meeting Phyllis.
MR. POLLAK: Nothing more important than that.
MR. COHEN: No, and it also answers another one of your questions and it also is a
reflection again on my father and sports. I told you before that I
completed my first year law school, and I received my BA in 1955, and I
came home to Long Beach that summer and lived with my parents. I
knew I was going back to Cornell for the Fall semester, my second year. I
met a lot of other people in law school, including Guy Bedrossian. He
was the fullback and captain of the football team. I had befriended Guy in
the context of being a sportswriter, and somewhere along the line, in that
spring before I graduated, he told me he was graduating and leaving and
had been renting a great house at the bottom of campus, right where the
City of Ithaca begins. He showed it to me. I had been living in the dorm
and then in the fraternity house. I walk in, and it’s a house with a living
room, a dining room, a kitchen, two bedrooms, a couple of bathrooms.
I’m saying this is great, what’s the deal. He said it’s owned by a man in
Ithaca. He had four roommates. Get yourself four roommates, go in and
sign the lease, I’ll recommend you. I said Guy, this is fantastic. I didn’t
realize at the time I had no transportation, but forget it. So I found two
law students who had been NYU undergrads, one of whom had a car, and
two friends of mine from Cornell who were in other fraternities that I
knew, Arthur Kananack and Frank Tretter. They were all delighted to be
joining me in the house. Everybody on campus loved Arthur. He was
28
going to be my roommate. He was a Brooklynite. So let’s go back to that
summer again. My dad said to me I think I have a possible job for you
this summer. He said call Phil Kohut. He’ll talk to you. This is a small
town, and he’s the head of the Democratic party machine. Of course he’s
befriended Leonard Cohen because Leonard took him to some sports
events. I called Mr. Kohut, and he said everything’s going to be taken
care of. Report to the police station Monday morning at 8:00. Ray Panza
is going to take care of you. Who’s Ray Panza? He’s the lieutenant in
charge of the motorcycle division and one of the toughest policemen
you’ve ever met in your life. I show up. It’s a “shape up,” and as I walk
in, Ray Panza says, Cohen, come over here. You’re going to be in a group
of 12 young college guys. You’re all going to be summer traffic cops.
You’re going to have the greatest experience of your life. But Cohen, I
heard about you. I heard a little about you.
I didn’t tell you that in elementary school, one of my reviews said I
was “obstreperous.” And I didn’t know what obstreperous meant, but my
father did, and that became a signal in my family. Anybody who asked
about George, he’s a bit obstreperous. So he had been told I was
obstreperous, without using the word. He then said go into the other
room, and you will be outfitted with your uniform and your equipment,
badge, billy club, hand cuffs, but no revolver. He also said I just want you
to know I’m assigning you to Park Avenue and Long Beach Boulevard,
the single most busy intersection in Long Beach. Thousands of cars pass
29
through that intersection on the way to the ocean and the beaches and
boardwalk. I didn’t tell him because I couldn’t tell him that I did not have
a driver’s license. So I’m stationed at this very busy intersection with a
clicker in my hand. Any time I want to take the light off of the 45-second
cycle, I just click. I was in charge, and I could control the traffic pattern
any way I wanted. This is all a dream come true.
MR. POLLAK: All without training?
MR. COHEN: All without training. The training was as follows. For the first couple of
weeks, every four to six to eight hours, Ray Panza would come by in the
motorcycle to watch me in action. He never threw me off the job. Okay,
that’s my job, and I’m loving it. Now I learn from some of the more
experienced police officers there was a fringe benefit. If you happen to
notice a convertible with the top down and a beautiful blonde-haired, blueeyed
lady driving, you have that whistle. I forgot to mention the whistle.
You just blow her over and ask for license and registration. You can do
that any time you want, so you can have any conversation with any lovely
lady that you choose to have. The other major fringe benefit was that
every store owner in the immediate vicinity, every bakery, every
delicatessen, as soon as you walked in, they said we’re so glad to see you,
what can we get you? A pastrami sandwich, a beer, a coke? I didn’t drink
beer while on duty. You’re just treated like it’s a little town. Everybody
knows everybody. Everybody knew I was Leonard Cohen’s son, and
30
everybody knew I was in college. So I’m just having a great experience.
On a scale of 1 to 10, this is 25.
Okay. Fast forward to August. I get a phone call from Arthur. He
said later today, I am going to be driving out to Atlantic Beach, which is
the adjourning beach for the hotshots where his father and mother had a
cabana, with a really great friend of mine, Phyllis Goody. He said I told
her even though she’s really popular and she has a boyfriend, I think she
would really like you, and I think you’d really like her. He then said, I
think I’m going to come by your traffic intersection about 2:00. How
should we arrange for you to meet Phyllis and me? I said Arthur, when I
see you coming, I’ll blow my whistle. I’ll change the light. You’ll pull
the car over, and I’ll come over and talk to both of you. And that’s exactly
what happened. How many people met for the first time the woman that
they were going to be married with and live with for 61 years the way we
did. I don’t think very many! In any event, when they pulled over to the
side of the road, I had a 10- or 15-minute conversation with Arthur and
Phyllis. She had a great sense of humor, and she seemed, of course, as all
Cornell coeds, smart. And yes, I noticed she was very attractive. She did
appear to be wondering why in the world I was doing this job. I’m not the
most articulate guy with young ladies, so I said something like school
starts in September. I hope we see each other on the “quad.” She, of
course, replied yes, and that was the end of Phyllis and me for that period
of time.
31
So we go back to school and it’s September, and Arthur repeats
again how popular Phyllis is and how many boyfriends she has.
MR. POLLAK: Arthur was the matchmaker.
MR. COHEN: Oh absolutely. Without a doubt.
MR. POLLAK: That’s amazing
MR. COHEN: He died as a very young man of a heart attack. That was one of the
saddest days of my life because he was such a great human being. After
graduation from law school, he went to work for Viacom and became one
of their premier executives, acquiring the rights to foreign films and
bringing them to the United States. He did that for about 20 years. He
married an English young woman, Pamela, who we loved, as well as his
children. His dad had died of a heart attack as a young man. Arthur had a
couple of heart attacks in his 50s and died, probably about 60.
In any event, the next time I saw Phyllis was in September or
October during the Jewish holidays at the synagogue on the Cornell
campus. We had a lovely, short conversation. She said great to see you,
and I said great to see you, and then I walked back to my apartment. That
night, or a week later, I said to Arthur, you know what, I’ll give Phyllis a
call. In those days, the major social events were based on Saturday’s
football games, followed by the fraternity parties at night. I asked if she
was available for the Yale game. Phyllis of course said no I’m booked for
the Yale game. I said how about the Dartmouth game. That was three
weeks later. She said oh I’m really sorry, and she was lovely about it. I
32
said let me ask you something. Do you go out on Sundays, and she said
yes, I go out on Sundays. I said good, would you like to go out for pizza
and a movie next Sunday. She said that would be fine. So my
relationship with Phyllis in that entire year was basically limited to being
with her once every three or four weeks on a Sunday night. I was
enjoying being with her, and she appeared to like me, and that was it.
In the Spring of 1956, we chatted about my summer plans. Again,
this is a little extra special. I was going to Fort Bragg, North Carolina, the
home of the fighting 82nd Airborne, because I had signed up for advanced
ROTC after my two mandatory years. I had concluded that I was going to
be drafted at the end of law school, and I would prefer to be a Second
Lieutenant rather than a Private. At the beginning of our second year of
law school, a number of my fellow “double registrants” walked over to the
Army ROTC leadership en masse and said we had finished two years of
mandatory ROTC. We would like to get commissions at the end of law
school. We have two years left. Would you accept us and give us credit
for our Air Force ROTC training? We were accepted and then had an
obligation to attend a mandatory six weeks of summer training. Before we
left, Phyllis said to me, knowing I’m going to Fort Bragg, North Carolina,
and she’s never known anybody who’s been there, why don’t we write
letters to each other? I’d like to know what’s going to happen to you
during those six weeks. And I, of course, in my brilliant way said okay.
I’m 22 years old, and I’ve been in two years of law school, so I’m like a
33
senior guy, and I figure out pretty quickly that the summer training is
psychological warfare. This is red clay country. This is the 82nd
Airborne. This is 112 to 115 degrees during the day. We’re up at 5:00 in
the morning preparing 30-pound backpacks for marching. We’re
exercising. We’re being disciplined, we’re being yelled at. I’m finding
this to be most fascinating. Of course I know what’s happening. I know
every single group of cadets going through this is being treated the exact
same way – a form of brainwashing! Anyway, you’re exhausted. So at
10:00 at night when you’re sitting there finally left alone and someone
yells your name saying mail call and you get a letter, you’re feeling good
about that, right? Phyllis’s first letter was nice, and then I wrote back.
And the second letter was a little nicer, and I wrote back. And the third
letter was really nice, and it gave the appearance that Phyllis liked me, and
I wanted to give an appearance back that I liked her because what else do
you do? And then came the transformative letter the week before or so
before the end of summer camp. There were two “x’s” at the end of her
letter, and I said to myself, wow. Two x’s. What does that mean. I had
no one to ask, but I figured out it meant something more than not any x’s,
so, of course, I put two and two together and said I better put some x’s at
the end of my letter too.
Back I go to home. I’m in the greatest shape I’ve ever been in my
life. I’m the strongest I’ve ever been. I’ve tolerated six weeks of the most
incredible experience of my life, and it looks like I have a girlfriend. I
34
went back to my third year of law school, and we spent a lot of wonderful
time together. I had a two-year commitment to serve in the Army. I don’t
know where I would be stationed. I dreamt maybe I’m going to go to
Paris or someplace. So when Phyllis started acting like we should talk
about a serious commitment, which I believe I was totally intimidated by,
I had a very easy response. I have no money. I thought a man is supposed
to have some money to support a woman, and I don’t even know what I’m
going to do for the next two years, so don’t start relying on me for a while.
For her part, she wanted her own career. In her senior year, she took a
Federal Management Examination and scored extremely well. It was a
government-wide exam, and her score was distributed to every federal
executive agency that wanted to establish or maintain a management
intern program to develop young civil servants who would eventually be
in leadership positions. Phyllis was interviewed by a number of agencies
and picked the Labor Department because she was told the Labor
Department was the most woman-friendly cabinet-level agency you could
find. There’s former Secretary of Labor Esther Peterson. So she heads to
Washington in June 1957 to start working as a management intern. I went
home to Long Beach and worked for a law firm for the three months
waiting my assignment. I had to wait until November before attending
officers training in Fort Lee, Petersburg, Virginia, for four months.
During that period, we regularly visited each other, mostly in Washington.
Phyllis had come here without knowing one person, but she made friends
35
quickly. And at work, she was a star. The Labor Department provided a
rotating three months in each of three departments, and by the time she
was done with the third, the chief economist picked her out, sent her over
to the lovely red brick town houses on Jefferson Place across from the
White House where he was supervising a comprehensive study comparing
urban states’ labor laws with those in the South. Phyllis played a major
role on that project.
We were married in December 1958, and decided to begin our
married life in D.C. Shortly thereafter, she received another promotion.
The LMRDA was passed in 1959. Mr. Howard Jenkins, a prominent
African American who later became a member of the NLRB, was given
the first job to administer the LMRDA. Phyllis was an assistant, and
during many dinner times in our early married life, she’d tell me all about
the labor issues that she was looking at, even though she’s not a lawyer.
She was studying the statute and the regulations. My reaction was this
really sounds interesting. I decided to go to Georgetown Law School at
night and focus on labor law, and that’s what I did.
MR. POLLAK: Was 1958 the passage of Taft-Hartley?
MR. COHEN: No. Taft-Hartley was 1947. LMRDA was 1959. At Georgetown Law
School, I took about ten labor law courses, all terrific. Arbitration, Labor
Law, Labor Management Relations, Collective Bargaining, Mediation.
Here’s a great irony. The adjunct professor teaching Mediation at
Georgetown in the LLM programs was Cyrus Ching, the first Director of
36
the FMCS, nominated by Harry Truman 1947. With a pipe in his mouth,
he had the loudest, most powerful voice you could imagine telling these
incredible stories about mediation. Fast forward to 2009. I have been
confirmed as the Director of FMCS almost 50 years later. The first room
adjacent to my office is the Cyrus Ching Conference Hall. I walked in and
I saw his photo on the wall and said oh my God. He had been my
mediation professor at Georgetown Law School.
MR. POLLAK: George, was there anything that he taught you about mediation that
influenced you later in your career?
MR. COHEN: You know, Roger, an ability to impress upon the importance of getting to
an agreement, i.e., to use techniques which included a sense of humor and
basic humility and humanity.
MR. POLLAK: Well that might be a good place to wrap up today.
MR. COHEN: I think so. I’m exhausted.
MR. POLLAK: It’s just absolutely fascinating that you met Phyllis, and it was her
experience at the Labor Department, which was where she went because it
being favorable for women, and then her telling you stories, which led you
to go into the LLM program.
MR. COHEN: Yes. Without a doubt, she played a major role. You know what you are
in law school. You went through it. Do you want to be a tax lawyer, do
you want to be an estate lawyer, do you want to be a corporate lawyer, do
you want to be a trial lawyer? I had no interest in any of those areas.
Moot Court at Cornell Law School made a major impression on me. I felt
37
of all the things I might be okay at, I felt I could hold my own at appellate
advocacy. We had a great moot court team, and we had two or three moot
court events with other law schools and judges critiquing you. I started
looking in Washington for a job and found out that Mike Gottesman did a
lot of appellate court work. I was excited.
MR. POLLAK: So to set the record straight, before the Phyllis job at the Department of
Labor, you hadn’t been fascinated by labor courses in the law school?
MR. COHEN: There were no labor law courses. There was a great professor in the
Industrial Labor Relations (ILR) School teaching Constitutional Law, but
because I waived my fourth year of college, I never got to take his course.
At that time, there was no labor courses at Cornell. Cornell University,
the home of the ILR school, no labor law professor teaching a course. It
was astounding.
MR. POLLAK: Hard to believe. This has been really fun. Thank you.
MR. COHEN: This was exhausting.
38
Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Tuesday,
November 16, 2021. This is the second interview.
MR. POLLAK: This is Roger Pollak, oral history interviewer of George Cohen. Today is
Tuesday, November 16. It’s about 5:30. I’m sitting here with George in
his living room. This is our second interview, and George is going to
cover some or all of the period 1957 to 1970, and he’s going to start off
with a discussion of what happened after he graduated from Cornell Law
School.
MR. COHEN: Thank you, Roger. It’s a pleasure to try to remember and recollect what
happened 60-some years ago, and I appreciate all the wonderful assistance
you’ve been giving me in that regard.
I graduated Cornell Law School in June 1957, which meant I had
been at Cornell for six years, three of college, and three of law school. In
my senior year of college, and because Cornell was a land grant college,
we had mandatory ROTC for our first two years in college. When I
realized that I was going to be in law school for two more years, myself
and a whole group of my colleagues who were in a similar situation, we
“double registered” in the ROTC program, having decided that we would
prefer to be lieutenants than privates when we completed law school. I
received my Commission contemporaneous with my graduation from law
school, and then the question was what were my orders going to tell me to
do. I had signed up for a two-year tour of duty. I received my orders
39
early in the summer and learned that I was not going to be assigned until
early in the fall, which meant I had three or four months of free time.
Because I had never clerked for any law firm in my prior two years, I had
been busily engaged in making some money to be able to afford ongoing
law school tuition, and law clerkships were not quite as commonly thought
about as they are now today.
My dad, who was always promoting his son, arranged to have me
interviewed by a law firm in Mineola, Long Island, New York, the county
seat for Nassau County. It was a small law firm led by a very prominent
white-collar criminal defense lawyer named George Morton Levy. He
interviewed me and hired me for the interim period until I had to go on
active duty. The fascinating thing for me was how did that come about?
It came about again because of sports. George Morton Levy was the
President of Roosevelt Raceway, a harness racing track near Mineola,
Long Island. He befriended my dad in my dad’s capacity as the Sports
Editor of the New York Post, and I got the fringe benefit of going to work
for his law firm. They were excellent lawyers who were wonderful to me.
I did the usual kind of work for someone with no experience. I helped on
motion practice and procedure. I left them in the fall of 1957 saying if I
ever decided to come back to New York and didn’t want to go to a big law
firm, I might well want to chat with them about my future career.
So what happens when a young Second Lieutenant joins the
Army? You go to training. My training for the first four months was at
40
Fort Lee in Petersburg, Virginia. After that, you receive a permanent
assignment for the remainder of the two-year term of duty. In retrospect, I
lucked out because I was assigned to U.S. Army Security Agency
Headquarters in Arlington, Virginia. When I received my first interview
when I arrived at the post, I was told that Lieutenant Colonel Herr, who
was in charge of the Judge Advocate General’s Office, was looking for a
law school graduate. He essentially said the following: I’ve been waiting
for a young lieutenant to substitute for me because I’m about to go on a
tour of all our facilities around the world which will last about six to nine
months. So Lieutenant Cohen, “Welcome aboard. I’ll be with you for
about ten days, and then I’m leaving you.”
What he left me with, in retrospect, was quite a phenomenal
opportunity because at the headquarters was a two-star general and about
ten colonels who made up the officer corps. A lawyer from the JAG
office is also part of the officers corps, so Second Lieutenant Cohen was in
the presence of all these experienced long-term serving highly talented
officers, and I was their “lawyer,” which put obviously quite an amount of
pressure on me.
The subject area I addressed most often was government contracts
because the agency let millions of dollars of contracts throughout various
facilities around the world. I, of course, knew nothing about government
contracts. A lot of things had to do with security because we were a highsecurity
facility. I developed the following technique, Roger. Knowing as
41
little as I knew, I learned early on that we did have something called a “red
phone” in the office. If you said to someone asking you a question that I
think this has security implications, you had to then stop your conversation
and wait for a red phone call, which usually took between fifteen and
twenty minutes from the time the person told me the problem. I would
then do an expedited research job so that at the end of that period when the
red phone rang, I was much better prepared than I had been twenty
minutes earlier. So that was a lesson I learned very early in my life. The
experience of working in that setting as a 23-year-old young, naïve, very
non-qualified law school graduate stood me in very good stead for the rest
of my life when I left the military at age 25.
But I’ve left out what may have been the greatest fringe benefit
that I got, which is to say we had normal five day a week eight-hour day
working hours. Phyllis and I were married in December 1958. She was
instrumental in me deciding to go to Georgetown Law School at night to
get a graduate degree, an LLM.
At Georgetown, there was an incredible plus that I now can
remember. I was asked by Nick Chase, one of my professors, to do some
research for him in my spare time. He was not a labor lawyer, but he was
a very well-known litigator. At the end of my short three-month stint
being his pro bono researcher, he recommended me to the National Labor
Relations Board in the summer of 1960. So I simultaneously got my LLM
and was interviewed and hired by the NLRB in Washington, D.C. in the
42
Summer of 1960, thanks to his recommendation. I should say that I was
supported, as well, by the Dean of the Law School, Paul Dean, so I had
two wonderful Georgetown Law School references, and I’m sure that
played a major role in my being hired at the NLRB.
MR. POLLAK: And much hilarity was made at Georgetown Law School about Dean
Dean.
MR. COHEN: Yes. He also was a wonderful gentleman. He also taught me labor law.
Highly respected. You know in those days, Georgetown Law School was
at Fourth and D Street, Northwest, in an old, dilapidated building. It had
an incredible adjunct program even then, and now, you know, it’s the
beacon of virtually all adjunct programs. There must be I would say at
least 25 or more labor law-related courses being taught in that program,
many by colleagues of ours who were practitioners. So they were not only
quite smart and talented but experienced and pragmatic as well.
MR. POLLAK: Alright. So that led you to the NLRB.
MR. COHEN: That did. Now I’m at the NLRB.
MR. POLLAK: What year is this now?
MR. COHEN: 1960.
MR. POLLAK: Just after I emerged in the world.
MR. COHEN: Well coincidentally that’s good. That meant you were only 26 years
behind me. That’s all. So the NLRB that I walked into was an amazingly
interesting, fascinating place because John F. Kennedy had been elected in
November 1960 and became the President of the United States in January
43
1961. He then had the opportunity, you know how the statute works. The
incumbent President’s party gets to have a 3-2 majority on the National
Labor Relations Board, and he nominated the gentleman that I then began
to work for. His name was Gerald A. Brown. He was a careerist. He had
been the Regional Director in the San Francisco regional office of the
NLRB. Not a lawyer, but he was incredibly knowledgeable and
experienced and proactive about two causes that came to be near and dear
to my heart and your heart. What were they? Union organizing and the
process of collective bargaining. He joined two other fellow Democrats,
John F. Fanning and the third person who became the chair who was
formerly a legal assistant to Senator Douglas of Illinois, Frank McCulloch.
The three of them became known affectionately, or in some circles
cynically, as the “Kennedy Board.” Their decisions were much more
liberal and much more progressive than what had been true of the
predecessor Eisenhower Board. That was of course part of what Congress
intended in embracing the 3-2 majority principle.
I became the most junior lawyer on the staff of Member Brown.
I’d say each one of the board members had between fifteen and twenty
lawyers working for them, almost all career people. You had two major
jobs. First, it was the greatest way to learn the law because you were
responsible for preparing legal memos about most every section of the
NLRA. And then you drafted either memos for your board member to
think about the issues before him or her, or actually drafting what became
44
decisions of the National Labor Relations Board. Very early on, this
amazing thing happened to me. Board member Brown walked into my
office, which was incidentally the smallest office that any lawyer ever had
at the NLRB. I wanted my own private office, and the only way to get it
as a junior person was to take a closet and have the closet remodeled for
me, a closet with a desk, a chair, and a place to hang my coat on. Member
Brown says to me something like, You know I always wanted young
people who have never been in this agency before to give me some
insights about what they think might be viewed as the important decisions
of the Eisenhower Board that I might wish to overrule to reach a more
worker-friendly result, so I would like you to spend a week or so and then
send me a short memo listing what you think are the five or six areas of
the law that I should be looking at with a serious view. I said to myself,
whoa. First of all, I don’t know the law. Second of all, this is quite an
unusual request, and obviously I was delighted.
There were two subject areas that the NLRB covers, one is called
representation cases, which means organizing-related law, and then, of
course, the substantive law covering the basic provisions of the statute. I
knew he was interested in both, and he had, of course told me what I said
to you, he was interested in union organizing. So the first question always
in union elections is looking at employer conduct during the course of an
election campaign and asking yourself what’s the difference between just
“puffing” and threatening employees that if they vote for the union,
45
something bad is going to happen to them. The line, of course, is a very
fuzzy line, and all good management lawyers have worked their way
through all the NLRB decisions to figure out how can they implicitly
threaten enough to effectively encourage them to vote “no.” So that was
obviously a fascinating area that I called to his attention. And the others
involve more esoteric nuances such as recognitional picketing and the
difference between a consumer boycott, which is lawful, and a secondary
boycott, which was unlawful. The end result of that was in the course of
the next two or three years, I had the wonderful opportunity to draft some
of the decisions that Member Brown felt fit into those categories. Also, he
was regularly called upon to make speeches, and I did in fact draft a
number of speeches for him laying out what his philosophy was about the
role of a board member and the justification for the decisions he was
issuing which were reversing and overruling some of the prior precedents.
I could not have asked for a better two- or three-year experience.
But I did realize at that point what every NLRB lawyer knows
immediately, that nothing that the NLRB does is final and binding. In
order to get a decision enforced in a meaningful way, either the NLRB has
to go to a circuit court of appeals to seek enforcement, or if the aggrieved
party challenges and petitions for review, the NLRB has to defend against
that. I put those two things together. I had been on the moot court board
at Cornell. I loved appellate court advocacy. I liked the idea of making
thirty-minute arguments after writing a brief.
46
So at that point, around 1963, I made the decision I would apply
for a transfer from the NLRB side of the NLRB, the Board member side,
to the General Counsel’s side. And there was a wonderful unit called the
Appellate Court Branch. There were about thirty young lawyers, their
supervisors, and a couple of senior officials in it at that time. I applied and
was accepted in 1963.
MR. POLLAK: George, before you move to that, I’m just curious having watched the
evolution of management side practices to basically neuter the labor law,
how you perceive when you reviewed the landscape, you viewed it in a
context of a period when relations between labor and management were
by and large so much more constructed and bounded by certain unspoken
guardrails that later were blown to smithereens, and that’s the current
environment we’re in. Do you have any observations about what that was
like versus what you saw later on?
MR. COHEN: Of course I do because you know that’s what you do when you’re given
the assignment I had. Your general comment was true, but as always, it is
the case when every agency always says 92% of our decisions are done
unanimously, but it’s the 8% that are the real hard-core disputes in which,
depending upon which party is in power, are the critical ones. That much
you learn pretty quickly.
The second thing, any time anybody asked me what should be
done about the National Labor Relations Act, I had some pretty quick,
very simple definitive answers. The single most important thing I always
47
believed was that there were two competing injunction processes under the
Labor Act. One was called Section 10(l), which meant if a company
believed it was being adversely affected by any picketing or a so-called
secondary boycott, it could file a charge with the NLRB, and if it issued a
complaint, three days later a federal district court judge could issue an
injunctive decree notifying the union that if it kept up the conduct, civil
and or criminal contempt could follow. Juxtapose that against Section
10(j) of the Act when the employer committed what we would consider to
be a serious violation of the law, all 10(j) says is that if the General
Counsel issues a complaint, the NLRB may, but is not required to, seek an
injunction in federal court. And even if the NLRB ever decides to go to a
federal district court, it’s discretionary whether or not the judge is going to
issue a temporary restraining order or a preliminary injunction. And
knowing what we all know that most of the organizing campaigns took
place in the South where federal district court judges were least friendly to
the union movement, unions rarely, if ever, get 10(j) injunctions.
Therefore, the message is very clear from an employer standpoint – I can
immediately find out which employees the major union organizers are. I
can fire them on the spot. I know that two or three years later I might get
hit with a reinstatement with back pay order, but meanwhile I’ve done two
things. I’ve gotten rid of that union organizer, and I have sent a very clear
message to the employees. You support the union, they are helpless in
terms of dealing with management, and therefore you’ll be wasting your
48
time and your good dues money by voting for the union. That was always
a very very powerful, influential phenomena that was attributable to the
two distinct ways that those sections of the law operated.
MR. POLLAK: Was that technique used in the same way in 1962?
MR. COHEN: Absolutely. The really knowledgeable experienced management lawyers
knew exactly how little they had to fear by taking a very affirmative
immediate stance in trying to suppress any kind of major union organizing
campaign.
MR. POLLAK: So turning back to your progress through the time at the NLRB, you
moved into the General Counsel’s office.
MR. COHEN: I did.
MR. POLLAK: What year was that?
MR. COHEN: It was somewhere around the middle of 1963, and I stayed there until
September 1966. I had a good three years in that group, and I think I told
you already they were an amazingly talented group. You know in 1963
the word was out if you wanted to be a government lawyer and really be a
first-class litigator, you either went to the Justice Department, the SEC, or
the NLRB. That was the generally accepted notion. Not to denigrate the
many other federal agencies, but it was well-known and understood that
the NLRB was the best place you could get appellate court training. For
example, the Solicitor General would allow the head of the Supreme Court
Section of the NLRB to argue cases before the Supreme Court. That gives
you an idea of how much respect the SG’s office had for our agency.
49
I went to work knowing that I was going to get an amazing
experience writing briefs and arguing cases before the circuit courts of
appeal. That was the major job you had. But here comes history again.
Here comes good fortune for me. Good fortune with a lot of humor. A
very small percentage of the work of the Appellate Court Section was in
unusual circumstances to find yourself in a federal district court, and
interestingly my first two court appearances were in federal district courts,
and they weren’t the usual cases.
The first case I had involved my supervisors, two incredibly
talented appellate court lawyers, Melvin Welles and Marcel Mallet-
Prevost, calling me to the office a week or two after I got there. They
gave me good news. Instead of having to wait to write a brief and wait for
the court of appeals schedule, we’ve got a couple of federal district court
cases that are available for assignment, and we thought you’d be a natural
for them. I said great.
The first involved me going to a place that you’ve heard of, right
outside of Sea Island, Georgia, a place where President Eisenhower used
to do his golfing, in a lovely little federal district court, and here was the
issue. The issue was whether an employer could enjoin an unfair labor
practice hearing from taking place. The issue was totally controlled by
Supreme Court law. And basically it held that no court could issue such
an injunction. This particular company involved was the Tidewater
Equipment Company. My supervisor assured me that within five minutes
50
of the argument, the judge would know there was zero merit in that claim,
and I would get a judge’s opinion immediately dismissing that court case.
I’m before a Judge Scarlett in the Southern District of Georgia. Judge
Scarlett looked 105. He probably was in his 80s at that time, and I
believe, in retrospect, he was famous for once having issued an opinion
holding it was unconstitutional to require desegregation of public schools
in his district because blacks were inherently inferior in intellect to whites.
That was Judge Scarlett.
I walked into the courtroom, and the elderly African-American
bailiff helped prop him up and put him in his chair at the bench. I, of
course, was going second because the lawyer for the company represents
the moving party. He essentially got up and said, “Your Honor, it’s great
to be here. My granddad argued before you, my dad has argued before
you, and now I’m going to argue before you, and I can’t tell you how
honored I am. I know I saw you recently at the church and at the country
club, but it’s really nice to be here today, Your Honor.” And for five
minutes, he made an argument which, in fairness, I would say to you,
Roger, that no rational person could have understood basically a word he
was saying, and that included, it turns out, Judge Scarlett.
So after about five or eight or ten minutes of Judge Scarlett, trying
to understand what this lovely gentleman was saying, he did the following
that went something like this: “Young fella from the government, would
you please stand up now.” I said, “Yes, Your Honor. It’s a pleasure to be
51
here.” He said, “I’d like you to do me a favor.” I said, “Your Honor, I’m
an officer of the court. What can I do?” “I’m having difficulty
understanding your opponent’s argument. Would you be kind enough to
briefly summarize it for me.” I said, “Your Honor, I’m an officer of the
court, but I think this is a very unusual, perhaps extraordinary, request
you’re making of me.” He said, “I understand that, but I’m asking you,
young fella, to tell the Court what you understand his argument is.” And
you now know what’s going to unfold. I started in, and basically in four
minutes of explaining what this other lawyer was floundering around
about, here’s what happened. Your Honor said, “I like that argument.” I
said Your Honor, that argument has been rejected by the United States
Supreme Court, the Fifth Circuit Court of Appeals, and every other court
that has ever looked at it. He said, “I understand that, but I’m telling you I
really like that argument.” I said Your Honor, this would not be the right
direction for this court to be going under these circumstances because let
me just say again. He says no. There’s really no need to say anymore. I
have decided I’m going to issue a temporary restraining order against this
hearing going forward. I said, Your Honor, this is a mistake as a matter of
law, and you understand that we are going to have to go to the Fifth
Circuit. I understand where you’re going to go, but I’m doing this. And
on the Bible, that’s what happened. I then got in an airplane and flew
back to Washington. And this is what happened next. One of my best
dialogs of my life. Marcel Mallet-Prevost, 65 years old, handsome, grey52
haired gentleman, probably had argued hundreds of court of appeals cases,
the man who had assigned me to do this case. Mel Welles, everybody
knows, one of the great appellate court lawyers in the history of NLRB, a
baseball buff extraordinaire. A person who was a bridge wizard. He was
a brilliant renaissance man. He and Marcel were in the office. “George, I
know you won this case. How did you win it?” I said, “Gentlemen, I did
win this case, but I won it for the wrong side.” Well, you understand what
happened. Hilarious reactions. They made me go through what I had just
gone through in even more detail. The beautiful thing about it was they
didn’t get mad. They didn’t get upset. They loved it actually. The loved
the whole story. They loved what had happened. They loved my
explanation. The reward was I’m going to go to the Fifth Circuit Court of
Appeals, and you know what that meant. It meant an argument in
New Orleans. I brought Phyllis with me. The Fifth Circuit was then
sitting in the old Agricultural Building in the French Quarter. I had Judge
Brown, Tuttle, and Wisdom, three of the great giants then of the Fifth
Circuit being wasted on this, right? And I’m going first because I’m now
the petitioner. The case is captioned NLRB v. Tidewater Equipment
Company. I get up, and I argue for three minutes. Judge Tuttle, I believe,
was presiding. He looks down at me and asked who was the judge below,
and I said Your Honor, it was Judge Scarlett. He puts his hands up, time
out. He swings his chair around. The other two judges swing their chairs
around. From the bench, “Injunction overruled. Opinion to follow.” So I
53
then had the most delicious meal with Phyllis you could ever have in a
fine French restaurant, and that was my first argument!
MR. POLLAK: I’m just curious about your frame of mind like in your first appearance in
district court and then the court of appeals. Were you nervous? What
were you like as a young man?
MR. COHEN: I was in Brunswick, Georgia, a tiny little post office building and when
you saw the judge being propped up and you have a case you can’t lose.
The answer was I wasn’t nervous. I was thoughtful about the procedure
and to try to make sure I conducted myself in a professional manner. In
retrospect, could I have said “Your Honor, I’m not going to do that?” I
asked my supervisors that, and they looked at me and smiled and said
whether you could have or not, that would not be the way you would
probably respect a court, and you would probably have gotten into more
difficulty than you know. I have never to this day ever asked anybody
else about that because Judge Scarlett is probably the only judge in the
world who ever said anything like that. You make the other lawyer’s
argument.
MR. POLLAK: Interesting. So that’s Tidewater. What about Rock Hill?
MR. COHEN: There’s no way to outdo Tidewater, but in a way, in terms of me, Rock
Hill outdid it by far. Okay. And then you’re going to probably ask me
why did I continue in the practice of litigation after this?
The second case. A much more different circumstance. It’s in the
Southern District of New York. There’s a very esoteric section of the
54
National Labor Relations Act, and if I told you I knew it was Section
9(c)(3), you’d laugh at me and say George, and I’d say because I had to
look it up to prepare for this. It basically provides there’s something
unique about organizing campaigns when unions try to represent plant
guards. And it goes on to provide if one particular union, which has a
conflict in representing them, if they get elected by the rank and file plant
guards, that union cannot use the National Labor Relations Board to
support a refusal to bargain case. In practical terms, voters are alerted
there is a big disadvantage to vote for that union. But in this case, the
ballot prepared by Regional Director NLRB did not contain those magic
words. So, the company went to court complaining that they need an
injunction because some employees are going to vote for this union
without understanding the downside of voting for this union.
Another case never before in the history of the Act, right? So I’m
in court opposing the effort to get an injunction to modify the NLRB
ballot. Historically, ballots have been the exclusive province of a
Regional Director of the NLRB. Now, who is the regional director of the
NLRB in New York City? His name is Sam Kaynard. He’s known as
being a reprobate, an incredibly fascinating, charismatic, noisy creature,
which, in fact, unfolded here in this situation. In any event, he’s not in the
courtroom. The argument is in the Southern District on a motion before a
really smart, highly respected judge named Edward Weinfeld. Everyone
who practiced in the Southern District knew if you get him, you got a
55
really smart judge, a man who conducts himself in a very professional
manner. The other side makes its argument. They’re done. Judge
Weinfeld calls on me, and I make what I thought was as thoughtful an
argument as you can make in these unique circumstances. I argue that
almost all the time, the regional director has this authority, and it’s not
usually a reviewable authority to determine what? What the notice to
employees looks like and what the ballot looks like. I do recognize Your
Honor this is a unique situation. I think there are competing interests, but
I urge, on balance, we have the better of the argument that you should not
get yourself involved in this situation and leave it for the employees to
make their own judgment even though they might make a mistake blah
blah blah. After a twenty-minute argument, the judge says to me,
Mr. Cohen, this is a very interesting case. I find it worthy of a lot of
attention. I appreciate greatly the argument you have made here, but
here’s what I’d like to have happen. I’d like you to leave the courtroom
right now. It’s 12:00. I’d like you to call the regional director who made
this decision, and I’d like to have him in chambers this afternoon with the
court reporter at 2:30 because I appreciate you are a nice young lawyer,
Mr. Cohen, without saying those words, but I want to see what the
Regional Director had in mind when he decided this was the ballot he
wanted to use. I said, Your Honor, I will leave the courtroom, and I will
make the call you requested of me. Now you understand it’s 1964. There
are public telephones. You put a quarter in, and you dial the regional
56
office of the NLRB. I had never met Mr. Kaynard. I have never spoken
to Mr. Kaynard. And this is essentially what happened when he picked up
the phone, which will delight you, Roger. I said, “Mr. Kaynard, my name
is George Cohen. I haven’t had the pleasure of meeting you. I recently
started working for Marcel Mallet-Prevost and Mel Welles.” And I said,
“and I’m here to argue this case.” I got about five words into the case, and
he said the following. “You dumb son of a bitch.” Precisely those words.
And then he said the line that I will never forget. He said, “I told Marcel
years ago don’t send a boy to do a man’s job.” And I said, “Well,
Mr. Kaynard, here’s the good news for you. You are going to have an
opportunity to do the job because I’ve been instructed to tell you to be in
court at 2:30 this afternoon and Your Honor wants to hear directly from
you.” He said, Great. He said, “Cohen, meet me in front of the
courthouse. I’ll be wearing a Russian scarf, a beret on my head. I have a
big handlebar mustache. You won’t miss me, and I’ll show you how it’s
done.” I said, Mr. Kaynard, I’m looking forward to that. And on the
Bible, he showed up looking like I just described, sounding like I
described, and in we go together. This is what essentially unfolded with a
court reporter transcribing it. His Honor looks at him and says,
Mr. Kaynard, I want you to know that your young colleague was here
earlier today. He made a very interesting, strong, thoughtful argument
about why I shouldn’t have jurisdiction over this matter. I am troubled by
that thought in these unique circumstances, given the statute, and I’d like
57
to hear from you as to why you prepared the ballot in the manner you did.
Mr. Kaynard responded, Your Honor, you have no business touching this.
This is my exclusive province. I determine under the law what a ballot
should look like. I determine what the notice to employees should look
like, and quite frankly, Your Honor, I don’t even know why I’m wasting
my time here today. Almost verbatim. And Your Honor says to him at
that point, You know, Mr. Kaynard, Mr. Cohen made a much more
impressive argument than you did. I think I’ve heard enough from you to
know I’ll be issuing an injunction against using that ballot today. And so
we walked out of the courtroom. He uttered a couple of four-letter words,
and I will tell you over the next twenty years, we became good friends,
Sam Kaynard and I. Sam Kaynard learned over time what a wonderful
person I am and how wonderful it was that we shared that experience
together!
MR. POLLAK: That’s a great story, George.
MR. COHEN: Now I’ve told each of these stories, you should know, every time I was
honored or being recognized by any of our bar associations because
they’re so illustrative about what can happen in your life when you spend
time in a courtroom. Now I’ll tell you about the boring cases I handled in
the same three years.
MR. POLLAK: Those are great stories in that they show the things that can happen. What
you call boring, which you’re about to get to, obviously is really what
58
happens 99% of the time, so it’s pretty extraordinary that that’s what
happened to you as you began your career.
MR. COHEN: With those two experiences in mind, Marcel Mallet-Prevost and
Mel Welles had a great amount of affection for me because we laughed
together, the three of us, an unprecedented amount of time. These are the
first two cases they gave me, so that the joke was let’s see if we can find
George a couple of run-of-the-mill cases. I then briefed and argued I’d
say in the next two-and-a-half years, six or eight appellate court cases, all
mainstream issues. But the nice thing is I was in different circuit courts. I
argued in the D.C. Circuit and the Fourth and Fifth Circuits. I began to
understand what it is to stand up and make an argument. I also learned
two lessons that I never forgot. Every time one of our young colleagues at
Bredhoff and Kaiser drafted briefs for me, I shared the same things with
them. What were they? Number one, never put in a brief words that you
could not feel comfortable standing up before a court and saying. Next,
when you’re writing a brief, you should be thinking about one thing: this
is a communication with the Court. How do I best communicate to get the
judge(s) to understand what I’m saying, why I’m saying it, and hopefully
why it should directly affect the outcome of the case. I certainly learned
that early on from my own wonderful supervisors at the NLRB. And then
when it came to argument, what I learned when you are second up after
the petitioner has made its argument, resist the temptation of immediately
trying to destroy what the other lawyer said. Make your affirmative case
59
that you’re there to make, and really keep focus on what you want the
court to view as your best foot forward. Third, because I also would like
to talk in a later session about appellate court advocacy, I don’t want to
use them all up, but the other thing, it is so fundamental. Many young
colleagues make the mistake, if they are asked a question, they respond,
“I’ll get to that.” You should never say that. You immediately answer the
question. It doesn’t matter if it’s the beginning of your argument, the end
of your argument. It doesn’t matter if it’s relevant or irrelevant. You are
there for one purpose. That is to say to serve the interest of the Court, and
if the judge asks you a question, you stop what you’re doing, and you
answer that question. And again, I had a thesis that I’ve used all my life,
particularly with our younger colleagues. “This is not your bar mitzvah.”
You are not there because your mom and dad are watching you in the
courtroom and want to applaud you when you’re done. You are there
because you are an officer of the court. I felt if you kept those three things
in mind and, further, never read from your brief, you’re going to do okay
as an appellate court advocate.
MR. POLLAK: Fascinating. I wanted to ask you just to reflect, just for fun, a little bit on
what it was like. You worked from the 1960s to the present, and
obviously there was a little bit of change in how briefs, for example, are
produced, but what was it like to prepare a brief at the NLRB in 1964?
I’m imagining the smell of carbon paper.
60
MR. COHEN: Yes. And yellow pads. I used yellow pads right through. I’m going to tell
you two things which you would completely understand. A NLRB lawyer
in the appellate court is constrained by the decision that has been issued
that you are trying to get enforced. This can be a very challenging piece
of business because sometimes the Board decision is either not written
very well, not quite as informative as you’d like it, and maybe even a little
short of rationale at times. You have an ongoing challenge not to rely
upon post hoc rationale. I had one particular decision which I remember.
I read it, and I said how am I going to write a brief to persuade three
judges that this is a, rational decision of an important government agency.
I concluded the answer was essentially it can’t be done. I did chat with
other attorneys in my office and then read all of the cases on post hoc
rationale which stand for the proposition that when you’re a government
lawyer and you’re standing up in court, you better not try to sell the judges
on any reasoning not contained in the decision itself.
Here was my solution: post hoc rationale is better than no
rationale at all! My colleagues loved that saying because they knew
young appellate court lawyers always shake their heads when they get
decisions that they’ve got to try to get enforced by three circuit court of
appeals judges. Which led me to cynically suggest to my supervisors at
the end of my career that really what should happen is that the Board
members themselves ought to be sent to a circuit court of appeals once in a
while to defend their own decisions. They might begin to understand what
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it takes to write a decision that’s going to end up getting enforced. I
thought that was a great potential solution. The Board members would
always get upset if they found out that one of us in the appellate court
section had lost the case and their decision wasn’t enforced. They wanted
us to know that in their minds, we were not the court of appeals lawyers
they had hoped we would be.
MR. POLLAK: Fascinating. Alright, so we worked our way through the first part, and we
made our way up to 1966 and the important transition in your life, the
important transition in your life, that I can’t wait to hear that part of the
story.
MR. COHEN: I gave you enough to know that I was really totally engaged in my career.
I came to the conclusion that I have had two great experiences at the
NLRB. What do I want to do next? Phyllis and I talked at length about
this because this was going to be an important decision. We had fallen in
love with living in Washington, and I had been through the whole
Kennedy and Johnson period at the NLRB, so the bottom line was I
wanted to stay in Washington. I wanted to represent working men and
women through their unions. That was reverse snobbery A-1. I always
felt there were ten lawyers on management side to one on the union side. I
loved the idea of representing people who worked. I felt that working
people were underrated, underestimated. Period. And lastly, I realized I
had no real skill or experience as a trial lawyer. Also, I thought I had
developed an interest in and a skill in briefing and doing appellate court
62
work. So I started looking around. There was a small union bar in
Washington, D.C. But again, what’s life? Coincidences, relationships,
and luck.
Michael Gottesman and his lovely wife Roberta and Phyllis and I
had met socially two or three years before that. We had shared a number
of delightful evenings and family events together. Their children and my
children were almost identical in age. Bruce came first, and their son Ken,
then my daughter Julie, then their daughter Deb. Michael had just gotten
what I thought was the most fascinating job in the world.
Here’s a quick background. Arthur Goldberg had come from
Chicago in the late 1950s to Washington, D.C. as a highly respected
Chicago labor lawyer. The AFL-CIO had retained him to draft and
negotiate the AFL-CIO merger, which he succeeded in doing, in the late
1950s. And then he had set up his small law firm in Washington. It
consisted of David Feller, who had been a brilliant Supreme Court clerk,
and Elliot Bredhoff, who had been hired out of NYU. The three of them
were the partners, and there were two young associates, Jerry Anker, and
Michael Gottesman. The five of them were together for a short period of
time. And then in the 1965 Steelworkers Union election, an extraordinary
thing happened. The incumbent President, David McDonald, was
challenged by the Secretary-Treasurer, I.W. Abel, affectionately known as
“Abe.” David Feller became the campaign manager for David McDonald.
I.W. Able upset McDonald in the election, and, politics being what they
63
were, David Feller decided it was not appropriate for him to stay in the
firm now that it was going to be representing the Union, led by I.W. Abel.
David formed his own small law firm that Jerry Anker joined. When I say
formed his own law firm, they were in the same suite of offices with a
door between them and two different firms, Bredhoff & Gottesman and
Feller & Anker.
Michael was urging me to join his firm. I was thrilled. First of all,
I was a friend of his already. I had never met Elliot Bredhoff, but I knew
that their major client was the Steelworkers Union. You should know at
that time the Steelworkers and the Autoworkers were the nation’s two
major unions, apart from the Teamsters. Late 1960s, early 1970s, the
Steelworkers probably had 1.5 million members, of whom 300,000 or so
were in Canada. Everybody knew and understood UAW was the more
progressive liberal group but that the Steelworkers were the “meat and
potatoes” guys. I learned all about that from Michael. I was interviewed
by Bredhoff & Kaiser. I had also been interviewed by four or five other
union firms in Washington, D.C., one of which I was very interested in as
well, but I was told by the senior partner that my experience as an NLRB
lawyer had “tainted” my whole future in his firm.
I will tell a story that’s sort of apocryphal, but I will tell it again for
the record. You also should understand I’m four years Michael
Gottesman’s senior, so I’m going to go into a law firm with the secondmost
senior partner in the firm four years younger than me. I am now 32
64
years old, and Michael is 28 years old. Elliott was probably in his early
40s.
The interview, which included things like Elliott saying, “I noticed
you didn’t go to Yale Law School,” where he and Michael had both
graduated from. I said yes. Elliott also said, “I noticed you weren’t on the
Law Review.” I said that is correct. Finally, he said something like what
is the most important thing you have to commend yourself to us, and I
immediately replied, “I have season tickets to the Redskins games.” He
said, “You’re hired.” Even if it didn’t exactly happen that way, it was
close enough that I feel really good telling that story.
MR. POLLAK: Wonderful story. David Feller went on to become a famous arbitrator,
right?
MR. COHEN: Well first he became a famous professor at Berkeley Law School in
California, and yes, David Feller I think is considered to be one of the
most brilliant people who were ever part of the labor movement. He
argued the Steelworkers Trilogy before the Supreme Court. He was a
brilliant professor and a brilliant arbitrator. I had the high honor of
working with him in various times in my life independently of the firm.
On my tenth wedding anniversary in 1968, I assisted him in one of those
Taft-Hartley emergency injunction disputes that he was handling. My job
was to draft stay motions to hand up to the district court and then the court
of appeals. That’s how I spent that night with David Feller. It was an
Indiana plant that made a special kind of bullets that was being shut down
65
by a strike called by the Steelworkers Union. We lost and the injunction
issued under Taft-Hartley. I returned home after midnight to begin my
11th year with Phyllis. As to Jerry Anker, I’ve known him my entire
professional career. He died a few years ago. A wonderful, brilliant man,
and a great friend of Michael and of Elliott’s as well.
MR. POLLAK: George, just one other question about what happened with the split, the
firm around the election between Abel and McDonald. Abel was the
insurgent, and you said Feller became the campaign manager, but we were
McDonald’s lawyers in some respect. I know that counsel is counsel to
the institution, but it’s interesting that Feller had to move out, but Elliot
managed the politics of it, to be able to stay around.
MR. COHEN: We need Michael Gottesman here. I knew Dave pretty well. When he
decided that he was going to be the campaign manager, I assume he and
Elliott had a conversation which he was going to exclude Elliot from that
part of his role. I also don’t know if I’m telling you factually whether I.W.
Abel was the instigator or David Feller was the instigator of his departing.
I am pretty confident it was the latter that I’ve just discussed, but it was
mutual at the end.
MR. POLLAK: Fascinating.
MR. COHEN: Now, to round out the picture that you asked, because these are
fascinating, historical events. Who was I.W. Abel’s lawyer during the
campaign? He was Bernard Kleinman, a terrifically qualified Chicago66
based labor lawyer, who then became the General Counsel of the United
Steelworkers of America shortly after I.W. Abel was elected.
MR. POLLAK: So in some sense it did bring a change because we had been outside
general counsel at Bredhoff, and Bernie then became the first inside
general counsel. I got to work with Bernie at the beginning of my career
in the 1990s and really enjoyed that
MR. COHEN: You were a lucky person. As you’d expect, not as much as Michael, but I
had many cases with him and the whole legal staff, which I’ll talk about a
little whenever you want.
I was making $15,000 a year at the NLRB when I left. I was
promoted one GS each year I was there. I was going to be promoted to
become a supervisory appellate court lawyer just before I left. When I sat
down with Elliott and Michael and they said what are your salary
demands, I didn’t have any, but I said here’s my situation. They said
okay. This was not with my knowledge. Evidently, they decided they’re
going to speak with Bernie Kleinman and the Steelworkers officers and
tell them about me and that I’d been at the NLRB for six years and was
being paid $15,000 a year. In any event, the Steelworkers agreed to pay
Elliot and Michael $7,500 for 50% of my time. I can assure you for the
next four years, I devoted 80% to 120% of my time for $7,500 and
whatever increases Michael and Elliot were able to negotiate.
It gives you an idea what compensation was like as a union lawyer,
and believe me, I was not dissatisfied.
67
MR. POLLAK: Absolutely.
MR. COHEN: I thought I was doing fine.
Now I’m going to try to summarize 1966 to 1970. I would say I
developed and honed all the litigation skills a young labor lawyer would
like in handling traditional run-of-the-mill labor-related litigation
situations.
NLRB. Well since I had been at the NLRB, every time Elliott and
Mike saw an NLRB case (incidentally, Bernie Kleinman knew that) I was
a natural person to do representation disputes and unfair labor practice
cases. I’m not going to discuss this all now, but as a result of that, I was
assigned H.K. Porter and argued that both in the D.C. Circuit Court of
Appeals and the Supreme Court in 1968 as a 34-year-old neophyte. So I
got an amazing fringe benefit out of that case. I also was fortunate to
work with the staff of lawyers in Pittsburgh, General Counsel Kleinman
and his terrific colleagues, Carl Frankl, Jim English, Al Lawson, to name a
few. They all knew that I was part of the team, and so they were always
conferring with me about NLRB-related matters. In cases assigned to me,
I was always the lead lawyer on behalf of the Steelworkers Union, but
they were giving me whatever assistance I wanted.
Okay, so I had a great experience as a neophyte. I went to Michael
and spent a lot of time getting his advice and guidance.
I had oodles of breaches of the duty of fair representation cases
where the unions are defendants, first before the NLRB and then federal
68
district court and courts of appeals. I handled suits to enforce arbitration
awards. I handled suits in opposition to companies trying to set aside
arbitration awards. I had a lot of lawsuits under Landrum-Griffin
involving union elections. The Steelworkers had an incredibly
comprehensive program whereby any candidate who lost a local union
election had an internal union appeal, and it wasn’t a kangaroo appeal. It
was a legitimate one.
At that time, the Steelworkers probably had 5,000 or 6,000 local
unions running elections every two or three years, whatever the law
required. Of those elections, probably 500 were appealed, internally. Of
those, probably 200 or 300 ended up with potential litigation with the
Labor Department petitioning before a federal district court to set aside the
election results. For example, challenges to meeting attendance rules and
conduct before the election. The Department of Labor issued complex
regulations. The people who were administering and enforcing those
regulations, I’ve got to tell you, were overly enthusiastic about their ability
to try to set aside elections. I can only say to you I argued at least 25 of
those related cases in four years.
Bernie Kleinman had the following “modus operandi.” The
Steelworkers Union would not hire local counsel in every area of the
country like every management law firm did, and many unions did. Oh
no. He said, we’re going to control our budget. We’re going to control
our destiny, and we’re going to control the way the law is being made. So
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Mike and George and Carl and Jim, you’re the guys. You’re going to go
into every court.
So what did that mean? That meant that not only were you in
federal district courts all around the country but, Roger, the opposing local
lawyer had either been at church with the judge before, had been at parties
with or a friend of the judge. For example, Bethlehem Steel was never
going to use a lawyer in any federal district court case who wasn’t a major
player in the bar of that particular federal court. And you know I had
clients who thought that given my NLRB expertise, these judges are just
going to fall over backwards when you stand up and argue. On the one
hand, you don’t want people to think that you’re not capable of winning an
argument, but you don’t want them to believe that by selecting me, they
had a foot in the door, because the lawyer arguing against me had already
been in that court 25 times in the last 5 years in his life.
You could just imagine what kind of courts you’re in. I mean I
was in Boise, Idaho. I was in the South. I was in the Midwest. I was in
Landrum-Griffin cases where the insurgents would come to the courthouse
having read my resume. One plaintiff once stopped me as I was about to
make an argument against his position. He was trying to set aside a
steelworker election that he lost, and he stood there in front of about ten of
his buddies and he read from Martindale-Hubble, you’re a member not
only of the Seventh Circuit, but also the Third Circuit, the Sixth Circuit,
and Ninth Circuit, et cetera. This was a very interesting phenomena in
70
Landrum-Griffin cases. My clients, Steelworkers International Union
officers, were being criticized for sending me to oppose their efforts to
undo a local union election.
MR. POLLAK: Very interesting. So you had some additional experiences similar to what
happened in Brunswick, Georgia?
MR. COHEN: On occasion, yes. What I left out in the world of litigation, which is a
terrible omission, is my first assignment as a Steelworkers lawyer and, you
know, I’m now famous with you for first assignments. In September
1966, I walked into the office, shook hands, and Elliot and Michael told
me we’ve got a really interesting thing for you to do. Pack your attaché
case and head over to the DOL, the Office of Federal Contract
Compliance. The OFCC has begun a landmark precedent-setting
procedure against the Bethlehem Steel Corporation alleging that the
company, one of the biggest government contractors in America, should
be debarred from having another government contract based on their long
history of employment discrimination against black employees, both in
hiring assignment and other terms of employment. In addition, they
alleged that the seniority system negotiated between Bethlehem Steel and
the Steelworkers that had existed for years and years, the “unit seniority
system,” albeit neutral on its face, had an adverse impact on black workers
and hence was unlawful. That system was the “bread and butter” of the
United Steelworkers of America all across our country. Now the OFCC
wanted it to be declared null and void. So your job, George, is to support
71
the OFCC’s challenge to all the discriminatory employment practices that
Bethlehem had engaged in, but on the other side of the aisle, you are to
oppose the OFCC’s initiative to set aside the unit seniority system. That’s
all I had to do!
MR. POLLAK: Just like that.
MR. COHEN: Just like that. The Steelworkers had already formally intervened. That
proceeding went on for months, but not every week or every day. I
appeared as the only lawyer for and on behalf of the United Steelworkers
of America. Bethlehem Steel had a team of lawyers from Cravath,
Swaine, and Moore and in-house as well. The OFCC had about twelve
lawyers representing every aspect of the government. Fortunately, I had
with me the most experienced, talented, skilled representative from
headquarters in Pittsburgh. Probably the most famous of all was Ben
Fisher, who had just replaced a chap named Marvin Miller, who was once
the economic guru of the Steelworkers Union and had just left to become
the first Executive Director of the Major League Baseball Players
Association. And the irony, in retrospect, MLBPA became my client in
1980. So I had Ben Fisher. I had a gentleman named Dee Gilliam, who
was the head of the arbitration department. I had the heads of the civil
rights and apprenticeship programs. I had a whole bevy of talented staff.
But the enormity of trying first to digest the history of this industry and
then to know what to ask when the time came for me to examine witnesses
was awesome. What did it teach me? It taught me what it meant to learn
72
a lot quickly and then to use your resources to the maximum extent
possible. I think it influenced my whole outlook on how exciting the
practice could be, what your opportunities were, and how important a job
you’re given. Because here’s this great, powerful union caught in this
amazing dilemma.
So the final part of the story, which I was not involved in but
Michael was, focused on the issue I described to you – the seniority
system. I won’t go into detail on that, but in simple terms, it meant you
were assigned to a particular unit. There were thousands of units in a
major basic steel plant, and that unit was designed to be the most efficient
because everybody there worked with each other. And naturally, to get
the maximum productivity, it was industry’s desire that employees stay in
that unit, be the most productive and get their promotions within the unit.
So if you transferred to another unit, you lost your unit seniority and had
to start again to accumulate seniority at the next unit you transferred into.
This necessarily was an impediment to workers transferring and mobility.
There were a large number of United States Circuit Court of Appeals
decisions over the next ten years raising that issue with other corporations
in other settings. Every single one of those ruled that there was an adverse
impact on the ability of black employees to transfer out of jobs they were
initially discriminatorily assigned to by the company into more desirable
jobs. Thus, even though it was a racially neutral system, the courts set it
aside in violation of the Equal Employment Opportunity law. The United
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States Supreme Court disagreed with every one of those decisions years
later and held that system was entitled to be enforced because it applied to
all employees – black and white alike – and it was not established with an
intent to discriminate. It was a Teamsters case, so Michael didn’t argue it.
I think it may be the only case the Supreme Court had ever decided in
which it essentially overruled so many circuit courts. So I had a chance to
live all of that.
MR. POLLAK: Before the Supreme Court ruled, was the steelworkers’ seniority system
also struck down by the Circuit Court of Appeals?
MR. COHEN: Now I have to go back. That’s a very good question.
MR. POLLAK: Right. I knew there was litigation throughout the 1970s.
MR. COHEN: We need Professor Gottesman to talk us through that.
MR. POLLAK: I came to Bredhoff because of Professor Gottesman. He taught at Yale,
and that was where I found out about Bredhoff and Kaiser.
MR. COHEN: You were both fortunate.
MR. POLLAK: Alright. Well then that brings us to the fourth page of your wonderful
outline. You wanted to talk about the beginning of your career as a
negotiator and then also about the beginning of public sector collective
bargaining. Of course when I met you, you were hard into a lot of
different bargaining activities.
MR. COHEN: Okay. I neglected another thing that’s worthwhile you’re knowing about
my life, Steelworker Union negotiations. First of all, there was something
called the top five committee with authority to negotiate all economic
74
benefits industrywide. The management side was represented by the
CEOs of the five largest, most powerful companies led by U.S. Steel and
Bethlehem Steel. For the Steelworkers, Bernie Kleinman and Elliot
Bredhoff were the two lawyers, along with President I.W. Abel and the
two other highest-elected union officers.
All local working conditions were negotiated separately with each
company. So Elliot would delegate to Michael, and then, to a lesser
degree, to me, various functions that we handled involving sub-special
committees, such as contracting out of bargaining work, safety and health,
and grievance-arbitration. Even though I was not directly involved in any
of the major bargaining, I got a chance to understand what collective
bargaining was like when you’re talking about the behemoths of the steel
industry. And I had the good fortune to be in two or three of these really
important subcommittees.
I also did work every four years on Steelworker Conventions, the
Union’s highest policymaking body. A week before every convention, all
the committees met, and Michael and I were assigned by Elliot to various
roles. We were sent to certain committees, usually the constitutional
committee or the collective bargaining committee. The committee
members were local union officers and International Union officers and
staff members. We would spend one week, night and day, listening to the
committees’ discussions, to the debates, and then when it came time to
write the committee reports after they coordinated with us on any legal75
related issue, we played a role in drafting the committee reports and
proposed amendments to the constitution. Then, of course, we had the
good fortune to stay at the convention. You can imagine what it was like.
At that point, 5,500 local unions sent delegates. The main speakers were
all the national political leaders, all the leading lights in the world of labormanagement
relations, professors, academia, et cetera. Those conventions
took place in Atlantic City and Las Vegas. They were monumental
experiences in my life, staying up night and day learning how to drink in
the middle of the night and still be able to work early in the morning, all
part of becoming a rank-and-file union lawyer.
MR. POLLAK: I.W. Abel was reelected and reelected for two more terms, right?
MR. COHEN: He was President 1965 to 1977
MR. POLLAK: We talked about the negotiating teams, and we’re on the last page. Do
you want to talk about H.K. Porter and your representation of the
steelworkers?
MR. COHEN: No. I think I want to save that for the Supreme Court interview because
that’s too long. I want to tell you since I started with public sector unions
in 1968, and I promise you I’ll do 1968 to 1970. So, I’m sitting in the
office, and this in 1967 or 1968, completely ensconced in the Steelworkers
Union. We also were representing the United Hatters Union, and on
occasion Elliot would ask me to do something as he was also counsel to
the Industrial Union Department, AFL-CIO.
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I would say that initially 90% or 95% of my work life was the
Steelworkers Union. Then, beginning in 1966-1967, an amazing
phenomena takes place in American labor relations. One state, county,
municipality after another issued ordinances, laws, et cetera, saying two
things. One, public sector employees can organize lawfully. Procedures
were established to let employees select a union if a majority of the
employees in an appropriate unit for bargaining opt to vote in a secret
ballot election for a union. And second, the union can then engage in
collective bargaining with the employer to set mutually agreed upon
wages, hours, and terms and conditions of employment. But this is public
sector. This is police, firefighters, teachers, IRS agents. We can’t let them
willy-nilly go out on strike, which is the premier economic weapon that
private sector unions have. So what are we going to do? We’re going to
declare that public sector strikes are illegal and put some real teeth in
those words, which I’ll tell you about in one section about the Virginia
law. Well if you engage in a strike as a public school teacher or police or
firefighter in Virginia, you’re immediately discharged, and you can never
be employed again. And as one Fairfax County teacher group said to me
when they hired me, would you say that again, George. Do I understand
you to be saying that if I go out on strike, I will automatically be fired
without any recourse and never again be hired by Fairfax County. Yes.
You have heard me. Let me say that one more time because 250 of you
are in this room at this time. So you have significant rights, but they’re
77
only in accordance with the rules and regulations of the law or ordinance.
What this meant in practical terms is that a wide variety of dispute
resolution procedures emerged depending upon the particular jurisdiction
in which you were employed. A few examples would be informative. In
lieu of the right to strike, most jurisdictions provided for mediation after
an impasse in the negotiations. Some went on to provide for final and
binding arbitration (“interest arbitration”) from a neutral arbitrator selected
by the parties. Still others would only provide for a fact-finding procedure
without the ultimate step for arbitration, et cetera. And I do recall that the
District of Columbia had enacted a unique variation. The arbitrator’s
award was final and binding only if two-thirds of the City Council
approved.
In any event, for my first experiences, I was then retained by the
Arlington Education Association (1,000 classroom teachers), the Fairfax
Education Association (5,000 teachers and administrators), and the
Education Association of Alexandria (1,000 teachers). All of these
organizations were under the umbrella of the Virginia Education
Association in Richmond.
Next, officers from Local 36 IAFF in Washington found out about
Bredhoff and Gottesman. They went to Elliott. Elliot said to me, since
you’re already representing all these teachers, why don’t you take
Local 36 Firefighters as well. Great. And then Local 36 told another
firefighter local in Prince Georges County which thereafter resulted in my
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being retained by the Fraternal Order of Police (FOP)local in that same
county. So to make a long story long, you can see what I’m telling you.
Between 1966 and 1968, I now have the dream come true, hahaha. I’ve
got all these new clients, and they’re all total neophytes. Nobody has ever
done anything about union organizing or collective bargaining. Initially, it
was just me. Over time, I put together a great team. Jeremiah, Bob, Jeff
Gibbs, and later, Mady Gilson and Devki Virk. I lived in Fairfax. I would
drive to Arlington either 8:00 in the morning or 5:00 in the evening. It
was like a “hobby.” I’m being paid probably $35 an hour, but I’m just
going to meet with these people and listen to them tell me their problems,
tell me what they want, and then try to create a solution.
Arlington was the poster child. Arlington’s Superintendent of
School finds out the teachers retained a labor lawyer from Washington,
D.C., and he decides he needs a really strong management labor law firm.
So the joke became that wherever I went, Morgan Lewis and Bockius was
retained. I never asked for any share of their retainer! I can assure you
their retainers were much larger than mine.
On behalf of the Arlington County teachers, I negotiated the first
Recognition Agreement in the history of Virginia for public sector
teachers. That took about a week of trying to slowly but surely persuade
the other side it was in their best interest not to go through a big election
proceeding and instead use card checks. Under the card check system,
employees were asked to sign and date a standard card stating in essence
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“I hereby authorize (insert name of labor organization) to serve as my
exclusive representative for purposes of negotiating my wages, hours, and
conditions of employment.” Those cards would be presented to a jointly
designated neutral, an arbitrator or priest, for example, to compare, the
signatures on the cards with the employee’s payroll signatures maintained
by management. And if a majority of the teachers in the bargaining unit
had signed valid cards, management would recognize their representative
and commence collective bargaining. After the Arlington School Board
agreed to this procedure, Fairfax and Alexandria did likewise.
The first rounds of bargaining were all “doozies.” I was not able to
reach any negotiated agreements, not at all surprising as this procedure
was so alien to all concerned. Ultimately, however, thanks to the dispute
resolution mechanisms, agreements were reached with the negotiating
committees and approved by votes of the rank and file teacher members
and their respective school boards.
The quality of the lawyers I dealt with on the management side,
like Chuck O’Connor and Harry Rissetto, were very instrumental, in
resolving disputes to reach agreements.
MR. POLLAK: I’m fascinated by two things. One is, everything under these public
employee organizing and bargaining laws was a question of first
impression, and then there were no contracts. You had to produce them
out of whole cloth, so presumably once you got one maybe in Arlington,
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then at least you had a form to work with, but when you were starting out,
what did you draw on to begin to like structure these.
MR. COHEN: That’s the 64-dollar question. So let’s go over what I did. These are the
no-brainers. You identify people who can really educate you about their
problem and possible solutions. And I was really fortunate. Almost every
executive director and/or their immediate staff provided that help. But
you understand fully that this didn’t happen in a day or a week or
sometimes a month to educate yourself.
And then I taught them about the need for priorities, and I taught
them what you “want” versus what you “need.” I developed all these
catch-all phrases with the idea that they would respect me for the help I
was giving them and get them to understand I was there for them. And
they began to appreciate that without an agreement, they have nothing.
With an agreement, they have stability, agreed-upon economic benefits
and working conditions. In Arlington County, supervisors have only a
one-year term. They said we can’t be bound by anything more than one
year while we’re in office. And I said to them, you are going to regret
those words, and of course, one year later, they said yes, we think we want
a two-year contract. That would avoid dealing with me every year! That
was the joke. We don’t want to be in the room with him that often.
So it was a great mutual learning experience. I was learning, they
were learning, everyone was learning. And, of course, the second round is
easier. And the other most fundamental thing I always said to them, and
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you will appreciate this. What they all wanted to do is draft a 120-page
document and give it to the other side to begin bargaining. And I gave
them as nice a half-hour lecture as I could, which ended up with me taking
the 120 pages and throwing it against the wall. That’s what you’re going
to get when you hand the other side those proposals before negotiating.
In Virginia, it was all a new procedure. There was no road map.
That’s fair to say. So you sit down and say okay, I’ve got classroom
teachers, first to sixth grades. I’ve got junior high teachers. I’ve got
senior high. I’ve got teachers who are music teachers and art teachers.
Everybody has their own individual interests and own individual concerns.
We have to set up committees. I want the three best, smartest people in
phys ed. I want the three smartest in arts and music. You figure out one
of the things that we get good at doing, as you know, is analyzing and
evaluating and coming up with a plan of action. Within the bargaining
unit, there were many different interests. Young teachers were focussed
on pay raises now, while more senior teachers focussed on pensions and
healthcare. So in a nutshell, negotiating within your own team. I’ve
always said it’s sometimes more difficult than to deal with the
management.
MR. POLLAK: That was certainly my experience. Were the Defined Benefit Pension
Programs in place before the unions?
MR. COHEN: I used Penny Clark to help me deal with all the complex pension issues. I
did this because the Fairfax system had decided the following: Since on
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average female teacher lives longer than the average male, we ought to
have an actuarial deduction for all women in terms of their pension. As a
group, women are going to live five years longer, and they’re going to get
monthly pension payments five more years than the men are getting. So
they’re going to get $80 a month less than the men. Wow. Chuck
O’Connor from Morgan Lewis and I sat down in 1968 or 1969 to
successfully persuade each of our clients to end that disparate treatment.
And yes, that was an interesting experience. He remembers that just as I
remember doing that.
MR. POLLAK: This is fascinating. I think that brings us to the end for today. I’m sure
that you are all talked out. This is the end of our second installment with
George Cohen. We’ve talked our way up to about 1970.
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Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Tuesday, January
18, 2022. This is the third interview.
MR. POLLAK: Today George and I are going to talk about OSHA and George’s amazing
experience with what was then a brand-new statute back in 1971, perhaps.
So, George. Hello. How are you?
MR. COHEN: Hello. I’m fine. Thank you for being here again.
MR. POLLAK: You’re so welcome. It’s my pleasure. So, George, what is it that led you
to want to focus your attention on OSHA in this interview?
MR. COHEN: The Occupational Safety and Health Act (“OSHA”) became effective in
1971. Over the course of the next ten years, I had the privilege of serving
as the lead counsel for various unions in the most significant cases brought
by representatives of American industry in numerous U.S. circuit courts of
appeal challenging occupational health standards promulgated by the
Secretary of Labor pursuant to his broad authority under Section 6(b)(5),
OSHA. In a nutshell, each of the standards was designed to provide
meaningful protection to the many thousands of working men and women
in each industry where they were exposed to a toxic substance recognized
as hazardous to their health – namely, asbestos, lead, cotton dust, coke
oven emissions (steel industry), vinyl chloride, and arsenic, to name just
the major standard-setting initiatives. The D.C. Circuit reviewed lengthy
briefs, heard oral arguments, and issued comprehensive decisions in the
asbestos case (Judge McGowan, case of first impression under OSHA),
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the lead case and the cotton dust case; other circuits did likewise, the
Second Circuit in the vinyl chloride case (Justice Tom Clark, retired,
authored a unanimous opinion), the Third Circuit (coke oven emissions
standard), the Ninth Circuit (arsenic standard). In virtually all respects,
each of the Secretary’s standards was affirmed. Thus, history was made as
this was the first time that workers (or their predecessors) whose lives
were literally at stake received court-ordered protection against the
hazards they confronted merely by going to their workstations. And yes,
Roger, together with the Department of Labor’s counsel, I argued all of
those cases. Of course, with the benefit of incredible assistance from my
colleagues at Bredhoff & Kaiser. In retrospect, the representation I
provided in those cases, plus my role in successfully arguing before the
Supreme Court in the cotton dust case, were without doubt the most
satisfying and rewarding aspects of my career. Mr. Justice Brennan’s
majority opinion essentially embraced the interpretations of the key
provisions of OSHA that we had consistently championed in each case for
the entire period. That alone was extraordinarily rewarding
professionally. And from a personal standpoint, my clients recognized me
as the “go to” union OSHA guy. Perhaps more satisfying, I had earned the
respect of my peers, prominent corporate lawyers and talented counsel for
the Department of Labor, et cetera.
The Historical Society may be interested in knowing my review of
“dusty files” disclosed that I presented about 25 oral arguments before the
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D.C. Circuit in OSHA cases. The judges I appeared before reads like a
“Who’s Who” of legends, McGowan, Bazelon, Skelly Wright, Leventhal,
to name just a few. Those experiences led me to recommend to you that
an OSHA interview ought to be a self-contained event.
MR. POLLAK: Very good. Can you talk some more about your Supreme Court
experiences?
MR. COHEN: Yes. We had the two lead cases that emanated from all the work we had
done. First was the Benzene case in 1979. I won’t focus attention on that
because the Supreme Court in essence said it wasn’t satisfied that the state
of the record enabled it to address the complex legal issues. Interestingly,
one year later they granted cert in what is known as the cotton dust case,
American Textile Manufacturing Institute versus OSHA, and that became
the lead case before the Supreme Court. To repeat, Mr. Justice Brennan
authored a majority opinion in which amazingly all of the arguments we
had pursued going back ten years were essentially adopted by the Court.
It vindicated the positions that we had espoused. But for the fact of the
intervening election of President Reagan on the heels of the Supreme
Court’s decision, the unions and the government were perfectly situated to
provide the maximum protection to working men and women in all
occupational health standard-setting initiatives.
MR. POLLAK: I have a feeling maybe we’ll come back to a little more of that later on, but
how did you first become involved with OSHA and litigation around
OSHA?
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MR. COHEN: You know, Roger, my basic theme in life is “coincidence, coincidence,
coincidence.” And this is a classic example. It’s still quite vivid in my
mind. OSHA was passed in 1971, but the effective date was delayed until
the spring of 1972. Somewhere in that timeframe, the Bureau of National
Affairs (BNA), the best-known labor periodical, decided that, given that it
was a new statute, they were going to conduct a major conference inviting
government officials, industry representatives, union representatives,
public interest representatives to a one-day orientation program in
Washington, D.C. Elliot Bredhoff, then my senior partner, was contacted
by BNA, and all I can recall is probably on a Friday afternoon, he walked
into my office and suggested it would be a good experience for me to be
the presenter of the union’s position on the panel. I asked when was the
meeting going to take place, and I believe he told me Monday morning.
So I then hid in my office that weekend. I read the statute, probably the
first union lawyer to do so. I did some quick legal research of the
legislative history, and I appeared on the panel. My task was to provide a
preliminary view of a union lawyer’s perspective of what was in that
statute.
MR. POLLAK: What was your first impression of the statute?
MR. COHEN: Roger, my first impression was oh my goodness, this is astounding. As
you know, our practice included a number of labor laws that predated
OSHA. And I felt when reading that statute there were more express
provisions giving unions participatory rights than any labor law statute I
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had ever read. Further, the thrust of the statute was extremely union
friendly. So when I was done reading it, I thought whoever was
responsible for enacting this ought to be given an award because it was so
oriented to the problems that working men and women have had long
before that statute was passed.
MR. POLLAK: Interesting. That was the Nixon administration.
MR. COHEN: Absolutely. It was contemporaneous with the EPA. Those two statutes
were enacted during the Nixon administration, and they gave you a sense
of what could be accomplished when Republican and Democratic
congressmen and women were working together to honestly address
serious problems.
MR. POLLAK: Yes. Something we all wish we were seeing more of currently. Tell me
about some of the basic provisions of the statute particularly as they came
into play with your litigation and other involvement.
MR. COHEN: So you know when you read a 25-page single-spaced statute there’s a lot
of meat to absorb. I would synthesize it by saying the two most critical
components in terms of unions and working men and women were what
was known as the basic “general duty clause,” which provided that all
employers covered by this law are obligated to provide their employees a
place of employment free of “recognized hazards.” That was the
fundamental catch-all provision. And then, of course, the whole world of
the Secretary of Labor being given the authority under what I considered
to be the single most important section of this law, Section 6(b)(5), to set
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occupational health standards. I think it makes sense just for the record to
read the precise words of Section 6(b)(5) so that everyone understands
what it actually said. Section 6(b)(5) provides:
The Secretary . . . shall set the standard which most adequately
assures, to the extent feasible, on the basis of the best available
evidence,” and here comes the real kicker, “that no employee will
suffer material impairment of health or functional capacity even if
such employee has regular exposure to the hazard dealt with by
such standard for the period of his working life.”
The legislative history made clear that when Congress used the
phrase “working life,” they meant upwards to forty-five years of
employment. So here was Congress announcing that we are requiring the
Secretary to set the standard so that if you’re exposed for the entire period
of your working life, there will be no material or functional impairment of
your health. Amazingly powerful declaration.
MR. POLLAK: Amazing. So, what were your thoughts after reading that provision?
MR. COHEN: My thoughts were first of all that I’m a neophyte. I knew nothing about
occupational health in 1972, so my first question that you’d completely
understand was what are the types of substances that have never been
regulated before. I listed many of them earlier. And what immediately
came to my mind when I quickly looked at the summary of the legislative
history was the following: there are state worker comp laws. They’ve
been in effect for many, many years, but none of those statutes seem to
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meaningfully address occupational health hazards. Most of them were
involving safety issues, workers injured because of machine malfunction,
cave-ins on construction worksites, for example, and they were all
premised on the principal that there’ll be after-the-fact compensation of a
minimal amount of money in consideration for the provision that
employers would face no-fault liability. No employer could defend on
liability grounds, but the converse was workers weren’t going to get very
much, i.e., lost wages plus small lump-sum payments and paying hospital
and medical expenses, et cetera. By contrast, when I finished reading
6(b)(5) and the legislative history, the basic principle was the exact
opposite. The principle was we have to take steps in advance to protect
working men and women so that they will not suffer the adverse
consequences of being exposed to toxic chemicals. A remarkable change
of purpose.
MR. POLLAK: Extraordinary. I take it by saying across their whole life, forty-five years,
that that could mean very low levels of exposure but over a long period of
time were protected. How were the standard-setting rulemakings
conducted?
MR. COHEN: Well, I’ll tell you what Congress had in mind. It was what we would refer
to as “informal rulemaking.” But in order to really understand what
happened, Roger, I think a certain backdrop is important. Congress
understood that giving the Secretary of Labor all this authority in areas
that obviously involved significant medical judgments, et cetera, it was
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imposing a burden involving a subject concerning what the Secretary
lacked, expertise. So thoughtfully, Congress established in the law a new
federal agency, the National Institute of Occupational Safety and Health,
the famous acronym “NIOSH.” And what Congress said was we want a
group of public sector doctors, researchers, and epidemiologists to be the
research arm of the Secretary. NIOSH, among other important functions,
was to ascertain which, on a priority basis, were the worst toxic chemicals
in terms of either the health risks they created or the number of employees
who were going to be subjected to those kinds of exposures. And that
became a critically important part of the way OSHA was administered.
This led NIOSH to make recommendations to the Secretary, both as to
which chemicals should be the subject of standard setting and what the
appropriate permissible level of exposure should be.
A “Notice of Proposed Rulemaking” took place, and hearings were
conducted under the auspices of the Secretary. The hearings, Roger,
would last somewhere between one and three years. Oodles of
government officials testified, industry retained large numbers of doctors
and researchers as their experts. We on the union side did the same.
Public interest groups appeared. Thousands of pages of testimony were
generated. Hundreds of exhibits were included in the record, and,
ultimately, it was the task of the Secretary to promulgate a standard which
then would be subject to court review, directly to a court of appeals.
MR. POLLAK: Were the proceedings confrontational?
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MR. COHEN: The proceedings were extraordinarily confrontational. I must say,
parenthetically, neither myself nor anyone from my law firm was involved
except in rare instances. Staff representatives and safety and health
experts from all of the major unions involved were the people who
participated. On occasion, I was asked to appear at a hearing where my
clients thought it was going to be particularly confrontational and a legal
issue was implicated. My best example of a confrontation went something
like this. NIOSH was recommending to the Secretary that there ought to
be two premier ways in which to address the problem of achieving a PEL.
One was engineering controls. For example, ventilation systems. The
other was ongoing work practices that would ensure that there was a
continuous effort made to “monitor” what was going on in the workplace.
On the other side of the aisle, the industry folks, realizing engineering
controls were costly, vigorously opposed them. Their alternative answer
was let’s put respirators on working men and women eight hours a day,
five days a week. So the day that particular critically important issue was
before the hearing panel, I was asked to participate. The representatives of
all the parties sat in an audience at the Department of Labor auditorium.
You raised your hand. You were given five minutes to question members
of the panel. They yelled, “Mr. Cohen on behalf of the Steelworkers
Union.” I stood up, and I looked at a gentleman who was representing
industry. His attire was a three-piece suit, the vest, a watch fob, and
perhaps a Harvard Law School alum. I suggested we ought to call a brief
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recess during which time a respirator would be put on him for five
minutes, after which I’d like to ask him a few questions about his
experience with wearing a respirator. That was not greeted with a bit of
enthusiasm from my industry counterparts. My request was denied, but
my clients were delighted. I believe it also helped to seriously focus
attention on the difficulty, the real difficulty, wearing a respirator would
have. We recognized that sometimes you accept respirators as an
alternative in an “emergency” setting, but certainly not as the favored way
in which industry should be allowed to handle the entire permissible
exposure level situation.
MR. POLLAK: Amazing, but not surprising, sadly. So there would be these one- to threeyear-
long procedures where there’s notice and comment, I take it it was
just the administrative procedure, then there was going to be review, and
I’m guessing that the appeal would be generally from the business side,
the corporate side.
MR. COHEN: That’s a very good question. The answer is yes it was. Two things you
should know were that what the statute provided was quite fascinating.
Any party aggrieved by the standard, and virtually every one of these
situations industry asserted that it was being aggrieved, could file a
petition to review in the United States court of appeals wherein such
person resides or has his principal place of business.
I want to quickly tell you that individual employers were not
usually the moving “party” in the court cases. I’ll give you four or five
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examples. When the asbestos standard was promulgated, the Asbestos
Institute of North America petitioned; with the coke oven standard, it was
the American Iron and Steel Institute; when the cotton dust standard was
promulgated, the American Textile Manufacturing Institute. And what
were they? They were organizations, generally industry lobbying arms,
that created big war chests. They hired doctors, they retained lawyers, the
researchers, engineering experts, economic consultants, and they had
enormous resources available to them.
The unions intervened in those cases. But a union also had a right,
if it felt that, on balance, the Secretary’s standard was worthy of our
support, which is what occurred in almost every case. However, if we had
an issue or two against the Secretary that we thought was worthy of court
of appeals review, we had the right to file as petitioner. And a number of
these lawsuits the Industrial Union Department AFL-CIO or AFL-CIO or
the Steelworkers Union did so. But for the unions, most of our time was
spent firming up the comprehensive provisions of the Secretary’s standard.
MR. POLLAK: Were there other provisions set forth in OSHA that you want to discuss?
MR. COHEN: They were unlimited, of course. I mean a union or employees could
exercise their rights to allege that the employer is either violating the
general duty clause or a particular provision of a standard. A union could
file a charge that would generate an inspection of a workplace by a federal
inspector employed by OSHA. A union also had the right to participate in
the actual walk-around inspection. If the inspector thought there was a
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violation, the inspector could issue a citation, which usually included two
components: a civil penalty, and even more importantly, an “abatement
date” setting forth when the employer was required to correct that
violation.
So basically what happened is that you’d have an evidentiary
hearing before an administrative law judge, all provided by the statute.
Any party aggrieved by the decision of the administrative law judge could
appeal to a commission that was established by this statute, the
“Occupational Safety and Health Review Commission,” and that decision
of the Commission, a la the NLRB, was likewise appealable to a U.S.
circuit court of appeals. All that was provided.
There were provisions addressing “imminent danger” situations.
There were provisions anticipating, as you just pointed out, a situation
where we shouldn’t have to wait for three years before a standard issued.
It authorized an “Emergency Temporary Standard.” There were also
provisions for criminal conduct and provisions for the relationship
between the federal government and states who might want to assert
jurisdiction over this subject area. It was a very thoughtful,
comprehensive approach to the vast variety of safety and health situations
that the parties were familiar with by the time OSHA was enacted.
MR. POLLAK: Just as a side note, was the standard promulgated to deal with COVID that
came before the Supreme Court, was that an Emergency Temporary
Standard?
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MR. COHEN: Yes it was. While you say that, yours truly had one experience very early
on with an Emergency Temporary Standard, maybe one of the first, or the
first that was ever issued by the Secretary. It took place under
circumstances in which three workers died of a particular type of liver
cancer, which the researchers told us was caused by their employment at a
Goodrich Tire facility in Louisville, Kentucky, where they were exposed
to what was called vinyl chloride. While the Secretary was contemplating
whether to seek an Emergency Temporary Standard, three other rubber
corporations advised that ten other employees had likewise died from the
same liver cancer. So an Emergency Temporary Standard was issued. It
was immediately challenged by the Society for the Plastics, Inc., in this
instance in the Second Circuit Court of Appeals. We had nothing to do
with the actual setting of the standard, but Larry Gold, on behalf of the
AFL-CIO, and myself on behalf of the Rubber Workers Union, were
retained to handle the court of appeals case in the Second Circuit.
That was another unique, quite astounding experience because
when we arrived in the Second Circuit, who were on the panel? It
consisted of Mister Justice Tom Clark, retired, presiding together with two
designated federal district court judges. This was one of the most
interesting arguments I’ve ever participated in because when opposing
counsel Mr. Conley stood up on behalf of the industry and Firestone Tire
and Rubber Company, the first words out of his mouth were, “You should
not be intimidated by the presence of the AFL-CIO and Messrs. Cohen or
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Gold because after all, only three workers have died.” At which point,
Justice Clark interrupted him and basically said, and how many more
deaths do you think we should wait for until the Secretary acts? I looked
at Larry, Larry looked at me, and we knew we didn’t have too much to say
as far as that argument was concerned.
MR. POLLAK: I was going to say that sounds like one of those classic situations where
less is more.
MR. COHEN: Exactly. And Justice Clark authored a phenomenally powerful opinion
which undoubtedly added to the development of what followed, all the
very powerful opinions that were issued by other circuit courts of appeal.
It was virtually unanimous as to how they were reacting to the
enforcement of the law and what the law was designed to do.
MR. POLLAK: That’s a good segue to asking you about who your clients were in all of
this work that consumed you for a decade or more.
MR. COHEN: I’ll tell you my clients, and then I’ll tell you the back story. Initially, our
clients were the law firms’ clients, namely, the United Steelworkers of
America, and there was a wonderful organization called the Industrial
Union Department of the AFL-CIO, which, as you know, was an
administrative arm of the AFL-CIO, a counterpart to the Building and
Construction Trade Department at the AFL-CIO. The IUD was designed
to represent all the basic manufacturing unions. So those two were our
clients when I started to handle OSHA cases.
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After we had become the go-to union firm in this subject area, our
client base expanded extensively and included the AFL-CIO itself, the Oil
Chemical Atomic Workers, the Amalgamated Textile Clothing Workers
Union, the United Rubber Workers Union, and others. So as each one of
the standards appeared to be affecting workers represented by a particular
union, we had the high honor of being retained to represent them, even
though we weren’t their regular general counsel.
MR. POLLAK: Just as a historical note, was the IUD sort of the institutional expression of
the CIO after the merger?
MR. COHEN: That’s exactly what it was. One of the original leaders of the Industrial
Union was the President of UAW, and then later on, other major industrial
unions.
MR. POLLAK: Bredhoff and Kaiser, going back to when it was Arthur Goldberg, he
represented the CIO.
MR. COHEN: Yes. We were always on the industrial side of the sector.
MR. POLLAK: Which I can say comes down to the current day.
MR. COHEN: Yes. I think there’s one other thing that you can understand in the
chronology. After the BNA experience, we started getting some calls
from other unions because there was a lot of publicity involving the panels
I participated in and my emphasis on the broad array of union rights under
OSHA. I also started being invited to various labor law conferences
around the country. I spoke in Ohio at the Midwest conference. As a
result of that presentation, I started receiving calls from our colleagues in
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the union bar asking what more guidance I could offer them. So I made a
decision that, in retrospect, turned out to really be an intelligent one. I
decided to write a law review article. My article appeared in the 1972
Ohio State Law Journal. I basically gave union lawyers a primer on the
history and substance of the law, what rights they should be looking at in
terms of what they can do to represent unions effectively, what were the
open legal questions, and what additional thoughts they might have to put
their best feet forward for their clients. I believe the combination of what
happened at that conference plus the law review article and the
dissemination of it emphasized the fact that if you wanted to get some
help, call Bredhoff Kaiser and ask for me.
MR. POLLAK: Sounds like it. Super interesting. Tell me a little bit about the union staff
that you got to work with at this time. I’m sure they were very important.
MR. COHEN: I already said to you I started as a total neophyte. I realized very early on
that I needed a lot of help, a lot of education and orientation, and I got it. I
started by getting it from the union staff members who were basically the
Safety and Health representatives or department heads in their respective
unions. I was extraordinarily fortunate with our client, United
Steelworkers of America, because Jack Sheehan was their Legislative
Director working at the AFL-CIO headquarters, a few blocks away from
our law firm office. I had developed a wonderful relationship with Jack,
and it turned out, he was the most knowledgeable union official about how
the law came into place. Further, he played a very, very affirmative role
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in educating the congressional committees on the subjects that unions
wanted to cover in the statute. So Jack became my right-hand man. At a
later point, Mike Wright, who became the head of the Steelworkers Safety
and Health Department in Pittsburgh, fit into that category. From the
AFL-CIO standpoint, the original director was George Taylor during the
early days, and he was succeeded by Peggy Seminario, who was another
source of great help – thoughtful, very intelligent, very knowledgeable
concerning the protections workers needed where separate standards were
involved. I had Tony Mazzocchi and Steve Wodka at OCAW, Eric
Frumin at the Amalgamated Textile Clothing Workers Union, and Shelly
Samuels from the IUD. In sum, they supplied me an enormous amount of
the nitty gritty practical assistance. But, of course, I still needed the help
with a multitude of medical issues. I’m not a doctor, so I immediately
established excellent working relationships with the brilliant research staff
of NIOSH. I also recognized that industry had available to it some of the
most premier doctors, epidemiologists, and consultants. So what could we
do on our side to try to counterbalance their expertise? I found out at an
early time that Dr. Irving Selikoff of the Mount Sinai hospital in New
York City had already established himself as one of the foremost
authorities on asbestos. He immediately responded affirmatively to my
request to utilize his services. He provided invaluable assistance both with
research data, his cohort studies, and ideas. I also had the help of a Ralph
Nader public interest group, most especially Dr. Sydney Wolfe.
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Then there was the matter of lawyering. Two of my colleagues at
Bredhoff without question made unsurpassable contributions: Jeremiah
Collins, who proved to be the world’s greatest researcher and also
produced initial drafts of virtually all our briefs, and then on an ongoing
basis, in all respects, I relied upon my long-term senior partner, colleague,
and great friend Bob Weinberg. Bob was brilliant in every respect – as a
brief writer, a strategist, and most important, in helping to make the
critical judgments concerning how best to handle oral arguments.
In general, everything that I ever did at Bredhoff & Kaiser was as a
team. You know that, but in this instance, it was even more intense
because over the ten-year period, the three of us were constantly working
on matters together. On occasion, one of our other colleagues would join
in. Bruce Lerner helped out on one particular case, and I think other
colleagues did as well, but for the three of us, it became a labor of love.
MR. POLLAK: Tell us about the litigation that unfolded.
MR. COHEN: Industry launched a vigorous three-pronged challenge to each of the
occupational health standards set by the Secretary. The challenges were
masterminded by highly paid consultants with expertise in three relevant
subjects – medicine and epidemiology, engineering, and economics. The
challenges took on a common thread, namely, a three-pronged argument.
First, the health risk workers confronted could be significantly reduced
even if the permissible exposure levels were much higher than those set by
the Secretary; second, industry lacked the technology to achieve the
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Secretary’s PELs – i.e., they were not “feasible” within the meaning of
Section 6(b)(5) of the Act, and third, even assuming the technology could
achieve those mandated levels, the costs would be prohibitive when
compared with the benefits to the exposed workers. The latter contention
necessarily meant that a so-called cost/benefit analysis would have to be
performed as a prerequisite to any decision to set a standard, a process
which would entail the distasteful task of estimating the value of the lives
of workers either deceased or maimed, et cetera. In the sum, that was the
trifecta that lay ahead for counsel for the Secretary and myself and my
colleagues on behalf of the unions who had exercised their rights to
intervene before the courts.
MR. POLLAK: How did your OSHA litigation career begin?
MR. COHEN: The very first case was the asbestos case. Incidentally, at a time in which
the researchers had not determined it was a carcinogen. It was just
causing serious lung abnormalities, but it was not yet designated a cause
of cancer. That proceeding ended up before the D.C. Circuit, and Judge
McGowan wrote the first court of appeals decision analyzing the entire
statue from the beginning of rulemaking up to and including all the
substantive issues that had to be addressed, such as the applicable
permissible exposure level, the core technology question whether the PEL
should be achieved through engineering controls, together with work
practices or just by respirators, and finally, the way in which the cost
impact ought to be envisioned.
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We made one really important contribution to the use of data and
information. As I said, industry was coming in to the rulemaking with one
tale of woe after another from individual companies making a two-fold
argument: We don’t need to reach the PEL because there is not a health
risk at a higher level of exposure than the Secretary set; and second, even
if we could view the higher PEL as a health risk, we do not have the
technological capability to achieve the Secretary’s PEL. We knew that
was going to be a very big battle because when I read 6(b)(5). It did
provide “to the extent feasible,” which we interpreted to mean capable of
being achieved through technology. So what we succeeded in doing was
to identify an outlier. If one company came to the OSHA hearing and said
here’s how we were able to achieve the same level that the Secretary
proposes as the PEL, this company became the “beacon,” whereas the vast
majority of companies represented the lowest common denominator. Our
strategy was to put one of their fellow companies out front to discredit the
naysayers. And we succeeded in doing that in virtually every major
standard-setting procedure we had. That became our model.
More important, we championed the interpretation of Section
6(b)(5) that to accept Industry’s claim that the Secretary was required to
conduct a cost/benefit analysis was contrary to the overriding purpose of
providing maximum worker protection.
This is a good introduction to discussing the Supreme Court’s
ruling in ATMI v. OSHA (1980). OSHA had chosen an implementation
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strategy that depended primarily on a mix of engineering controls
(ventilation systems, e.g.) and work practice controls, according
employers four years to achieve the PEL, and in the interim, respirator use
was required. Mr. Justice Brennan, writing for the majority, noted that the
evidence contained in the record supported OSHA’s choice. He then
explained that the principal issue presented was whether OSHA required
the Secretary to conduct a cost/benefit analysis. Again, the interpretation
of the word “feasible” for purposes of Section 6(b)(5) became the focus of
the Court’s decision.
Justice Brennan introduced his discussion by noting the Webster
dictionary’s plain definition to be “capable of being done executed or
effected” – the language that left no room for “cost” considerations. What
followed was the Court’s conclusion that any standard relying upon a
cost/benefit analysis that strikes a different balance than that issued by the
Secretary would be inconsistent with the command set forth in
Section 6(b)(5). In passing, Justice Brennan also observed that whenever
Congress intended a cost/benefit analysis to be performed, it explicitly
provided for one – not so in OSHA.
As for the extensive legislative history, the Court said it all in one
conclusory phrase “when Congress passed OSHA, it chose to place
preeminent value on assuring employees a safe and healthy working
environment. . . .”
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This was a monumental victory for all our clients. It was
consistent with what we had argued in each of the court of appeals cases I
mentioned. The day after the Supreme Court issued its decision, Linda
Greenhouse, on the front page of The New York Times, quoted yours truly
as saying that decision “vindicated our efforts over the past decade.” And
it was true.
Now, you asked me an intervening question which I want to get
back to. First, let me say that the case was argued before the Supreme
Court on January 20th, 1981, the day after Ronald Reagan was sworn in as
the President. In June, six months later, the Supreme Court issued its
decision granting the Secretary the broadest authority imaginable to
promulgate occupational health standards to protect workers against all
toxic substances, including those not yet known. The message to the
Secretary was clear: Go forth and do your job.
Now comes probably the most diabolical experience that I had in
my career as a lawyer. As noted, the decision was issued in June. In the
interim, a new Assistant Secretary of Labor OSHA has been named by
President Reagan and affirmed by the Senate. His name was Thorne
Auchter. The best that we could ascertain from his public resume is he
had come from Florida and been a construction contractor in a pretty lowkeyed
position with no OSHA experience. And literally, Roger, I’d say
weeks or a month after the Supreme Court decision, I get a call from his
secretary asking me to meet with him. I’m confident that Bob Weinberg
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went with me. We walked into the room, and I saw Ben Mintz, the
Assistant Solicitor of Labor for OSHA, and several other OSHA staffers.
I had worked closely with Ben in virtually every one of the court cases in
which he proactively supported the Secretary’s standard. In essence, this
is what happened at the meeting. Mr. Auchter looked up and said, I want
to assure you that notwithstanding the cotton dust decision of the Supreme
Court, OSHA is now going to be administering and enforcing this statute
in the way in which we believe it was intended. That is the purpose of the
meeting, to alert you to that reality. And I believe I said something like I
thank you for the opportunity to be here. I think you are going to rue the
day that you ever uttered those words to myself and my colleague and I’m
going to get up now and leave. I did so. I later learned that he instructed
the legal staff of OSHA that if anybody received a call from me or one of
my colleagues, they were to send a memo to him immediately letting him
know what I was asking for and what their response was.
So I had the ultimate accolade that anybody could be given. But
on a really serious note, can you imagine. Here we were just having
received one of the ultimate success stories on behalf of working men and
women only to find out that was not going to happen: the Reagan
administration did just what Auchter had warned. They stopped
regulating health hazards. So we were left mandamus actions to attempt
to persuade courts to require the Secretary to initiate standard-setting
proceedings. You know the difficult, uphill struggle to prevail in a
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mandamus. We did succeed in a few instances, getting a court to order a
rulemaking. But in the end, this was a complete unmitigated disaster for
the entire term that Reagan was in office.
MR. POLLAK: Yes. Elections matter.
MR. COHEN: Yes.
MR. POLLAK: Before we go back to the question of your non-litigation involvements, is
there anything from that period in the twenty-plus circuit court cases that
you were involved with that you wanted to share?
MR. COHEN: I think we’ve highlighted all the things that were involved. I think quickly
another high spot was the coke oven emission case before the Third
Circuit which also consisted of three Republican-nominated judges whose
experience had been on the corporate side but who ended up issuing a
fabulous pro-steelworker decision. The coke ovens were likely the worst
of all the workplaces you could imagine. Extreme heat, thick dust, and the
fumes that would periodically emit these famous puffs that would take
place in which an enormous cloud of dust would appear encompassing the
entire workplace in the coke ovens. So for the first time in my career as
an appellate court advocate, we devoted an appendix to photographs that
were part of the record so that the court of appeals judges could actually
see what it was like to be in a coke oven at that time. I believe that played
a significant role in the decision affirming the entire coke oven emission
standard.
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I should quickly say to you that I did have, on behalf of the firm,
relationships with the two assistant secretaries before Thorne Auchter.
One was Dr. Morton Corn in the early days of OSHA, and then probably
one of the most incredible political appointees I’ve ever met, Dr. Eula
Bingham, who was despised by industry because of her ongoing
dedication to proactively provide protection to working men and women.
She was not so affectionately referred to as the “Wicked Witch of the
West.” She and I shared many discussions in terms of establishing
government strategy and what could the unions do to support that strategy.
She was my model because political pressure, concern about what was
going to be said about her or what people were threatening to do to her
were all treated as immaterial. She had one objective in mind, how to take
that law and squeeze out of it the maximum protection working men and
women were entitled to.
MR. POLLAK: You talked about your experience with Ohio State and the article for their
law review. I also meant to ask were there other opportunities that OSHA
afforded you to spread the word?
MR. COHEN: Yes. Thank you for asking that. OSHA offered an opportunity to teach a
fascinating, intellectually challenging course. Some of my friends on the
faculty at Georgetown Law School early on asked me to put together such
a course. I thought that was a great honor. I said immediately I would
love to do that. I brought into the picture Ben Mintz who was the
Assistant Solicitor, OSHA, at the Labor Department. He and I began, as
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early as 1973 or 1974, to co-teach The Law of Occupational Health and
Safety, I believe the first such course ever taught in any law school. I
continued to do that with him every other year for about five or six years,
and then he dropped out, and I recruited a management counterpart who
joined me in doing that. That was obviously a great academic experience.
The Johns Hopkins School of Public Health and Hygiene realized
that all this exciting research was taking place. This was their stock and
trade. I was asked to join their Advisory Council, which was, again, not
only a high honor, but what it meant was I had another group of potential
research scientists who were more than happy to undertake to help unions
conduct cohort studies of working men and women exposed to specific
toxic chemicals. I stayed on that advisory council for a decade. A lawyer
in the midst of all those MDs and PHDs. What could be more desirable.
MR. POLLAK: Did the ABA get into the action?
MR. COHEN: Yes. Roger, that was a separate story unto itself because early on the
ABA decided that the labor law section should create a new Committee on
Occupational Safety and Health. Again, I was asked, and I agreed to be
the first Union Co-chair of the Committee. I arrived on the scene and was
told essentially the following. We have 75 members signed up. They’re
all enthused, 73 of whom are labor lawyers representing major
corporations, and you and one or two others are union lawyers. So instead
of “throwing in the towel,” you know how strongly I feel about reverse
snobbery, I wanted to do all I could with that committee so that it
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wouldn’t get carried away and start making lobbying-type
recommendations to Congress that might reflect pro-management
sentiment. Indeed, it was no secret that Industry was “interested” in
cutting back on the authority of the Secretary of Labor and other possible
legislative initiatives. So over the course of my experiences going to two
or three committee meetings a year, I had the time of my life challenging
and/or opposing the views of 65 of my contemporary colleagues, all of
which, as you might imagine, was a lot of fun.
But I’m going to give you one more even better nuance. At some
point, one of my colleagues from the Chamber of Commerce called me
and said would I be willing to come to the Chamber of Commerce and
give a talk on the union’s perspective of OSHA. And of course you know
I was going to say yes, and what actually turned out the story was these
were all prominent OSHA lawyers representing management, and they
wanted their clients to listen to me give the most proactive union
presentation possible so that prospective clients might get more enthused
about using them for other OSHA matters in the future. I was therefore a
willing conspirator, and of course I enjoyed that experience immensely.
MR. POLLAK: George, tell me about the state plan lawsuit and the role that the states
could play.
MR. COHEN: Yes. That was a fascinating intellectual exercise because when the law
was being considered, the background was that states had done nothing to
protect working men and women from occupational health hazards. So
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the union’s position was forget about the states. Let the feds take control.
Let them have exclusive jurisdiction. But of course that’s not how
Congress works. There was a very strong effort on behalf of the
supporters of states’ rights to come up with some kind of a compromise,
which ultimately carried the day. The compromise was to allow states to
have the authority to set and enforce occupational health standards, if but
only if, they could demonstrate that, with respect to funding and staffing,
their plan would be, in the words of the statute, “at least as effective as”
the federal government standard. Well you can imagine what then took
place. This triggered an ongoing battle with our clients continuously
complaining that a state was setting up criteria that really didn’t guarantee
it’s going to be effective as the federal standard. But here’s the rub – the
feds never geared up enough regarding the number of inspectors or more
generally, funding.
Anyway, to make a long story long, after a battle in the District
Court and before the Court of Appeals panel, Judge Leventhal wrote a
very thoughtful opinion in which he ended up saying I’m going to let the
Secretary’s criteria carry the day with the understanding that future
improvements have to be made by the states as to both the staffing and the
funding. So we lost, but we got a foot in the door. That became an
ongoing disappointment for my clients because states were allowed at
least to continue to perform the enforcement function that we wanted the
federal government to take care of exclusively.
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MR. POLLAK: Are there other areas under OSHA that you got involved with?
MR. COHEN: One quick unique one. American Cyanamid had a plant in Willow Point,
West Virginia, and they had very high lead exposures particularly
hazardous to women of childbearing age. There was significant research
to indicate that those women could give birth to malformed babies or
maybe even miscarrying. The company maintained that it could not
reduce the exposure level to a point at which those health risks could be
eliminated. Instead, the company adopted “a policy” whereby the thirty or
so women in the inglot pigment department were given two choices:
Either leave your high-paying job because you are of a child-bearing age
(defined as between 16 and 50) or you can have what it called “buttonhole
surgery” to sterilize you so that you would not be subjected to the problem
a fetus might have if you remained on the job. After that horrific “policy”
presenting a “Hobson’s Choice” was announced, the union asked us to
represent them. We let them know that they were trying to “push the
envelope.” We were going to argue that the policy itself created a
“recognized hazard” and therefore the general duty clause applied. The
Occupational Health Review Commission rejected that position, holding
that, as a matter of law, the general duty clause was applicable only where
a machine or a process causes a health risk. This is not a machine or a
process. This is a policy, and policies are not covered by OSHA. To
challenge that decision, we filed an appeal in the Circuit Court of Appeals
for the District of Columbia Circuit. I had the honor of appearing before
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Judges Scalia, Bork, and Williams at a time when Judge Scalia was not yet
on the Supreme Court. Needless to say, I had a very, very fascinating oral
argument. Probably my best exchange with Judge Scalia was at one point
he looked at me and said, “Well Mr. Cohen, why not bring this case under
Title VII of the Civil Rights law?” The only reply I could think of at that
moment was I’m having a hard enough time trying to persuade you to rule
for us on the OSHA law I’m relying upon. I don’t think it would serve
any productive purpose for me to have an argument with you about
another statute. He laughed and said you’re right, go on with your
argument.
In any event, Judge Bork wrote an opinion that became quite
notorious. He threw us out of court, and he ruled the way I had
anticipated. He ruled that a policy can’t be the equivalent of a machine.
In our brief, we noted that if the exposure to a chemical used at the
workplace resulted in the equivalent of sterilizing women, that would
clearly be covered by OSHA. So we asked why shouldn’t a policy that
was requiring sterilization be treated in the same manner? Judge Bork was
sufficiently concerned about that argument that he chose to respond in a
separate segment of his majority opinion. He acknowledged the ingenuity
of that argument, but rejected it by returning to the theme that a “policy” is
still not covered by the Act.
But what became the cause of a great amount of public scrutiny is
what Judge Bork stated at the end of his opinion: “the women involved in
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this matter were put to a ‘most unhappy choice.’” I want you to know that
history will show that when Judge Bork was up for nomination for the
Supreme Court, his opinion in that case and the words he used were the
subject of various inquiries by Democratic Senators shocked about Judge
Bork’s insensitivity to a problem that involved this horrendous dilemma
that these women were confronted with.
So that was an unhappy experience for us. We had hoped we’d get
a more expansive approach to the general duty clause, but we were shot
down.
MR. POLLAK: Just out of curiosity, why couldn’t the substance that was causing the
damage to the fetuses be regulated under the provision?
MR. COHEN: This was the “feasibility” issue. In the evidentiary hearing before the
administrative law judge, the company actually sold him on the
proposition that there was no feasible way it could regulate the fumes to
satisfy the permissible exposure level, and that’s why the company had no
choice but to put into place and implement this policy. It was too late in
the game for us to try to get around that reality because the findings of fact
had already been part of the record in the case.
MR. POLLAK: Tell me a little bit about employee complaint cases where the OSHRC
played a role like the NLRB.
MR. COHEN: The area that we got involved with and that I had the honor of arguing
before the Commission and then eventually in court involved the question
of the union’s role in frequently used Settlement Agreements. As I
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mentioned, the statute gives the union the right to file a complaint to begin
the enforcement process. The statute also gives the union the right to
“walk around” during the course of the inspection. Further, the statute
gives the unions the right to make recommendations to the inspector as to
what kind of citation should be issued. But the reality is that probably
90% of all the times that employers had challenged the citation and
commenced to litigate, the end result was a settlement agreement between
the Solicitor of Labor (as the prosecutor) and the Company. The union
that had played a very proactive role in everything up until the settlement
wanted to participate in the settlement as well because in numerous
instances, we were concerned that the settlement should not have taken
place and/or that the Secretary was allowing the company too long a
period for abating the hazard. We were met with a very traditional
position of a prosecutor. We have the exclusive authority to decide, in our
unreviewable judgment, whether to settle and what a settlement should
contain. From our perspective, we were being refused the opportunity to
participate in what we knew at the end of the process was a critical
component of the whole enforcement machinery. We took an appeal to
the Second Circuit, and the court ruled that the prosecutor could do
exactly what he did.
MR. POLLAK: Interesting. So I think maybe we’re coming to the end of this very
interesting conversation about OSHA and your work after the statute was
established. Just one last question is about collective bargaining and
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provisions relating to safety and how that interacted with the statutory
framework.
MR. COHEN: I’m very glad you raised that because I obviously had first-hand
experience with the Steelworkers Union. In terms of safety and health, the
Steelworkers was always at the forefront. They had always negotiated
important provisions in their collective bargaining agreements, and I’ll
give you the essence of their position. First of all, whatever our rights are
under a statute, we’re not going to agree to waive any of them. That was
the single most definitive and simple proposition. So don’t Mr. Steel
Company, don’t come to us and try to get us to do anything that would in
any way denigrate, diminish, or limit what our statutory rights are. What
we intend to do in collective bargain is further improve worker safety and
health protections. I was a tremendous supporter of that approach. I
urged that result in conversations with the steel industry officers and their
lawyers. I agreed that management had the ultimate decision-making
authority on safety and health issues, just as with any other terms or
conditions of employment. That’s a management right. But that doesn’t
mean that a manager can’t take into consideration recommendations from
employees with “hands on” experience operating the machines on the
plant floors. And what we wanted, and what the Steelworkers in large
measure achieved, were provisions whereby that on a regular recurring
basis its Safety and Health Committee members would meet with their
Company counterparts (the plant-level management representatives)
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involved with safety and health to discuss all the problems that they had
been identified on the plant floor and to make recommendations as to how
to best achieve what management always wanted – efficiency and
productivity – provided that worker safety and health were adequately
protected. So there was an enormous amount of attention paid to safety
and health through the collective bargaining procedure.
Another really significant contract provision was the one that
stated if any worker reasonably believes that he’s being asked to do
something that poses an imminent danger to him, he has the right to file a
grievance to invoke immediate emergency arbitration. The machine
would be shut down, and an arbitrator, selected from a panel, would be
available on a one- or two-day basis. The arbitrator would conduct an
expedited hearing and then decide whether or not an imminent danger
existed and, if so, award an appropriate remedy. So all of those were
examples of the enormous influence that OSHA had on collective
bargaining over safety and health.
MR. POLLAK: This was an extraordinary conversation, and the way that you were able to
engage in so many facets with the development of law for the first ten
years of the statute makes for great story. I’m interested was there
recognition of you that came at the end of this time?
MR. COHEN: Well, the American Lawyer named me the Best Labor Lawyer of the Year
in 1981 after the Supreme Court argument in the cotton dust case, and then
an honor that I’m not sure I want to give myself much credit for being
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named a “Legend of the D.C. Bar” in 1981 or so. I’m going to say to you
I’m attributing both of those honors in large part to OSHA. I did say, as
you might imagine, when the person called said I was being named a
legend as a posthumous award! I tried to get the D.C. Bar to change the
title, but I was told that this was the fourth year that a person was being
named a legend of the D.C. Bar, so I would have to live with that.
attributable to that experience.
MR. POLLAK: Thank you, George.
MR. COHEN: Thank you, Roger.
MR. POLLAK: I think we’ll wrap up for today.
MR. COHEN: Yes. Fabulous.
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Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Thursday, April 21,
2022. This is the fourth interview.
MR. POLLAK: Today I’m talking with George about his experiences working with the
various sports unions that he worked with and his background leading up
to those efforts in the law.
MR. COHEN: Hi Roger. Pleasure to see you again.
MR. POLLAK: Thank you. Why don’t we start today with you telling a little bit about
your background that led up to and created the kind of foundation for your
practice of law with the various sports unions.
MR. COHEN: I’ll be delighted to do that. When I reminisced on this whole situation, it
dawned on me that it wasn’t until 1980 or 1981 that I did my first labor
lawyering involving a sports union. I had joined Elliot and Mike in 1966,
so for those initial fifteen years, my labor law practice didn’t include
anything involving the world of sports. So I thought it might be fun just to
quickly share with you all the background events, some of which I’ve
already covered: my dad’s experience as sports editor with the New York
Post and what I did with him. I also made a minor reference to the fact
that I played high school basketball myself. And certainly the most
important thing of all in that period was my incredible, good fortune to be
at Brooklyn Dodger training camp in 1946 and 1947 and witnessed the
start of the Jackie Robinson “legend” taking place. I was 12 or 13 years
old. I can’t say I fully understood the whole situation, but I did know
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enough to know that this was monumental, that he was going to be the
first black athlete ever to play major league baseball, starting first with the
Montreal Royals.
Additionally, I did have quite another potentially extraordinary
experience. In my junior year of high school, my dad, who was then
having a very exciting life as the sports editor of the New York Post,
walked into the house one day and said, you know, I’d like you to come to
New York with me next week because there’s a radio program that’s
thinking of using a father-son sports talk, and they called me and they
were aware that I had a son who is a sports fan, so we’re going to have a
couple of dry runs interviewing some high-level professional athletes. My
best recollection is he interviewed with me as his son, Joe DiMaggio, and
probably some other major league players. We were under consideration
with another father-son team. There was a very famous football player at
NYU named Ken Strong, and his son was my age. It turned out that
neither of us got the job because the potential sponsor, Old Gold
Cigarettes, decided not to go forward with that particular initiative. So
that, I think, is my prelude to 1981.
MR. POLLAK: But you also did have a little run as a journalist at Cornell?
MR. COHEN: Yes. Thank you. I went to Cornell in 1951. The Cornell Daily Sun was
viewed as one of the really fine daily college newspapers. There was a
“competition” system. In my freshman year, I decided I would compete
for the sports department. I showed up and basically was told this was a
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35- to 45-hour a week trial period doing the miscellaneous things that a
“newbie” does, which is proofreading at night, et cetera. I was of the view
at that point, since I had not gone to one class at Cornell, that maybe I
ought to give myself a rest and see what I can handle scholastically. So I
dropped out, but I came back in my sophomore years. And I then served
on the sports board my sophomore and junior years. Because I waived my
senior year in college to attend law school, I lost the opportunity to maybe
be the sports editor my senior year. A very, very successful gentleman
named Dick Schaap was the sports editor and became a world-class
journalist. I’d say there were at least five writers in my class who went on
to have major journalism careers. I did not, of course, and that was just
another interesting little facet of my life.
MR. POLLAK: Did Schaap end up doing TV broadcasting?
MR. COHEN: Well, he was a feature writer. Yes. He was a renowned encyclopedia of
sports, sort of a pre-Bob Costas type. And now his son Jeremy is also a
television sportscaster.
MR. POLLAK: That’s great. Let’s turn to talking about the sports unions and your work
with them. I think you wanted to start with baseball and the Major League
Baseball Players Association.
MR. COHEN: Yes. I did. So, you know, I think the theme of this whole series of
interviews has been relationships and coincidences. The coincidence is
that I joined Bredhoff and Kaiser in early September 1966. Almost that
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exact day, a gentleman named Marvin Miller was named the first
Executive Director of the Major League Baseball Players Association.
Marvin Miller had devoted probably 15 or 20 years before as the
leading economist and collective bargaining strategist for the United
Steelworkers of America at its Pittsburgh, Pennsylvania, headquarters. In
those days, we’re talking about the 1960s, the UAW and the Steelworkers,
along with the Teamsters, were the pinnacle of the Trade Union movement
and the leaders in collective bargaining. Marvin was noted for his
incredible ingenuity. Some of the vital worker protection initiatives and
concepts were his ideas. He was uniformly regarded as one of the top
union negotiators in America. He was part of what the Steelworkers and
Steel Industry called the “top five” committee – individuals who met to
negotiate and decide the big economic issues involving the major steel
companies. Local issues were negotiated at a lower level, but he was on
that top committee, along with Elliot Bredhoff, my senior partner at that
time. Elliot and Marvin had developed quite a substantial working and
personal relationship, and in 1966, when he became the Executive
Director, he brought with him as the only other staff professional a
gentleman named Dick Moss, who was then the young head of the
Arbitration Department at Steelworkers headquarters.
MR. POLLAK: Any idea how the PA found him?
MR. COHEN: I do not know the answer to that, but it was a very fortunate find. Before
leaving this, I’d like to say the following: Marvin Miller was regarded,
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and is today, as the single most important person in the history of the
economic relationships between the baseball players and baseball industry.
He was not voted into the Baseball Hall of Fame because of industry’s
inexcusable lobbying efforts, but posthumously, he was made a member of
the Baseball Hall of Fame. He’s the ultimate example of a legend in his
time.
I should quickly add two things, Roger. Number one, we still have
the same time gap. Nothing happened between Marvin and me until about
1980. Marvin had two basic principles in life. I know more about union
organizing than any lawyer could possibly know. Correct. And I know
more about negotiating a collective bargaining agreement than any union
lawyer that I’ve ever met knew. Correct. Thus his view about lawyers
was “stay out of my way.” Not negatively, not with hostility, but just
intellectually and objectively, and everyone knew that.
Now during that same fifteen-year time, Dick Moss and I had
established quite a warm relationship about arbitrations and miscellaneous
legal issues, so periodically, we would have a conversion. He would make
it clear this was an off-the-record conversation, that they were not
retaining my services, and I knew that. Finally in 1980, I was retained to
represent the MLBPA.
MR. POLLAK: What happened?
MR. COHEN: In August 1980, the baseball players went out on strike. Now, you should
also know that Marvin was keenly aware of how many big-time stars had
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no relationship with unions and were being treated quite well in their
minds by ownership. So Marvin shared with me later in life his basic
theme: until the Mickey Mantles of this world are prepared to go out on
strike with their brothers, we’re not going to have a successful strike
because we need a united team effort. Brilliantly, he worked in that
fifteen-year period just to achieve that uniformity.
Now I can’t leave this without telling you in 1975 one of the alltime
historical events took place when Peter Seitz, the arbitrator, ruled that
the language of a player’s traditional one-year contract with each team
allowed a player to say if I do not have an agreement for one year after
that year, I then become a free agent. I can leave my team lawfully and
negotiate in the free market with any team I choose. As you can
understand, this was a highly controversial ruling – according players a
freedom they had never enjoyed. Arbitrator Seitz was dismissed by the
league about four seconds after the ink was dry on that “award.” And then
the possibility of chaos was rampant because literally every single major
league baseball player could choose, after their first year of an
employment contract, to work without an agreement for one year and then
become a free agent. Even Marvin was at the forefront of recognizing that
something more rational had to be negotiated than that, and he participated
actively in negotiating what became the model system, which I won’t talk
about now, but that happened after 1975, which brings us to the collective
bargaining in 1980.
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MR. POLLAK: Alright, so tell us what happened leading up to the dispute with the League
involving the NLRB.
MR. COHEN: Right. Well, the dispute, which unfortunately never resulted in a NLRB
decision arose because the league, and at least a significant number of
teams, appeared to have serious financial problems. The chief negotiator
for the Major League Player Relations Committee, that’s what it was
called, was a gentleman named Ray Grebey. He was a renowned
negotiator who came from General Electric, which was the home of the
famous “take it or leave it” approach to collective bargaining. That
diabolical approach was attributed to a gentleman named General
Boulware, which triggered the question whether or not a company
engaged in “good faith” bargaining required by the National Labor
Relations Act if it used those words and that type of conduct at the
bargaining table.
In any event, Mr. Grebey was aware, quite painfully aware,
without letting the union know at the bargaining table, of all the financial
concerns and difficulties of individual teams and the league collectively.
But he also knew there was a well-known settled principle of Supreme
Court law holding that if an employer claims an “inability to pay” or uses
words closely resembling an inability to pay (i.e., a serious financial
plight), the union acquires the right to demand to see your books and
records to determine whether or not “inability to pay” is a legitimate
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claim. And it appeared in retrospect that Mr. Grebey knew his owners had
zero interest in opening their books to union scrutiny.
Now this is quite fascinating, Roger, because fast forward thirty
years later, many employers have changed their tune – i.e., happily
offering to open their books and records to claim they’re going out of
business. I’m going bankrupt. Here’s the books. Get your accountant to
conduct an audit. Not so in 1981.
So the MLBPA called and asked me to advise whether an unfair
labor charge could be sustained. After detailed conversations and
investigation into the facts, we concluded that it was a legitimate “refusal
to bargain” charge if you could demonstrate that the agent who was the
spokesperson was not at the bargaining table telling it the way it is, but he
was saying it in the public domain, and we had newspaper quotes of him
saying it in the public domain, and equally important, a number of his
principals, the owners, were out in the public domain also lamenting the
fact that they were in deep financial trouble. So that led us to file an
unfair labor practice charge before the New York regional office. The
regional director was a gentleman named Daniel Silverman, who was a
well-known public servant. The Board investigated our charge, concluded
there was merit, and they therefore issued a complaint. And under the
NLRB’s procedure, as you know, if a complaint issues, an evidentiary
hearing is scheduled. It was set down in New York City shortly after the
complaint was filed.
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MR. POLLAK: What happened next? This was a very unique case.
MR. COHEN: You have to know the cast of characters because that also was a bit of
history. The cast of characters begins with me saying to you that those
hearings in those days and this day are conducted by an individual that
used to be called a Trial Examiner and now called an Administrative Law
Judge. The NLRB and most government agencies have assigned
permanent administrative law judges who become expert in the subject
area, and the NLRB was no exception. Probably at that point maybe 50 or
more administrative law judges all working under the leadership of the
chief administrative law judge – enter Mel Welles.
Mel Welles was another legendary character for two well-known
reasons. First, his brilliance as a labor lawyer. He had been an appellate
court lawyer in his early days at the NLRB. Second, he was also known
as a genius bridge player, and with that intellectual capacity came an
encyclopedic knowledge of major league baseball – every player, every
historic statistic. And lo’ and behold, he assigned himself that hearing. So
when he walked into the hearing room, everyone understood this was a
man who is going to be a force to be reckoned with in terms of his
intellect, his experience, and his interest in baseball.
Now on the other side of the counsel table was the Respondent,
Major League Baseball Player Relations Committee, represented by a
number, not one, but a number, of top-flight lawyers. Their principal was
a gentleman named Lou Hoynes who was a very senior partner at Baker &
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Hostetler, and he brought with him a well-known public figure in the
management-labor world – Betty Southard Murphy. At some point in her
career, she was a member of the National Labor Relations Board, and she
purported to have a very close relationship with AFL-CIO President
George Meany, which she flouted wherever she went when she was doing
her legal work. Betty had a major presence throughout the proceeding.
The NLRB’s lead trial counsel was Ian Penny, and the charging
party, the Major League Baseball Players Association, was represented by
yours truly, and I brought with me one of our then-young, very talented
associates David Silverman. The evidentiary hearing took place in New
York City. It lasted, I’d say, about five days. From our perspective,
without a doubt, the most important day took place when Mr. Grebey took
the stand. I think you know this about me, but I want to get my disclaimer
out quickly for this interview. I am not, never have been, never held
myself out to be a trial lawyer. You do know that Bredhoff & Kaiser has
had some monumentally talented trial lawyers, but for this trial, I was the
lawyer, and I probably could have been a second-year law student and
done as well as I did as a fifteen-year experienced NLRB lawyer who
didn’t try many cases. Why? Because major league baseball offered me
Mr. Grebey on a silver platter.
For the reasons I have explained, throughout his direct testimony,
he continuously disclaimed any club’s “inability to pay.” On my crossexamination,
however, I was able to call to his attention that he, as well as
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a number of the owners, in public statements appearing in major
newspapers, announced a polar opposite position!
The most startling was his quote in the Boston Herald bemoaning
the fact that “baseball is a sick cow.” Of course, that provided me the
simple opportunity to inquire of him, “Did you say that?” “I don’t recall.”
“Think carefully, Mr. Grebey. You are testifying under oath. Do you
deny that you said that?” Eventually he admitted it was an accurate
quote. Those words came from his mouth.
Beyond that, my colleague David Silverman had obtained a
number of other newspaper quotes from individual club owners all
pointing directly to their alleged financial crises. And to complete the
picture, we called as witnesses the writers involved, each of whom
confirmed that they had taped the interviews with the owners and the
“quotes” could not be challenged.
One aside, I had the ultimate dream come true because Murray
Chass, the leading baseball reporter for The New York Times, in his article
the day after my cross-examination, referred to me four times as
“Mr. Cohen,” and four times he referred to Mr. Grebey as “Grebey.” It
didn’t strike my fancy when I read it, but my friends assured me that was
designed to let the world know that this is a guy you could not believe.
So in a nutshell, the case presented a novel issue of labor law. Is
an employer breaching its duty to bargain in good faith when its principals
(the owners) claim an inability to pay away from the bargaining table
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while their agent (Mr. Grebey) says the opposite both in public and in
bargaining, while also refusing to allow the union to audit their books and
records.
MR. POLLAK: Wonderful story.
MR. COHEN: So, the hearing ended. I had one other experience of note, which proved
to be yet another dream come true. Bowie Kuhn, the Commissioner, took
the witness stand. The Commissioner tried to make it appear that he was
“neutral,” that he was there to represent the “public interest,” not to
support either party. Of course, I went through with him the week before,
where he was meeting and planning strategy with the owners, with sleeves
rolled up and a pad in front of him taking notes and exchanging views and
ideas as to what bargaining proposals might work from management’s
perspective to end this horrible strike. Then, of course, I had the
opportunity to ask the simple question when did he join the union meeting,
and, of course, he never talked to the union. But he claimed that had he
ever been invited, he might have come as well. To which Marvin Miller
the next day was quoted as saying this man is not worthy of being called a
liar. And at that moment, my relationship with Marvin Miller changed.
He respected me a lot more after that day in the hearing.
The MLBPA, however, was successful in settling the case.
David Silverman had already drafted a powerful 50-page brief, which I
had reviewed and edited, et cetera. We were ready to go, but we got the
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great news that the dispute had been settled through collective bargaining.
So no NLRB decision ever issued.
MR. POLLAK: Was there anything that happened in that particular resolution that is
historically interesting?
MR. COHEN: Great question. An agreement was reached over what the improvements
were going to be. If you ask whether the improvements satisfied the
union’s concern, I believe Marvin Miller felt it did, as did I.
MR. POLLAK: But it wasn’t a major agreement changing the way free agency worked?
MR. COHEN: No. That’s the next story.
MR. POLLAK: Alright. Good segue then. That brings us forward to the 1990s, I think.
MR. COHEN: Yes. It brings us to the 1990s.
MR. POLLAK: Another players strike.
MR. COHEN: Another long players strike. And then we’re getting close to the question
of whether there’s going to be a baseball season with spring training
beginning in April 1995. I believe this was like an eight-month strike, and
this one was way more serious than the one in 1980-81 because what the
clubs had decided to do was to unilaterally impose a new radically
different collective bargaining system than that in place. And quickly I’ll
say the system which was in place was quite an ingenious one the two
sides had negotiated years before. In the simplest terms, what it meant for
purposes of player compensation was for the first three years of your
career, you have no rights as a player. You either accept the offer you’ve
received from your team, or you leave major league baseball. And there
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were occasions where players actually left major league baseball and went
to play in Mexico. But the bottom line was Marvin Miller was saying
we’ll give owners a chance to determine how good they think their
individual player is by having basically this three-year period where you
have control over their economic destiny.
Next came phase two, which was for the next three years any time
the player was dissatisfied about the compensation being offered to the
player, he had an absolute right to invoke something called “salary
arbitration,” which was conducted on an annualized basis. There were a
group of arbitrators who were called in. It was a very fascinating “Russian
roulette” procedure. Each side gave a number. For example, the team
owner is offering $800,000. The player demands $1.2 million. The
arbitrator has one choice, $800,000 or $1.2 million. No negotiation. No
midpoint. The arbitrator either accepts the union’s position or the team’s
position.
MR. POLLAK: Such a unique system, George, that it became known as the baseball
system, right, and showed up in my experience as a potential way of
setting up an interest arbitration. Very high risk.
MR. COHEN: Absolutely. And even more interesting was the model of what the actual
arbitration hearing was. It was a three- or four-hour proceeding. Each
side offered its evidence and arguments. In the old days, the data was very
unsophisticated. Now when it goes to salary arbitration, you sit there, and
you are amazed at what these salary research people have done. I’ll give
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you just one fascinating example. They’d look at the player’s batting
average. Then the team would note but in September when the pennant
race was on, he hit only .242, or if it’s the player, I hit .327. In the old
days, the key criteria were RBIs, men on base, singles, doubles, home
runs. That’s now almost passe. It’s what the time of the year was, how
many times with a man on second did you bring him in, were you the best
defensive player at your position, what other coaches said about you, what
your manager said about you.
In any event, that was a monumental step forward, and, of course,
as you might expect, there were some early situations in which Chuck
Finley of the Oakland baseball team was always “low balling,” and he lost
every one, so the players began after a while figuring out he’s so low
balling that I can go way beyond what I’d usually be willing to accept, and
I’m going to get this from the arbitration. There was this one year he lost
a number of the major cases, and then there was a major change of their
mindset when that happened.
So that there then would be phase three. After six years, a player
has paid his dues. Those were the words that we used, and you then
became a free agent eligible to test the marketplace and receive offers
based on whatever the market would bear, including staying with your
own team. One nuance: what most teams would do if they had some
player they wanted to keep, they didn’t wait until the sixth year. They
tried to negotiate in the fifth year to get a longer-term commitment so they
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wouldn’t have to face the competition from a free market a year hence. So
that was part of the dynamic.
MR. POLLAK: Was that structure in place coming up to the 1994 strike?
MR. COHEN: Yes.
MR. POLLAK: Because that’s the structure that’s still in place.
MR. COHEN: Yes. Exactly. That was the structure that essentially was created in the
wake of the Peter Seitz award in 1975. Now there was a nuance, there
was a sort of a category of certain number of top-flight players could get
to salary arbitration after two years and six months, but the answer is yes.
And that’s the precise system that Major League Baseball tried to destroy
in 1994, which led to the strike and then eventually the federal district
court case.
MR. POLLAK: You’re about to describe it, but I just noted in the lockout that just
happened, this is still what they’re fighting over, right?
MR. COHEN: Yes. It’s sort of an interesting reality, right? So we all understand that
after a contract expires by its terms, parties have legal rights to exercise
economic power. The employer can lock out, the union can go on strike.
There’s also another phase in which the contract has expired, but the
parties are still negotiating, and the question arises whether an impasse has
been reached between the two. What is an impasse. It’s a fact question.
Everybody comes up with their own words. “Deadlock.” We’re
deadlocked, we’re at impasse, we can’t move, we can’t reach an
agreement on anything. One would expect it’s not too easy to have a
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legitimate impasse if there’s some minimal amount of movement in the
negotiations taking place. And what happened in this particular situation,
which makes no sense in retrospect from an industry standpoint. The
league declared an impasse two days or so after the union had made a
significant economic counterproposal. Nonetheless, the league called an
impasse and said that means that they can now unilaterally impose what
our “last best offer” was to the union – and their last best offer was a
diabolical destruction of the model I’ve just described. Things such as no
longer will individual teams be negotiating with their own players. The
league is going to stand in the place of the individual teams, and it’s going
to control the destiny of every one of the many hundreds of major league
baseball players.
Now, how that could have worked? How the owners really could
have really wanted it makes no sense, but that is what the league
announced it was imposing. The MLBPA response was to file a refusal to
bargain charge under the very simple theory that you can’t unilaterally
impose anything, let alone this diabolical system, if you haven’t reached a
legitimate impasse, and you surely haven’t because two days before, the
union had made a comprehensive counterproposal. It’s now March 1995.
The players all want to go to spring training. They’ve been on strike since
August, so the union tried to invoke the extraordinary procedure pursuant
to Section 10(j) of the National Labor Relations Act, whereby a unioncharging
party has to persuade the General Counsel of the NLRB to issue
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a complaint and also to recommend going into federal district court to get
an immediate injunction against the unilateral imposition that had taken
place. The MLBPA succeeded in getting the complaint issued and
succeeded in having the General Counsel recommend applying for a 10(j)
injunction, but the law requires the five-member NLRB to authorize their
agency to go into federal district court to enjoin what we called the illegal
action of the Major League Baseball.
The NLRB was then a Clinton Board. There was a 3-2 majority of
Democratic appointments. That was also the vote. Bill Gould, who went
on to become a professor of labor law at Stanford and a colleague of mine
from the day I started working at the NLRB in the 1960s, was the
Chairman of the NLRB. A short memorandum decision issued, and the
case was then assigned to the Southern District of New York federal court
in early March 1995. At that time, the federal district court had a neutral
procedure: they put all the little ping pong balls into the cage with each
judge’s name and circulate it around until one judge’s name appears.
Judge Sonia Sotomayor’s name appeared, and she was assigned the case.
The first thing we did was to file a motion to participate as an “amicus.” I
helped make the judgment that rather than asking for “intervenor” status,
the MLBPA would be better served just asking to be an amicus. The court
granted that motion and set a hearing for March 31, 1995.
MR. POLLAK: Just a historical note. She must have been quite youthful at that point in
her career.
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MR. COHEN: Correct. So that, of course, everything you ask me is the entrée to what I
want to tell you. Not only was she youthful, but here was the line on
Sonia Sotomayor. She had only been a federal district court judge for a
year or two. Previously, she had a government job and then was in private
practice, but the most notable thing was from all the research we had done.
Judge Sotomayor had never handled anything remotely resembling a labor
law case. Nothing. And so here was this neophyte on the bench. And
what a courtroom. Because this was a high-profile case, we were not in
the usual courtroom. We were in the Ceremonial Courtroom, usually
reserved for ceremonies when hundreds of people are getting admitted to
the bar or immigrants being sworn in as citizens. When you walked into
that courtroom, the first thing you noticed was that there were literally
hundreds of media, not only from the United States – every newspaper in
America was covering baseball – but wherever baseball was played
around the world, including Japan and many Caribbean countries. It was a
circus. There was no doubt about that.
My young colleague Virginia Seitz was with me that day on behalf
of the Players Association. Virginia had worked with Andy Roth on the
brief with me. Dan Silverman, the NLRB Regional Director, was
representing the prosecuting government, and Morgan Lewis & Bockius
was representing Major League Baseball Player Relations Committee. It
was interesting to me that Chuck O’Connor, who I viewed as the most
knowledgeable and constructive of the management-labor lawyers I had
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dealt with at that firm, was not arguing. Instead, it was Frank Casey. He
proceeded to do a very unsatisfactory job, but the difficulty that existed in
my mind was what happened in the exchanges that took place with Dan
Silverman and Judge Sotomayor. She had come incredibly well-prepared.
In retrospect, she proved to be an amazing, quick learner of all the legal
nuances. She had found a few NLRB cases that raised the question
whether salary arbitration standing alone was really a mandatory subject
of collective bargaining. If she was going to decide “no,”, that was the
end of the whole ballgame for MLBPA because salary arbitration was an
integral part of the entire player compensation system.
Mike Weiner was there at counsel table with Don Fehr, Executive
Director, on behalf of Major League Baseball. I should quickly say Mike
Weiner spent the night before with me as a young lawyer helping me prep
for the argument. I vividly recall what my strategy would be. Look, I’m
going last, so there’s no sense having a prepared argument. I’ve got to see
how things are going, what is the dynamic that’s taking place in court,
what issues concerned the judge most. I had been allocated just fifteen
minutes. And it was painfully clear to me that when my turn came, I knew
I’ve got to try to save salary arbitration.
I had one of those wonderful days as an advocate where whatever
the judge asked me, I appeared to be allaying her concerns both with that
specific subject and more generally the need for the injunction. My fifteen
minutes went to twenty minutes or more, and I felt that we were back in
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the ballgame. You’re never confident you succeeded, but it was very clear
to myself and I think virtually everybody in courtroom that Judge
Sotomayor was now turning her mindset in the right direction for us about
the breadth and scope of an injunction.
The argument lasted about 1 ½ to 2 hours. She then announced
that nobody leave the courtroom because she was going back into
chambers and would return to give her opinion in the next thirty minutes
or so.
As I surmised, she had already prepared a thirty-page
memorandum opinion, but it seemed likely that she rewrote the two pages
about salary arbitration in chambers and came out and read it. In doing so,
I am honored to say she gave me several accolades from the bench about
the quality of my argument. Bottom line, she ruled for the NLRB and
MLBPA in all respects, including an injunction that required the league to
restore the entire pre-existing player compensation system.
So that was it. Judge Sotomayor advised that a formal
memorandum opinion would issue the next day.
Immediately, Mr. Casey moved for a stay. Stay denied. The
league then proceeded expeditiously to the Clerk’s office of the Second
Circuit Court of Appeals in the same building.
An emergency panel considered the motion and denied the stay but
did agree to set an expedited schedule for briefing and oral argument. The
expedited proceedings took place, culminating in a unanimous three-judge
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ruling in September affirming all aspects of the district court decision and
order.
One aside. In the Second Circuit, we had a premier panel led by
Judge Winter, a former Yale labor law professor. Judge Winter praised
the opinion. He ruled it was all correct. I had my own little vignette with
him which was also quite wonderful. I got up as the amicus to give my
ten-minute argument, and he asked, Mr. Cohen, aren’t you satisfied with
how the argument is going? So I, of course, said Your Honor, I’m totally
satisfied, but I do want to remind the court it’s because every single basic
principle of labor law was in Judge Sotomayor’s decision, and that’s
what’s at stake here. And he said that’s right, we realize that. And we
received a beautiful “per curiam” affirmance a few months later.
MR. POLLAK: That’s Ralph Winter?
MR. COHEN: Ralph Winter. That’s right.
MR. POLLAK: He was my corporate law professor at Yale. An interesting man. Well,
that’s a great story, George.
MR. COHEN: That’s for sure.
MR. POLLAK: Well now we’re going to turn to the second of your sports, basketball and
the National Basketball Players Association.
MR. COHEN: Yes. So, it’s a completely different world. Marvin Miller is the ultimate
union guy, and Larry Fleischer, a young Harvard Law graduate with the
Boston Celtic clientele as an agent, a man who knew very little about labor
law or particularly cared about it because his initial focus was on antitrust
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law. He was brilliant in his own right. Marvin had a difficult time
understanding how the national basketball players could have a leader who
wasn’t from a union background. You could not have asked for two
different human beings, except for one characteristic. Both of them were
brilliant. Unfortunately, Larry died a very young man of a heart attack
after a great, albeit relatively short, career.
So, again, relationships. Marvin and Don Fehr told Larry Fleischer
in 1981 after the NLRB first hearing that he ought to retain the services of
a labor lawyer, and they recommended me. He interviewed me and
retained me, but it was a much different situation because I walked into a
totally unexpected world. At that time, the National Basketball Players
Association was completely focused on using the antitrust laws, and why
was that? Because by 1981 or 1982, the Weil Gotshal antitrust lawyers,
led by Jim Quinn and Jeff Kessler, his right-hand man, had pulled off
several miracles. They had persuaded several federal district court judges
around the country that the labor exemption to the antitrust law ends the
day that the collective bargaining agreement expired. That meant that
once the collective bargaining agreement expired, the players could then
transform themselves from union members to individual plaintiffs and
succeed in suing individual clubs and the league under the antitrust laws.
Success meant injunctive relief plus treble damages! And of course the
league had imposed all sorts of constraints on player movement, which
were basically “per se” violations of the antitrust laws if the labor
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exemption did not apply. After two or three very favorable district court
opinions for the players, the clubs folded and gave the players, through the
union, an array of very desirable benefits. The only question was if and
when was this “dream” going to explode and come to an end. And here I
was. How am I going to tell a new client that, based upon my detailed
legal analysis, it appeared that basic labor law principles, not antitrust
concepts, should be the governing rules of the road. Specifically, myself
and my brilliant colleague Bob Weinberg were placed in the unenviable
position of trying to explain to our client “quietly” that this dream result
may not last too long. And, of course, it didn’t last too long. First, Judge
Harry Edwards in the D.C. Circuit wrote a monumental decision basically
holding not only does the labor law exemption continue after contract
expiration, it also continues after an impasse is reached because there are
still labor law components to the relationship between the league and
NBPA even if you’re at an impasse. And he pointed out brilliantly the
reality that if the antitrust laws kick in upon impasse and bargaining
continues, the parties may reach an agreement and the labor laws would
apply again. Thus the notion that antitrust applies upon impasse was
totally unworkable, infeasible, and incorrect as a matter of law.
And that led to the famous case in the United States Supreme
Court, Brown v. Pro Football Inc. (1996), which, for the same reasons, the
NFLPA lost eight to one. So that was an interesting experience in my life.
MR. POLLAK: Were there any other noteworthy aspects of your representing the NBPA?
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MR. COHEN: Yes. Early on in my sports lawyer career, which began in the early 1980s,
I had the pleasure of meeting a group of incredibly talented union officers,
Isaiah Thomas, the President, Buck Williams, Quinn Buckner, Paul Silas,
Bob Lanier, Alex English, Mark Eaton, Rolando Blackman, to name just a
few people who were interested in representing the players around the
league. They told me that one of the outstanding, unacceptable situations
was the number of player agents who were engaging in unacceptable
behavior and making a lot of money without putting much effort into it.
So, I was assigned by Larry Fleischer the role of union counsel to
what was called the Agent Registration and Regulation Committee. That
came about as follows.
Larry told me in private that he had a conflict of interest. He
represented about 80 of the leading individual basketball players (almost
the whole Boston Celtic team from his Harvard days), and many of the
other superstars, and was therefore going to be subject understandably to
whatever agent rules and regulations this committee established. So he
asked me to take on this assignment as an independent person with the
understanding that he was not going to play any role unless and until the
formal scheme, the rules, the regulations, were in place. And, of course,
I’m wondering is this going to work out. In retrospect, he was true to his
word. He periodically would ask me or the committee members how are
you doing, and I would give him a brief overview of how much
cooperation I was getting. As you’d fully expect, I sat down with the
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committee members collectively around a table literally for hours and said
guys, what are the agent abuses that you’ve encountered yourself and
you’ve heard about from your fellow players. And boy, I had pages and
pages with examples of abuses. And I said to myself, wow.
Now at that precise time, the NFL Players Association was
engaged in a similar activity. The complaints about their agents were
similar. So what we did was basically two-fold. First, we put together a
comprehensive form to be submitted by all those seeking to become
“certified” agents just as if they were applying to a bar association. We
wanted everyone on record to tell us who they were, where they lived,
what was their educational background (degrees), who they represented,
what clients they had, what financial arrangements they had with the
players they represented. Also, anything that could possibly be a conflict.
Did they represent any teams, did they have any financial interest in a
team, et cetera. And at the end of the application, you signed off and said,
I understand that I am telling you this truthfully, and, incidentally, I am
aware that unless I now become a “certified” agent of the National
Basketball Players Association, I am not allowed to represent any
basketball player in negotiating any compensation agreement with their
clubs. So this was a big hammer. The regulations also prohibited a
number of activities that agents could engage in and provided the
Association the authority to “decertify” an agent.
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Okay, and that was the leverage the Association had. On the one
hand, an amazing amount of leverage. On the other hand, it required
players to file complaints to enforce all of this. So this was the basis of
the regulations which I drafted with major input from Mike Gottesman,
my law partner. This was a monumental task that took about a year.
MR. POLLAK: George, how did the union have jurisdiction to limit the behavior of the
agent?
MR. COHEN: As the exclusive bargaining agent under the national labor laws, we could
negotiate every single player’s compensation and terms and conditions of
employment. We decided to delegate to agents in a very limited way that
authority, but we wanted to make sure whoever we delegate this authority
to was responsible both to the players and the Association.
MR. POLLAK: Did you have agents say we’re going to lead a de-cert campaign if you do
this?
MR. COHEN: What we had was, well you’d appreciate this. There were many meetings
with agents, but I did not preside alone. I was the professional
spokesperson, but I had with me on the podium Paul Silas. I had Bob
Linear, 6’ 8” and 240 pounds of muscle. And that was exactly how I
started out my talks. There were a hundred or more agents in the room.
They were not happy campers. They did not like the idea of having their
conduct regulated or scrutinized. So my talk began very simply. I am not
here for any reason other than these eight player members of the NBPA
Agent Regulations Committee have asked me to speak on their behalf. So
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any questions or concerns you have, you should direct to any one of the
committee members, and if any one of them thinks I am not saying
anything consistent with what they’ve asked me to say, I want them to
come forward and tell you that.
I’ll give you one quick example. We prohibited agents from
representing coaches of teams. What do you mean? I already represented
a coach. I’m his representative. I’ve negotiated three contracts for him.
Well, here’s the situation. The coach has disciplinary authority over every
player on his team, so how can you be on the one hand representing the
coach’s interests and on the other hand players are concerned the coach
may impose discipline on them pursuant to the language of the collective
bargaining agreement. So there was an obvious conflict in an agent
representing both a player and his coach.
So where we started was ground level. The regulations required
that every agreement had to be in writing. Previously, many of them were
based on handshakes. The player-agent agreement also had to be in a
language that the player could understand. The agent had an obligation
when he was negotiating terms and conditions of employment with the
team to keep the player informed of what was happening. No agreement
with a team could be executed unless and until the player co-signed that
agreement. You could not do certain things that you were doing all your
life in order to get business such as giving money to the player’s family or
free trips to All-Star weekend, et cetera or to his college coach or trainer,
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i.e., payments intended to have these third parties urge the player to hire
the particular agent. All those things were described as prohibited
conduct.
So the program went into effect. I handled the lead case, the
challenge to the Regulations. Still today, the only major case. We had an
agent named Tom Collins. The actual regulatory system went into effect
in 1986. Several years later, Kareem Abdul-Jabbar, the LA Lakers
superstar center, advised some members of our committee about his agent
Tom Collins’s conduct. Upon being told about this, I’m in a state of
disbelief. Tom Collins had befriended a number of NBA players, telling
them his basic principle: You are needlessly overpaying your taxes. We
investigated and found out that in 1987, Kareem Abdul-Jabbar’s W2
salary was about $750,000 or $800,000, and Collins counseled him to pay
an estimated income tax of only $5,000. Okay. That was just the
beginning. So it turned out, thanks to Collins’s advice, Kareem didn’t pay
any income tax for three years. The interest and the penalties, federal and
state, were about $400,000 by the time the matter got called to our
attention. That’s item one.
Item two is we established this understandable principle: A playeragent
owes a fiduciary duty to the player he’s representing. An agent
cannot have divided loyalty. His loyalty can only be to his player for the
rest of his career. Consistent with that duty, the agent must keep that
player informed of everything you’re doing for him.
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So among other little tricks of Mr. Collins was he represented
another group of players of lesser caliber and less earning power than
Kareem Abdul-Jabbar. He was having financial problems with their
investments, so he “commingled” the funds he was holding for Kareem
Abdul-Jabbar. He periodically would take some of those funds and
transferred them to other clients of his with the thought in mind that
someday he would arrange for them to repay Kareem. But unfortunately,
since some of his investments went “South,” there came in time when
Kareem actually found out that several hundred thousand dollars of his
monies were no longer in his account because, as Mr. Collins “explained”
it, these were a bunch of friends, and friends commingle assets all the
time. Then there was the investment aspect. I have to say I met Kareem
several times in that timeframe, and he impressed me as being a very
smart person. How he got himself into this fix is a great mystery to me.
MR. POLLAK: It sounds like criminal fraud.
MR. COHEN: And then one of the things that happened was we discovered that Collins
started investing in very speculative second mortgages, horses and
thoroughbred racing, new housing projects, et cetera, all of which failed,
and Kareem was essentially bankrupt at the time we represented him.
The way the procedure worked pursuant to the Regulations,
Kareem filed a complaint against Mr. Collins with the Committee. It
contained ten pages of factual allegations of prohibited misconduct.
Collins could have requested an evidentiary hearing before an Impartial
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Arbitrator who was empowered to issue a final and binding decision. The
complaint recommended decertification, which would have meant the end
of his career as a professional basketball player agent. Collins chose
instead to file an antitrust action in federal district court in Colorado
claiming that all his alleged misconduct related to investment, tax, and
general financial advice concerning which the NBPA had no jurisdiction
or authority over him. The union’s response was that the National Labor
Relations Act empowered a union, once it attained majority support within
a proper bargaining unit, to serve as the exclusive representation with
respect to the player’s wages, hours, and conditions of employment. And,
in carrying out that function, the union could grant to an agent the limited
delegated right to perform that function but subject to the union’s rights to
impose reasonable rules on the agent. In that regard, the union could
require an agent to meet the standard of a fiduciary in all the services
he/she provided to the player, not just when negotiating a plyer
compensation agreement.
The district court judge agreed completely with that position and
dismissed Mr. Collins’s complaint. On appeal, the Eighth Circuit Court of
Appeals issued a brief “per curium” approval.
FYI, to the best of my knowledge, this is still the only court case
addressing a sports union regulation of agent conduct.
I also participated actively as a lecturer at the annual education
programs for all certified agents that were required to maintain their
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certified status. On those occasions, the NBPA provided a wide array of
substantive information covering collective bargaining, tax issues,
immigration rules, and general guidance especially to the new corps of
agents.
MR. POLLAK: Amazing. That’s another amazing story. The agent abuses are hairraising.
You have one more touching basketball story that you’d like to
talk about.
MR. COHEN: Yes. I shared that with you in advance because I wanted you to be aware
of that. This is only the second time in my life that I’m telling this story. I
told it when I had the high honor of being named the “Michael Weiner
Excellence Award” for the Sports Lawyers Association four years ago, at
which 800 agents were present because they were attending the NBPA and
NFLPA annual agent training seminar. They weren’t there to hear me, but
I did have an audience that was quite extraordinary. I told this story for
two reasons. One, I get tired of speaking about collective bargaining and
litigation. And two, I wanted the vast majority of those who came from
management firms or manager-oriented businesses that I was tired of
hearing the line, “Wait until you have to join the union. You pay dues and
get nothing in return.” This story I think reflects the most fundamentally
positive contribution a union could make in support of its members. It
went something like this.
It was November 1991. I’m in my rec room in my lovely home in
Virginia, and I’m watching television. All of a sudden there’s an
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announcement, “We’re interrupting this program to bring you this press
briefing.” And I look up and there’s Magic Johnson with Commissioner
David Stern, and Magic announcing to the world that he is retiring from
professional basketball because he has been diagnosed with HIV, often the
precursor to AIDS. He feels fine now, but he has such respect for his
fellow players, and he recognizes that he could infect other players.
Johnson explains that he has no interest in ever being associated with that
and that he’s retiring from the LA Lakers effective tonight. I’m sitting
there watching, and I call Phyllis, my wife, and say you’ve got to come
watch too!
So then my mind starts to wonder: as labor counsel to the NBPA,
is there anything I can do?
MR. POLLAK: Just pausing you for a second. Magic was literally the most beloved
player in the league, just for context.
MR. COHEN: Yes. The most important, beloved, the most successful. Every TV station
in America is showing this press conference right on the spot with no real
advance notice.
So I know David Stern quite well by then, and I know from
experience one preeminent thing about David Stern – he is going to
immediately swing into action. To me, that meant he was going to contact
the most prominent doctor or doctors in the world concerning HIV/AIDS,
and he was going to retain them to assist the National Basketball
Association in addressing this difficult, high-profile situation. You’ve got
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to remember in 1991, there was very little public knowledge about
HIV/AIDS outside San Francisco and a few other cities that were having
gay-related health problems. My immediate thought was the last thing in
the world I could ever envision is any NBPA player wanting to have a
doctor-patient relationship with a doctor employed by and working for the
League. I wasn’t thinking that was evil. Rather, I was sure players would
not be willing to reveal their most intimate information regarding health
and lifestyle to a management representative. This led me to focus on the
fact that I had the great fortune of being on the Advisory Council of the
prestigious Johns Hopkins School of Public Health and Hygiene.
Parenthetically, my membership had nothing to do with basketball. It had
everything to do with my OSHA activities , i.e., their interest in having
someone who gave them entrée to performing cohort studies of working
men and women exposed to numerous toxic chemicals causing serious
health issues and often death.
At 9:00 that night, I picked up the phone, and I called Dr. Alan
Goldberg, one of the three faculty members of that school who had
befriended me as part of their new team of outside advisory consultants.
The Advisory Council met a few times each year, and I attended those
sessions. I also went to lectures and made presentations describing some
of my Appellate and Supreme Court arguments representing workers
exposed to cotton dust, benzene, lead, coke oven emissions, et cetera. I
asked Alan what if I could get my client tomorrow to say they want to
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retain the Johns Hopkins School of Public Health, what would you say?
He replied enthusiastically “within 48 hours I’ll have the best team of
epidemiologists, doctors, researchers ready to go.” I then told him I’m
calling Charlie Grantham, the NBPA Executive Director, right now, and
I’m going to meet with him tomorrow to arrange to meet with your team
as soon as possible. He says, “We’re ready. I know exactly who I want to
lead my team, Dr. Michael Johnson.” I called Charlie Grantham, who had
been watching and in a state of disbelief. So he said George, I know about
Johns Hopkins’ reputation, and amen, we don’t want anybody that David’s
going to retain. The upshot was that 48 hours later, we were at Johns
Hopkins offices in Baltimore. Charlie and I and their team of five or more
individuals knowledgeable about HIV/AIDS.
They were prepared to recommend a proactive comprehensive
program. First, to put together a confidential five-page fact sheet to tell
every single player what this disease is, what you have to be aware of,
how you can be infected, and what cannot infect you. They advised, for
example, taking a shower in the same locker room is not going to infect
you. Whereas, you can be infected if blood is coming out of a player’s
nose and that touches you or you have mouth-to-mouth contact. And they
later distributed the fact sheet.
Alex English was appointed the liaison to communicate with the
Johns Hopkins team. He was then on the NBPA staff working for Charlie
Grantham’s team. Alex was a brilliant, wonderful guy from South
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Carolina. A great former basketball player. A wonderful human being. I
loved Alex. He was just an amazing person. I told him I was going to do
whatever I can to help.
MR. POLLAK: Just to be clear, Grantham is the Executive Director of the Players
Association?
MR. COHEN: Yes. At that point. Larry Fleischer had died in the late 1980s. The
second phase of the program, the Johns Hopkins team was going to go into
the locker room of every single team and conduct players-only meetings to
discuss the five-page fact sheet and to answer whatever questions any
player asks, all in total confidence. Then, they offered their services to
anyone who wanted to get tested for HIV, with the guarantee that the test
results would be confidential. All this took place on an expedited basis. I
then, as their labor lawyer, got to do two things. I contacted David Stern,
and he assigned Russ Granik his deputy to deal with me on the labor
relations aspects of the situation. He was fabulous. I told Russ, we have
put together our own team of Johns Hopkins consultants. It’s not going to
be a secret. It’s going to be made public because we’re signing an
agreement with them tomorrow to retain their services. He said John
Hopkins, how could anybody question their expertise?
Secondly, the NBPA needs to make sure that we address the costs
that are going to now be incurred because this is going to be costly and
last for a long time. We have a collective bargaining agreement that has
very broad health care provisions. I want an agreement in writing to
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amend the collective bargaining agreement to cover these services on
behalf of the League, i.e., all the fees associated with this program would
be included as part and parcel of our health coverage provisions. After
checking with David, it was agreed to.
Finally, I made clear to Russ if your doctor at any time wants to
talk to our Johns Hopkins team, I will arrange that because it would be
wonderful if everything we’re telling players, your experts are giving you
the same advice.
So go back to the program. It went into effect. It was an
immediate, incredible success from all the feedback I received. Alex
advised that the players were asking for their wives or their significant
others to meet with our medical team. Absolutely. Next, how about
retired players? Absolutely. Meetings with them also took place. In
retrospect, I think the program stayed in effect two-and-a-half or three
years, and every six months or nine months, each team was offered a
follow-up meeting. Supplemental fact sheets were prepared and
distributed as new data was collected and experiences documented.
Overall, the program was a total success with the players. A few
voiced their opposition. The one I remember the most was Karl Malone.
His stated concern was that he could contract HIV merely by being in
Magic’s presence on the court, but a concern that had been expressly
rejected by all the expert medical advisers.
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Let’s get back to Magic. As noted, he retired as a professional
basketball player in November. As we approached March, we were
getting the word back from David and Russ that they actually believed
both parties had done an excellent job in educating the players and the
public allaying fears and concerns. And I believe in a very informal way,
Charles and I asked David what if Magic wanted to play in the All-Star
game? I don’t want to be on record as saying it was my idea, but I know
there was a discussion with him in which he came back and said I think
we should allow that. And so it’s Orlando, I think I’m saying it right,
March, whenever the All-Star game.
Incidentally, as an aside, Magic didn’t really know anything about
this because Magic had his own little group of medical advisors in LA
assisting him. Magic was not an integral part of the Players Association,
and I never had any direct communication with him at that point. I
certainly didn’t want to make it seem like either I or the Players
Association was trying to get credit for what his team was doing.
Fast forward to the All-Star game. Keep in mind that for the prior
four months, Magic had not played in any NBA game or even practiced
with his team. In any event, before the game started, every single player
hugged him and shook hands with him. I attended with Phyllis and my
88-year-old mom. Of course I wanted her to be there. This was truly
historic. And Magic, of course, was still Magic. Unbelievable
performance.
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To make a long story very long, it’s two minutes to go in the game.
He had already scored 30 points. They’re shouting “MVP.” Every basket
he makes, standing ovation. Okay. That’s great enough. Now there’s a
minute to go in the game. He points to Isaiah Thomas on the other team.
Every other player steps aside. Isaiah comes out on the court to defend
him. Nobody else on the court. He and Isaiah. Whoosh. Goes around
Isaiah. Scores a layup. Bedlam. So, he looks at Michael Jordan. Points
to “the” Michael Jordan. Michael Jordan comes out. Same gosh darn
thing. Magic fakes him out, under his leg, over his leg, slam dunk. That’s
it. Total bedlam. Nothing like this probably has happened in the history
of sports, right? Nothing. So, then the hugs and kisses. Okay. Naturally
he’s the unanimous choice to be MVP. But that’s not yet the end of this
saga. The U.S. team has to be selected for the summer Olympics in
Barcelona. David agrees to let him play. Magic was a critically important
member. So here it is for the first of what properly became known as “the
Dream Team.” Larry Bird, Magic Johnson, and Michael Jordan were the
top three. But let’s not forget Patrick Ewing, David Robinson, Clyde
Drexler, Charles Barkley, John Stockton, Chris Mullin, Karl Malone,
Scottie Pippen, and Christian Laettner, the one college guy from Duke
who made the famous shot at the buzzer at the March Madness
tournament. No team in the history of basketball in my judgment has or
ever will rival that dream team. Of course they went to Barcelona, and
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they brought home the “gold.” I could tell this story every day of my life
without ever becoming bored.
MR. POLLAK: Tour de force. That’s basketball. I know it will be impossible to match.
So we actually have hockey, which I think is a coda, we’ll call it a coda.
MR. COHEN: Okay. Only one incident to share with you, and it was memorable from a
humorous standpoint. Jim Quinn wrote about it recently in his book,
“Don’t Be Afraid To Win.” Jim Quinn, the antitrust lawyer, and George
Cohen, the labor lawyer, were both retained together by Bob Goodnough,
a newly named Executive Director of the National Hockey Players
Association. Bob Goodenough was quite a character. He told Jim Quinn
and me, we’re about to have this monumental collective bargaining
session with a group of owners who he described as some of the meanest
characters you’ve ever seen in your life. John Ziegler, the Commissioner,
but he’s not really in charge. He’s referring to Ed Snyder of the
Philadelphia Flyers, Bill Wertz of the Chicago Blackhawks, and Mike
Illich of the Detroit Redwings, the famous pizza owner. So Bob says I
think Jim, you and George ought to give them an overview of how some
of the other sports unions collective bargaining agreements work with
their respective leagues and owners. And I’m looking at Bob Goodenough
with misgivings. I don’t think you’re making the right judgment here.
They don’t know me. I’m a little guy from Washington. I don’t have the
ethnicity what they might identify with. I don’t think this is going to be
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successful. But Bob says, George, I’ve got total confidence in your
ability. And on the Bible, this is what happens.
The beautiful Toronto hotel room is filled with all these gentlemen
and their staff. On the NHLPA side of the table, several dozen player
representatives and the union’s key staff members. Bob introduces me
and says the following in essence. George is here, and he’s going to start
by giving you an insight into how successfully the Major League Baseball
Players Association has worked with its owners. And I said, Gentlemen,
good afternoon. It’s an honor and a pleasure to be here. And I completed
about a sentence and a half into my introductory remarks, which was, as
you’d imagine, diplomatic and respectful, when across the table literally
five or six feet from me, Mike Illich leaned forward and then stands up
and raised his right arm with the fist and proclaimed, “Mr. Cohen, I would
rather stick an ice pick through my heart than agree to the Major League
Baseball Players deal.” Now words like that had never been said to me,
but I was, as you know, an experienced negotiator, so I pulled myself
together and said, Bob, I think we should have a caucus. And we
caucused! And that was basically the end of my presentation. Jim Quinn
later also endeavored to make an antitrust presentation, and Ed Snyder,
evidently an even more excitable gentleman, shouted that the parties
would be better served if the two of them went outside and settled the
antitrust issue with fisticuffs!
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So that’s a day you would remember. But that doesn’t end the
story because I wouldn’t bother you if it was. Seventeen days later, on the
Bible, Mike Illich, the pizza king, the owner of the Detroit Redwings, one
of the most respected entrepreneurs in Detroit, bought the Detroit Tigers,
and with it he bought the Major League Baseball Players agreement. And
that day I received something in the neighborhood of 25 emails from every
single player who was at the bargaining table the day I told you about
joking that this is a new one. Amnesia has come to life! Amnesia has
come to light! Okay. That’s it.
MR. POLLAK: Wow.
MR. COHEN: I’ll save for a later interview what recognition and awards I received for
my career as a sports union lawyer.
MR. POLLAK: That sounds good.
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Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Thursday, June 22,
2022. This is the fifth interview.
MR. POLLAK: Today George is going to talk about his part of his career where he worked
in the entertainment law field. We’re going to start at the beginning,
which is how you had done all these other things that we’ve talked about,
OSHA and sports. How did you first become engaged in the
entertainment law area?
MR. COHEN: Well thank you, Roger. And again, thank you for being in the role you’re
playing here with me today. I think for context, I would say what you
already were alluding to. I joined the Bredhoff law firm, with Elliot
Bredhoff and Mike Gottesman, in 1966, and we’re now going to start
talking about post-1987. So for 21 years, the one thing I can assure you, I
had nothing to do with representing any men or women in the
entertainment industry. So this came as quite a remarkable shock to me.
My basic theme, which I’ve shared with you in these first four interviews,
is relationships and coincidences. I’ll be more than happy to illustrate the
applicability of those three words.
MR. POLLAK: That’s great. Well this is enough after you began that it’s getting close to
when I began at Bredhoff & Kaiser, which was in 1990. I didn’t realize
until now that your work with the musicians had begun so close to that
time.
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MR. COHEN: In 1981, what was then Bredhoff, Gottesman, Cohen, et cetera – I forget
what the firm’s name actually was at that time – we merged with the other
major labor law firm in Washington, Van Arkel and Kaiser. Henry Kaiser
brought with him to our firm his legendary experience as having been the
General Counsel of the American Federation of Musicians, going back to
the James Petrillo era in probably the late-1940s and continuing in that
role until about 1977 or 1978. During that period of time, he had
established himself as one of the premiere union labor lawyers in the
entertainment industry.
In 1978 or so, an outsider ran against the incumbent president. His
name was Victor Fuentealba. He was a Baltimore-based gentleman. He
beat the incumbent president and became the president of AFM and
brought with him a new general counsel, who I actually have had a longstanding
personal relationship, Cosimo Abato. Cos was a labor lawyer
himself in Baltimore and a very fine clarinet player as well. Cos Abato
served as the general counsel with Victor Fuentealba for about ten years
until about 1987. Of course for that ten-year period, Henry Kaiser had
nothing to do with his prior role as the general counsel. But in 1987, a
good friend of Henry’s who had been the Secretary-Treasurer of the AFM
for a number of years named Marty Emerson, decided to run against
Victor Fuentealba, and he won the election in 1987. At that point, Marty
renewed his relationship with Henry, tried to get Henry out of retirement
to become the new general counsel again. Henry reluctantly agreed, but at
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that particular election, an internal union challenge occurred. Henry knew
that I had spent quite a bit of time handling Landrum Griffin-related legal
issues, and he asked me to play the point person role in advising and
counseling Marty Emerson on how to handle the election dispute that was
going on within the AFM. And of course, Henry being the man he was, I
naturally agreed to do that.
MR. POLLAK: What happened next?
MR. COHEN: Well, what happened next was, as you would expect when you’re involved
in a difficult internal union election dispute, you spend a lot of time with
your new client, namely Marty Emerson, affectionately known as “Uncle
Marty.” He was a relatively short, rotund gentleman who was a renowned
jazz trombone player. He had a charismatic personality, which I
immediately embraced. He enjoyed being with me as a human being, and
during a three- to six-month period that the election protest was taking
place, we developed a really warm relationship. But I was cautiously
optimistic that when Marty ultimately prevailed, as he did in the union
internal dispute, and Victor chose not to file a formal complaint with the
Department of Labor, which meant Marty was now the President of the
AFM, I fully expected that Henry Kaiser would return to his long-standing
role as the general counsel. In fact, he agreed to do that. However, in
various private conversations with me, Henry had indicated that he was
not really excited about regaining that role at his stage in life, which put
me on notice of a potential ominous event.
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MR. POLLAK: Can you give us a little insight into what happened?
MR. COHEN: Well the ominous event took place much sooner than I had anticipated.
I’d say two or three months after Marty Emerson ascended to the
presidency, the union conducted a major Executive Board meeting, the
first one that Marty was going to preside over. It was in the West Coast of
Florida, Ft. Meyers, at a fairly run-down motel, if I remember correctly.
Then-General Counsel Henry Kaiser went along with his wife. I was
invited to join Henry, as I did. And in a very short period of time during
the internal discussions that took place, along with the executive board
meeting, Henry Kaiser decided on balance he was not willing to continue
in that role, and he resigned as general counsel while the executive board
meeting was in session. This meant, in essence, that I was the remaining
lawyer left standing for the American Federation of Musicians.
MR. POLLAK: Very interesting. So now it’s 1987, and all of a sudden you find yourself
as General Counsel of the AFM. I have a question that you didn’t ask me
to ask you, but I really am quite curious. At this time in the AFM, who
were the musicians? Was it mostly orchestra and symphony musicians, or
was it still a lot of jazz musicians?
MR. COHEN: That’s a great question. When I tell you what my first massive,
unbelievable assignment was, namely to negotiate the major five
collective bargaining agreements between the AFM and five different
industry groups, you will quickly know what the answer to that is. I was
told, within weeks after I ascended, that I had basically six months or so to
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get ready for the next round of three-year negotiations. There had been a
traditional three-year cycle in the AFM Industry negotiations, and I will
slowly relay to you what that meant.
The first agreement that was going to be negotiated was the
Phonograph Record Labor Agreement. That covered all professional
musicians who around the clock played for what were then the major
phonograph record companies in America. There were thousands of such
musicians.
The second collective bargaining agreement that faced me was the
Motion Picture Labor Agreement. There were a smaller number of
musicians, i.e., those who did the scores for all the major motion pictures,
whether it was Warner Brothers, Fox, Disney, 20th Century. You name
all of the major producers, there were probably several thousand
musicians working for those major motion picture companies.
The third agreement was a more fascinating, nuanced agreement.
It was called the Commercial Announcements Agreement, but everybody
in the Industry referred to commercial announcements as “Jingles.” If you
put on the television, and you watched a commercial and heard someone
sing with some musical background, those were the musicians who were
employed in that industry, a very interesting potpourri of individuals doing
that.
The fourth agreement was a more standard agreement covering the
TV networks. NBC, ABC, Fox, CBS. The Johnny Carson band was like
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the “gold standard.” It consisted of probably seven musicians who were
the most sought-after musicians in the world. They had a permanent
employment status. Their earnings in those days that I can tell you about,
the late 1980s and 1990s, probably $250,000 or more with incredibly
comprehensive fringe benefits. And, of course, they were, as I said, the
gold standard.
And the fifth, and also quite nuanced industry that I learned, was
called the Traveling Broadway Musicals. When whatever musical it was,
Oklahoma had an eleven-year run in New York City, and then Oklahoma
would go out on the road with a group of musicians who are a permanent
cadre from New York. But when they arrived at every single venue in the
United States, their local agreement kicked in and the local musicians
supplemented the musicians who were employed working out of New
York.
Each of those five agreements involved not one employer, not ten
employers, but an industry-wide group of employers. And Roger, each
one, as you would expect, had its own what? Its own history, its own
tradition, its own culture, its own way of addressing and enforcing
interpretive questions. And that package of agreements, which dropped in
my lap, and what I said at the time, and I repeat it now, in retrospect, it
was the most challenging assignment I ever had. I regularly asked myself
at that time, what have I gotten into? What can I do to possibly deal with
this?
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And before I leave the subject, added on to the challenge was the
following. Each of those five industries that I’ve described had been
represented for many years by many lawyers – who knew Henry Kaiser as
well – highly competent, really knowledgeable, and incredibly
experienced people in the actual agreements that were in place. Most of
them had negotiated three, four, five of the agreements before I showed
up.
MR. POLLAK: That’s something. So what did you do to get ready for the negotiations?
MR. COHEN: Besides panicking, which is what any rational person would do, I’m
twenty years into the practice of labor law, but nothing like this avalanche
or monstrosity had ever confronted me. So the first thing I did was try to
identify two or three AFM representatives who were going to become my
educators, whether they came from the International Union staff or
particular local unions or maybe consultants, and I would immerse myself
in meeting with them about these agreements. Specifically, as you would
expect, I would literally go through hundreds of pages of provisions in
contract language trying to absorb what it meant, why it was there, was it
important, was it a new provision or an old provision? And slowly but
surely, I began to develop a minimum amount of confidence that I at least
had some kind of grasp of the issues that I was to start to discuss with the
particular union negotiating committee. The negotiating committees
historically consisted of musicians who were staff representatives, the
local union presidents from the major locals in the major cities, New York,
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Chicago, Philadelphia, Los Angeles, San Francisco, Nashville. And each
of those locals had staff people who had actively participated as part of the
negotiating committee. But the bottom line was always the same: Henry
Kaiser ran those negotiations. Not the president of the union, not
anybody else. Henry Kaiser. Thus, the mantle that I inherited was we
expect George to be our chief spokesperson. And that’s quite different
than many of the other unions that I represented in collective bargaining
where I was sitting there as a legal adviser, a bargaining strategist. I
would play the lead role in an issue or two, but I was not the single person
with monumental responsibility to prepare for and conduct the
negotiations. The history for each one of their contracts negotiations was
that basically industry would block out a two-week period, Monday
through Friday, and the parties would meet and negotiate for two solid
weeks. There were always seven or eight other unions doing the same
thing but in another timeframe. So if you were talking about the motion
picture agreement, there was SAG, there was AFTRA, there was IATSE,
there was the Teamsters, on and on. It was a very compact period of time
in which each union was supposed to work its way to reach an agreement.
And if you didn’t in that time frame, you then sort of waited your turn
before you could be regrouping, often many months later, after other
unions had reached their agreements.
MR. POLLAK: So you had to manage the cadence as well as the content.
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MR. COHEN: Yes. And what I of course became secondarily focused on was trying to
establish a meaningful relationship with each of these chief negotiators
who were my counterparts. The good news was I did have a reputation as
someone who believed in the importance of negotiating collective
bargaining agreements. I knew as well as anybody else that if you’re a
union representative, unless and until you achieve a collective bargaining
agreement that’s going to stabilize your relationship for the next three
years or so, you basically have nothing. You have open season. And to
add insult to injury, this great union, the AFM, which at one time had a
substantial amount of bargaining power and leverage, a lot of that had
disappeared by the time I showed up. It wasn’t as if I was going to be able
to just make demands, stare people in the face and expect they would cave
in and give in to the concessions or agreements we were asking of them.
It was just one fascinating, challenging experience after another.
MR. POLLAK: Right. I take it that by 1987, the impact of digital music, of synthesizers,
was already underway.
MR. COHEN: Yes. Definitely underway. And very much on the priority list of every
self-respecting company because that usually meant, if nothing else, a lot
less live musicians to have to negotiate on behalf of.
MR. POLLAK: Anything you want to share about your first round or about the history and
how that changed over time, because certainly those dynamics, the change
of music technology, really influenced during the time you were general
counsel.
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MR. COHEN: Yes. It certainly did. I think it was very influenced by my counterparts.
The Phonograph Record Labor Agreement chief negotiator was an
incredible, charismatic character named Norman Samnick, who had been
doing it for years, who had an insatiable desire to both be in charge but
also be entertaining. The direct contrast between him and Nick Counter,
who was the number one negotiator for the motion picture industry, was
evident. Nick was solid as the Rock of Gibraltar, a former Colorado
University linebacker, a straight arrow, a man of great integrity and
knowledge. Fortunately, I was able to strike a responsive chord with each
of these two gentlemen. I believe they understood that they had a
challenge too because the worst thing for them was to come into a
situation where my arrival on the scene was going to generate chaos,
which they didn’t want to happen. I also believe they understood that it
was in their best interest to pay some degree of respect to an outsider
coming in for the first time. And that was equally true with Bernie Plum
from Proskauer Rose, who was the chief negotiator for the traveling
musicians industry, and a Washington, D.C. lawyer named John McGuinn,
who served in that capacity concerning the Commercial Announcement
Agreement.
I came out of that first round of negotiations with agreements.
Incidentally, AFM agreements are all subject to rank-and-file ratification
by secret ballot, et cetera. That’s an added dimension in terms of
collective bargaining. And I was very focused on making sure that once
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memoranda of agreements were executed, ratification letters were
expeditiously sent out to describe what we had achieved and what we
didn’t achieve, that information was very well understood. Before I
arrived, many members were concerned that agreements were being
shoved down their throats with not enough transparency. I was extremely
desirable of describing the dynamic of what had happened, what we had
on the table, and why we chose to accept what we agreed to. In retrospect,
I think that distributing my comprehensive summaries of the negotiations
played a major role in the rank-and-file ratifying by large majorities the
agreements that I had participated in negotiating.
MR. POLLAK: How did those communications take place? Did you do in-person like
road shows with groups of musicians?
MR. COHEN: Yes. We did both. Well obviously where the big locals were, New York
City had a famous local, Local 802. There were many thousands of
members of Local 802 for every type of music you can imagine. Still true
today. Los Angeles, it was Local 47. Similar story, but much more
focused on Hollywood. Nashville, country western and things of that
nature.
The Commercial Announcement Agreement covered more of a
sort of independent, free-spirited musicians who seemed to do that work,
and TV networks are always the regular bands that were playing live on
stage for TV.
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So the beauty of that, Roger, was I was engaged in all these
fascinating, completely different situations even in terms of who the rankand-
file musicians were that were going to actually have to ratify each
specific agreement.
MR. POLLAK: I bet you went to some interesting musical performances along the way.
MR. COHEN: I did. I also learned, which any labor lawyer in America understands,
unless and until you show your interest in what your clients are doing on
the job site, you’re not going to get all the respect from them that you
need. I’ve always been a great believer in that, but this was easy for me
because I started on a blank slate and had to teach myself what musicians
do in these diverse jobs. I sat through some scoring sessions in LA. I sat
through some phonograph record sessions. I sat through some commercial
announcement sessions. And once you do that, the musicians are rushing
over after they’re playing to tell you about themselves, what they do, and
they’re elated that you’re showing some interest in them. All a positive
thing.
MR. POLLAK: Was there particular bargaining improvements that you remember from
the five rounds that you worked through?
MR. COHEN: It was exactly as you might expect. The dynamic is always the same. The
young people want salary improvements now, and their more senior
colleagues, realizing there’s not an unlimited amount of money, want
pension and healthcare improvements. My job was to try to figure out
what the balance was between those two groups and then, this is no secret,
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negotiating with your own negotiating committee sometimes is more
challenging than negotiating with the other side. I don’t like to tell the
other side that too often, but I know that’s true, and there’s always that
dichotomy. There’s the very easily satisfied group. There’s the militant
group. There’s the group looking at you and saying who the heck is he.
He used to represent firefighters and policemen and teachers, and now
he’s the lawyer for musicians. I was not unaware of those kinds of
comments. So I would say I focused on that; but equally important was to
try to find what I would say there were a half a dozen critically important
working conditions provisions that either the committee wanted to get rid
of or hopefully ones that the musicians had not achieved but they wanted
to achieve. Improving working conditions in all the industries that I’ve
described is a pretty difficult task. Management is almost always reluctant
to changing the status quo. I worked very hard to overcome that.
MR. POLLAK: Fantastic. I think you wanted to talk a bit about the motion picture
agreement and the John Williams performance?
MR. COHEN: Yes. So, let’s talk about the unique challenges musicians in each industry
faced. Shortly before, and I’m not sure whether it was the 1993 or the
1996 negotiations. Before I showed up in Hollywood for our two week
event, I was told that some of the major motion picture managers had
realized that they could get talented musicians from either Eastern Europe
or other parts of the world who were high-quality performers and who
would work at considerably lesser rates of pay than our contract required.
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They started going to Eastern Europe and doing the scores for motion
pictures there. Now, to further complicate the matter, it’s just not saving
money on musicians. That was equally true on a lot of production costs,
so there actually came a time that I was being told that the industry was
having a conference, about a week before we were to begin bargaining,
with many Eastern European entrepreneurs who were extolling the virtue
of starting to do much more scoring overseas. Naturally my clients heard
this and were in a state of somewhere between disarray and panic because
in Hollywood, the musicians who do the scoring for motion pictures,
that’s their livelihood – 100 to 200 gentlemen and ladies who I called the
“A” team, who were earning $100,000 to $200,000 a year because every
contractor working for every motion picture producer knew who the best
trombone players were. They know the best drummers. They know the
best electrical guitar players, and they’re the ones being called to scoring
sessions constantly, making a lot of money up front and substantial fringe
benefits. And now all of this I’m being told okay George, here’s where
we are. You better be prepared to go in and beat the heck out of these
guys because we’re in trouble.
I had a few thoughts about what to do. I’m not averse every once
in a while to shaming my counterparts and letting them know what they’re
about to do is a disgraceful. After all these years of observing their highquality
product, no one ever challenged the contributions of the “A” team
scoring musicians in Hollywood. And to make a long story long, through
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a few close friends of mine in the industry, having nothing to do with the
AFM, I was told that John, he was called “Johnny Williams,” who had
composed all the music to Spielberg films and the Olympic themes and
who was a great fan of the LA-based musicians who did the scoring
sessions, might be willing to do a special program to showcase our
musicians. It was my job to convince him to do the program. With plenty
of help, I succeeded. It took place in a big theater where the Oscar awards
used to be given, which was owned by the Motion Picture Academy. The
renowned movie “ET” was going to be shown on the huge screen, and
Johnny Williams would be conducting 95 musicians who were all seated
directly under the screen playing live, doing the score of the movie while
it was being shown. The top level of the musicians’ heads were about six
inches below the bottom part of the screen. We had invited hundreds of
prominent industry personnel, including vice presidents of labor relations
and the company executives who had been at the conference the week
before with the Eastern European companies. Johnny Williams never
looked at the score. And I didn’t realize this, but music is involved in ET
for about 95% of the actual motion picture.
When it was over, you know he received about five standing
ovations. Every one of my counterparts realized that they had witnessed
an extraordinary event, sponsored by the very AFM representatives who
were about to begin negotiations with the Industry. I sincerely believe that
this particular demonstration, protest, whatever you want to call it, did
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play a role in calming the industry folks down, and that to me was a
memorable experience. I hosted a lunch the next day for all the union
officers and a number of the musicians and invited some management
folks as well. So we did a unique job on that one. Bottom line: We
reached a new collective bargaining agreement shortly thereafter.
MR. POLLAK: Great story. I know because I saw you in practice after 1990 and there
were other things you did in the world of the musicians. I’m interested in
who else you worked with around the country.
MR. COHEN: Yes. All these became offshoots of these five rounds of bargaining with
musicians all over the country in these major local unions. As you’d
expect, every one of these local unions had its own bevy of local lawyers
because a lot of the activity of union representation is done at the local
level. However, it just so happened, because I told you this is five
industries, and those industries cut across the geographical locations of
local unions that the AFM had historically, as an international union,
served as the chief negotiator in other industries as well.
One of the really terrific things that happened to me was that when
people see you in action and appreciate the way you interrelate with them,
I started receiving some “fringe benefits” from that. The one I think I
focused on first, which to me was the most fascinating to begin with, was
the Nashville Local. The number of musicians in Nashville was
increasing exponentially. What most people, including me, never
understood many musicians, whether they’re from New York, Chicago,
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LA, Baltimore, want to go to Nashville and be part of the Nashville scene,
which is a very music-oriented scene. So at one point in time, a sizable
group of musicians from New York, LA, and Chicago who had religious
backgrounds found out that there was this very special new major label
called the Christian Music Label. They were starting to become a bigtime
player, albeit in a smaller market, all doing their scoring in Nashville.
Before you knew it, there probably were a hundred or more
musicians from all over the country now working for the Christian Music
Label. And I got a call one day from the president of the Nashville Local,
an incredibly talented man named Harold Bradley, so talented that he and
his older brother Owen Bradley actually were the first two major country
western musicians recording in Nashville. The story is that for many
years they recorded five days a week, 50 weeks a year, 9:00 a.m. to
4:00 p.m., plus overtime. Every single major country western singer used
them. And at the Smithsonian Museum, there is a room which is a replica
of the recording studio that Owen Bradley had initially established.
Everyone in Nashville knew Harold Bradley. Harold Bradley was a
world-class guitarist. Harold said to me, we’re having a real problem with
the Christian Music Label because they have no interest in even talking to
a union. The president is a very religious man. Somehow his religious
beliefs and unions were not compatible. Harold scheduled a meeting with
the musicians who were getting increasingly unhappy about their low
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wages, no healthcare, and no pension plan. But they wanted desperately
to play for the Christian label.
On a Sunday afternoon, I showed up in Nashville, never having
met any one of the musicians, and you know what happened. Harold
Bradley announced we have the AFM General Counsel George Cohen
here to discuss our situation. And, of course, I said very little, and I asked
each of them who were the leaders of the group to get up and explain to
me why they were frustrated, what was the nature of the frustration. A
common theme emerged. It was very simple. They didn’t have any allimportant
benefits or any input in participating in what their terms and
conditions were, and they were all highly competent gentlemen and
worked in some instances for other employers where the AFM had a
contract. So after about an hour or an hour-and-a-half, slowly but surely, I
started explaining to them that you are the crème de la crème. You are the
critical components of the Christian Music Label, and all you have to tell
me is that you are together, you are unified, and you are prepared to say
the magic words to the other side – namely, you have to understand that
we have decided we are no longer willing to continue to perform for you
unless and until you sit down with our union and reach acceptable
agreement. Well, about two more hours went by, and I eventually said
you know, I cannot have a conversation with management with half of you
for it and half against. I’m going to leave now. You are in a position to
tell me whether you have a unanimous view that that is the message you
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want to have sent, and I will be honored to be your messenger. And I
excused myself. I think I’m telling it correctly. An hour later, I was
called back in. Everyone was by then a little excited and applauding and
supportive. That was the message they unanimously wanted me to convey
to their management, and I said okay, here we go.
I told Harold, who was a little worried about his reputation – he
was not known as a hard-nosed person; he was known as a wonderful
musician who was always very friendly with the other side which was
providing his members all this employment. I assured Harold I would be
the picture of tact and diplomacy. He arranged for a meeting to take place
with their president, lawyer, and executive director in New York City. I
walked into the room, and my first immediate shock was to see who they
had retained. It was like a novel. They had retained Norman Samnick, the
the notorious, charismatic, very, very ethnic spokesperson for a lot of
industries there representing the Christian Music Label.
What actually unfolded, and I’m trying to say in a way that’s not
too ethnically incorrect, it was clear that the notion of dealing with George
Cohen, a union lawyer, a Washington-based Jewish union lawyer no less,
was slightly antithetical to what the Christian Music Label had in mind.
What did they do? Retained their own Jewish lawyer, Norman Samnick,
as their spokesperson.
In any event, the negotiating session began. In my opening
remarks, I was the picture of tact, diplomacy, and respect. I explained that
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I wasn’t asking any of them to change any ideological concerns, that
indeed the musicians who work for them were dedicated to their Christian
principals. All I was there for was to work with them collectively, i.e., to
accommodate their needs as the producers and the musicians as their
employees. And I was “Mister Perfection” for almost two hours, with one
overriding exception. Every fifteen minutes, Norman Samnick would
interrupt and inject some Yiddish expression that I naturally believe they
don’t really understand. Eventually, their general counsel made clear he
understood fully what I was saying, but he didn’t understand what Norman
was saying!
At the end of a two-day session, we put together a beautiful
agreement, which probably, I hope, is still in place today. You know,
when you reflect on miscellaneous success stories, that was a success
story, and a beautiful one.
MR. POLLAK: That’s great. I think you also had the experience of negotiating collective
bargaining agreements for some different symphonies and orchestras
around the country.
MR. COHEN: Yes. That was another example of why you cannot ever understate what
we said to begin with – relationships and coincidences. Several of the
very important local union symphony leaders also played for the National
Symphony Orchestra here in Washington, Bill Foster, who also was on
several of the AFM negotiating committees, and at some point in time,
probably the late 1980s or early 1990s, came up to me and said you know,
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we’ve never used an AFM general counsel to negotiate. We always use a
special lawyer who knows symphony orchestra musicians, their mindset,
their frailties, their unique concerns about working conditions, et cetera,
but I think my committee might be ready for you. And I said Bill, that’s
your judgment. So the story began. Bill Foster introduced me to a
wonderful committee which consisted of probably seven of the very
proactive union musicians. The NSO then employed 92 or 93 musicians
with a wide range of ages, many senior at that point. The turnover had not
yet really begun. The NSO was in a state of flux because the musicians
were not happy with the maestro at that time. We had a very unusual
situation because there was a long-standing agreement in place between
the Kennedy Center and the NSO, which in essence provided that
whatever the shortcomings of the NSO’s finances, the Kennedy Center
would pick them up. What that meant was that in addition to the NSO, the
Kennedy Center was going to have a spokesperson participating in the
bargaining with us. And the lawyer for the National Symphony Orchestra
– who else? Norman Samnick. Norman and I went through, probably five
rounds of NSO negotiations, each resulting in three-year agreements. The
musicians were really engaged, really smart, and totally dedicated to
playing a major role regarding their working conditions. I spent as much
time in preparation for these 92 musicians and in the actual negotiating
process here in Washington for them as I did for 8,000 steelworkers.
Every single provision of their agreement was reviewed and reexamined.
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To get the respect of the other side concerning what the musicians had to
offer, and they had a lot to offer, was the major challenge – to get
management to relax and understand, even though they were “in charge,”
there was nothing wrong with getting intelligent “recommendations” as to
how to conduct their operations.
So I had a great time, and most importantly, I got there at a time
when I think, by any rational standard, these musicians were being
severely underpaid for their talent, their skill. Here’s a classic example:
You have a second violin position vacant. You’re going to get a hundred
applicants, some who graduated Juilliard. You’re going to get 25 who are
really extraordinarily talented. There’s going to be five who could be in
any symphony orchestra, and eventually it’s culled down, and the final
three appear in a closed setting so nobody knows who they are, and the
maestro actually ends up picking the one.
With respect to their all-important economic situation, by the time
I retired in 2005, the package had achieved significant improvements in
scale wages and fringe benefits. I left at the end of my Bredhoff and
Kaiser career, replaced first by Jeff, then by Trish, and now by Ann. So
I’m delight to say Bredhoff and Kaiser has continued to represent the NSO
for all these years.
MR. POLLAK: Indeed they have. I was talking to Ann about a question they had on a
non-bargaining issue just yesterday.
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MR. COHEN: It’s a beautiful relationship, and Bill has now retired. Alice Weinreb, who
is a close friend of mine, the flute player, has retired, but she is now
playing at my Maplewood facility. Glenn Garlick, the number two cello
player, was on the negotiating committee forever. He is now coming to
Maplewood and participating. So I’m still getting the fringe benefit of my
relationship with the people who were on the negotiating committee.
MR. POLLAK: I’ll ask you to relate one more story from the musicians’ representation.
That was the Internet Agreement that you negotiated and the story about
the Metropolitan Opera performances.
MR. COHEN: Okay. That was another ultimately wonderful but a long-term, frustrating
experience. Each one of the major symphonies is represented by a local
union, but when recordings take place, then for the first time, the AFM’s
jurisdiction was invoked because the AFM didn’t want one local doing
one thing with respect to recording and another one possibly undercutting
them. So the AFM actually conducted the negotiation on behalf of all the
locals who were doing recordings. This became known as the Internet
Agreement. I was the “victim” in the sense that I was asked to be the
point person to negotiate the effort to have the first major Internet
Agreement. There were other recording agreements before that, but
nothing like the Internet, all the new technology coming into play. I’m
basically told the following from my industry counterpart Marty
Oppenheimer from Proskauer, who was incredibly thoughtful, very smart,
very experienced, and knew his industry really well. The old business
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model in which musicians got a substantial up-front payment for the
number of hours they’d be recording was no longer a viable economic
model. For example, the tradition at that point I believe was like an $800
up-front payment, times 100 musicians, so that’s $80,000. Producers
would not find that to be acceptable for several reasons: classical CD
revenue was decreasing and recording in Eastern Europe for much less.
Well, musicians then had a choice. Were they willing to lower
their “standard” and accept something less up front, or were they going to
say absolutely not, it’s beneath our dignity, we are never going to do this,
i.e., undercutting our standard. And the latter was the mindset that I
inherited as manifested by a 30- or 40-member negotiating committee
from all these local unions. Slowly but surely, the amount of work was
drying up, and slowly but surely, I was successful in persuading them, if
you got $400 up front and some share of what might be generated in
revenue, that’s better than getting nothing, which is what you’re currently
getting from this non-product!
And I would say after several years, at least a substantial majority
of the “naysayers” agreed with that approach, subject to two conditions:
(1) musicians had to receive a fair share of the net revenue (gross minus
legitimate expenses), and (2) we insist on accountability. Our CPA must
have access to their books and records. Management agreed. But then
came the killer. Our musicians were insisting that the quid pro quo for
their agreeing to a much lower upfront payment, management had to agree
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that it could not record any specific musical numbers without the local
union’s prior written approval.
Now to say to managers, who have spent their whole life
selectively figuring out which composers to record, giving the union veto
power was met with very strong opposition. Not surprising.
After many hours of discussion at the bargaining table, the parties
were truly “deadlocked,” showing no room for compromise. It became
increasingly clear to me that we were not going to have any Internet
Agreement, even though both sides desperately wanted one. So I did what
I did in Nashville. I called a union caucus. I went around the room. I said
to my committee, I’m prepared to go into that room and tell the other side
you can have the Internet Agreement you want, but you can’t have it
without giving the local union this commitment in advance. I told the
committee in any judgment, there’s a 50/50 chance Industry would reject
that demand and we would leave here without any agreement. Does
everybody understand that? Then I told them that as their chief negotiator,
I would be left powerless if Industry rejected our demand and our
committee relented. To avoid that possibility, I asked each committee
member to stand up and raise his or her hand and say I understand George
that you’re going to say those words to them, and if they accept them,
we’re getting what we want, and if they reject them, we are going to go
home. I handpicked the people who were going stand up first, including
Bill Foster from the NSO. After much discussion, I was unanimously
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authorized to demand that management accept that condition or
negotiations would be finished.
We resumed negotiations. I said folks, here’s where we are.
Every single member of my committee has authorized me to say the
following words. We want an agreement and are willing to make a major
concession – lowering the up-front payment. But all we’re asking of you
is to come back in the room and say yes, you will agree to this one
condition in advance of any other negotiations. And there was the usual
chaotic response. I said no, no. It’s no sense us talking together. We’re
going to go into our caucus. You’re going to go into your caucus, and
you’ll call us when you’ve made your decision. They came back an hour
later and Marty Oppenheimer said you guys have some nerve, but we
agree we need an agreement. And the prerequisite that we were
demanding in retrospect probably didn’t keep one project from ever going
forward. That’s the way the world works. But it was a matter of principle
and a matter of assertiveness, right?
Yes, those are great days when you walk out of successful
negotiations and share with your colleagues what you achieved.
I want to say to you and for history, I am actually a believer of
drawing lines at times. I believe it is sometimes imperative for a union to
look the other side in the eye and insist upon some provision.
MR. POLLAK: Yes. You’ve got to have both.
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MR. COHEN: And you must have the employee support. You can’t do it on your own.
That’s the kiss of death. If you tried it on your own and you fail, you’re
through, right. You’re through. You’ve lost your total credibility.
MR. POLLAK: Well, and I would guess you would say that all the constructive and
interest-based bargaining that one does around the other 90% of
negotiations create some credibility and believability around the line when
it gets strong. People who draw lines all the time usually can’t hold them.
MR. COHEN: True. But I believe there can be exceptions. I don’t want to say it, but I
will say it because it’s history. The gun control issue, I believe, is an
example of the mistake that’s been made. I sincerely believe that when
the Republicans refused to agree to a ban on AR-15s or to increase the age
to 21, the Democrats should have responded this ends the negotiations.
We are going to campaign reminding every parent in America that the
Republicans will not accept any reasonable limits on guns that are killing
our children. That’s just my own assessment at what history is going to
show.
MR. POLLAK: Agreed. Well, before we go on to talk about other entertainment unions
you worked with, you looped back to working on some collective
bargaining issues in your role at the FMCS, which we’re going to talk
further about it another session, but maybe you’d like to talk about a
couple of those mediations.
MR. COHEN: The interesting thing was I retired from Bredhoff and Kaiser in 2005, as
you know. I then did private mediation for four or five years, and then in
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2009, I had the honor of being named Director of FMCS. Early in that
career, I was jointly requested to mediate two disputes with Bruce Simon,
counsel to AFM Local 802, and his industry counterparts from the
Metropolitan Opera and the New York Philharmonic. And while in the
normal course, their issues and those two orchestras might not have
generated enough national attention to justify FMCS involvement, just the
idea that it was New York City and these two highly-respected and
renowned institutions, and I said you know what, I’m a train ride away.
I’ll see if I can play a constructive role. I had a wonderful time with Peter
Gelb, the very powerful managing director of the Metropolitan Opera.
The parties were down to one issue, and with a little persuasive quality on
my part, I was able to sell a simple reality: to pay an extra $600 increment
was well worth the price for achieving three years or four years of labormanagement
stability. In just a one-day session, he came to the same
rational conclusion, and an agreement was reached. The parties shook
hands, and I then enjoyed my relationship with the Metropolitan Opera
after that.
The New York Philharmonic mediation was much tougher. It
lasted probably seven or eight days around the clock. Bruce Simon is a
world-class union negotiator, and Willis Goldsmith, his counterpart from
the New York Philharmonic, was equally knowledgeable and impressive.
They worked hard to resolve a core pension issue. The thing I remember
the most is the orchestra was scheduled to take a major tour through the
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Far East, and all of the musicians’ instruments were about to be loaded
onto trucks and then transported by air overseas in these very special
protective luggage compartments. The parties understood “No agreement,
no tour.” Those are the beautiful moments because that’s when both sides
have to sit there and “face the music” and say what are we doing to each
other? Experience teaches that there’s a little extra added inducement
when you may or may not have a world-class tour of the of the Far East
hanging in the balance. And yes, that’s how one or two extra little added
provisions find their way into a collective bargaining agreement.
MR. POLLAK: So interesting. So in addition to the musicians, I know you did work with
the Directors Guild of America and also SAG and AFTRA involving a
range of different projects after you began with the musicians in 1987.
MR. COHEN: So that, again, Roger, those are the wonderful offshoots of what I had been
doing on behalf of the AFM. I’ll discuss the Directors Guild first because
I did a very precise number of small but important projects.
The Directors Guild of America was known by everyone in
Hollywood as the most important labor union in the Industry, period. In
part, that was because if you looked and saw who the officers had been –
Martin Scorsese, Steven Spielberg, Stephen Sondheim – you might say to
yourself that sounds like the most powerful “entrepreneurs” imaginable.
Well, they were “union” directors extraordinaire. In fairness, the
Directors Guild of America has many thousands of assistant directors who
are much more like rank-and-file white-collar employees. But in any
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event, that was the history, culture, and tradition. And in part, because
those named directors were so highly respected and possessed enormous
bargaining leverage, the Directors Guild ascended to the role that they
usually negotiated first in every major round of bargaining. This was met
with acceptance, maybe begrudgingly by some of the more left-wing
leaning unions like the Writers Guild. In any event, everyone in
Hollywood knew that the studios had to get an agreement with the
Directors Guild if they wanted to make movies. Certainly the musicians
understood that, as did SAG (the actors), IATSE, and the Teamsters.
Also, keep in mind Hollywood has been and remains 95% unionized – a
world apart from any other Industry.
Jay Roth and I had had an excellent long-standing relationship. He
had once been a key lawyer for the Machinists Union. A great bargainer,
a great litigator. Then he assumed the leading role as the Executive
Director for the Directors Guild of America. He served as the chief
negotiator in all the union’s collective bargaining with the Motion Picture
Industry. He knew I had certain sports-related specialties, and there came
a time that the Directors Guild were particularly interested in the
relationship between a union, its members, and their agents – a subject that
I was intimately familiar with as counsel to the NBPA and MLBPA. And
then he also was anxious to have me share with him some bargaining
strategy. As a result, I was fortunate to get to know president Michael
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Apted, a famous director, and his successor, Taylor Hackford, and a
fabulous TV director named Paris Barclay.
Jay was a fan of my son Bruce Cohen, who had been a member of
the Directors Guild before becoming a major motion picture producer –
Academy Award winning “American Beauty,” “MLK,” and “Silver
Linings Play Book” to name a few. The result was that any time the
Directors Guild/committee officers had a matter in Washington, I
participated in their high-level strategy, and I did play a role in some of
the agency-related issues.
It was just a nice feather in my cap to be recognized by the
Directors Guild of America, which is still the number one Hollywood
union. I was fortunate to get to meet a number of different union officers
and key staff in my numerous visits to LA on musicians’ business.
One day, completely out of the blue, I received a very unusual call
– unlike any I had ever received. On the phone were both the Executive
Director of SAG, Bob Pisano, and Greg Hessinger of AFTRA.
Bob Pisano was a very well-known former management labor lawyer, and
his general counsel turned out to be David White, who later ascended to
the Executive Director of SAG. This is what I was told: SAG and
AFTRA have had a twenty-year history of “dancing around the bush with
each other,” should we get together or should we not? Should we merge?
Should we affiliate? We’ve had various, what’s the word?, dalliances, that
never turned to fruition, but we think we’re getting close to the right time
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for this, and we’d like you to agree to be the designated facilitator for the
discussions that are about to begin. This is going to be a big job because
we each have committees of fifty officers and staff. We have all these
often divergent separate interests. SAG historically turned down its nose
at AFTRA. SAG members proclaim “the greatest success in my life was
the day I got my SAG card,” and they’re looking negatively at these
AFTRA members just doing the television work. Conversely, the AFTRA
folks are saying these elitist SOBs. I’m listening. I’m saying well guys,
you’re telling me I can’t facilitate this dispute! Why are you doing this to
me or yourselves? No, no, no. The time is right. I say well I have only
two conditions. I don’t know anything else about your organizations, but I
know you each have a lot of lawyers. So first, I’m only going to be
responsible to you two because you’re the Executive Directors talking to
me, and I’m comfortable knowing whatever I do with you two, it’s either
going to be agreements with you and me or I can’t do this, right? And
they said you’re absolutely right. I said and I have another condition.
Once we talk about pensions or health care, I’m not accepting any other
consultants or experts to work with other than Penny Clark and Bredhoff
and Kaiser, because this is my team. I didn’t have Jeff Freund in mind at
that moment, but once I began to serve as facilitator, I said to them I also
need a colleague with internal union governance expertise, and Jeff started
playing a major role with me that lasted at least six months.
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The format went something like this: for five days a week, several
weeks per month, joint committee meetings took place in an LA hotel.
These meetings consisted of about a hundred people in a room, including
two executive directors, side by side with the presidents of their respective
unions, staff representatives, and committee men and women. The task
was monumental. The constitutions and bylaws of each union was
reviewed in detail with the view of creating a new overall governance
structure. You can imagine. In the midst of all these challenges, there
was unlimited, unprecedented entertainment.
Now here I am, I had represented firefighters, steelworkers,
basketball players, but I had never seen anything like what SAG/AFTRA
discussions were like. A member would get up and make an emotional
speech, and halfway through, a few actually started to cry, and some
fellow member would come over with a box of tissues, and then to calm
down the trauma level, the other side would say, well we baked chocolate
chip cookies today because we anticipated this was going to be an
emotional situation. I’m not making this up. This actually happened
during the course of these discussions. There would be shouting. There
would be emotion. There would be a little crying. A lot of cookies would
be distributed. And then once in a while, an outstanding, thoughtful
person would make a brilliant presentation, and everyone would pay a lot
of attention and even applauded!
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I did my damndest. We spent hours behind the scenes just with the
two executive directors, the presidents and their lawyers. We drafted, I
don’t know, six major governance documents, constitutions for each,
constitutions for a prospective combined organization. It was not going to
be a merger. It was going to be an affiliation, because if you used the
word “merger,” the SAG team members would walk out of the room.
Was it very close to a merger? Of course. Was it going to lead to a
merger? Of course. But you couldn’t call it that, at least not yet. That
was just one of the many, many political nuances I had to deal with. At
the end of the process, we would be working around the clock, and for me,
all billable hours. From Bredhoff and Kaiser’s standpoint, this was a
really big six- to nine-month client. Not that we were charging that much,
but we had two clients, and they were each paying us a reasonable hourly
rate.
Okay. The documents are done. It was a Herculean effort. Rankand-
file approval was required. What you’d expect. Road trips. I did not
go on road trips. I’m the facilitator. The key officers and staff gave a
detailed presentation plus distributing all applicable documents. Then
came the moment of truth. My wife and I were vacationing at a friend’s
house outside of Tanglewood. I was sitting by their lovely pool, and I get
the message. AFTRA members approved by a large majority, 75% “Yes.”
Fantastic. SAG members, 58.5% approval. But SAG had a “super
majority” provision in its constitution – 60% required – and therefore, the
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deal has gone down the tubes because only 58.5% of its members voted
yes. And I was not a happy camper. Without a doubt, this was the most
disappointed I have ever been about an effort to resolve a dispute.
MR. POLLAK: I’m certain.
MR. COHEN: The good news is that a number of years later, a merger was
consummated. One other redeeming fact: I remained good friends with
David White, who has just retired as the Executive Director of
SAG/AFTRA. A gentleman from Disney named Robert Johnson and I
developed, together with Bruce and Julie, a whole family friendship. I had
all these fringe benefits from this debacle. I’m exhausted, right?
MR. POLLAK: Yes. Well that brings us to the end of our discussion today, although I
must say I hate to end on a downer story.
MR. COHEN: Well it was like everything in life, what was the most disappointing was
when you think as all the people who called me almost tearful were saying
where in the world would you get 58.5% vote in a secret ballot election
where thousands of people have cast their ballots and still go down the
tubes? That was the single most objectively distressing thing. What do
you say?
MR. POLLAK: Well thank you.
MR. COHEN: Thank you.
MR. POLLAK: Another fascinating discussion. I believe not the last one that we’ll have,
so we’ll be back together again next month.
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Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Thursday,
November 3, 2022. This is the sixth interview.
MR. POLLAK: George, it’s nice to be back with you.
MR. COHEN: Great to be here, Roger.
MR. POLLAK: Tell us what you’d like to talk about today.
MR. COHEN: I think it’s about time we might as well face up to the Supreme Court, and
I thought we would do it in chronological order, saving the major cases for
last. I’m not going to talk about one of the two OSHA cases, the Benzene
case, because within one year after that, Cotton Dust came down, which
answered the questions the Supreme Court left open in the Benzene case.
What I thought would be the most interesting for people who are
reading this would be to give a little back story before I tell what happened
in that case.
My first case was HK Porter about 1968 if I’m not mistaken. And
how did it come about that as a 34-year-old guy who had just entered
private practice with the law firm of Bredhoff and Gottesman in 1966 I got
to handle that case up to and including a Supreme Court argument? It
really was quite an unusual story.
I had been at the NLRB for six years starting in 1960, the first
three years on Board Member Jerry Brown’s staff as an attorney-advisor
learning about the National Labor Relations Act. After three years there, I
decided I had to get closer to the real world, and I was fortunate enough to
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transfer from the NLRB side where I wrote memos and drafted decisions
for board members to the Appellate Court Branch of the General
Counsel’s Office. For the three years from 1963 to 1966, I had this
fortunate opportunity to draft briefs and then actually argue cases in the
circuit courts of appeal.
Then I was hired by a two-person labor law firm, Elliott Bredhoff
and Michael Gottesman, and was enthused, as you might imagine. I
wanted to stay in Washington. I wanted to be a lawyer representing
working men and women through their unions. This opportunity arose.
They hired me in the fall of 1966. When I was hired, Elliott and Michael
were in regular communication with Bernie Kleinman, the new General
Counsel of the Steelworkers Union. And when Bernie found out who I
was, he said to Mike in particular, look, George is coming here with six
years at the NLRB. He should be a natural to help us with NLRA-related
cases, and they agreed. I guess I should say for the record because it’s
fascinating, they also agreed to pay 50% of what was going to be my
starting salary at Bredhoff and Gottesman (i.e., $15,000 per year). I
worked 96% of my time for the steelworkers, and they reimbursed 50%
for my time. So while that might be viewed as a downside, the upside was
HK Porter.
Initially, I knew nothing about HK Porter. There was an NLRB
charge filed by the United Steelworkers of America which ended up with a
refusal to bargain complaint being issued against the company. Under the
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NLRB procedure, a full-blown evidentiary hearing took place before a
trial examiner and ultimately a decision of the Board issued affirming the
complaint. I had nothing to do with any of that, but the NLRB then filed a
petition to enforce that decision in the United States Circuit Court of
Appeals for the District of Columbia. And somehow in the discussions
between Bernie and Mike, they said why don’t you handle that case.
That’s what happened.
What is fascinating about that case? Here goes. The Steelworkers
had succeeded in a recent organizing campaign. They were recognized by
HK Porter, and they were negotiating their first contract against what you
would call a pretty tough company in the southland. The union proposed a
traditional dues checkoff provision in which the employer agrees that if
individual employees sign an authorization card saying you can deduct my
union dues, and in return, the union says we will pay for whatever the cost
is and will agree to assume any liability if any employee ever turns around
and says the employer was not authorized to deduct my dues. The union
made that precise offer, and the employer basically said thank you, but no
thank you. There then unfolded an interesting fact-finding inquiry in
which the NLRB ultimately decided that given there is an obligation to
bargain in good faith, the company failed to satisfy that duty. Instead,
what this company did was to say we are not going to give the union a
dues checkoff to help them to raise money to represent their members, and
the Board decided no lawful reason has been offered; it appears you want
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to defeat the purposes of bargaining in good faith and do not desire to
reach an agreement with the union. We’ve come to that conclusion in part
because the record evidence is that you’re checking off dues and other
payments for all sorts of organizations, for the Red Cross, for polio, for
some nonprofit groups, so there is no reason logistically or
administratively why you’re not doing that for the steelworkers. The case
went before the U.S. Court of Appeals for the D.C. Circuit, and that’s
when I entered the case.
MR. POLLAK: George, let me interrupt just for one second. Did the NLRB impose on
HK Porter an obligation to agree to that provision?
MR. COHEN: Not yet. That’s what makes this so interesting. Issue one in the Court of
Appeals was the traditional issue: Is there substantial evidence on the
facts that exist that these are correct, supportable findings of fact and the
conclusion of law that flowed from that? The court’s answer was yes.
That’s the final decision at that moment, but what occurred is what
is noteworthy. An oral argument was conducted by a highly respected
panel. I believe it consisted of David Bazelon, Skelly Wright and another
strong-minded, very thoughtful judge who knew all about the National
Labor Relations Act. When Skelly Wright asked company counsel could
you be kind enough to tell the court what precisely was your objection to
the union’s proposal for dues checkoff, the company lawyer leaned
forward, took his right hand, and put it where his backside wallet was and
said, “Your Honors, I like to keep it in my back pocket.” Now I had been
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in a small number of oral arguments, but I must say I was not surprised by
the court’s reaction of disbelief to that response. The company lawyer
realized that that was probably not the most desirable way to express his
legal position, he then volunteered “by the way, I’m just passing through,”
which is a code word for saying I know I’m not going to win in this court,
I’m going to the Supreme Court. And that is exactly what ultimately
happened.
Okay. The Court of Appeals issued its order directing the
company to bargain in good faith, a standard bargaining order. The parties
went back to the bargaining table. I’m not involved in that negotiation,
but the company repeated with even more enthusiasm, you still ain’t
gonna get this. Back they go to the Board.
The Board then rules. We are really frustrated here because the
whole purpose of a bargaining in good faith order is to effectuate the
policies of this Act, i.e., to try to get parties to conduct themselves in good
faith and reach agreements. The Board decided what we have here is the
antithesis of that, and in these unique circumstances, we believe, a more
powerful order has to be issued, notwithstanding the language of Section
8(d), which I should read for the record, Roger. Section 8(d), after talking
generally about the obligation to bargain in good faith, includes the
famous words, but that obligation “does not compel either party to agree
to a proposal or to require the making of a concession.” Those are very
strong words in which Congress was saying we don’t want to have the
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government inject itself into what actually happens in the bargaining itself
other than to require a fundamental obligation to do it in good faith. Okay.
The Board maintained it had, under Section 10, very broad authority to
remedy violations and opined we think reading Section 10, the language
citing the importance of effectuating the purposes and policies of the Act,
it had the power and authority to compel the party, HK Porter, to agree to
the dues checkoff provision in these unique circumstances. And that went
up to the Supreme Court of the United States.
The way the oral argument proceeds when a government agency is
a party, that agency – the NLRB – gets half of the time, and the union as
intervener gets the other half, so the key lawyer for the NLRB argued for
the NLRB, and I had a chance to argue for the union. We came awfully
close but didn’t quite make it. We lost 6-3.
So that was the end of HK Porter. I would say to you that’s now
hornbook law. And all that case really stood for was even in the unique,
special circumstances of that fact pattern, Section 8(d) language that I
quoted prevailed.
MR. POLLAK: Do you think that the Board considered dues checkoff provisions to be so
fundamental to the entire structure of employer-union relationships that
they thought it could be an exception?
MR. COHEN: I can’t give you the Board’s mindset, but yes. I think what they were
saying to themselves, if a party can flaunt this obligation, we’ve really lost
the ability to enforce the law as we were obliged to.
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Now, I did leave out a nuance in which the Board I think was
looking at also an alternative – i.e., to initiate a contempt proceeding
against the company. That tactic might have given the Board ammunition
in support of its precedent-setting effort to require HK Porter to agree to
the dues checkoff provision. Whatever the reason, the Board didn’t
pursue a contempt proceeding.
MR. POLLAK: Interesting. Well a small note. When I first came to Bredhoff and Kaiser,
many years later in 1990, I think it was in the very first year I worked on
the HK Porter bankruptcy.
MR. COHEN: The great thing about our interview is you can always pick up any thread
from something I did a few years before and say by God, you worked on
it. That’s great.
MR. POLLAK: We were trying to protect the retirees’ interests.
MR. COHEN: You know the other observation that you would completely understand is
this was sort of the beginning of my learning about labor relations in the
South and how powerful the opposition was to agreeing to recognize a
union in the first place and then how tough it was to negotiate your first
contract when something as simple one would think as a non issue as that
could actually have generated that case. So I’m now in 1969, 1970, I’m
learning a lot.
MR. POLLAK: Tell us about what it was like for the 35-year-old you to appear before the
Supremes.
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MR. COHEN: I’ve actually spoken about that, and what I said was the following: that
any rational human being, young or old, who knows they have to walk up
thirty-four Vermont marble steps in order to see the sign “Equal Justice
Under Law” in big gold letters and then walk into that room with the
drapes and the bench with the nine Justices bedecked in robes, if you
aren’t a bit overcome, the answer is then you don’t deserve to keep doing
that! So I viewed it as an amazingly wonderful opportunity and
experience, and I think at the end of it, I said Wow, I’d like to try to do
this again someday. And I had the total support of Michael and the
lawyers from the Steelworkers even though we lost. That’s a good thing
to have going for you.
MR. POLLAK: Did you get very far into your argument without being interrupted?
MR. COHEN: No. I realized very quickly that you had to really give the Justices some
“meat” in order for them to get interested. I’m sure I was able to, or at
least I tried to communicate what had happened down below to see if I
could convey a little extra pizzazz.
MR. POLLAK: Anything more on HK Porter?
MR. COHEN: No. I think that’s all I’d like to say. Thank you.
MR. POLLAK: Okay, next we are going to talk about Buffalo Forge.
MR. COHEN: Yes. Buffalo Forge. Following my theme here, background. Buffalo
Forge was another Steelworker case, and it arose out of a pretty interesting
but not too unusual circumstance. For many years in the steel industry, at
the major steel companies, or even a medium size like a Buffalo Forge, the
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production and maintenance employees joined the United Steelworkers of
America. They organized. They won an NLRB election, and they start a
relationship with the company. Over time, the two parties entered into a
number of collective bargaining agreements, usually three years in length.
And the relevant thing to think about in this case is the quid pro quo. The
union agreed that during the term of that three-year agreement, they will
not engage in a strike and instead, they are getting the right to arbitrate any
dispute as to the meaning of any contract provision and get a final and
binding award from a neutral impartial arbitrator. That’s sort of the very
standard arrangement.
In this case, at midpoint in one of those three-year agreements, the
office and clerical employees, who had never joined any union before,
were organized by the Steelworkers, and lo’ and behold, a majority of
them in an appropriate unit, voted in favor of the union and established an
Office and Clerical Employee Local. Then they began their first round of
negotiations. They were met with some significant opposition. Not
surprisingly, because it’s one thing for a company to realize its blue-collar
workers have joined the union, it’s quite another thing for them to
emotionally come to grips with oh my God, our office and clerical
employees too? These are people we see every day of our lives. These
are people who we treat really well, and now they’re telling us they want
to reject us as their lone supporter and join a union. Making a long story
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long, the office and clerical employees went out on a lawful economic
strike after several months of abortive negotiations.
Now, at that point, a few days after the strike took place,
apparently the leadership of the production and maintenance local met and
said, you know what, this is the moment of truth for solidarity here.
We’re going to help our brothers and sisters in the office and clerical unit,
and the production and maintenance employees then engaged with what
you and I call a “sympathy” strike. It’s a strike in sympathy of the office
and clerical’s downtrodden situation designed to maximize the economic
pressure on the company so it might agree to a better agreement for the
office and clerical workers than they had been able to achieve on their
own. So all the magic words: togetherness, solidarity, unity, and
sympathy are all built into what happened.
Now, when that happens, a company has its their own antisympathy
approach to life, and so in this case, it did two things. It filed a
grievance claiming that that the production and maintenance employees
strike which was going on was in breach of the contractual “no-strike”
clause between the company and the union. And then what caused this to
become a cause celeb, Buffalo Forge also moved for an injunction, a
temporary restraining order, pending the actual arbitration that was going
to take place. So there was no doubt that at some point in time the
question of could you be engaged in a lawful sympathy strike was going to
be before an arbitrator. The Supreme Court precedent was also clear. If
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the arbitrator ruled that what the union did in the name of a sympathy
strike was in breach of its no-strike commitment, then the company could
get an injunction once the arbitration award issued, notwithstanding the
language of the Norris-LaGuardia Act against labor injunctions.
The narrow question presented was what about during the interim
period between the demand for arbitration and the award? Would there be
a right to get an injunction in that limited period of time? The Supreme
Court ruled that when those workers went out on strike, they had no
dispute with Buffalo Forge. There was no issue between them and
Buffalo Forge, i.e., they didn’t really have an arbitral dispute at the time
they went out on strike. In those circumstances, the Supreme Court
decided that the anti-labor injunction section of Norris-LaGuardia
prevailed, and therefore it denied Buffalo Forge’s effort to get an
injunction during this period of time.
Again, you’ve got to ask yourself in practical terms, what does this
really mean? Well, it meant that the union did have an open period of
time where that sympathy strike could have put a lot of pressure on that
employer awaiting the moment of truth when they got an arbitration
hearing, an arbitration award, and then an injunction. One would ask was
that a desirable result for the union? The answer is absolutely yes, and
was it the result that the company didn’t want? Absolutely yes.
Now comes the real fascination. How did this opinion come about,
because when you looked at it, Justices Marshall and Brennan were in
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dissent. And I believe, Roger, and I haven’t researched this, but that may
have been the only labor case in which a union ever won in which
Marshall and Brennan both dissented and ruled against the union. All the
experts sat down in a room and said, how did we ever win this case. And
the answer seemed to be that the court was really concerned if they opened
the flood gates to more injunction proceedings, they were going to be
besieged with cases and disputes on that issue, and they didn’t want any
part of expanding the scope of the court’s workload by having to decide if
Norris-LaGuardia impacted on similar cases.
MR. POLLAK: That was a pretty favorable outcome for the union. Was the union in
danger of having to pay damages?
MR. COHEN: They’re always in danger of that, but you know how these matters get
resolved. Workers come back to work and work overtime, so the
company has not lost any production or profits and will likely conclude let
bygones be bygones. Otherwise you’ll have a two-year battle about
damages, and you know how difficult it is for a company to win a damage
suit when the strike only lasts three or four or five days, and they
immediately start making up for lost income by overtime blah blah blah.
I did leave out the one human dynamic which remains near and
dear to my heart. It is this: where was I on July 6th of that year, the last
day of the term? Incidentally, it was also the last case decided by the
Supreme Court that year because I believe the 5-4 was back and forth
because of Brennan and Marshall. On that day, I was at Ambassador
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Laurence Silberman’s residence in Yugoslavia. He had been a very
highly-respected management labor lawyer who later became a D.C.
Circuit Court of Appeals judge. And on the Bible, the equivalent of a
FedEx package arrived at the embassy. Phyllis and I and Bruce and Julie,
my two children, were standing at the door with Larry and his lovely wife,
Ricky, and the FedEx package was handed to him, and he opened it up and
announced that I had won that case! He was not a happy camper, but we
had a remarkable experience that night with him hosting, drinking wine,
and celebrating. He never forgot that, and I never forgot that. Larry just
recently died a few weeks ago, and I attended the memorial service in his
honor.
MR. POLLAK: It’s hard to imagine he would have ruled in your favor had he been sitting
on the bench.
MR. COHEN: I have nothing to say about that, but it was poetic justice.
MR. POLLAK: Very much so. Well, I’ll ask you the same question I asked about HK
Porter. So now it’s like six years later. What do you remember about the
day, the argument itself, the Justices?
MR. COHEN: I’m really glad you’re asking me that question because I’m passing all that
by. So two fascinating nuances. My name is George H. Cohen. The
lawyer for Buffalo Forge was Jeremy Cohen. So there were two Cohens
arguing against each other. My very good friend, Doctor Paul Schlein and
his wife Sally, were there and he’s never forgotten the fact that two
Cohens argued against each other in that case.
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The thing I remember the most was the following. You know
about protocol in the Supreme Court. No matter how you describe
protocol, you never completely capture it. So in this instance, the Court
sat from 10:00 to 12:00. There’s a lunch break from 12:00 to 12:30, and
then they resume at 12:30. That’s what they were doing in those days. I
literally stood up at 11:59. I didn’t think they were going to call my case,
but they do. I stand up. I speak for thirty seconds. Down comes the gavel
from the Chief Justice. Lunch. I did not eat lunch that day! That I
remember.
I remember one other thing. All of my brilliant Supreme Court
colleagues, Bob Weinberg in particular, who worked assiduously with me
on the brief, on the strategy, et cetera. We thought that Justice Brennan
had written a decision in Retail Clerks, an earlier case, and that the
rationale he used in that case was available to us to build on and rely upon
in our case. I opened my mouth and said words almost to that effect. He
slammed down his hand on the desk, called his clerk. The law clerks are
in the back room. Get me that decision, he shouted, and they brought him
the decision, and he cited a specific page and let me know in no uncertain
terms I was not going to be able to use that precedent in this case to
support my argument! You remember those things.
MR. POLLAK: So you had to pivot.
MR. COHEN: I had to go home. In my mind, I was through. I’ve lost the Justice I’m
relying on to be the key vote and hopefully to author the opinion.
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MR. POLLAK: That’s not how it turned out.
MR. COHEN: I learned another lesson in life, how complicated it is when you have
circumstances that you think are really applicable and analogous, and that
doesn’t automatically mean they’re going to be found to be.
MR. POLLAK: Also sometimes the judge you think is going to be on your side isn’t.
MR. COHEN: That was the bottom line, more than being on my side. That was going to
be the key to the argument. We had of course, as you’d expect, back at
Bredhoff and Kaiser that night, we were moaning and groaning.
MR. POLLAK: I bet. So winning was really unexpected?
MR. COHEN: Totally unexpected by anybody. The reason alone I told you. Nobody
who knew anything about the Supreme Court ever would think a union
could win a case having lost Justices Marshall and Brennan.
MR. POLLAK: Extraordinary. Well, should we move on to the Rawson case?
MR. COHEN: Absolutely. Bottom line: to be involved in that case has had a very
dramatic affect on me and any and all of my colleagues in my firm who
worked on it for a very simple reason. In May 1972, at Sunshine
Mining Co. in Kellogg, Idaho, there was a horrific, unprecedented, fuelrich
fire that started somewhere like at 3,000-4,000 feet below ground
level and spread. At the end of the day, 92 miners died of asphyxiation.
Ninety-two miners. The media showed photos of all those bodies being
pulled out of the mine that evening amid shrieking wives, families, and
friends. I’m going to cry right now. Everybody is there watching. I’m
not aware of this. I was assigned the case about a month later, but what I
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found out, which was probably as reprehensible as anything you or I or
anybody can contemplate, was several plaintiffs lawyers were flying into
Kellogg, Idaho, to meet with and sign the widows as their clients. There’s
92 dead people. That’s all they know. They had no idea what had
happened and who might have been responsible. All they knew was they
were going to file lawsuits and hopefully get to a jury. And indeed, six or
seven lawsuits were actually filed, some of which named the government,
some of which named the manufacturer that had placed chemicals on the
walls. I mean to this day, nobody ever definitively determined what
caused the fire.
But one group of lawyers ultimately found their way to learn that
the United Steelworkers of America Local had a Safety and Health
Committee, and why don’t we have a claim for wrongful death under
Idaho law alleging that the lay committee members (and that’s who they
were – not experts) were negligent in several respects. The committee
members allegedly didn’t have enough respirators available. They didn’t
do enough to have the condition of the respirators checked out. They
didn’t do enough to educate themselves and inform the miners where the
exits were located. In that mine, many individuals worked in isolated
areas, removed from others, and that’s why so many of them allegedly
died so quickly of asphyxiation. And, of course, the plaintiffs’ lawyer
alleged that these negligent acts caused the miners to die. Perhaps more
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revealing getting to a jury in those emotion-packed circumstances would
be a dream come true for them.
MR. POLLAK: What were they mining for?
MR. COHEN: It was a silver mine. The largest silver mine in the United States. I’m
called by Bernie one day, maybe a month or two later, and he tells me
what’s happened. These lawsuits were filed almost immediately. I was
assigned to be the lead lawyer representing the union. And he assigned an
excellent in-house lawyer named David Gore to work with me. Among all
his wonderful attributes, David also happened to be African American,
which led to a number of human dimensions when we arrived in Kellogg,
Idaho. Probably nobody there had ever seen a Black person. Aware of
that reality, David handled himself magnificently. He informally greeted
many white kids, and they seemed elated.
I know enough by then, it’s 1972, and I’ve been with the firm for
six years, that in order for me to get the story from any working man and
woman in a mine, let alone with 92 of their brothers dead, I’ve got to
know what’s going on there. And I know nothing. When the local union
staff met us, the first thing I arranged was for both David and me to get
certified by the government mining agency to enable us to go
underground. My thinking was that more important than anything else,
we had to show these miners who were being asked to disgorge their life
experiences that we were worthy of hearing them. The course was about
six hours. You learned how to use the respirator and other safety gear.
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Very professional course. We were taken down a shaft in a wooden
elevator, and when you got to about 2,500 feet, you got off and you’re like
in an air-conditioned cafeteria and say oh my God, this is pretty nice.
There’s the cafeteria. There’s the coffee. There’s lunch. There’s the guys
at their lunch break. David was a little more circumspect about it than I
was. I was totally naïve.
Well at 3,500 feet, we learned there’s a lot of difference because
now you get out of that wooden shaft with ropes. This is not a high
technology operation. This is one of these little good old mines that’s
running for the owners as a low-cost operation and not for the troops’
safety. At that level when you got out, you felt like you’re being
asphyxiated. Your glasses and everything else started fogging up on you,
you’re sweaty, and you felt like you wanted to leave the area as quickly as
possible. That was a half hour or hour experience that we had walking
around trying to see who we could locate and then interview the individual
miners. I will also say my partner Bob Weinberg later on was involved
with me for years, but that was after the court case proceeded.
Now the court case. Well, first of all, we’re the defendant, and
what’s going on is the city was building a statue outside of Sunshine Mine
in honor of 92 of their brothers who were now dead. The lawyers entice
these widows to be plaintiffs. So you’re saying to yourself, I don’t have to
have gone to law school. I don’t even have to have gone to college. I
know if a jury in Kellogg, Idaho, is going to decide whether to provide
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some poor, shaken widows much needed financial assistance versus
supporting the union and dismissing their lawsuit, I’m not in good shape,
right.
Now what you don’t know, and I learned to make it even worse,
Idaho worker comp law was about as unfavorable to workers as you could
imagine. I believe I’m correct in saying that in 1972, a widow could get
$40,000 for the death of her husband to survive for the rest of her life in
consideration for which she gave up the right to bring a private damage
suit against the company. So their lawyers decided to bring a tort action
against the Steelworkers under Idaho tort law. So what did we do as the
Steelworkers lawyers? We moved to dismiss on the grounds of federal
preemption, i.e., that the union’s only duty, when you’re talking about
functioning as the exclusive bargaining representative (i.e., whether
functioning as a safety and health committee, as a negotiating committee,
as a grievance committee, et cetera), is controlled by settled Supreme
Court precedent holding that there is no negligence claim that can be filed
against the union. The union’s only duty is the federal duty of fair
representation established by the Court which meant that a union’s only
legal obligation was not to be hostile to, discriminate against, or engage in
arbitrary conduct against the employee. And if plaintiffs can only prove
that the union may have been negligent under Idaho tort law, the case
should be dismissed. That’s where we were. And the case was initially
assigned to a really impressive lower state court Idaho judge sitting right
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outside of Kellogg, Idaho. So I enter. You know what I do. I’m moving
to dismiss, relying on federal preemption.
Our team consisted of Bob Weinberg, Jeremiah Collins, and
myself. We immediately recognized this is a biggie. The only telephone
call I have ever received in my whole life from a Secretary-Treasurer of
any labor union came from the Secretary-Treasurer of the United
Steelworkers of America, a wonderful gentleman named Walter Burke,
who had nothing to do with its lawyers or lawyering. That was President
I.W. Abel’s job in those days. Walter Burke got on the phone and said to
me something to the effect of, George it’s really important that you win
this case. And so why was it so important? Because the thought that with
5,000 or more local unions with safety and health committees at every one
of those locals, any time a worker was injured or died on the job,
somebody could get to a jury and seek damages against the union, you
might as well kiss the union’s treasury goodbye. I mean it was that clear
in everybody’s mind.
That was in the back, or more aptly, the front of my mind all the
time. Unbelievable as it might seem, that lower court judge ruled in our
favor. He concluded in the most simple words. Without a collective
bargaining agreement, there would not have been a safety and health
provision. And without that safety and health provision, there would be
not have been a committee with the right to inspect the premises. So he
opined that the plaintiffs’ claim was directly and completely interrelated
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with the union’s basic representation function and what they had achieved
in the collective bargaining agreement. The bottom line, he concluded,
was that plaintiffs Idaho tort law claim was preempted by federal labor
law. The contrary argument that was used throughout the various stages
up to and including the Supreme Court was all the collective bargaining
agreement did was describe the nature and scope of the duty, but it didn’t
control the way in which a worker could turn around and sue his union.
That fundamental argument was rejected.
The plaintiffs then appealed to the Supreme Court of Idaho. We
are now cautiously optimistic. All these findings of fact were made. It
was a pure legal issue at that moment, and we believed that the lower
court judge was respected by the five judges constituting the Supreme
Court of Idaho.
Now comes without a doubt the most bizarre moment in my career,
probably in life, but certainly as a lawyer with an eyewitness, my
colleague Penny Clark at counsel table for the oral argument before the
Supreme Court of Idaho sitting in Boise. I am up second because we won
below, and when it was my turn to argue, I immediately focused on
federal preemption. I had all of the undisputed findings below showing
the direct relationship between the collective bargaining agreement and
plaintiffs’ claims. I’m at the peak of my argument: Your Honors, you
have to understand that the federal law governs in this circumstance. The
federal labor law preempts the Idaho State torts law. In plain words, tort
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law is supplanted by federal law. And on the Bible, as I said those words,
the American flag, which was situated on a stand right behind where the
Chief Judge was sitting at the bench, fell down and hit him in the head!
Without batting an eyelash, the Chief Judge said, Mr. Cohen, you have
made the most powerful argument that I have ever heard in this court.
And Penny Clark will attest to those words. It did in fact happen. When
the argument was over, the tradition was that judges would leave the
bench, shake hands with each of the counsel, and you know each judge
had something memorable to say about that incident – all lighthearted.
Okay. We leave the courtroom. Months go by. We’re waiting for
the decision. It’s about 4:00 in the afternoon. We’re all working, and the
clerk’s office calls, and the clerk tells me very formally they we’re faxing
me a very lengthy decision that had just been issued a few minutes ago by
the court. I replied thank you, Mr. Clerk. And I promptly marched into
our fax room. You’re very familiar with where our fax room is, and as the
pages are coming in, I’m not looking at the early pages, I’m waiting for
the last page, and it says 3 to 2, we have won the case. Three judges
supported our position that the Idaho wrongful death act and its negligence
principles do not apply. The federal duty of fair representation applies,
and the plaintiffs have not even come close to making out a case of breach
of that duty. And I’m shaking hands. I’m hugging Penny. I’m hugging
Bob. I mean this was a monumental victory at that moment.
MR. POLLAK: What year was this?
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MR. COHEN: I don’t know the year. The Supreme Court came down in 1990, so it was
in the late 1980s. For fourteen or fifteen years we had been back and
forth, which I’ve left out, between the lower court and the Supreme Court
of Idaho. We’re saying okay, we’ve got to go down to the bar and have a
drink. We’ve got to celebrate.
Then a short time later, the phone rings. It’s the clerk of the court,
and this is essentially what he said. Mr. Cohen, this is the most
embarrassing moment in my career as a clerk of the Supreme Court of
Idaho. What we sent you was not the final decision. What we are now
sending you is in fact the final decision in which there is now a threejudge
majority in favor of the plaintiffs’ Idaho tort law claim. Well, I
assemble everybody in the office and we discuss whether there is anything
that you can actually do when this happens other than saying go to the
newspapers or go out and cry in public! You know what the conclusion
was? A judge can always change his/her mind. The court could have
issued a decision three days later revoking their first decision. So we were
sitting there totally in a sense of disbelief. But as always at Bredhoff and
Kaiser, we had our eye on the ball. We couldn’t do anything about this.
There was nothing we could do. Period. End of quote. Except get ready
to file a cert petition. And that’s what we did.
MR. POLLAK: George, did you have any reason to believe that the Supreme Court of the
United States would take this case?
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MR. COHEN: Absolutely, cautiously optimistic! But keeping in mind in those days they
were taking 125 or 150 cases a year that was yet another concern. Now,
as you know, they’re taking 80 cases or so. Well, our case raised for the
first time the question whether or not a union functioning under a
contractual safety and health article is held to a different legal standard
than under the duty of fair representation when they’re doing anything
else, i.e., negotiating a contract, deciding whether to file grievance, or
participating in an arbitration. Once cert was granted, we had some
inkling that we have a decent chance of prevailing. We’re likely going to
get Justices Marshall and Brennan on this one, we were saying to
ourselves. In any event, in my own mind, it was my least successful
argument before the Supreme Court. I was bogged down in a lot of state
tort law, and I therefore was thrilled and bedazzled by Justice White’s
powerful opinion. I think it was six to three. We lost Rehnquist, Scalia,
and I forget who else. But obviously it was a great victory, and now I can
say to you which I know, 1972 to 1998 was 18 years after David Gore and
I started representing the Steelworkers in that case. It got plenty of
attention, as it should have. Walter Burke was no longer the secretarytreasurer,
but whoever our secretary-treasurer was, he probably was a
happy person, and I had a chance to talk about it in a lot of lawyer
conferences.
MR. POLLAK: That’s really a fascinating and tragic story.
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MR. COHEN: I have told that story about the American flag at least 25 times in my life
in front of every audience that I ever lectured to. Who could ever outdo
that incident. Nobody, right? The moment as I’m saying preemption and
the federal law governs the state law, down comes the American flag, hits
the Chief Judge on the head. Oh my God, right? If I had pulled the right
cord and said I was responsible for it, that would have been something
else. But clearly I was not.
MR. POLLAK: It’s funny that he was the one who changed his vote.
MR. COHEN: Yes. Whatever it was, it was.
MR. POLLAK: I think we’re now going to talk about ATMI versus Secretary of Labor.
MR. COHEN: Yes. If there’s anything you know that you look back on and say you are
proud of, this would be it because here’s the background. It’s 1972 and
the Congress passes the Occupational Safety and Health Act the same
month it passed the EPA Act. So the EPA was going to protect the
climate and the environment in the outside world, and the OSHA Act was
going to protect the air quality inside a plant or a facility. It’s almost as
simple as that. The circumstance which led Congress to do that is very
easy to describe. At that point in time, only state worker comp laws
addressed worker safety and health issues, with one very minor exception,
the Walsh-Healey Act. We had fifty states. Each one had its own worker
comp law, and all they had in common was the basic premise there’s
going to be non-fault liability, so the workers are going to get some form
of compensation, but the quid pro quo is that they’re not going to get too
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much – lost wages and paid medical bills or perhaps one lump sum
payment to the heirs. That’s their complete recovery. Worse than that,
there was no worker comp law that ever seemed to apply to an
occupational health caused illness. They essentially covered on-the-job
injuries, machine malfunction, cave-ins in a construction site. The classic
kinds of safety injuries. Occupational diseases, no.
By 1972, the epidemiologists, the doctors, the public health
experts, had already identified a dozen of the worst occupational health
hazards you can imagine, all of which seem to have, over the span of a
working career, caused either the distinct likelihood of a serious illness or
indeed death. And that’s what the legislative history of OSHA
documented, and Congress finally decided the time had now come to
create a completely new system. This system is going to be predicated on
prevention, not after-the-fact payments under the worker comp system.
Now for my involvement. The Bureau of National Affairs, when it
sees a new labor law, convenes a national conference in Washington,
D.C., in part to promote the marketing of their new services. Elliot
Bredhoff, my senior partner, was invited to participate and to give a
presentation on the union’s view of the Occupational Safety and Health
Act. And I would say that the prior Friday at 4:00, Elliot walked into my
office and gave me the assignment to speak in his stead. It turned out to
be the opportunity of my life. I went home over the weekend, and you
know what you do. You read the new law and start thinking. And I came
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out by Monday saying wow, this is the most worker protective statue I’ve
ever encountered. This is amazing. How did they ever get this law
through? I was particularly focused on occupational health because he
had given me an article accompanying the statute listing a number of
worker rights related to their exposure to occupational health hazards.
Section 6(b)(5) struck me as the “biggie.” First of all, the
Secretary of Labor was authorized to set up a completely new
organization, the Occupational Safety and Health Administration
(“OSHA”). A top-level scientist could become the head of it, and
Congress also realized that the Labor Department staffers did not have the
expertise that a doctor or an epidemiologist or research people have. So
Congress created a new sub-agency called the National Institute for
Occupational Safety and Health (“NIOSH”). It’s an independent agency,
and it was to have the same kind of talented research personnel as the
NIH. It was to have all these dedicated civil servants, researchers,
epidemiologists, doctors – all wanting to work on this precise problem.
They were to be the Secretary’s own research arm, and they’re authorized
by statute to do two things: to do the research on each of the potential
toxic chemicals and then report to the Secretary with a list of the following
priorities: which are causing the most serious health conditions, and
which are going to affect the largest number of workers. And NIOSH was
also to recommend not just the order in which particular toxic chemicals
should be regulated but even more important, what the permissible
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exposure levels (PEL’s) should be and the other provisions that should be
adopted to protect workers and enable companies to achieve those PELs.
Congress identified all these toxic chemicals. They had never been
regulated, and now Section 6(b)(5) was promulgated to authorize the
Secretary to go forward with the authority to issue standards which then
could be imposed on industry after informal rulemaking procedures.
Specifically, the Secretary was authorized to set the standard which, to the
extent “feasible” (that’s the magic word) based on the best available
evidence (i.e., it doesn’t have to be definitive) that will guarantee that no
working man or woman for the entire period of their working life (which
they said was up to 45 years) will suffer either material impairment or
death from that lifetime exposure. I was really impressed. I didn’t see
anything about economic constraints. I just saw the phrase “to the extent
feasible.”
So now fast forward. What starts to happen when OSHA was
implemented? One toxic substance after another was identified by
NIOSH, and then the Secretary proposed a standard subject to informal
rulemaking in which parties from both sides plus the government could
call witnesses, produce documents, research papers, et cetera.
Before the hearings took place, the Secretary issued a Notice of
Proposed Rulemaking which focused the parties on the central issues:
(1) was the existing exposure to the particular toxic chemical posing a
health risk to the employees, (2) if so, what should be the permissible level
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of exposure (PEL) to eliminate or at least substantively reduce that health
risk; (3) what feasible techniques or procedures were available to achieve
the desired results, and (4) what role does “cost-benefit analysis” play in
setting a standard?
Unions, companies, and public interest groups all actively
participated. Witnesses included professional health experts (doctors,
epidemiologists, research experts), engineering professionals, economists,
and staff personnel from NIOSH, unions, and employers and public
interest groups.
The testimony of witnesses plus voluminous exhibits in most of
these standard setting proceedings consisted of 5,000 to 10,000 pages and
took a year to 18 months until the standard was promulgated. Each
standard as printed in the public record was between 50 and 100 or more
pages with three different columns, single space, tiny print. It’s
monumental.
Once promulgated, every standard was then subject to review in a
U.S. Circuit Court of Appeals. Industry responded by establishing “war
chests” to finance both the costs incurred in rulemaking and then the
litigation. This resulted in the petitioners being the industry associations
rather than individual companies. To name a few examples: The
Asbestos Institute, The American Iron and Steel Institute, The American
Textile Manufacturing Institute. What that meant was all the companies in
a particular industry(ies) were going to get together en masse. They all
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hired the best scientists, doctors, lawyers, economists, etcetera, and they
geared up to fight each standard tooth and nail in the U.S. Circuit Courts
of Appeal. So the challenge to myself and a few of my colleagues at
Bredhoff faced was extraordinary.
In retrospect, it was the most satisfying ten years of my career
because it took from 1972 to 1981 for it to come to an “end.” But it didn’t
come to an end because problems like this don’t ever come to an end!
We began with asbestos. I’ll give you the scenario. The challenge
to the asbestos standard took place in the D.C. Circuit. Now, by that
point, I had read the statute and a lot of the legislative history. I had
lectured about the statute. I probably was the first union lawyer to read it.
I certainly was the first union lawyer who was being quoted in BNA for
saying I’m telling you union lawyers, there’s a lot you could be doing to
implement, and here’s what I’ve already figured out. My bottom line was
that we’ve got a law here that makes the NLRA look comparatively weak
because for every phase in the investigation and enforcement procedure,
the union’s given a meaningful statutory participatory right.
Jack Sheehan, the Steelworker Legislative Director, played a major
role informing me of the history of the legislative process that culminated
in the OSHA Act. Jack was a great friend of mine. Once I got this
assignment to start handling this case, the first person I went to was Jack
Sheehan. He was a brilliant lobbyist, and he was respected by the
Republicans as well as the Democrats on the Hill. I can’t tell you what a
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contribution he made to what actually ended up in that law. But I knew it,
and therefore, he was my greatest resource to start with. I also knew every
union had a safety and health department consisting of key staff
knowledgeable in this particular subject area. They were also my
resources. For example, Mike Wright (USW) Shelly Samuels (IUD), and
Peggy Seminario (AFL-CIO). So we were getting the help from
individuals with real practical knowledge. I established a working
relationship with the Department of Labor’s key administrators and
counsel and with NIOSH’s research scientists and epidemiologist. And
then I sought out some incredibly talented doctors who were interested in
working men and women who suffer from asbestos exposure. I have a
book on my desk signed by Doctor Irving Selikoff from Mount Sinai
Hospital. He was the leading authority. He and I worked together. I
helped to provide him cohorts of working men and women through their
union, and he did all the premier asbestos research extant. He became a
great resource on the health effects of worker exposure to asbestos
throughout the proceeding when the first asbestos regulation was
promulgated. The Oil, Chemical Atomic Workers Union retained me.
The Industrial Union Department was our client. The AFL-CIO became
our client. And what happened was that over time, Bredhoff and Kaiser
ended up being retained in every one of the numerous circuit court of
appeals cases addressing each of the individual toxic chemicals subjected
to regulation by OSHA.
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As I mentioned, we started with asbestos in the D.C. Circuit. Then
in short order came Vinyl Chloride in the Second Circuit Court of
Appeals, Coke Oven Emissions (steel industry) in the Third Circuit Court
of Appeals. What then followed was Lead in the D.C. Circuit. Arsenic in
the Ninth Circuit, Cotton Dust in the D.C. Circuit, and Benzene in the
Fifth Circuit. For some unknown reason, the latter was the only case I did
not argue, but I got to argue it in the Supreme Court. All told, quite a
challenging agenda for critically important oral arguments and briefs.
What we did was a group of us at Bredhoff and Kaiser sat down
and agreed we’ve got to come up with an interpretation of 6(b)(5) that can
carry the day across the board – a daunting undertaking. We started with
the phrase “to the extent feasible.” Feasible, according to every
dictionary, meant can be achieved. And we all said that should mean
capable of being achieved by a combination of engineering controls and
work practices.
For its part, industry designed its own three-pronged attack on
every standard proposed by the Secretary. First, the exposure did not pose
a health risk. Second, even if it did so, the PEL proposed by NIOSH and
the Secretary of Labor were simply unnecessary and not achievable. The
technology isn’t there. And, finally, whatever technology exists, it would
be too costly to require us to pay to implement a broad scale program of
engineering controls. Moreover, industry opined, the Secretary erred by
failing to conduct a cost-benefit analysis, and if the Secretary had done so,
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he would have concluded that the costs far exceeded the benefits to
workers.
MR. POLLAK: So that was the employer’s argument across the board?
MR. COHEN: Absolutely. From the day I argued the asbestos case in the D.C. Circuit in
1973 until the day we went before the Supreme Court in Cotton Dust in
1981. That was the common approach Industry embraced. Which is my
lead into the court’s opinion. To begin with, Justice Brennan laid out
some basic undisputed factual truths. The health risks caused by exposure
to cotton dust were severe. Byssinosis is a disease affecting the
respiratory function with prolonged exposure contributing to progression.
He also cited with approval the Senate Report accompanying the OSH Act
estimating 35,000 active and retired workers suffering from the most
disabling form of byssinosis and another 100,000 suffering from some
grade of the disease. All in all, exposure produced a chronic and
irreversible obstructive pulmonary disease.
What to do about it? Justice Brennan explained that the record
supported the Secretary of Labor in two critical respects: (1) the
permissible exposure limit; (2) an implementation strategy whereby
reliance would be placed on engineering controls (ventilation systems,
etc.) and work practices (sweeping, etc.), with a four-year period to
achieve the PEL and authority to use respirators in the interim period.
Justice Brennan then turned his attention to the central issue:
whether the Secretary is required to perform a cost-benefit analysis to
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show the benefits have a reasonable relationship to the costs. Initially, he
launched into an extensive review of the literal language of Section
6(b)(5) and the legislative history that gave rise to that language. His
powerful words deserve to be quoted:
“The plain meaning of the word “feasible” supports respondents’
interpretation of the statute. According to Webster’s Third New
International Dictionary of English Language 831 (1976),
“feasible” means capable of being done, executed, or effected.”
Accord, the Oxford English Dictionary 116 (1933). Thus,
§ 6(b)(5) directs the Secretary to issue the standard that “most
adequately assures . . . that no employee will suffer material
impairment of health,” limited only by the extent to which this is
“capable of being done.” In effect, then, as the Court of Appeals
held, Congress itself defined the basic relationship between costs
and benefits by placing the “benefit” of worker health above all
other considerations save those making attainment of this “benefit”
unachievable. Any standard based on a balancing of costs and
benefits by the Secretary that strikes a different balance than that
struck by Congress would be inconsistent with the command set
forth in § 6(b)(5). Thus, cost-benefit analysis by OSHA is not
required by the statute, because feasibility analysis is.”
Further, Justice Brennan observed “[W]hen Congress has intended that an
agency engage in cost-benefit analysis, it has clearly indicated such intent
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on the face of the statute.” Last, but not least, the legislative history made
clear Congress was well aware that it would cost employers money, but
that was a cost of doing business.
And as the icing on the cake, Justice Brennan concluded by
announcing the precise words we were hoping to read:
When Congress passed the Occupational Safety and Health Act in
1970, it chose to place pre-eminent value on assuring employees a
safe and healthful environment, limited only by the feasibility of
achieving such an environment.
MR. POLLAK: This is a passionate area of your career, George. So you framed
beautifully how the argument was set up and what happened in front of the
Supreme Court. Is there anything you want to talk about in terms of how
the case got to the Court or what happened the day of the argument or
what your expectations were going into the argument?
MR. COHEN: Like every one of your questions, they trigger some other thing I want to
tell you before I answer your question. So I think you also have to
understand how successful we were on our way to the Supreme Court.
Carl McGowan, who you know, a liberal, progressive, brilliant judge,
wrote the first court of appeals opinion in this whole area in the asbestos
case. Really thoughtful. So that’s the first case. As we lawyers like to
observe, the Supreme Court was not writing on a clean slate.
We then were in the Second Circuit Court of Appeals in the
polyvinylchloride case, and retired Justice Tom Clark was sitting by
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designation. He wrote a compelling opinion in that case citing Judge
McGowan’s analysis.
We then went to the Third Circuit Court of Appeals, which may be
the one I was most pleased about. Three Republican-appointed judges
sitting on a panel that unanimously ruled for the Steelworkers against the
American Iron and Steel Institute, which challenged every section of the
Secretary of Labor’s Coke Oven Emissions standard. A terrific
experience. Thoughtful, well-prepared judges asking hard questions and
paying amazing attention to everything we’re telling them, and we were
telling them plenty because we had a powerful case to present. The
Steelworkers, our major client, were elated about the successful outcome.
MR. POLLAK: Did you win in all the circuits?
MR. COHEN: All but one – i.e., we prevailed in both the lead standard and cotton dust
standard before the D.C. Circuit and the arsenic standard before the Ninth
Circuit. We lost in the Fifth Circuit in Benzene. I didn’t argue that case.
But I’m not saying we would have won if I handled the argument!
In any event, we ended up with a conflict between the Fifth Circuit
and all these other circuits, which resulted in cert being granted.
I only want to tell you a vignette because I think its well worth
telling. The Second Circuit case was unique because it involved an
Emergency Temporary Standard. This is a very special procedure:
Congress recognized that where workers faced an imminent risk of death,
waiting two to three years for a standard to issue would be unacceptable.
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And that’s what happened here. About five rubber workers died of a
particular discernible cancer in a two-week period at a Goodyear Tire and
Rubber facility. So the Labor Department petitioned for emergency relief
in the Second Circuit. Walter Connelly, the lawyer for the industry,
argued first. He was representing industry, not just Goodyear. In
retrospect, he made a very stupid, arrogant argument. He stood up, and
literally, these were his opening words. Your Honors, do not be
intimidated by the AFL-CIO being here in court today. That’s me, and
Larry Gold sitting next to me. We were dividing the argument. And then
Mr. Connelly uttered the magic words: And besides which, all that the
government has established is that there are several dead workers. Mr.
Justice Tom Clark leaned forward and inquired in essence, so how many
do you want before the government acts? That was the end of the
argument. I had almost nothing further to argue, right? How many more
deaths do you want? Okay, that should be a perfect lesson to future
litigants: what not to argue.
MR. POLLAK: The argument before the Supreme Court, do you have any remembrances
from that day or how that argument went
MR. COHEN: Yes. I mean the most obvious recollection was when I argued the Benzene
case. As I stood up to argue, Mr. Chief Justice Rehnquist leaned forward
and said Mr. Cohen, isn’t this an impermissible delegation of authority
from Congress to the Secretary of Labor? I spent four minutes giving a
comprehensive response that no other justice was interested in other than
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the chief justice. Nothing appeared in their opinion. Fast forward one
year later almost to the date. I stood up, ATMI versus Donovan. Chief
Justice Rehnquist presiding. Mr. Cohen, isn’t this an impermissible
delegation of authority from the Congress? I replied, Mr. Chief Justice,
you actually asked me that precise question one year ago today, and it’s
quite clear I didn’t give you a satisfactory answer. He leaned forward with
a big grin, everyone on the bench was laughing. And I then gave it
another shot, and I didn’t persuade him this time either. But it didn’t
affect the outcome of the case. That’s what I can remember.
Before I leave this subject, it is interesting to note that I argued that
“cotton dust” case the day after Ronald Reagan took his oath as the
President of the United States of America, January 21, 1981. The decision
issued in June at the end of the term 1981. Literally a dream come true. A
Supreme Court decision expressly holding the Secretary of Labor was
fully empowered to issue the most protective worker standards, and it
would affirm them as long as you’ve given the appropriate findings that
the standard was “feasible”, i.e, capable of being achieved by engineering
controls and work practices.
So this is it. We’ve spent eight years in six different circuit courts
of appeal advocating that precise result. But with great regret, I must
acknowledge that did not put an end to the matter. Why? As I told you,
Ronald Reagan became the President of the United States. He appointed
Thorne Auchter the new Assistant Secretary of Occupational Safety and
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Health, a gentleman who was a construction contractor from Florida. The
best we could ascertain, his only credential was that he was a big donor to
the Republican Party and had some well-placed friends. A couple of
months after the decision is issued, I received a call from his office.
Mr. Auchter would like to see you in his conference room at 2:30 next
Thursday afternoon. I said I will be there. I’m confident Bob Weinberg
was with me, and we walked into the conference room, and there were all
my former Labor Department OSHA officials with whom I had spent the
last eight years in large measure coordinating, collegially working together
on most of the cases that I described. These people were 95% in lockstep
with everything that I had been arguing and Bob and I had been briefing.
Okay. And they’re sitting adjacent to Mr. Auchter. In essence, he decided
to read me the riot act! In very explicit terms, he let me know that the
Supreme Court decision in ATMI was not an acceptable state of affairs.
His administration was going to review and revise the whole standard. In
the meantime, we should understand that. So what do you do when you’re
in that situation given what we had achieved?
So I think I said something like you know, Mr. Auchter, you’re
going to regret the words that you just used. I don’t know what else to say
to you except that every one of your colleagues sitting here knows that the
Labor Department must respect the Supreme Court’s decision. Indeed,
they’ve been devoted to achieving that result. Therefore, myself and my
colleague will leave right now. And I was later told that Mr. Auchter
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issued a directive to his entire staff that if I ever called that office, he
wanted a memo of when I called and what I called about, and they were
instructed not to talk to me. Of course that was the biggest status symbol I
had ever achieved in my entire career!
But what did that mean? It meant that Ronald Reagan had
instructed him, or he figured out himself, no more regulations. If that’s
what workers are entitled to get from a regulation, we’ll stop regulating.
So we spent the better part of the next five years with various mandamus
actions.
MR. POLLAK: That’s sort of a sad ending to a fight that continues on today.
MR. COHEN: It’s the reality. But you never forget that. That’s why I’m glad to
memorialize that. It’s good for people to look at and understand what can
actually happen.
MR. POLLAK: We’ve been at this for a while. Your passion about OSHA and that
experience comes through, and it’s an extraordinary story. So any final
thoughts?
MR. COHEN: Roger, I feel compelled to end up on this note. Without question, OSHA
provided the most satisfying ten years of my career. In two critical
respects: assisting working men and women to achieve meaningful
protection against deadly substances they confronted every day they
arrived at their workplace, and second, it is equally clear that my peers
recognized and respected the contribution I had made to this great cause.
Thank you.
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236
Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Thursday, January
26, 2023. This is the seventh interview.
MR. POLLAK: We’ve been at this for about a year, I think.
MR. COHEN: I believe so, Roger.
MR. POLLAK: And your apartment is as congenial a surrounding as it has been
throughout the process. It’s a pleasure.
George, today you wanted to talk about your time becoming and
then as director of the Federal Mediation and Conciliation Service
(FMCS), and I guess where we’re going to start is with how that came
about after your kind of wrapping up your practice.
MR. COHEN: Yes. One of the great things about this particular interview is it forced me
to go back and take a real hard look at a four-your career and what
preceded that career, so I feel honored to be able to do that.
The words that I always end up using is coincidences,
circumstances, and relationships, and that’s exactly what I think happened
here. I was part of a mandatory retirement program at Bredhoff and
Kaiser, and that took place in 2005. I was then 72 years old, and the
commonly held view about me by my wife and friends was I wasn’t really
ready to go out to pasture. I thought long and hard about what my interests
had been, and lo and behold, I felt it easy to get focused on mediation.
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As you know, as the chief negotiator in many rounds of
bargaining, you end up mediating with your own team and mediating with
the other side, so the word mediation sort of jumped out at me.
I was given, as a senior retiree, office space at Bredhoff and
Kaiser. I was going to be on my own. I sent out a few letters saying I’m
going to be a solo practitioner as a mediator. Soon thereafter, I had two
distinct paths that arose that I couldn’t have been more pleased with. The
one and most interesting was that the U.S. Circuit Court for the D.C.
Circuit has a very prestigious mediation panel, which is administered by
the court. Two of the then-current judges were professional and social
friends of mine, two ends of the spectrum, Harry Edwards to the left and
Larry Silberman to the right. I believe they jointly called me somewhere
around 2006 or 2007 and said we noticed you’re now mediating. How
about joining our team of about 20 or 25 pro bono mediators. Judges
assign mediators to certain cases. I said that sounds delightful to me. What
more public service could I do?
I was active in that world for about three years. Because of my
NLRB background, I immediately was asked to do a few circuit court of
appeals, D.C. Circuit labor cases, all of which were fascinating,
complicated, and controversial.
At about the same time, I received a call to do something I had not
done before in my life, which would be to serve as a joint mediator in a
terrible dispute between ALPA (airline union) and the pilots of Mesaba
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Airline that flew out of Minneapolis-St. Paul. I was asked to be the
“union’s” mediator. Mesaba selected a “management” mediator who I
didn’t know, but who was a very experienced person in the airline industry
as well as being a respected arbitration lawyer from North Carolina. The
two of us engaged in I would say about a six-month unbelievable episode
sitting in a hotel in Minneapolis-St. Paul observing as some of the pilots
and the airlines went at each other on every single article of their existing
contract. They’re very contentious. The pilots are very knowledgeable
about the airline operations. The airline thinks they’re more
knowledgeable than the pilots! That’s a subject of great concern. Finally,
after literally six months of arguing over maybe a hundred or more
provisions in a 200-page agreement, the parties reached an agreement,
which was then ratified.
That was a wonderful success story. And out of that, Roger, was
my learning what I knew in advance that we Easterners are pretty boring
people, whereas the people from the South have all these expressions and
commentary of life that is way more pleasurable than anything I’ve ever
uttered in my life. My colleague had one at the very end of bargaining,
when things were still really tense. He walked into my apartment, we had
rooms at the hotel, and said, “George, the time for pussyfooting is over.” I
said, what did you say to me? He said, we’ve got to tell these two parties,
you and me, that “the time for pussyfooting is over.” I said, well, you tell
it to your folks, I’m going to tell it to my folks, and let’s see how the
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music plays out. I don’t know if that’s what caused the resolution or not,
but in my mind, for the rest of my career as a mediator, I regularly used
that saying as the end of mediation approached, and I pass that on for
posterity here.
That was number two. I had a number three quickly. At the Bush
inaugural in 2006, there was a terrible incident in which the D.C. police
rounded up about 200 people who they claimed were engaged in violence
or causing physical threats – some of whom carried picket or just signs.
They hauled them into various large police vans, almost willy-nilly. There
was no room at the jail, so they brought them to some school building, if I
remember, had them handcuffed, laid down on mattresses on their
stomachs, and kept them there until the judicial system was able to process
them between four or twenty hours from the time they were apprehended.
No food, no water, no access to bathrooms, under conditions they claimed
were inhumane.
The next thing I knew, there was a class action filed by a husbandand-
wife plaintiffs team that specialized in representing protestors at
major public events. Once it came to the attention of the U.S. District
Court in D.C., they spoke to the Court of Appeals folks, and they said we
have two labor lawyer-type guys who are perfect for this kind of a case,
one of whom is Dick Hotvedt from Morgan, Lewis & Bockius, who was
also on the panel at that time. Fast forward fifty years later, Dick lives one
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flight above me here at Maplewood. So he and I have had a chance to have
a drink and reflect about this experience.
Among the 200 or so arrested were nurses who were staying at a
hotel on 15th Street and were out in the street just innocently observing
the protest marchers, and somehow, they were swooped up by the police
and also incarcerated. So we had a very difficult time given that breadth of
individuals, all of whom in fact were collectively confronted with the
same ultimate situation with the police.
In sum, class action plaintiffs, a federal district court case, and the
two of us undertook co-mediation. Again, after many months facing the
challenge of trying to distinguish between those who were seriously hurt
and those who were not. At bottom, how do you have a monetary
settlement that takes into consideration these unique circumstances? We
were dealing with the Attorney General of the District for the defendants
and the plaintiffs’ husband and wife class action team.
Just when we were at the moment of truth with a comprehensive
$10 million or so settlement agreement ready to be finalized, a newly
appointment Attorney General for the District of Columbia appeared at the
meeting. He was a renowned, hard-nosed, tough litigator from Hogan &
Hartson. He walked in, met with Dick and me, and he gave us a real
scolding. He told us we were way out of line, we didn’t know what we
were doing, we didn’t understand the most fundamental thing, which was
astounding to us. He said a Black jury in the District of Columbia is not
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going to give all these white kids anywhere near the kind of money that
the District was about to agree to because of our efforts. He then declared,
“As far as I’m concerned, this mediation is over.” Dick and I looked at
him. I did not know the gentleman. I said I don’t really know who you are,
but we’ve listened to your message, and we strongly believe you’re
wrong. We think that before this litigation is over, you will realize you
made a big mistake in not agreeing to our mediated settlement.
Of course, we were chagrined. We were teed off. We had put in an
enormous amount of time and effort. Six or eight months later, the
newspaper announced a negotiated settlement had been reached. The
dollar amount was roughly the same as we had mediated, and it took six
months of pain and suffering for the parties and the attorney general’s
office. So that was what you would call an up and a down but an
interesting experience.
Last but not least by any means, I actually just got off the phone
with my very co-mediator in this matter, a very distinguished arbitrator
named Richard Bloch. I said, Rich, it was about 2007 and 2008. How did
we get involved as co-mediators, because I know what we did, but I can’t
remember how it came about. He said, well, in 2006, during the Bush
administration, a very hard-nosed gentleman became the chief spokesman
for the Federal Aviation Authority. They were in detailed bargaining for a
new agreement with the Air Traffic Controllers of America. They were
unable to reach an agreement, and the FAA, under his leadership,
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unilaterally implemented a document that they called a “Collective
Bargaining Agreement,” albeit one-sided, not agreed to, not signed off on.
A very interesting situation emerged. Somehow, a year and a half later,
after 5,000 grievances were filed because every action that the FAA took,
the union challenged on the grounds that it was not based on a provision of
the collective bargaining agreement. As a result, all that happened were
boxes of grievances were filed. Somehow the former administrator of the
FAA was called in by a Congressional committee. I don’t know exactly,
but another former head of the FAA, Jane Garvey, was asked to mediate
the dispute. She apparently immediately said I know nothing about
collective bargaining, I know a person named Rich Bloch. She called him.
Rich Bloch apparently then said this is a case for me and George Cohen
together. And George Cohen agreed to do it.
There was one threshold event that happened and is worthy of the
attention of anybody who reads this. There had been a predecessor
collective bargaining agreement negotiated by these two parties. Let’s call
it the green book. The document that the FAA generated unilaterally was
called the white book. So enter George Cohen and Rich Bloch, and here’s
the first day. The parties are looking at us like why are you here, and
we’re just saying we’ve been appointed to try to work with you. And the
FAA’s lawyer, who was a very fine labor lawyer who I knew well named
Harry Risetto, was there under a specific directive from his client – you
tell the mediators we start with the white book. And the union, when they
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heard those words, shouted and screamed that the white book was not a
bona fide CBA and therefore start from the green book. Rich and I
caucused and made what we would call in the trade a monumental
threshold decision. We walked back into the room and said gentlemen,
there is no white book. The green book has expired. There is no book. So
you’re starting from scratch with us if you want to come to a resolution!
FAA, if you want to state your position on any provision from the
language of the white book, fine. You guys from the union, air traffic
controllers, if you want to argue any provision should be governed by the
green book, that’s fine also. We will begin our mediation with those two
respective positions in place. This is a new ballgame. Neither party had
won. So you could imagine. There was a lot of noise and a lot of
consternation. The choice was, are they going to throw us out or keep us
in? They chose to keep us in. I will say to end this all, approximately six
months later, after five days and nights a week around the clock, we
helped to produce a new collective bargaining – much to the appreciation
of both parties!
Armed with all those experiences, I was, as you would expect,
totally enamored with the process of mediation. I was prepared in 2009 to
continue as a solo mediator doing that. It’s a very unusual thing, as you’d
expect, to have joint mediators. But I had them in all three of those
particular situations.
MR. POLLAK: What happened next that led to your appointment as director of FMCS?
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MR. COHEN: That was then in my mind a total unanticipated development. Barack
Obama had been elected President of the United States and, as you’d
expect, he had very strong trade union support. As a matter of fact, his
number one labor man while he was at the Senate was the son of the
president of a major UFCW local in Chicago named Henry Tamarin. His
son, a young man named Nate Tamarin, inherited the position at least as
an interim basis as Obama’s key person dealing with labor issues. At that
time, I think it’s fair to say, the two most important lawyers in the trade
union movement were Jon Hiatt, General Counsel of the AFL-CIO, and
Judy Scott, General Counsel of the SEIU. The SEIU had played a very
prominent role in Obama’s campaign. Andy Stern, the president of the
SEIU was known in the first year of Obama’s ascendancy to the
presidency as the person who had more visits to the White House than any
other person during that year.
To make a long story long, it appears that Judy and Jon were
friends. They were looking at prospective appointees to the NLRB, the
Department of Labor, and the FMCS. I received a joint call from them one
day saying George, we’d like to give your name to Nate Tamarin to be the
nominee for Director of the FMCS. I said I think pretty much what you
thought I would say, Roger. I said guys, I’m 75 years old. I’m working
part time under my schedule, and I think this is a wonderful offer, but I
don’t think this is something that I ought to affirmatively respond to. They
said well, we’ll be back to mediate with you some more! I would estimate
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that two or three days or weeks later, I then started receiving calls from
very prominent management labor lawyers. Andy Kramer of Jones Day,
Harry Risetto and Chuck O’Connor from Morgan Lewis – highly
respected with numerous important corporate clients. There was a fear at
that time that the Democratic administration was going to support a law
which would provide that if in bargaining for an initial CBA you don’t
achieve a negotiated settlement, the parties would be subject to mandatory
mediation, and if that doesn’t produce agreement, they get mandatory
arbitration of their first agreement. That literally sent chills to the Chamber
of Commerce and the NAM. They communicated that to their high-level
lawyers, and the question was, is President Obama going to now appoint
some radical young person to show up as the FMCS director who might
end up with authority to be either the key mediator or the decision maker.
We can’t live with that. We’ve got to find some rational human being.
Who is a rational human being that they had dealt with? George Cohen.
After that happened, I said to myself, well what the heck. What
have I got to lose? I’ve got both important interest groups saying I should
do it, and I had a follow up conversation with Jon and Judy. I said okay,
tell Nate I’d be willing to come in for an interview. I came in for an
interview in the Executive Office building of the White House. My
immediate reaction, Roger, was let’s see. Nate’s about 35, and the two
people he had with him are between 25 and 30. I’m now 75 going on 76. I
may be a little older than the three of them combined. Nate, who has
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turned out to be to this day a wonderful friend of mine, a terrific guy doing
that job, looked up and he asked the first critical question, why would you
want this job? And that was okay because I had thought why don’t they
ask me that to begin with. I said I wouldn’t be here if I’m not interested.
He said that’s all we wanted to hear. So tell us what you would do as a
mediator. Thirty minutes later, they made up their minds that I was a kind
of proactive, solution-oriented person also committed to outreach to the
labor-management community.
I was thinking it was important to build up the morale of 175
career mediators. Interestingly, the FMCS, may be the only government
agency with one presidential appointee. That’s it. Everyone else at the
FMCS is career, including the people who were then deputies. When I
named Allison Beck as another deputy, it went through the normal civil
service. So that was it.
I accepted. I said I’ll be honored to be nominated. They said we’ll
assign someone to help you out. I said that’s fine, but I don’t know that I
want to get into that. But they said you do because you’re going to have to
appear before the majority and minority staffs of the Labor Committee of
the Senate for detailed interviews. And rest assured, the Republican staff
is doing all it can to delay any of Obama’s labor nominees. I said I
appreciate that. I don’t have a controversial position, do I? And they said
no, but that may not matter.
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In any event, you then fill out an unbelievably large number of
“vetting” pages, and you wonder when you’re done how anybody who
isn’t the most honest human being in the world could possibly make it
through all the paperwork. From birth, no less. Every possible conflict,
every dollar you might have received, every place you might have been,
all has to be disclosed and then reviewed and sent back to you. I
successfully went through all of that. Then I appeared before the Senate
Republican staff first, and I had a ten-plus experience with them. Here’s
why. I walked into the room and learned that the most senior staffer had
graduated Georgetown Law School about three years before. The other
twelve junior members were either college graduates or just had finished
law school. Bottom line, they were understandably completely
unknowledgeable about the FMCS. They had heard about the Labor
Department and the NLRB, but not the FMCS. They knew I was a
Democrat, and that’s all. So after about three minutes of some questioning,
I decided to take charge. I asked how many of you have ever even
mediated a case or know of or watched a mediation? And of course you
know what the answer was. No hands went up. I said okay, I think this is
what we should do. You four staffers, you’ll be union representatives. You
four will be management, and the two remaining, including the senior
man, you’ll be the mediators. I’ll give you each three typical issues to deal
with in a collective bargaining negotiation. The Union wants wage
increases and pension improvements. Management wants to take away
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health care. Why don’t you start, and I’ll observe and tell you what I
would be doing as a mediator.
Well, much to my delight, they completely got into this
experience. For the next thirty minutes or so, they negotiated. I observed.
When they were done, I gave them a little critique about how they
performed as negotiators. And that was essentially the end of my
interview. I said it’s a pleasure being here. Do you have any more
questions? I have a question, the most senior staffer replied. He then
stood up at his end of the table, and he looked at me and declared,
“Mr. Cohen, I want to tell you this has been the most interesting interview
I have ever conducted in my life, but I’m a Republican. I couldn’t be hired
to work for the FMCS.” I said, that’s wrong. In fact, you look like you
might be a good mediator from what I watched. If you applied to be a
mediator for the FMCS, we don’t ask you your political party affiliation.
I’m a Republican, he repeated again and again. I said I’ll see you outside
after the interview. And I did. I tried yet another time to dispel his
conclusion that a Republican could not get a job in a Democratic
administration. It reflected on me how bad our system had become that he
believed that. The result was their committee approved me, and I was
never called to have a hearing before the Senate. Instead, a voice vote was
taken, and in the middle of October, six months after I was nominated by
the President. I was told that was amazingly short vis-à-vis what normally
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goes on in that game. So by October 6, 2009, I’m now in my job as the
Director of FMCS.
MR. POLLAK: How did you find things at the FMCS when you got there?
MR. COHEN: From the time I was nominated and word was out that I was likely to be
confirmed, the FMCS assigned their PR man John Arnold and Scot
Beckenbaugh, the gentleman who was then the number one career
mediator at the FMCS, to meet with me and get me prepared in advance
for what my job was going to entail. They understood that once I was
confirmed, my responsibilities started immediately. Obviously there’s a
backlog of things to do. So I had probably three to five one- to two-hour
sessions with each of them at Bredhoff and Kaiser, in our small
conference room, in which I asked the basic questions, and they told me
what they wanted to share with me that wasn’t confidential information.
What I was advised was not something that I was at all happy
about. Arthur Rosenfeld, the person I was succeeding, had never done
anything in the real world of labor-management relations. His career was
as a Senate staff person on Capitol Hill. I was told he had little interest in
collective bargaining or mediation. He also had achieved his political
ambition to be on the NLRB as a management representative. I had never
met him. I had never even heard of him, which probably tells you
something since I had been actively practicing labor law for the past forty
years. He apparently didn’t even pass muster with the Republicans on the
NLRB. They got him “reassigned” to be the director of the FMCS. During
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that tour, he sort of made it known things like the sports and entertainment
industry and the public sector and certain other areas that they shouldn’t
be involved in mediation and therefore, I’m told, that FMCS had not been
in the public limelight for the last four years. In addition to that, as a
result, the morale of the 175 career mediators was at a very low ebb
because he didn’t give them much credit for the valuable contribution they
made.
A very quick vignette about Arthur Rosenfeld is that my first day
in the office, the IT people come in and said is everything okay, Director?
That’s how you’re called. I said well I can’t seem to turn on my computer.
They said we understand. You look like you’re an elderly gentleman.
We’ll help you out here. I said fine, that’s what I’m looking for. Well, the
first expert was there for about a half hour. He can’t get it on. He calls the
number two. He comes up. No solution. The third comes, this time with
his supervisor, and they’re all looking at me saying we have no
explanation for this, but you are right. Your computer is not functional.
We’ll get you an alternative one, but we’ll be back tomorrow, and don’t
worry about it. Everything will be taken care of. And lo’ and behold, they
did come back the next day. They went through the same exercise and still
don’t know what to do. One of them knelt on the floor where the wiring
touches the plug. He noticed that the wiring had all been chewed up and
cut through. They know how – it’s by Mr. Rosenfeld’s French poodle that
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he brought to the office every day of his life to sit there with him while he
conducted the job of director of the FMCS!
So I sat there on my second day on the job saying wow. Then
when I went out into long, beautiful corridor, I noticed there were portraits
of each of my sixteen predecessor directors, I’m only number seventeen
because the FMCS was established as an independent agency by a 1947
Act of Congress. And much to my surprise and chagrin, there is the
portrait of Mr. Rosenfeld with his French poodle in his arm! That told me
a lot about who I was succeeding. By any standard, this was a bizarre
experience.
In direct answer to your question, it didn’t take a brain surgeon to
figure out what to do. I had two distinct paths. First and foremost, the
morale of the workforce, and I’ll tell you what I set out to do. And second,
the image that the public had about the FMCS, which was much more of a
challenge because, as you know, it takes two parties to consent to the use
of a mediator. The statute and the system are very clear. All I could do
under the language of the statute is proffer my services at which case any
one or both parties could say thank you, but no thank you. Indeed, if both
said fine and you start, any party could walk out at any point. So you are
there only by dint of your ability to help persuade the parties it’s in their
joint best interest to keep you around to help them collectively. And boy
that is a piece of work to be confronted with.
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So let’s go through what I did. In terms of the image which I was
most concerned about, I spoke to our PR gentleman, who was not a really
proactive PR guy. He had sat there for four years with no job and a nice
GS-16 job and nothing to do because there was no PR going on. You and I
have talked “relationship.” I immediately said to myself, give me a
schedule of all the major rounds of bargaining coming up in the next year
or eighteen months. The Agency had a lot of data. I carefully looked at
that list and said well, I know the steel industry. I know the aluminum
industry. I went through industry-by-industry, and I asked do I know
anyone there? I’m going to start with the ones I did, and I had positive
introductory calls – only by telephone, never e-mail. I either called the
vice president of labor relations and/or the president of the union when I
knew them. My conversations went something like this: I have not had
the pleasure of ever speaking to you or meeting you. I’m the new FMCS
Director. Do you know what we offer? Not necessarily, Mr. Cohen, a
CEO would say. Let me just talk you through. I know your bargaining is
coming up. I know you’re not looking for immediate help, but please
understand, if you’re nearing an impasse or a problem, or even if you want
help in training your staff, we’re here to do it – free of charge. I’d be
delighted if you make a follow up call to me at some time. Not shockingly,
I got some favorable responses, certainly from IBEW, CWA, United
Steelworkers. I made all of them know that I needed their help in getting
their counterparts to feel the same about us and about me. So that was
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phase one, and it was just fascinating for me to see the reactions I was
getting and making sure you don’t overplay your hand, but you’re trying
to get your foot in the door.
The other thing is, I did have the opportunity to speak at labor
conferences all over the country because you’re the “Honorable George H.
Cohen,” and the industry people were very interested in wanting to meet
anybody who was an Obama appointee. So I had the opportunity to go and
speak at least once or twice a month at large gatherings in the major cities
to joint labor-management officials and government staffers. The FMCS
personnel were there as well. I did just what you would expect. Here I am.
Here’s what we have to offer. Here’s what we know we can do to help
you. You tell us anything that you need that has anything to do with
relationships. We’ll be there with you. And by the way, I have been a
chief negotiator for the last thirty or forty years of my life. I’m an
“agreement” person, and you know that unless there is an agreement, you
have uncertainty, you have chaos. You surely don’t have stability. We’re
here to help you get stability. And then I use the line I used most
successfully in four years that I’m convinced strikes a responsive chord
almost every time. That’s when I’d say mediation provides both parties the
opportunity to “control their own destinies. You own your own agreement.
Absent an agreement, nothing is certain. Each side thinks it has the
leverage, unions by striking management by locking out. But in the final
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analysis, no one knows how that’s going to play out. So if you want to
achieve stability, here I am!” That was my mantra.
Okay. One last thing on this. I developed a perfect introduction,
and my introduction was, “my name is George Cohen. I have the best job
in the federal government. Why is that, George? Well, I have no Board. I
have no Commission. I report to no one. I can do anything that I decide I
want to do, and no one knows what the hell I’m doing!” I would inevitably
get very positive responses to that.
In my four years as director, I never had any interference from
anybody in the Administration. I essentially shared regular updates with
my White House liaison, Nate Tamarin – exchanges of information but no
interference. I understand that Nate in turn kept the President and Vice
President informed when high-profile disputes were involved. Other
government agencies knew what I was doing, but most people don’t
realize the reason why we had the FMCS was Congress was concerned
that keeping the FMCS as part of the Labor Department would inevitably
create the appearance that “politics” were involved because if it’s a
Democratic administration, maybe the FMCS is going to be a little more
friendly in that direction and vice versa. As noted, in 1947, Congress
established the FMCS as an independent agency to avoid any concern that
it was under the control of the Department of Labor.
So my initial conversation with each Secretary of Labor, I always
emphasized that if any party seeks your assistance in a negotiation dispute,
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I think it would be very helpful if you refer them to me. We ought to have
periodic conversations, and if you are aware of any big trouble spots, I
will put that on my agenda. I would appreciate it if you do not assert
yourself and attempt to replace me as the mediator. And that worked
extremely well. Seth Harris was my contact person at the Department of
Labor. I had none of those issues. None.
MR. POLLAK: I know you wanted to talk about some of the high-profile disputes that you
got involved with personally. Obviously there were dozens of mediators
working on disputes large and small, but you rolled up your sleeves and
got involved in them.
MR. COHEN: Yes. So for the readers, let’s just quickly say as you’d expect, the FMCS,
like all government agencies, had regional offices. We had about ten in
major cities, New York, Philadelphia, Chicago, Los Angeles, Denver,
San Francisco, Phoenix, Miami, et cetera, and each one was staffed by a
person who was the number one person there, and usually between five or
ten mediators. In its heyday, I understand, there were as many as 250
mediators at some point in time. With the Republican administration, the
number was reduced. I think my total complement was about 175
mediators – all civil service employees GS11-14, all professionals, all
experienced. Everyone either came out of state mediation service or after a
certain number of years representing management or representing unions.
So we had a great diversity of staff in that regard. We also had a number
of women who had been hired in the five or ten years before I showed up.
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I was immediately impressed that they were dedicated to their jobs and
like the men working out of home a lot because if you’re in Chicago but
you’re handling disputes in Indiana and other states adjacent to Illinois,
you didn’t have to be in the Chicago office. The office manager was in
charge of that. What I tried to do, Roger, was the same thing as with
respect to speeches. I tried to go in the first year in particular, to a variety
of regional offices. I met with the staff and asked each mediator to tell me
what dispute he/she was working on and what notable disputes they had
worked on. Then I told them what was going on at headquarters. I wanted
to get them to feel that I was one of them, which I was! They were all
immediately delighted to know that a major part of my life was collective
bargaining. I didn’t have to talk about any other aspects of Bredhoff and
Kaiser, just collective bargaining—public and private. That was my way
of showing respect for their efforts and establishing we shared the same
objective – assisting parties to achieve agreements.
I had the good fortune of personally assisting in the settlement of
numerous high-profile disputes – to the mediators, it was a refreshing
change from my predecessor’s non-engagement in disputes. This
translated into a big uptick in staff morale.
The first high-profile case I was asked to mediate was in March
2010. I was sworn in as the Director in October 2019. It involved
professional soccer. I was called jointly by the two parties and was told
that they were at an impasse in the bargaining and requested my
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involvement. Unlike other collective bargaining disputes where you have
the company and the union once you start talking about professional
sports, a very fascinating third party – namely, the Commissioner – served
as Chief Negotiator on behalf of thirty or so individual teams, and his
staff. The Commissioner, Don Garber, was an experienced businessman,
but I don’t know how much in collective bargaining. He was accompanied
by a team of the league’s lawyers, economists, labor relations
professionals, and several persons with operational responsibilities. The
League’s negotiating committee also included a number of the owners.
For its part, the Major League Soccer Players Association was
represented by its Executive Director Bob Fosse, lawyers, and staff
personnel and a player representative from each team. The parties
occupied a conference room and several large caucus rooms.
The mediation consumed five long days and nights around the
clock. There were two things that jumped out at me. The player
representatives were neophytes in the world I was in. They were a
diversified group of intelligent young men from all over the world, white,
black, Latinos. They all drank bottled water incessantly. They all had
backpacks. They all looked like they were in incredible physical condition,
but they also looked quite confused about what was going to unfold in
their presence over the course of that week.
Now for the dynamics as to what unfolded. Certainly the best
respected or recognized superstar, Landon Donovan from the LA Galaxy,
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showed up after two days. It was like another world opened up. Landon
Donovan quickly became their spokesman, and of course, in the internal
union discussions, I was well aware of that as I watched with interest. I
established a meaningful rapport with him. My challenge was to
emphasize that this was only their second round of negotiations, and
common sense dictated that the League’s financial situation was far
removed from the other major professional sports. Free agency was not in
the cards, but there was plenty of room for significant progress to better
salaries and conditions of employment.
So over the course of five or six days with Landon Donovan’s very
exceptional assistance, we worked our way through, and the parties
reached an overall satisfactory solution. We had plenty of press coverage.
The FMCS, the players, and myself were all quoted. As to the players,
they realized I had generated respect for them. They made inroads into
benefits that they had never received before. They accepted my advice that
collective bargaining was an ongoing process, and over time what they
needed was increased leverage and a more favorable economic picture for
the industry.
One further note. I had my right-hand man, Deputy Director Scot
Beckenbaugh, with me. He assisted me in virtually all the major disputes I
mediated. He was an Iowa man. He was a very experienced mediator,
highly qualified to deal with both the nuances of strategy making and had
special knowledge in two areas that at Bredhoff and Kaiser I relied on
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other colleagues – healthcare and pensions. He also shared my proactive
mediation style. So, naturally, we became a team. We talked over virtually
everything I wanted to achieve, and I would say he played a very major
role with me throughout my four-year FMCS career.
MR. POLLAK: Next, talk about the Bay Area Regional Transit (“BART”) mediation.
MR. COHEN: I arrived in Oakland, California, which is where the Transit Authority
headquarters was located. On the management side, we were met with a
serious concerned team of officials and their counsel. This is what we
were told: The union was the Service Employees International Union, a
union that our law firm had a relationship with. The SEIU also was
accompanied by the Amalgamated Transit Workers Union, who
represented maybe 20% of the total workforce. That always adds an extra
challenge to achieving agreement because you’ve got two unions that have
to consent to everything. Two unions with different agendas for reasons
that are perfectly understandable. You have different contracts, different
interests, and sometimes different even conflicting personalities. So add it
all together, you have a “situation.” I walked in with Scot, and I brought
my local negotiator from the regional office with me. I tried to do that in
all mediations, even though I was the person ultimately in charge and
responsible. I did this for a good reason. Some of the local mediators knew
the parties personally. I also wanted them to go back and advise their
fellow mediators that I wasn’t coming in like an autocrat and taking over. I
was allowing them to share in the meetings and the judgments that were
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being made. And they did, and they made contributions that impressed me
at times for sure.
The union was threatening to go out on strike the day I got there.
The stakes were very high in terms of possible adverse impact on a very
large ridership. Five hundred thousand passengers a day were transported
back and forth between Oakland and San Francisco. By my reckoning, this
meant 500,000 people at 5:00 in the morning are going to get up and try to
find out whether they can rely on their traditional means of going to work
or were they having to face traffic jams of major proportion. I don’t think
I’m exaggerating the seriousness.
Now for the bizarre scene. In another room were sitting about 25
local political officials all armed with cell phones and computers. When I
entered, I was told they were merely “interested” in what was going to
happen, and they, of course, had their own relationships with both the
union and management personnel. So right away, I said to myself well, if
these people are going to be doing “sidebars” while I’m trying to mediate,
I might as well forget trying. And then I’m told on top of that there’s a
really wonderful gentleman who’s pretty tight with the union but also with
management. He’s the Lieutenant Governor of the State of California,
Gavin Newsom, and he’s a player in all this as well. Okay, I’m a total
outsider, a stranger! No one knows George Cohen. No one knows Scot
Beckenbaugh. Somebody knows the fellow who was with us from the
regional office. So what do I have to do? Obviously, I have to first
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establish some ground rules with the folks who were there, so I went in
and at my best and most diplomatic way, I said ladies and gentlemen, you
really have two choices here. Do it yourself, which I would support 100%,
whatever your capacity is to bring these parties together, or sit in this room
and understand I’m going to do this with my team by ourselves. Every day
I’ll come in once or twice and give you a generic update, which you are
never to disclose to either party, knowing in advance I wasn’t going to
give them much information. I asked if anybody had any questions for me,
and people did ask me questions. They seemed to be a bit taken aback. I
was very assertive, but I explained to them what I had done in my life and
why I was so confident that this is the right way to proceed. I left them. I
said I’ll come back in half an hour, and you tell me you want Option A,
George or Option B, you, but you’re not going to get both. I came back,
and they said we’ll take Option A, George. I think they did that for a very
good reason as politicians. If this situation went “to hell in a handbasket,”
George was responsible. And if I succeeded, they would all be able to say
they were supporting everything. I figured that out.
The Lieutenant Governor and I established an excellent
relationship. He knew my son Bruce from making the movie, Milk. Bruce
produced that motion picture. Gavin and his wife attended the premiere at
the Castro in San Francisco, and I actually had met him that night, but I
didn’t realize exactly what that meant. So that gave me entree to him. He
was wonderful. He knew a lot of important people, but he said here’s my
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cellphone number. All I ask you to do is call me every day and let me
know what’s happening. Let me know if I can do anything to help you,
and I did. Now he’s the Governor and maybe a Presidential candidate. I
would give him an “A double plus” as a mediator thinking about a highlevel
politician, what he could have done, and more important, what he
didn’t do!
The Press was hanging on every word. I did develop, as you would
imagine, a technique to deal with these tough negotiations. About
10:00 p.m. every night, I would go out onto the street, and there’d be
between ten and thirty media people, television cameras, whatever, and I
would say, “ladies and gentlemen, I am George Cohen, the Director of the
Federal Mediation and Conciliation Service. I’m actively engaged in
mediating this dispute. I want to thank you for your willingness to come
out here at this late hour, and I want to give you one statement, and I then
will not take any questions, and my statement is ‘the trains will be running
tomorrow.’” And I would turn around and walk out. This is what
happened nightly. Five days into the mediation, the parties remained at
odds over a few issues. Worse still, they were getting nastier with each
other, and they were also getting very upset about the mediation and what
we were doing to them because we were putting plenty of pressure on
them as we didn’t want a strike. We didn’t see any breakthrough. Scot and
I had a lengthy strategy meeting, and we said you know what, I think if we
walk out on them, they’re both going to panic. I don’t think the union
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really wants to strike, and I don’t think the management really wants to
force it. So at 8:00 the fifth night, I called both sides together, maybe fifty
people in the room, and I said you know, we are people who are very
experienced in our field, and you are all people who are experienced as
well. We respect you. We hope you respect us. And we think at this point
you might be better served trying to work out this problem yourselves.
We’ve made that determination, but only if you feel that to get a solution
you’d like us back, please let us know immediately and we will respond.
And we left.
The two of us flew back to Washington, and the next morning our
buddy, our co-mediator from the office, called me and said he just got a
call. The parties want to have a settlement meeting that day, and they want
him to be there. And I said perfect. And they had a meeting. He was there.
The documents had already been in place with whatever minor
modifications, and the matter was settled without either Scot or I actually
being present, but it was settled. No strike. Perfect ending.
MR. POLLAK: The next one we have is the CWA and IBW dispute with Verizon. Those
were always pretty intense negotiations.
MR. COHEN: A serious problem was dropped in our lap because before we were asked
to mediate, we had two unions. The CWA represented the vast majority of
the production and maintenance employees and the IBEW represented
workers responsible for maintaining electrical wire lines. Forty-five
thousand in the aggregate. Three-quarters represented by CWA, one
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quarter by IBEW. Very difficult negotiations. Before we appeared on the
scene, there was a terrible ten-day strike that should have never been
called – all about legal issues over the obligation to bargain. And the
relationship between the parties was in the “dumper.” What then unfolded
was at least seven weeks of continuous “hands-on” intense, very detailed
mediation. Scot and Pete Donatello, our local fellow from New York,
were involved with me throughout this torturous experience.
The vast majority of time was on the comprehensive healthcare
plan, individual item-by-item, fighting about everything because Verizon
was committed to a company-wide policy. This was an unusual situation.
Most of their employees were not represented by a union, and they were
covered by a company-wide healthcare plan. At the same time, the unions
were hell bent on protecting and improving their own negotiated plan. For
myself and Scot, this was a very frustrating process. Every single item was
being hard fought. For example, how many times will the use of a physical
therapist be covered by the policy? Should there be an annual limit, and if
so, how many visits? I mean this is literally what was going on, and
nothing’s getting resolved quickly.
So the bottom line, I decided the time had come for me to talk
directly with the three key players who were not at the bargaining table,
Larry Cohen, the President of CWA, Ed Hill, the President of IBEW, and
Lloyd McAdams, Chairman and CEO of Verizon. I already had
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established a relationship with Larry and Ed but not with Mr. McAdams. I
did know something about him.
The day I accepted the assignment, in The Washington Post
Finance section, Lloyd McAdams’s earnings for the prior year was listed
as $23.6 million. So I said to myself, this is a person who can wield a lot
of power and influence. So I picked up the phone and I called him. I had
done some research, and lo’ and behold, he had graduated Cornell
University fifteen years after I had graduated. He was an engineer, and my
initial contact with him went something like this: “Mr. McAdams, I’m
going to call you Lloyd because you’re fifteen years younger than me.
You went to Cornell University fifteen years after me, and you must
therefore have a great amount of admiration and respect for who I am and
what I do!” He said George, I’ve been waiting for you to call me. I want
an agreement. I said that’s all I want to hear because if you tell me you
want an agreement, I’m going to be able to help you the best I know how
to get an agreement. But I have to tell you, your vice president of labor
management relations is not making it easy for me to help you get an
agreement. Mr. McAdams in essence said when the time comes that you
think you need something, I’d like to hear it. Sure enough, three weeks
later, I called him. I said there are two critical items that your people are
refusing to accept at the table, and it’s my judgment if those would be
offered to the union – and I could do it not on your behalf but indirectly –
I think you’d have an agreement. He said let’s review this again. He
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wanted me to guarantee that result. Of course not, I replied. But I’ll give
you “cover.” It will come from me as a proposed mediator solution. He
said you got it. And in fact, I had a strong sense in advance that this would
end the dispute in view of my earlier informal discussions caucusing with
the unions. The result: an agreement.
MR. POLLAK: Let’s move on to the United States Maritime Alliance mediation.
MR. COHEN: I told you already this was the single most important, the single most
difficult, the single most potentially disastrous dispute because the ILA
represented all the longshoreman from Maine to Charleston, South
Carolina, on the East Coast and then in all the ports across the Gulf Coast,
all the way to Mississippi, Alabama, Georgia. In other words, those 14,000
or so longshoremen could close down every one of the fourteen major
ports in the United States of America. The estimates were at least a half a
billion dollars impact weekly, either because of lost wages or economic
downturn.
On the other side of the fence, the U.S. Maritime Alliance,
affectionately known as USMX, consisted of about 25 of the most
powerful shipowners from almost every country of the world, all pulled
together against their wishes to have to deal with this powerful union, led
by one of the most charismatic, incorrigible, impossible-to-understand-atany-
moment, human beings ever in this field, the president Harold
Daggett.
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Harold Daggett was a piece of work from the day we met him until
the day we came to a resolution. His counterpart was the polar opposite, a
quiet, soft-spoken gentleman named James Capo, whose career at USMX
was about to end. He was to be replaced by Dave Adam. But the time
Dave Adam replaced him, I think we had already achieved the first interim
agreement.
It was September 2012, and the threat was that the ILA was going
to shut this whole damn industry down. Every retailer in America was
panicked. Christmas merchandise, Christmas shopping, Christmas money
all at risk! We had the two parties, the Retail Federation officials were
pleading with yours truly, the FMCS director, to get a solution, the
Department of Transportation, and the Maritime Administration officials
were on high alert and very concerned. The Justice Department lawyers
told me there’s a Taft-Hartley injunction possible here given the drastic
impact a strike would have on the economy. However, I also knew the
Obama administration likely would be loathe to seek an injunction against
a major union at a time when the union would have some leverage. That
was a political reality. Nate Tamarin, my terrific White House liaison, was
on the phone with me regularly. Nate told me he was telling everyone this
is my responsibility and none of the other agencies should interfere in my
conducting the mediation.
Mediation continued from September until we achieved an interim
no strike agreement before Christmas. Thereafter, three more months of
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around the clock of bargaining took place. The ILA Negotiating
Committee consisted of about fifty union representatives from its various
locals and international staff. Interestingly, more black representatives
than I’ve ever seen in my life in any one union, which is another really
fascinating thing.
Harold Daggett’s son, who was the heir-apparent then and is still
the heir apparent, that was 2012, ran the New York Local and was sort of
his father’s “stability guy.”
There we were, the night before the strike threat. Harold had
threatened to strike if the Industry refused to agree to one additional
sizeable economic demand. At the same time, he kept asking what am I
going to do if I don’t get this item? Scot Beckenbaugh and I were sitting
across from Harold and Jim Capo, his counterpart. Jim Capo understood
that strike was likely. He explained that he would arrange a conference
call with his committee that night. I said Jim, you can do it. You have to
do it for the good of the country and the world. And Jim Capo succeeded.
He reported back that the one item had been agreed to, and that was the
end of the dispute.
To me, this was a “no brainier.” The entire shipping industry
achieved years of stability on certain costs for a relatively small dollar
price.
I have to tell you one vignette. The way Mr. Daggett conducted the
local union representative meetings was he’d have a priest or a lay priest
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in attendance to give classic Catholic prayers to his committee before he
went out and met with management. And then of course when that joint
meeting began, the first five words out of his mouth had the F word in it.
Yes, prayer was a very big thing to Harold.
On one occasion, the union caucus was about to begin. Fifty union
representatives were in the room plus Scot, me, and Pete Donatello. I’m at
one end of a long table, and he was seated at the other end. Before the
prayer, Harold saw me standing up shuffling my papers, and in a very loud
voice, he announced, “Well George, apparently you’re going to give the
prayer today.” This caught me by surprise. I had no notice that anything
like this was ever going to happen in my life, right? Nevertheless, I
replied, “So Harold, as a result of knowing you, every morning I get up
and the first thing I do is pray!” Well, that was it. All fifty guys who had
been having to listen to Harold do this to them all their lives stood up and
applauded me.
MR. POLLAK: I understand you had another longshoreman experience in Long Beach,
California?
MR. COHEN: Yes. I got a call in my office that the Long Beach port had a major strike
threat. Mayor Villaraigosa himself had tried for two weeks to work it out.
I knew nothing about any of this. My secretary came into the office at
10:00 in the morning and said the Mayor of Los Angeles was on the phone
and wanted to talk to me. I said of course. But in the interim, the two
lawyers representing the parties to the dispute called and also wanted to
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talk to me. Of course, I talked to the Mayor first. He told me he’d been
trying to help achieve an agreement. No luck. He’s fit to be tied. He’s
frustrated. He can’t deal with these son of a guns anymore, can I come out
and help him? I said I can. You’ve said the Port of Long Beach is going to
be shut down tomorrow or the next day. I said okay, I’ll arrange to be
there. I think there’s a United flight tonight. I think I’ll be there by 8:00 or
9:00 tonight your time. He said “What? You’re telling me you’re going to
come tonight?” I said that’s what I just said. Didn’t you want me? Yes, I
do. I’ll have someone waiting for you. He hangs up. The lawyers also
advised we want you. I said the Mayor wanted the same thing. That’s fine.
I said just give me an insight. How many issues? Well there’s not many,
but we’re really fighting hard in about two or three issues. I said okay, I’ll
make the arrangements. You call me back and tell me the issues. They did.
I tell Scot pack your bags. Bonnie has made a reservation. We land
at the airport, and three of the strongest looking gentlemen you’ve ever
seen are holding up “George Cohen” and “Scot Beckenbaugh” signs. The
gentleman who met me said, I’ve just checked your resume, and I know
how old you are. Do you feel okay to walk a quarter of a mile to the sedan
that we have for you? I said I played tennis yesterday. I’ll be fine, but
thank you for worrying about me. He had read my damn resume. Out we
go. The next thing I know, the horn is honking and color lights atop our
sedan are flashing on and off. We arrive at the Long Beach port and were
escorted to a big warehouse. Offices in one area were occupied by
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Industry representatives, and offices in another area were occupied by
union representatives. The doors separating the offices were closed, but I
heard a lot of shouting and screaming from the union office.
In the meantime, I’m introduced to the Mayor and his staff of
about fifteen people. Then quite an amazing thing unfolded. He said to
me, “Well, Mr. Cohen, a very interesting thing has happened. Since you
told the parties you would come to help mediate, and since I told them
you’re on a plane coming here tonight, they’ve gotten a “little nervous”
that maybe that’s not what should happen here, maybe they should meet
themselves and come to their own resolution. Next thing I know, a piece
of pizza is given to me with a Coca-Cola or maybe a beer, and I hear a lot
of applause from the union group. They’ve just ratified the deal. They all
came to the room where I’m located and proudly announced “We’ve got a
resolution, and there’s going to be a press conference out on the dock now,
and we’d like you to come out on behalf of the FMCS and thank us for
having reached an agreement.” All this is on the Bible!
Okay, I flew back to DC, and a few days later, I’ve convened and
was addressing a labor management conference at Georgetown Law
School, December 13, 2012. Of course my first order of business was to
tell that story. I said some cynics said the parties didn’t even need me so
why should I get any credit for helping resolve the dispute? I said are you
crazy? I have set a new standard. I don’t even have to conduct a mediation
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session. Once the word spreads that I am showing up, the parties reach
their own agreement. That is the new standard for all federal mediation!!
MR. POLLAK: Congratulations. Incredible stories. What happened with the musicians.
MR. COHEN: I have two quick ones with the musicians. Both of them involve Local
802.
The one that was sort of the joke of them all, I want to quickly say
I would never have mediated that dispute with the Metropolitan Opera in
the normal course, but here it was New York City, the capital of the
entertainment industry. Arthur Goldberg had once mediated a dispute
involving the Metropolitan Opera. I was told that by a lot of people. I said
okay, and on a Sunday afternoon, I took a train to New York City. I met
the Maestro Peter Gelb, who was a very powerful man in the
entertainment world. Simply put, he ran the Metropolitan, still does with
an iron hand. His father was a very famous New York Times reporter,
Arthur Gelb, and everybody knew him. The highly respected Local 802
represented the musicians. In a nutshell, after one hour, I asked Peter Gelb
exactly what are you arguing about here? He said the union wants one
more $600 payment, and my lawyer advised that I “hold out.” I said how
many people are in the unit? He said about 90. I said, I just multiplied 90
by $600. Are you telling me you want to go to the mat over the “piddling”
amount when a three-year agreement hangs in the balance? How do I
know that’s all they want? Well I’ll find that out for you. So I walked into
the other room and said exactly what you would expect. I’m delighted to
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be here. I don’t think I can get you this extra $600, but if by some chance
that could work out, is that all that you need in order to have a satisfactory
conclusion to the negotiations? They said yes. I said well I’m going to
give it a try. I returned to Peter’s office, and I said you know what, I think
you can get a deal if you give the $600. I then convened a joint meeting,
confirmed what occurred, and the parties shook hands and congratulated
each other. I took the next train to DC!
Peter Gelb has now hired as his number two man a management
lawyer, Bernie Plum, with whom I enjoyed a wonderful relationship
during the time I represented musicians working in traveling Broadway
musicals. Again, the critical role of relationships.
The New York Philharmonic dispute was much tougher. I was
there one long week around the clock. Local 802 represented by Bruce
Simon, a very experienced, talented lawyer. Management was represented
by equally talented Willis Goldsmith, from a very prestigious firm with an
office in New York City, Jones Day. Zarin Mehta, the brother of Zubin
Mehta, the renowned conductor, was the head of the management team.
He was the President of the New York Philharmonic and was assisted by
Bill Thomas, his right-hand man, who I’ve gotten to know very well, a
very knowledgeable economist and negotiator. For its part, Local 802 was
represented by its President, Tino Gagliardi, and an extremely capable
musician negotiating committee.
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After a week, the parties were down to one critical issue, and
management was holding firm. They wanted to revise the pension plan so
that new hires would have a separate pension plan with benefits reduced
from those being paid to the incumbent musicians. The union said “Go fly
a kite.” We all play together, we rehearse together, we travel together, and
we are supposed to be leaving for a three-week tour of Southeast Asia
starting in Japan tomorrow night at 5:00, and we understand the
instruments are starting to be packed at 3:00 in the afternoon tomorrow.
So Mr. Mediator, help us to get a solution or no trip. That was the state of
affairs.
I met informally with Mr. Mehta and Bill Thomas. They
understood the situation but said, in essence, we do not have the authority
to make this type of a retreat at this point in time. Who has the authority?
The Chairman and CEO of the New York Philharmonic. Am I saying this
right? I said who is this gentleman, and where is he? They gave me his
name. They said but he’s in Davos, Switzerland. I said okay. He’s there at
the world-famous economist meeting to discuss the future of the world.
Somebody here in your office, you call him. You tell him we’re at the
“moment of truth” with a mediated solution with a tour of Southeast Asia
hanging in the balance, and the mediator needs to talk to him. They said
sure, we’ll do that. They got him, and they put me into a separate room
with a perfect telephonic connection. It was probably one of the most
interesting eight minutes of my life. He’s busy in between speeches. I told
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him who I was and why I’m calling him. I told him we are at a critical
juncture in the negotiations and he alone has the authority to determine its
fate. He replied in essence the same thing that every CEO seems to say
when the moment of truth and they don’t want a strike, nor do they want
to give in to the union’s demand. Are you telling me this would be the end
of the dispute, and you’re guaranteeing there will be an agreement? By
then I had the union’s commitment to end the dispute, so I was in a
position to do that. He then said to me, you sound like a really interesting
person. I’d really like to get to know you. I’ll be in touch with you when I
get back to the United States. I’ve never seen or heard from that gentleman
since then. But again, the parties shook hands, and the tour took place.
MR. POLLAK: It’s a nice thing to say.
MR. COHEN: Okay. Those are all success stories. I told you I had one really bad story
with the National Football Players Association. I don’t want to leave my
successes without making the world understand that a mediator’s job is
damn hard, and there’s no guarantee when you start any one that you’re
going to help get the parties together.
I had one monumental failure that, of course when you have it, it’s
very disheartening. It went something like this. Given my success with
soccer and my relationship with Bob Batterman, the lawyer who had
represented Major League Soccer in the mediation I described and was the
outside counsel at that time to Roger Goodell, President of the National
Football League, my services were ultimately requested. Bob Batterman
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knew me very well. He called me one day and said we’ve been meeting
for months with Dee Smith, executive director of the NFLPA and his
team, and we’re still nowhere. I spoke to each separately, but one common
theme emerged. They both explained they began by talking about the big
money items, disagreements quickly surfaced, and the negotiations
sessions ended in an hour or so. Bob then suggested it would be a good
idea for me to reach out even more affirmatively than I had to the two
parties. I agreed and reached out to Dee, whose assessment was the NFL
didn’t want to bargain and didn’t want to reach an agreement. So he
concluded that I’m more than happy, if you want to give it a shot, if the
other side is willing. I said I’m not sure that they are, but I’ll find out.
The upshot was that Bob Batterman brought Roger Goodell and his
right-hand man to a restaurant here in Washington to meet George Cohen.
We met, and I told him what basically my techniques are. I told him if
they’re nowhere now, they didn’t seem to me to have too much to lose. I
assured him we were prepared to start mediation immediately and
continue the process directed at reaching an agreement expeditiously.
Goodell said, I’ll get back to you.
The NFL called me back the next day, and they said yes, we’d like
to mediate under your auspices. That happened. Here was the lineup: the
NFL side was led by Roger Goodell, who clearly was not at that point in
his life a collective bargaining negotiator. Bob Batterman was going to do
most of the talking. They were joined by a team of lawyers and staff
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operating personnel, three owners, and some business types. The Player’s
Association was represented by its key staff, including lawyers,
economists, and operations personnel, plus thirty or so player
representatives. So in total, we had a group of more than fifty people. We
had caucus rooms, of course. The unions had the bigger one because they
had a larger group. I started with the “low hanging fruit”, as people like to
call it, namely, the working conditions. I set up probably a half a dozen
subcommittees on all interesting, important working conditions that had
nothing to do with the biggies like the salary cap scheduling issues, for
example, how many games you’ll play in the season versus exhibition
games. We made excellent progress, not a lot of final agreements, but
getting close to them. Most important, broad-based participation combined
with new mutual respect led to a restored state of optimism that mediation
could succeed.
And then the unions brought in their top-flight antitrust lawyers,
Jim Quinn and Jeff Kessler. They were urging the union to leave
mediation and file suit under the antitrust laws, purportedly to enhance
their bargaining leverage on the major economic items. The NFL played
into their hands when I called a joint meeting where all the owners showed
up, and they made the mistake of making a very clearly unacceptable
package proposal. My view was it was okay as an “opening offer,” and I
let it be known to the union and the management as well that you know
guys, this is not going to get management very far, but they’ve made an
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offer, and the union should be now in a position to make a counter. I had
reason to think there’s plenty of room on both sides to try to reach a
negotiated agreement. I left both sides with that message. However, by
then Quinn and Kessler had captured the attention of the union committee.
Drew Brees, the New Orleans Saints star quarterback, had recently
showed up and begun to be prominently involved in the relationship
between the antitrust law and labor law. That added up to the union’s
decision to leave mediation and proceed to take the dispute to court.
Another factor contributed to this result. In retrospect, of all the
misjudgments I ever made, the major one was that. I had been led to
believe that a separate private meeting between Dee and Roger, the parties
were much closer together than they were in their formal positioning. I did
not participate in the meeting between the two of them on my stated belief
that the rest of their lives it was going to be the two of them together. And
that was a mistake because I would have known what actually happened
between the two of them. I didn’t know, but what ultimately became clear
was that Roger thought there was more of an agreement in principle than
what Dee was willing to acknowledge. Once you have that, as you know,
you have a total disconnect. And that proved to be a critical problem for
me and my attempt to mediate.
So there was reason for Jim and Jeff Kessler to say to their folks
mediation isn’t getting you anywhere and we’ll file a lawsuit in the
Federal District Court for the District of Minnesota and get before Judge
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Doty in Minneapolis, who’s a great fan of Jeff Kessler, and Judge Doty
will issue a decision that will give us the leverage that will put us in much
better bargaining posture. This was said to Scot and me shortly after the
NFL presented its proposal to the union. In retrospect, I would have been
better served if I urged the union committee to reject their lawyer’s advice.
But I didn’t do that. I accepted their decision to leave mediation. All I did
was to advise the committee it was my judgment that even if they
prevailed before Judge Doty, beware the Eighth Circuit Court of Appeals!
And that’s exactly what happened. The players walked out. They
won before Judge Doty. Then they lost quickly in the Eighth Circuit. They
went back to Judge Doty on remand from the Eighth Circuit opinion, and
Judge Doty said to himself I want no part of negotiating and mediating a
dispute that could take up months of my time. I’ll assign a Special Master
to handle this dispute. He did the job of a mediator, and did it quite well
I’m sure, and the parties ended up with a negotiated settlement, albeit four
to six months after they walked out of my office. Equally important, there
was reason to believe that same negotiated agreement could have been
achieved in mediation.
MR. POLLAK: You win some, you lose some. That’s the moral of that story. I know you
wanted to talk a little bit about mediation and your techniques, philosophy,
and approach.
MR. COHEN: The experiences you have build on one another, and after a while, when
you see certain things seem to have universal appeal, it sticks in your
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mind. The people who may read this are going to get the benefit of exactly
what I never do or never did in public when I spoke because inevitably at
any labor management conference, I would be asked the question, so
Mr. Cohen, or Director Cohen, or Honorable Mr. Cohen, what is your
technique that enables you to help the parties reach agreements? You
seem to be reasonably successful in doing that. I would say, “Folks, if I
disclose my techniques here in public, then everyone would know what
I’m going to do when they get to meet with me, and then I might not have
a technique anymore! So all I’m going to say to you is I will offer you is a
few general principles I endorse: Relationships, relationships,
relationships. Leadership, leadership, leadership. Respect, respect, respect.
You better well come into mediation with a mindset that you want to solve
problems, not create new ones. And with that, that’s all you’re going to
hear from me. But isn’t that good? I’m sure you’re all doing that already.”
And then laughter. “And if you’re not, I’m sure you know what to do now.
Do you want me to repeat that?” They say no. Okay, so now we’re ready
to proceed.
So the first order of business is to make sure the mediator is in
control because you’re going to be meeting in high profile cases with chief
negotiators who are important, who know they’re important, who think
they’re more important, et cetera. And what do they want? They want to
run the show. And what do they really want to do? They want to start by
explaining why they’re right about everything and the other side is wrong.
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The first meeting I conduct always is very important. It’s always a
joint meeting with both teams present, and it’s always in my conference
room. I didn’t tell you this. My conference room is called the Cyrus Ching
Conference Room. Cyrus Ching was the first director of the Federal
Mediation Conciliation Service in 1947. I knew nothing about that, but
when I walked into that room the first day I showed up on the job, I was
both surprised and shocked to see his name and picture on the wall. I said
wow, when I was in Georgetown Law School getting my LLM, I took a
course called Mediation taught by Cyrus Ching, a towering 6 foot 5, pipesmoking,
charismatic, booming voice, storyteller par excellence. I’m just
the seventeenth director to follow him. It was all true. So of course I loved
the idea of saying you’re in the Cyrus Ching room, and I loved to tell
everyone in 1960, I was at graduate student at Georgetown Law School
and he taught the course on Mediation. A real-life “ice breaker” to
introduce what was about to take place.
Okay, so when I looked around, all of the management
representatives typically wore three-piece suits. They’ve got their attaché
cases. First thing I do is I say look, here I am. Please keep in mind all
you’re going to get guys is me and Scot. And all I’m going to get is all of
you combined. So the first thing we have to do is establish an informal
working environment. No more suits and ties. I just want sport clothes. I
want everybody to come in here with the understanding that we’re going
to spend a lot of time together. Communicating is the key. You’re going to
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be having discussions. You’re going to be having the opportunity to say
what you want to say, but it’s all going to be in the framework of either
joint sessions together at this table or in subcommittees or separate
caucuses. Ultimately, please understand you agreed to keep this process in
my hands. I’m perfectly comfortable with that, and I’m going to do that,
but I want to make sure it’s not going to come as a shock to anybody. So if
anybody has a concern about what I have in mind, let me know that.
(Since all parties want to get on the mediator’s “right side,” there’s rarely
any concern raised.)
Then I say I don’t want to be wasting anybody’s time. Does
anybody here not want to get an agreement? Because if you’re not really
interested in getting an agreement, there’s no sense wasting anyone’s time.
So let me just go around and ask. Does everyone want to get an agreement
here? Okay, we’re all of the same mind. We want to get an agreement
together. Let the game begin.
I have a few ground rules. Let’s begin with the media. To protect
this process, everything that takes place here is confidential and therefore
not subject to any public disclosure. There will not be one word coming
out of my mouth to the media unless and until you have jointly authorized
me to do so. Likewise, I expect and must insist that no member of either
negotiating committee makes any statement to the press. I know you have
friends in the media. I know you’re going to get calls. I know you all have
relationships, but my experience has been this is the most
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counterproductive thing in the world from the standpoint of conducting a
successful mediation. Anything that both parties and I agree should go out
into the public domain, we will have a written statement reflecting that. It
will be coming from me. You will have reviewed and approved it. Then
what will be distributed to the press by our PR staff is exactly that
statement.
Then I focus on how I will conduct the negotiating process. The
most important thing any mediator can do to satisfy the basic concern that
whatever information or bargaining position either party shares with me
will remain confidential unless and until the party authorizes me to
disclose it to the other party.
So my goal is always the same, for both parties to leave the first
session with a good feeling that participating in mediation was going to be
the right decision and that the mediators involved in it look like they know
what the hell they’re doing.
The second meetings were going to be separate meetings. I knew
and understood here’s really the critical thing. No one came to the
Director of the FMCS who hadn’t been fighting with the other party for an
extended period, three months, six months, or even nine months. Nobody
called on the phone and said George, we haven’t begun to meet yet. We
think it’d be a great idea if you become our mediator. No. Here was the
common denominator I confronted. On the substance, the parties typically
were deadlocked over anything or everything, and even worse, the chief
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negotiators had built up a pretty serious hostile relationship, distrustful of
each other. So I say to myself I’m going to let each side have an
opportunity to vent as much as they want, but I don’t want them doing it
across the table. That would not be conducive to starting a constructive
mediation. I usually start with management because they’re the ones I
want to win over. They all know I’ve been a union lawyer. And here’s
what would unfold. They would usually want to tell me their positions on
all the outstanding issues and then get to the nitty gritty, the union
positions are outrageous, there’s nothing we can do to reason with them,
you can’t trust them, you can’t believe them, and they only respond to the
pressure of the radical rank-and-filers. And all I would do is listen and
take some notes and try maybe once in a while to try to gently get the
chief negotiator to acknowledge anything positive about his counterpart.
MR. POLLAK: You’re using football as an example, but these are really global
techniques?
MR. COHEN: Exactly right. And the next day, same thing with the other side, the union
committee. Then we’re going to get both parties back together. Okay,
when we do so, my basic premise now is what every mediator who I’ve
been involved in knows. You don’t start with the killers, the issues that
you know have caused the deadlock. You have to start with the easy ones
– usually working conditions – first, for two reasons. You’ve got a chance
to start getting some settlements, some building blocks, and most
importantly, get the parties comfortable with mediation and get them
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comfortable with the mindset that they are generating some momentum on
the road to reaching an overall agreement. I either start with that and ask
each side what it thinks are the working conditions or other issues that
they feel can be relatively easy for other side to agree to. Or over time,
I’ve developed another approach. I say to each side, between now and
tomorrow afternoon, review your respective positions on all your working
conditions, and then, for my eyes only, give me a priority list in numerical
order of one to ten of your priorities. I will not show it to the other side.
And union, you do the same thing, and I will not show it to the other side.
And my experience has been very informative. The first three or four are
often a total match. Four through seven, different views. This greatly helps
me formulate my own order of importance.
I also like to establish subcommittees. When I see thirty player
reps or fifteen management people and I know, as you know, in the final
analysis, negotiations will be limited to one-on-one or two-on-two and the
mediators, what are these other people going to be doing every day they’re
sitting there. They’re going to be building up frustration and maybe
hostility. I’ve got to get them involved. I’ve got to get them participating
on issues they will know are worthy of their attention. That model has met
with a lot of success.
The press releases about me in every one of the disputes are really
interesting. Most of the rank-and-file officers of the union have walked out
and said we had a change in tone brought about by the mediator because
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we were actively participating, and we felt the other side was listening and
paying some attention to us. So the proof of the pudding was it clearly
works.
The hard part is to keep the process going and actually produce
results. And every time I could get the parties to initial off on one issue, I
would explain to everyone until everything is agreed to, you have no
agreement. But let’s put each agreed on one in a pile in the middle of the
table so as we keep signing off with initials on these ones, everyone’s
starting to build a little momentum here. We’ve got to get everyone to
believe it’s worth their time and effort and it’s destined to succeed.
That was my never-ending goal. It’s psychology. I’m not saying
those words to them. I’m thinking those words, and Scot and I are talking
about those words. Incidentally, I might be saying it to the chief
negotiators when I see that each of them want an agreement.
The other amazing advantage which people don’t realize is the
“what ifs.” I constantly use that. I would constantly go to one side and say
I can’t get you that, but I know how much you want that. For example,
you want that change in the pension plan. What if by some act of God I
can get you that. You’ve never told me what it’s worth to you. So I’m
going to leave your caucus now. I never wanted to see a dynamic of the
members of either caucus arguing in my presence about what they should
be doing. I like to leave the room and feel that they’re more free to do that.
And then I come back in the room and say so have you guys got a
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consensus because again, I don’t think I can get you that, but it really will
help me to know what I’m shooting for here. And lo’ and behold, they’d
usually say something. Well, instead of 9% salary increase, we can live
with 7.5%. Okay.
You keep playing that out. No one has actually had to confront the
other side and “throw in the towel.” Those are the words I use all the time.
No such thing as “caving in.” No such thing as “bargaining against
myself.” Every management lawyer I ever knew loved to announce “I’m
not going to bargain against myself.” Well of course you are because
every time you change your bargaining position, you have bargained
against your initial position. So instead my formulation was we are
working to accommodate strongly-held conflicting views. There’s no
caving in. I repeat that because that’s what the militants on both sides are
fearful of being accused of. That was an amazing advantage of mediation.
It can protect the interests of both parties by avoiding direct confrontation.
I already described the possible use of the package deal on the
economics. That’s a tried-and-true way of taking care of the last two or
three toughest issues. And then I gave you the moment of truth strategic
initiative.
MR. POLLAK: That was very effective.
MR. COHEN: Yes it was. And I believe in my heart of hearts because when I go into a
room with three management guys saying I’m going to lock these guys
out, they’re not going to know what happened to them, I would give them
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some scenarios that what my experience might be, and they didn’t like to
hear that. And likewise. The union proclaiming a strike will bring them to
their knees. I’ve heard that before. Yeah, you know what. Management
could hold out longer than you can. It’s getting near Christmas. You’ve
got wives, you’ve got families, you’ve got pressure on you. Don’t tell me
we’re going to hold the line, 2,500 people. Bottom line, use of economic
weapon by either side is always an “iffy proposition.”
So my final message is to point out that by contrast, if instead of
resorting to the use of economic weapons, and the risk of uncertain results,
staying the course and negotiating can result in controlling your own
destinies – reaching agreement and with it, stability and certainty in place
of chaos and uncertainty.
I’m exhausted. I think I’ll save the two things that I succeeded
most in the public relations area of conveying the image of the FMCS
encouraging parties to my two conferences held, once in Georgetown Law
School, once at the White House, each of which in its own way was really
a smashing success, and it’s very sad that I can’t see the consequences
spreading around the country what we accomplished by who we brought
in and what they said. I think it’s worthy of twenty minutes, not three. And
I haven’t done NTEU v. Nixon or my last thing about my family and
friends that supported my life on this.
MR. POLLAK: Alright. Let’s end here.
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Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Thursday,
March 16, 2023. This is the eighth interview.
MR. POLLAK: This is the eighth interview, and very likely the final one, George. It’s
been a great time. I’ve loved coming to visit you. George has some
clean-up items to go over today. I think we’re going to talk about NTEU
versus Nixon and a couple other things that he’s going to get started with,
and I guess I’ll cue you up. You had something you wanted to add to your
earlier OSHA interview.
MR. COHEN: Yes. So Roger, thank you. Everything you said about me goes double for
you. One of the interesting things you’re constantly reflecting on what is
it that I actually said and did I leave anything worthy of attention out. So I
have two items from prior interviews that I think are really worthwhile.
One is just a fascinating vignette which I’ll start with. I’ve already
described in some detail my OSHA activity, which certainly culminated
with the Supreme Court in the Cotton Dust case involving the Textile
Manufacturing Industry, but I had an incident involving my argument in
that 1979 case in the D.C. Circuit Court of Appeals, which might be
relevant to the folks from that Court. It went something as follows.
I guess it was three or four days before my scheduled oral
argument. I was just about to begin to prepare, as you’d expect, knowing
it was a really important case that was the culmination of a whole series of
OSHA-related circuit court of appeals cases. The phone rang, and the
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gentleman on the other end told me who he was. I already had a
relationship with him, a wonderful gentleman whose name eludes me at
this moment, but he was the Clerk of the United States Circuit Court of
Appeals for the D.C. Circuit, a very important job in the administration of
that court. He said, George, we have a little situation that I’m confronting
that I’d like to share with you. I said, and I think his name is Tony, go
ahead. He said something as follows: He had just learned that there were
several busloads of workers who had been exposed to cotton dust and
indeed many of whom were suffering from the effects of brown lung.
They were planning to come to Washington, D.C. to attend the hearing
before the three-judge panel of the circuit court of appeals. They were to
be wearing something akin to large “Cotton Dust Kills” buttons. When he
was done saying that, he coughed a little and said, you know, that would
not be acceptable to the court. I said Tony, without a doubt, that would
not be acceptable to me because inevitably, rightly or wrongly, those three
judges might assume that I had something to do with those bringing these
folks into the courtroom, and that create a big problem for me.
Instead of preparing for my argument, I spent the next 48 hours in
a variety of mediations and discussions with the lawyers for public health
groups, including the Brown Lung Association. I’m delighted to say in
retrospect, we reached a mutually acceptable solution, although they were
not thrilled with compromising. I said, listen, protesting while in the
courtroom would be very counterproductive from the standpoint of
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winning a case. Of course, I recognized the First Amendment
implications, and we came up with an alternative. The protesters would be
bussed to Constitution Avenue, in front of the Labor Department, the
agency responsible for enforcing OSHA. They did that. They did
exercise their First Amendment right. I received a report that it was all
done peacefully, and most important of all, it was not done in the
courtroom the day that I argued.
I’ve since learned that in the Supreme Court, those protesters
would not be allowed in with buttons or anything that would indicate they
were going to make some public outcry while the proceeding was going
on. It’s certainly possible that the clerk of the D.C. Circuit had similar
authority, but just the idea of 300 people sitting in the courtroom with
serious lung conditions and perhaps coughing or making noises was
enough to be a deterrent to me.
So that is just a little vignette in the history of my memorabilia of
what happens when you are in a high-profile public interest dispute.
MR. POLLAK: Fascinating. It’s surprising that doesn’t come up more often, honestly.
MR. COHEN: Yes. It probably is. I wanted that to be inserted into the OSHA interview.
As you already have indicated, Roger, I gave some extra thought to what I
said about the Federal Mediation and Conciliation tenure of mine from
2009 to 2014 during the Obama administration. I wanted to just double
check with everyone and reemphasize that of all the things that I was
pleased with most about my four years was trying to get together some of
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the most prominent individuals in our world, the vice presidents of labor
management relations of major corporations, public and private, and their
union counterparts, private and public, who would come to a conference
and actually speak about how they achieved success as a direct result of a
meaningful collective bargaining relationship. I was honored that I was
able to work very hard selecting them.
The first conference was in 2012 at Georgetown Law School. The
common theme of all the panel discussions was their initial relationships
were very confrontational. They started out with hostility, with strikes,
with lockouts, and only over the course of time did each party recognize it
was in its own self-interest to make a 180-degree turn and establish a
meaningful, respectful collective bargaining relationship.
Just for the record, to explain the breadth of who actually spoke at
the Georgetown conference, the panel of presenters included high-level
representatives of the Ford Motor Company and UAW; Kaiser
Permanente and a coalition of Kaiser Permanente unions; U.S. Steel and
the Steelworkers; Alabama Power and the IBEW; Major League Baseball
and the MLB Players Association; Alliance of Motion Picture and TV
Producers and SAG-AFTRA. These were all fascinating discussions to an
audience comprised of experts in the field.
I must quickly say, if I hadn’t said before, that perhaps the most
fascinating success I had took place about 48 hours before that particular
December conference. I was called by the Mayor of Los Angeles,
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Antonio Villaraigosa, who asked me if I could come to the West Coast to
Long Beach where there was a big dispute between the major shipping
companies and the ILA. When I said yes I’d be there that night, he was
quite shocked that any government official would respond to a request that
quickly. What he didn’t know was at the same time on the phone the
lawyers for the two groups were also beseeching me to show up.
I flew to LA, was picked up by his motor vehicle staff, and with
the neon light flashing, was driven speedily to the terminal at Long Beach
with my colleague Scot Beckenbaugh, the Deputy Director. As I arrived
and was briefed by the mayor and his staff, it became apparent that what I
was being told was that just the thought of my showing up that quickly
was going to generate an interest in the parties to resolve their own dispute
without the need for federal mediation involvement! And over the course
of the next two hours, the parties met themselves. I never saw them at that
moment. They walked in at 10:00 or 11:00 at night to announce they had
reached a mutually satisfactory agreement, at which point, of course, a
press conference took place, actually on the waterfront. They were both
kind enough to say the thought of my showing up, in their own words, was
significant impetus for them to reach an agreement.
I told the panel on that day some cynics would say I did nothing,
but I think I created a new standard, that I didn’t have to actually mediate
a dispute, just the thought that I was going to show up to mediate it was
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enough to guarantee there would be a successful collective bargaining
solution, and I’m standing by that story for the rest of my life.
MR. POLLAK: That’s a beautiful thing! The audience embraced my conclusion. What
else could they do?
MR. COHEN: And then what followed the next year was maybe more impressive
because it was a White House Summit. The participating parties agreed
that the actual theme would be “Partnerships That Work.” And you know,
Roger, the notion of the word “partnership” between a company and a
union in and of itself is quite radical and revolutionary. I was honored to
say that not only did Tom Perez, then the Secretary of Labor, join me in
sponsoring this event, but quite surprising to me and thrilling as well,
Penny Pritzker, then the Secretary of Commerce, a member of the cabinet,
not only volunteered to come, but actually spoke on behalf of the business
community concerning how much they appreciated the opportunity to
support privately negotiated collective bargaining agreements. The group
of panelists included important representatives from both labormanagement
– the Federal Aviation Administration and the Air Traffic
Controllers, Montgomery County Public School system and its unions, the
Walt Disney Company and a variety of AFL-CIO unions, Ford Motor
Company-UAW again, and International Paper and the Steelworkers, plus
some high-profile media folks. Again, we had a wonderful turnout, and
we had a great amount of much-needed enthusiasm for collective
bargaining.
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As planned at age 80, and with Phyllis suffering from Alzheimer’s,
I retired from my position two weeks later. I reflected back on those two
conferences. They exemplified the ultimate that I was trying to
accomplish in the public domain, getting parties to appreciate how much
FMCS could do to help them through their difficult tribulations. Enough
said.
MR. POLLAK: Yes. It really makes me reflect on how rare those kinds of interactions
and demonstrations of constructive collective bargaining relationships
work by 2010 versus the 1960s when you began your storied career when
the idea of constructive collective bargaining relationships was much
closer to the norm and permanent replacement of striking workers and
similar weapons only arrived in the 1970s, and by the Reagan era,
followed by the use of union-busting law firms and consulting firms that
have really changed the world of labor-management relations.
MR. COHEN: I subscribe to every word you said. I would only add, as you’d expect,
globalization and technology have also proved to present an amazing
challenge to the economic well-being of corporations and in their response
to unionization. And those are just facts of life.
I’m going to be talking in two weeks at a retirement community
about what has caused the incredible decrease in the number of union
workers, particularly in the private sector, and those two things stand out
as part of the reality of it all.
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MR. POLLAK: And I subscribe to that as well. It’s been a long journey. It must be so for
you as well, but when I joined Bredhoff in the early 1990s wanting to be
part of the renaissance of the labor movement, we were at 23% or 24%
union density, and today it’s 11%. So it’s just been interesting to fight and
interesting to watch.
MR. COHEN: Yes. So when we hired fabulous young people like you, we were not
thinking that we were going into a downward posture. We were thinking
about more affirmative, more pro-active initiatives to increase cuttingedge
solutions to increase worker well-being.
MR. POLLAK: Believe me, so was I.
MR. COHEN: I understand. We share that in common.
MR. POLLAK: Yes. Fascinating. Let’s turn to your involvement in NTEU versus Nixon.
MR. COHEN: Yes. So I should say as an introduction for the record that I am not, nor
have I ever been really, a constitutional lawyer in that sense. A lot of the
labor law issues of our day have had constitutional law implications, but I
don’t want anybody to think they’re listening to a world-renowned
constitutional lawyer. Having said that, this was without a doubt an
extraordinary litigation experience by any standard. Indeed, that is the
bottom line of the decision issued by the D.C. Circuit Court of Appeals.
And what else should be said is that I believe the decision has been cited
only once or twice since 1974 when it was handed down. To understand
the George Cohen aspect of this, I should tell you what actually unfolded.
MR. POLLAK: Great.
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MR. COHEN: At that point in time, our law firm was representing the National Treasury
Employees Union (“National Treasury Employees Union NTEU”), a
public sector union representing IRS agents and others. The General
Counsel, Bob Tobias, was well known to Mike Gottesman and me. We
had handled a number of traditional kinds of lawsuits together plus
providing some advice and counsel for the union pre-NTEU versus Nixon.
I’ll set the scene: The phone rings, as it always used to do in those
days, and I am confident it was very close to the Labor Day weekend
because I can still envision myself kissing the Labor Day weekend
goodbye. In essence, this is what Bob Tobias told me: Congress very
recently had passed this comprehensive new law called the Federal Pay
Comparability Act (“Federal Pay Comparability Act FPCA”). I’ll
summarize the relevant terms. The President of the United States, and he
alone, was given the statutory authority and responsibility to periodically
have experts review the comparison between federal worker compensation
and private sector compensation for the same type jobs and recommend
appropriate, timely adjustments to make the federal compensation for
similar jobs more consistent with the private sector. The details of that
statute, which imposed certain obligations on the President, were quite
unique, and they basically provided that after the compensation study of
the independent experts was completed and was submitted to the
President, he would have two choices: either to sign his name
implementing that precise recommended salary adjustment for all federal
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employees, or, if he determined that there was a national emergency or the
economic well-being of our country was at stake, he had the authority to
submit what was called an “alternative plan.” But there were very specific
time frames to act established by this law, the most relevant of which was
that by no later than September 1st, he’d have to submit the alternative
plan if he wasn’t going to implement the adjustment effective October 1.
September 1 came and went, and there was no alternative plan coming
from the President, and he had already announced that he wasn’t going to
give the salary adjustment effective October 1.
Bob Tobias was on the phone telling me those two things and
telling me to draft a complaint to be filed in federal district court on
Tuesday the day after Labor Day. We discussed strategy and agreed the
lawsuit would include a request for injunctive and mandamus relief
against the President of the United States. Thus, what an introduction into
the FPCA!
I did enough research to know Bob’s description of the Federal
Pay Comparability Act was right on, the dates were right on, the
responsibility was right on, and here I was sitting there recognizing that
the President of the United States was the only official named in FPCA.
He had not delegated any responsibility to an executive officer or to a
cabinet member. The statute did not authorize him to do that, so the
question was, can the NTEU successfully sue the President of the United
States for mandamus, to force him against his wishes to take an action –
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implement the recommended salary adjustment. I did a quick research and
had to advise Bob Tobias on Monday or Tuesday morning when we met
again and talked again, we are really swimming upstream. I was looking
hard for any support for the proposition you can mandamus the President
of the United States to take an action in his official capacity.
Bob’s answer was, “I know, George. This is a challenge for
Bredhoff and Kaiser, but that’s why we use you guys.” Because of the
time constraints we were under, we were, in fact, assigned on a very
expedited basis to Federal District Court Judge Charles Ritchie. What
then unfolded in that expedited hearing was precisely what I, of course, in
my own cynical way had anticipated. After opening oral argument,
government counsel asserted that we were asking the President of the
United States to construe a statute which in and of itself generates
judgment and discretion. I am aware of decisions that have held there is
no way going back to Chief Justice Marshall’s landmark ruling in
Marbury versus Madison that any court is going to entertain a lawsuit
trying to override discretionary or judgmental action of anyone in the
Executive Office, let alone the President of the United States. I’m aware
of the constitutional principle of separation of powers, so wrap up your
complaint in the old kit-bag, and go home. And that happened very
promptly. Judge Richey granted its motion to dismiss our complaint. The
government, to its credit, expected that, and I was not shocked by that.
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What do you do under those circumstances, the client, of course,
Bob Tobias was with me at counsel table, and Vince Connery, the
President of NTEU, who got a dose of medicine that day. We then
decided jointly let’s give it a shot. Let’s appeal on an expedited basis to
the United States Court of Appeals for the D.C. Circuit. So I’m going to
fast forward to that.
MR. POLLAK: How much later was that?
MR. COHEN: It was several months later that we were in court. The combination of a
briefing and oral argument schedule and their decision, probably an
eighteen-month period went by from the time I was originally called in the
fall of 1972 until we got a decision in 1974. It was quite expedited, but
time went by, and of course nobody received any salary adjustment on
October 1st, 1972. That was still an open issue, and nobody had imposed
any obligation on the President to do anything.
The panel consisted of Judge Spottswood Robinson, who has been
known as not only a very smart judge, but also quite liberal, along with
another colleague, Judge Wilkey, who was a Republican presidential
appointee and much more conservative, and they were joined by a federal
district court judge sitting by designation, Frank Kaufman from the
District of Maryland, who I had the honor of being before in a number of
cases in that court in the past involving mostly Title VII and the
Steelworkers Union. I knew two things about Judge Kaufman. Incredibly
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smart, incredibly hard-working, and really tough from the bench. He set a
very high standard.
Interesting to me, and I was thrilled by this, that argument instead
of the half hour schedule per party, lasted two hours or more. The
questions from the bench came fast and furious. Everyone understood that
the case implicated the original 1803 Marbury versus Madison as well as
Mississippi versus Johnson in 1866 – the latter actually left open the
question whether mandamus against the President could lie. The bottom
line was instead of getting short shrift, as we had received in the district
court, it became quite apparent to anybody who was in court that day that
this panel of three judges was taking this case very seriously. This was a
big plus in my mind.
That turned out to be an accurate omen. Six months or so later, a
unanimous ninety-nine page opinion was issued by the D.C. Circuit panel,
authored by none other than Federal District Court Judge Kaufman. Now,
whether or not he was selected because he was known to have a firm grasp
of constitutional law and what our founders intended, I do not know. But
it certainly turned out to anyone reading this opinion, it was brilliantly
written, amazingly comprehensive, and addressed every possible nuance
of the case presented.
If you don’t have any specific question at this point, I will go
through with you the opinion and what he was addressing and how he was
responding.
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MR. POLLAK: Yes. I think this is a good moment to do that.
MR. COHEN: I don’t want to diminish the importance of his words, so on a few
occasions, I’m going to quote them. His opinion begins describing
Marbury versus Madison 1803 and the choice before the Secretary of
State as to whether or not a commission had to be awarded to a particular
officer and should mandamus issue in the unique circumstances where he
refused to do so. Not the president, but a cabinet-level officer was the
defendant. In essence, Judge Kaufman explained the same three issues
that were presented in Marbury versus Madison existed here, in albeit a
slightly different form, and those questions could be phrased this way:
Number one, do the plaintiffs have a legal right? Number two, is there a
mechanism for enforcing the legal right if the right has been violated?
And number three, assuming the answer to the first two questions are both
“yes,” is nevertheless mandamus a correct, appropriate, valid, legal
remedy against anyone in the executive branch of government, let alone
the President of the United States?
In a very comprehensive, detailed way, Judge Kaufman disposed
of the first two issues. He kept emphasizing that, “I realize when I get to
number three that nothing here has ever been applicable because there’s
never been a case like you’ve presented, Mr. Cohen, where the President
of the United States is there in his naked glory with no one else that you
could have named in your complaint, and we appreciate you didn’t, but
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rest assured, you would have had those parties dismissed as a matter of
law because there was no role for them to play under this statute.”
At least the initial advice we had given to our client proved to be
correct. Then the judge opined, “I’ve looked very carefully at this law.
There is no doubt that this law left the President with only the two choices
that the NTEU is arguing for. They had this obligation to make a pay
adjustment unless only if a timely alternative plan was presented, and it
wasn’t presented.” “Now I know,” said Judge Kaufman, “that the district
court had held that one of the reasons to dismiss the complaint was the
President had discretion in constructing the statute, but we don’t agree
with that. If the right existed and the right was being violated, then the
fact that the President had to look at the words of the statute and then say
yes, here’s my signature, that is not enough to constitute discretion, and
we accept your threshold argument that all the President of the United
States under this law was left to was the ministerial act of signing the
piece of legislation or submitting the alternative plan.”
This is a very short-winded way of getting you to the nuts and
bolts at the end of the opinion. Now, in the interim, let me say a few other
things. The government had suggested one other defense – we know
mandamus against the President is unprecedented, extraordinary – so
instead just move to impeach the President? The Court responded:
impeachment is a political solution having nothing to do with the rights of
NTEU members for a pay adjustment at this point in time. And here is the
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Court’s famous line that I want to read to you. “Making available only the
impeachment process in a case such as this resembles making available a
nuclear bomb as the sole weapon to bring down a pheasant.” Wow.
The Court was left to consider what it determined to be a
constitutional dilemma. Here is a short form explanation. Namely, this is
a case that would clearly be appropriate for mandamus against the
President. However, the fact that is available doesn’t mean we feel we
should be bound to in fact implement a mandamus, and quite frankly, this
court is very concerned about doing that. Thus, we believe that out of
respect to the Office of the President, rather than now invoking this
extraordinary relief of mandamus, we’re going to issue a declaratory
judgment. We’re going to tell the President of the United States what this
court believes were his obligations with the expectation that the President
will take that declaratory judgment and in fact go forward and either
implement it or file a cert petition with the United States Supreme Court.
And that’s how Judge Kaufman ended his opinion. I would ask everyone
to read his precise words!
As you would expect, when I read that on a Friday night, I know I
was overwhelmed by the brilliance of the underlying analysis. Indeed,
there was not a word in it that I didn’t think I wished that we had inserted
in our brief. I realized that he had totally focused on the word
“ministerial” to provide the court the reason for answering the open
question in Mississippi versus Johnson in the affirmative.
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So, what then happened is the next question. First, a prominent
article on the front page of The Washington Post the next day and a lot of
calls from lawyers who it turns out had been thinking about issues like this
in the past. Thus, even as a neophyte constitutional lawyer, I did
understand that this decision was quite extraordinary.
Now what then took place has nothing to do with the law and has
everything to do with politics and current events 1974 vintage. It turned
out, what did the United States Justice Department not do? They did not
file a petition for en banc review, nor did they file a cert petition with the
United States Supreme Court. In other words, they did not pursue any of
the normal legal remedies that would be expected. A complete surprise!
How could I have possibly imagined that they were not going to seek
certiorari review? Indeed, I thought they’d go for en banc because it was
only two court of appeals judges who actually participated in this opinion
out of at that point probably ten or twelve circuit court of appeals judges.
So the thought that no legal response was forthcoming was a real shocker!
And then all of my colleagues as knowledgeable or more
knowledgeable than I about the world of politics chimed in. The
combined wisdom seemed to be as follows. At that point in time, the
President, Richard M. Nixon, was deeply enmeshed in the Watergate
investigation, and perhaps the thought was he did not need yet another
arrow in the bow of people trying to shoot him down for what he had done
to the entire federal workforce maybe wasn’t worth his while vis-a-vis
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what, a piddly $530 million of a special appropriation to Congress to make
whole every federal worker who were now entitled to a small adjustment
in pay for the three-month period from the time beginning in October 1972
until he finally got around to implementing it at the beginning of the
following year. In any event, that’s what happened. The supplemental
appropriation was submitted. Congress, Republicans and Democrats
alike, all basically approved it as a remedy, and every federal government
employee was made whole with small back payments.
That then, of course, triggered another bizarre circumstance. How
many law firms in America have been singularly responsible for
generating a $500 million recovery without receiving any attorney’s fees
for doing that other than the minimal hourly rate that Bredhoff and Kaiser
was charging the NTEU. So Bob Weinberg joined me. I think Michael
also had something to say, and Bob and I started with a very simple
premise. There was no way we were going to try to take a few dollars out
of every federal worker’s pockets through some “common fund” theory.
After a lot of research and a lot of soul searching, we concluded that the
only thing we could do was to ascertain if the Justice Department had any
special funds that could be used to pay attorney’s fees to prevailing
counsel. And to make a long story very short, the answer is there was
only one such fund, with a $100,000 limit per case. Yes, DOJ offered us
$99,900 as an attorney’s fee for having generated a $530 million success,
and we, of course, said yes. We reimbursed our clients for what they had
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paid us, and I would say of any law firm in the history of American
jurisprudence, we received the least compensation for that type of victory
or success, but everybody lived happily ever after!
MR. POLLAK: Thank you. That’s an extraordinary story. Not much has changed in
terms of compensation [laughter].
MR. COHEN: Interestingly, when you reflect, I would have expected there would have
been more post-NTEU versus Nixon situations, but it may well be because
of the uniqueness of this statute with only the President being named and
no one else that has eliminated the need to address what we had to address
in NTEU versus Nixon.
And you would not be surprised to know on my memorabilia table,
right behind you, is a lovely picture of myself and Bob Tobias and Vince
Connery with a very funny endorsement from Vince Connery about we
may be only a bunch of small little guys, but we did pretty well against the
President of the United States. And that was a wonderful memorabilia for
me.
MR. POLLAK: That was great. I think we’re at the tail end here. I know you want to talk
a little bit about your two families.
MR. COHEN: Yes. I’ve gone through these seven or eight interviews, Roger, making it
clear, which of all people you understand this, but everything I did at
Bredhoff and Kaiser from 1966 to 2005 was a team effort. I don’t think I
ever did anything in which there wasn’t at least one of my colleagues
engaged with me. I’m pretty positive the answer to that is yes, except in
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the very early stages of public sector bargaining, but then as I thought
about it, maybe Mady Gilson, Jeff Gibbs, Penny Clark, or Trish Pollack
joined me. So I did want to make sure that anybody who would labor
through this interview would understand that Bredhoff and Kaiser was a
law firm in which collegiality and collective intellect was continually at
work, never ending. I do acknowledge that because of the time constraints
I was regularly under with the variety of my clients and the high-level
problems and projects that were mine, I tended probably to rely upon more
senior lawyers, whether it was Michael Gottesman originally then Bob
Weinberg, Jeff Freund, Penny Clark, Jeremiah Collins, Andy Roth, Jeff
Gibbs, Trish Pollack, and others, more people who were partners than
associates, although I did use associates as well. There was never a
moment in that 40 years that I didn’t feel I was sharing with them what I
had to offer and was getting back from them what they had to offer. And
that included sitting in rooms drafting briefs, drafting memos, talking
about memos and strategizing. You know we always prided ourselves in
saying Bredhoff and Kaiser lawyers were not “yes” men. We were going
to give our clients, and we had some pretty important clients with a lot of
people who were ultimately respecting us, I think, because they knew we
were going to lay it out to them the way we thought it was. And even
though those days were not the happiest days of my life when you had to
confront a president of a union and say I think we’re going in the wrong
direction and here’s why, I am confident that the reputation of our law
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firm in large measure was a response to those people saying yes, that’s
what we’re going to get from this firm.
And I should also say one of the beautiful things about my life is
my professional relationships spilled over to personal ones. I’ve had longstanding,
very close, personal relationships with Mike Gottesman, Bob
Weinberg, Gary Kohlman, Penny Clark, just to name a few. All of those
were very important in my life, and I to this day am delighted to get little
news reports. Virtually all of my contemporaries are no longer partners at
the firm. You know that very well, and you know that Bruce Lerner,
Andy Roth, Roger Pollak, Mady Gilson, Anne Mayerson, Leon Dayan,
Devki Virk have carried on. I don’t want to leave any names out. I will
also say that Penny Clark was the first woman we hired. I believe that was
around 1975, so about seven or eight years after I joined the law firm, and
now, I’m sure if I looked at the letterhead, I’d see a significant number of
women who are partners, women who are associates. I feel delighted
about that – and by the way all stars! And on top of it all, I don’t recall
any specific incidents that ever generated the kind of internal disputes that
a lot of law firms have experienced. I wanted to be on record for all those
things.
And then last, of course, but far from least, I was a strong, strong,
strong believer that my family came first. I wasn’t Joe Biden. I didn’t
have to get on a train and go to Delaware. I just had to get in a car and
drive to lovely Lake Barcroft for summertime swimming and kayaking.
310
Whatever additional work I had to do after 7:00 or 8:00 at night was fine
with me or early in the morning, 6:00, also fine with me. I felt Phyllis had
enough of a workload just being with the children as many hours as she
spent with Bruce and Julie. So dinner time was a time for reflection, for
discussion, for my showing my interest in them, and they’re looking up
and saying what do you dad, and I would try as best I knew how to explain
that. That became an integral part of my life. Also, I felt it was really
important to interrelate with my children’s friends. I had a convertible. I
had the Baskin-Robbins, top-down ice cream run probably three days a
week. All I had to do was get in the car, and next thing I knew, there were
five or six children. No seat belts at that time. We didn’t think twice
about that. But the ice cream was really good, and I was a very popular
father in that regard, and other fathers tried to emulate what I was doing as
well. Plus, every summer vacation, being together in the national parks
hiking, eating, adventures. I don’t think I can say more about Phyllis
without being emotional. I don’t want to do that. But to repeat, she was
amazingly talented, a world-class color wood block printer, smart beyond
belief, and a best friend to all her buddies.
I was the luckiest person in the world, and I want to stop by just
saying I loved her every day of our incredible life together.
MR. POLLAK: Thank you, George. It’s really been a pleasure. That brings us to the end
of the oral history presented by George Cohen.
MR. COHEN: Yes. Done.
A-1
Oral History of George Cohen, Esq.
Index
American Bar Association (ABA), 108, 119
Committee on Occupational Safety and Health, 108
Abato, Cosimo, 161
Abdul-Jabbar, Kareem, 146-47
Abel, I.W., 62-63, 65-66, 74-75, 214
Adam, Dave, 267
American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), 62, 75, 93,
95-98, 127, 225, 231, 244, 294
American Federation of Musicians (AFM), 161-63, 166, 168-69, 174-75, 177, 179, 182, 187-88
American Federation of Television and Radio Artists (AFTRA), 167, 188, 190, 192-94
Amalgamated Textile Clothing Workers Union, 97, 99
American Cyanamid, 111
inglot pigment, 111
American Iron and Steel Institute, 93, 223, 230
American Textile Manufacturing Institute (ATMI), 85, 93, 223
American Textile Manufacturing Institute v. OSHA (case), 85
Anker, Jerry, 62-63, 65
Apted, Michael, 190
Arnold, John, 249
Asbestos Institute of North America, 93, 223
asbestos standard, 93, 224
Sunshine Mining Co, 209
ATMI v. OSHA (case), 102
ATMI v. Donovan (case), 219, 232
Auchter, Thorne, 104, 107, 232
Baker & Hostetler (law firm), 127
Barclay, Paris, 190
Barkley, Charles, 156
Batterman, Bob, 275,-76
Bazelon, David, 85, 198
Beck, Allison, 246
Beckenbaugh, Scot, 249, 258-60, 262-64, 268-70, 293, 279, 281, 286
Bedrossian, Guy, 27
Benzene, 226
Benzene (case), 85, 195, 230-31
Bethlehem Steel, 69-71, 74
Bingham, Eula, 107
Bird, Larry, 156
Blackman, Rolando, 142
Bloch, Richard, 241
BNA See Bureau of National Affairs
Bork, Robert, 112-13
A-2
Supreme Court nomination, 113
Boston Herald, 128
Bradley, Harold, 176-78
Bradley, Owen, 176
Bredhoff and Gottesman, 196
Bredhoff and Kaiser, 20, 98, 100, 224, 296
Bredhoff, Elliot, 62-63, 74, 86, 121, 160, 196, 220
Brees, Drew, 278
Brennan, William, 84-85, 103, 205-06, 208-09, 218, 227-29
Brown Lung Association, 290
Brown v. Pro Football Inc. (case), 141
Brown, Gerald A., 43
Brown, Jerry, 195
Buckner, Quinn, 142
Buffalo Forge, 204-05, 207
Buffalo Forge (case), 202
Bureau of National Affairs (BNA), 86, 97, 220, 224
Burke, Walter, 214, 218
byssinosis, 227
Capo, James (Jim), 267-68
Casey, Frank, 137-38
CBA (collective bargaining agreement), 243, 245
Chase, Nick, 41
Chass, Murray, 128
Ching, Cyrus, 35-36, 281
Christian Music Label, 176-78
Clark, Penny, 81, 191, 215-16, 308-09
Clark, Tom, 84, 95-96, 229, 231
Cohen, J. Moe, 3-4
Cohen, Bruce (son), 1, 4, 16, 62, 190, 194, 207, 261, 310
Cohen, Eddie (cousin), 5
Cohen, Gladys Winner (mother), 2-3, 155
influences, 24
Cohen, George – Personal
birth Brooklyn, New York, 2
Brooklyn Dodgers, 10, 19
Cornell Daily Sun, 21, 22, 119
Cornell Law School, 22, 36, 38
Cornell University, 4, 9, 17, 21-23, 25, 27, 30-31, 37-38, 45, 119, 265
waived senior year to attend law school, 120
Georgetown Law School, 42, 107, 247, 288
LLM degree, 35-36, 41, 281
high school basketball, 118
officers training school 34, 40
racial discrimination and anti-Semitic behavior, 12
A-3
ROTC, 32, 38
Cohen, George – Professional
Air Line Pilots Association, International (ALPA) (airline union), 237
Amalgamated Transit Workers Union, 259
American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), 62, 75,
93, 95-99, 127, 225, 231, 244, 294
American Federation of Musicians (AFM), 163
Television Agreement, 164, 170
American Lawyer Best Labor Lawyer of the Year, 116
Arlington School Board, 79
asbestos, 83, 93, 99, 101, 224-27
asbestos case, 101, 229
Atlantic Trading & Marketing, Inc. (ATMI) (case), 102, 219, 232-33
Bay Area Regional Transit (BART), 259
mediation, 262
Bredhoff and Gottesman, 195
Bredhoff and Kaiser, 58, 63, 67, 73, 84, 97, 118, 120, 127, 160, 181, 186, 191, 193, 201, 209,
217, 225-26, 237, 249, 256, 258, 299, 306-08
retirement, 236
Coke Oven Emissions (case), 106, 226, 230
co-mediation, 240
Commercial Announcements Agreement, 164, 169-70
cotton dust case, 84-85, 116, 232
entertainment law, 160
Federal Mediation and Conciliation Service (FMCS), 36, 186-87, 236, 243, 244, 245-55, 258-
59, 262, 271, 288, 291, 295
Director, 252, 267
image, 251
morale, 251
focus on occupational health, 83, 85, 88-89, 100, 104, 109-10, 220-21
Georgetown Law School, 271, 292
co-teacher Law of Occupational Health and Safety at Georgetown, 108
H.K. Porter Co. v. NLRB (case), 67, 75, 195-201, 207
impact of digital music on collective bargaining, 168
Industrial Union Department, 75, 93, 96, 225
Internet Agreement, 182, 184
Johns Hopkins School of Public Health and Hygiene Advisory Council, 108, 151
Major League Baseball Players Association (MLBPA), 71, 22, 120, 125, 127, 129, 134-35,
137-138, 158, 189
Major League Soccer Players Association, 257
mediation, 36, 77, 186-87, 236-37, 239- 43, 245-47, 250, 253, 255, 257, 259, 262, 264, 267,
271-72, 275-79, 283-84, 287, 293
constructive, 284
mindset for problem solving, 280
subcommittees, 285
successful, 283
A-4
techniques, philosophy, and approach, 279
Mesaba Airline, 238
Motion Picture Labor Agreement, 164
National Basketball Players Association (NBPA), 139, 140, 143
Agent Registration and Regulation Committee, 142
lecturer at annual education programs for certified NBPA agents, 148
program for NBPA AIDS education, 152
National Football Players Association, 275
National Hockey Players Association, 157
National Labor Relations Board (NLRB), 35, 41-48, 52, 54, 56, 58-61, 63, 66-67, 69, 94, 113,
124- 27, 130, 134-38, 140, 195-98, 200, 203, 237, 244, 247, 249
Appellate Court Branch, 46
General Counsel’s Office Appellate Court Branch, 196
Ohio State Law Journal, 98
Oil, Chemical Atomic Workers Union, 225
Occupational Safety and Health Act, 83
Occupational Safety and Health Administration (OSHA), 83-85, 86, 90, 93-94, 96, 101-05,
107, 111-12, 114, 116-17, 151, 160, 195, 220-22, 225, 233-34, 289, 291
See also cotton dust case
cost-benefit analyses, 228
state plan lawsuit, 109
union rights, 97
Phonograph Record Labor Agreement, 164, 169
professional soccer mediation, 256
Rosenfeld, Arthur, 249, 51
Service Employees International Union (SEIU), 244, 259
Sports Lawyers Association “Michael Weiner Excellence Award” 149
sports unions, 118, 120, 157
Supreme Court of Idaho, 215, 217
Supreme Court of the United States
arguments, 48-49, 51, 62, 67, 73, 75, 84-85, 151, 215
experiences, 85
Taft-Hartley emergency injunction disputes, 64
Traveling Broadway Musicals, 165
Union Co-chair of the ABA Committee on Occupational Safety and Health, 108
union organizing and the process of collective bargaining, 43
United Hatters Union, 75
United States Maritime Alliance (USMX) mediation, 266
United Steelworkers of America, 66, 70-71, 96, 98, 121, 196, 203, 210, 214
conventions, 74
negotiations, 73
Verizon dispute with CWA and IBW, 263
vinyl chloride, 226
White House Summit, 294
Cohen, J. Moe (paternal grandfather), 2
Cohen, Jane (sister), 2
A-5
Cohen, Jeremy, 207
Cohen, Julie (daughter), 1, 17, 62, 194, 207, 310
Cohen, Larry (President of CWA), 264
Cohen, Leonard (Len) (father), 2, 6
The Evening World (newspaper), 7
New York Post (newspaper), 8
Sports Editor of the New York Post, 9, 39
Cohen, Phyllis Goody (wife), 4-5, 16, 22, 27, 30-37, 41, 52-53, 61-62, 65, 150, 155, 207, 310
Alzheimer’s, 295
Labor Department intern, 34
collective bargaining, 73-74, 76, 7-79, 114-16, 121-23, 130, 137, 140, 145, 149, 153, 157, 163,
164, 167, 169, 179, 186, 189, 256, 258, 276, 292
“take it or leave it” approach, 124
agreements, 168, 175, 188, 203, 214-15, 242, 294
disputes, 257
negotiations, 247
pension and healthcare improvements, 171
salary improvements, 171
Collins, Jeremiah, 100, 214, 308
Collins, Tom, 146-48
Communication Workers of America (CWA), 252, 263-64
Connelly, Walter, 231
Connery, Vince, 300, 307
Corn, Morton, 107
cotton dust, 226, 290
Cotton Dust (case), 195, 227, 289
Counter, Nick, 169
COVID, 94
Cushman, Robert, 23
CWA See Communication Workers of America
Daggett, Harold, 266-69
Dayan, Leon, 309
Dean, Paul, 42
Department of Labor Notice of Proposed Rulemaking, 90, 222
DiMaggio, Joe, 12, 119
Directors Guild of America, 188-90
Don’t Be Afraid To Win
by Jim Quinn, 157
Donatello, Pete, 264, 269
Donovan, Landon, 257-58
Doty, David, 279
Dream Team, 156
Drexler, Clyde, 156
Eaton, Mark, 142
A-6
Edwards, Harry, 141, 237
Emerson, Marty, 161-63
English, Alex, 142, 152
English, Jim, 67
Environmental Protection Agency (EPA), 87, 219
Equal Employment Opportunity, 72
ET (movie), 174
Ewing, Patrick, 156
Fanning, John F., 43
Federal Aviation Authority (FAA), 241
Federal Employees Pay Comparability Act, 297-98
Fehr, Don, 137, 140
Feller, David, 62-65
Steelworkers Trilogy before Supreme Court, 64
Finley, Chuck, 132
Firestone Tire and Rubber Company, 95
Fisher, Ben, 71
Fleischer, Larry, 139-40, 142, 153
FMCS See Cohen, George, Professional Federal Mediation and Conciliation Service
Fosse, Bob, 257
Foster, Bill, 179-80, 184
FPCA See Federal Pay Comparability Act
Frankl, Carl, 67
Freund, Jeff, 191, 308
Frumin, Eric, 99
Fuentealba, Victor, 161
Gagliardi, Tino, 273
Garber, Don, 257
Garlick, Glenn, 182
Garvey, Jane, 242
Gelb, Arthur, 272
Gelb, Peter, 187, 272-73
Gibbs, Jeff, 308
Gilliam, Dee, 71
Gilson, Mady, 308-09
Gionfriddo, Al, 12
globalization and technology, 295
Gold, Larry, 95, 231
Goldberg, Alan, 151
Goldberg, Arthur, 62, 97, 272
Goldsmith, Willis, 187, 273
Goodell, Roger, 275-76
Goodnough, Bob, 157
Goodyear Tire and Rubber, 231
A-7
Gore, David, 211, 218
Gottesman, Michael (Mike), 37, 62-63, 65, 73, 77, 144, 160-61, 196, 297, 308-09
Gottesman, Roberta, 62
Gould, Bill, 135
Granik, Russ, 153
Grantham, Charlie, 152
Grebey, Ray, 124, 127-29
Greenhouse, Linda, 104
Hackford, Taylor, 190
Harris, Seth, 255
Hessinger, Greg, 190
Hiatt, Jon, 244
Hill, Ed, 264
H.K. Porter (case), 195-98, 200-02, 207
Hogan & Hartson (law firm), 240
Hotvedt, Dick, 239
Hoynes, Lou, 126
IBEW See International Brotherhood of Electrical Workers
ILA See International Longshoremen’s Association
Illich, Mike, 157-59
Industrial Union Department of the AFL-CIO (IUD), 93, 96-97, 99, 225
International Brotherhood of Electrical Workers (IBEW), 252, 263-64, 292
International Longshoremen’s Association (ILA), 266-68, 293
Negotiating Committee, 268
IUD See Industrial Union Department of the AFL-CIO
Jenkins, Howard, 35
Johnson, Magic, 150, 155-56
Johnson, Michael, 152
Johnson, Robert, 194
Jones Day (law firm), 245, 273
Jordan, Michael, 156
Kahn, Alfred, 23
Kaiser, Henry, 161-63, 166-67
Kananack , Arthur, 27, 30-31
Kaufman, Frank, 300-04
Kaynard, Sam, 54, 56-57
Kessler, Jeff, 140, 277-79
Kleinman, Bernard (Bernie), 65-68, 74, 196
Kohlman, Gary, 309
Kohut, Phil, 28
Kramer, Andy, 245
Kuhn, Bowie, 129
A-8
Laettner, Christian, 156
Labor Management Reporting and Disclosure Act (LMRDA), 35
Landrum-Griffin Act, 68-70
Lanier, Bob, 142
Lawson, Al, 67
Lerner, Bruce, 100, 309
Leventhal, Harold, 85, 110
Levy, George Morton, 39
Linear, Bob, 144
LMRDA See Labor Management Reporting and Disclosure Ac
Maglie, Sal, 13
Major League Baseball (MLB) Player Relations Committee, 126, 136
collective bargaining system, 130
salary arbitration, 131
Major League Soccer, 257, 275
Mallet-Prevost, Marcel, 49, 51, 56, 58
Malone, Karl, 154, 156
Marbury v. Madison (case), 299-302
Marshall, Thurgood, 205-06, 209, 218, 299
Maxim, Joey, 12
Mayerson, Anne, 309
Mazzocchi, Tony, 99
McAdams, Lloyd, 264-65
McCulloch, Frank, 43
McDonald, 62, 65
McGowan, Carl, 83, 85, 101, 229-30
McGuinn, John, 169
Meany, George, 127
Mehta, Zarin, 273-74
Mehta, Zubin, 273
Metropolitan Opera, 182, 187, 272
Milk (movie) produced by Bruce Cohen, 261
Miller, Marvin, 71, 121, 129-31, 139
Mintz, Ben, 105, 107
Mississippi v. Johnson (case), 301, 304
Morgan Lewis & Bockius (law firm), 78, 82, 136, 239, 245
Moss, Dick, 121-22
Mullin, Chris, 156
Murphy. Betty Southard, 127
Nabokov, Vladimir, 23
National Association of Manufacturers (NAM), 245
National Basketball Association (NBA), 10, 150, 161, 171
National Basketball Players Association (NBPA) 141, 148-53, 189
A-9
Agent Regulations Committee, 144
National Institute of Occupational Safety and Health (NIOSH), 90-91, 99, 221-26
National Labor Relations Act (NLRA), 43, 46, 54, 124, 134, 148, 195-96, 198-99, 224
National Labor Relations Board (NLRB), 35, 41-42, 81, 199
National Symphony Orchestra (NSO), 179-81, 184
National Treasury Employees Union (NTEU), 288-89, 296-98, 300, 303, 306-07
NBA See National Basketball Players Association
New York Philharmonic, 187, 273-74
New York Post, 8-9, 18, 20, 39, 118-19
New York Times, 18, 104, 128, 272
Newsom, Gavin, 260
NFL Players Association (NFLPA), 141, 143,149, 158, 276
Nixon, Richard
administration, 87
Watergate, 305
NLRB v. Tidewater Equipment Company, 52
Norris-LaGuardia Act, 205
NSO See National Symphony Orchestra
NTEU v. Nixon, 288-89, 296-97, 307
O’Connor, Chuck, 79, 82, 136, 245
Obama, Barack, 244
Occupational Health Review Commission, 111
Occupational Safety and Health Act, 83, 101, 112, 219-20, 224, 229
Emergency Temporary Standard, 94-95, 230
general duty clause, 87, 93, 111, 113
“imminent danger” situations, 94
Occupational Safety and Health Review Commission (OSHRC), 94, 113
Office of Federal Contract Compliance (OFCC), 70-71
Ohio State Law Journal, 98
Oil, Chemical, and Atomic Workers Union (OCAW), 97, 99
Oppenheimer, Marty, 182, 185
Panza, Ray, 28, 29
PEL (permissible exposure limit), 91, 101-03, 222-23, 226-27
Perez, Tom, 294
Petrillo, James, 161
Pippen, Scottie, 156
Pisano, Bob, 190
Plum, Bernie, 169, 273
Pollack, Trish, 308
Pollak, Roger, 309
polyvinylchloride case, 229
Pritzker, Penny, 294
Proskauer Rose (law firm), 169, 182
A-10
Quinn, Jim, 140, 157-58, 277
Rawson (case), 209
Reagan, Ronald, 85, 104, 106, 232, 234, 295
administration, 105
Rehnquist, William, 218, 231-32
Retail Clerks (case), 208
Richey, Charles, 299
Rissetto, Harry, 79, 242, 245
Robinson, David, 156
Robinson, Jackie, 10-12, 118
Robinson, Spottswood, 300
Robinson, Sugar Ray, 12
Rock Hill (case), 53
Rosenfeld, Arthur, 249-50
Rossiter, Clinton, 23
Roth, Andy, 136, 308-09
Roth, Jay, 189
Rubber Workers Union, 95, 97
Screen Actors Guild (SAG), 167, 188-90, 192-94
Screen Actors Guild/American Federation of Television and Radio Artists (SAG/AFTRA), 192,
194
Samnick, Norman, 169, 178-80
Samuels, Shelly, 99, 225
Scalia, Antonin, 112, 218
Scarlett, Francis, 50, 52-53
Schaap, Dick, 120
Schaap, Jeremy, 120
Schiff, Dorothy, 18, 20
New York Post owner, 9
Schlein, Paul, 207
Schlein, Sally, 207
Schlesinger, Rudy, 23
Scott, Judy, 244
Seitz, Peter, 123, 133
Seitz, Virginia, 136
Selikoff, Irving, 99, 225
Seminario, Peggy, 99, 225
Service Employees International Union (SEIU), 244, 259
Sheehan, Jack, 98, 224
Silas, Paul, 142, 144
Silberman, Laurence (Larry), 207, 237
Silberman, Ricky, 207
Silverman, Daniel (Dan), 125, 136-37
Silverman, David, 127-29
A-11
Simon, Bruce, 187, 273
Smith, Dee, 276
Snyder, Ed, 157, 158
Society for the Plastics, Inc., 95
Sotomayor, Sonia, 135-39
Steelworkers Union, 62-63, 65, 67-68, 71, 73-76, 91, 93, 115, 196, 202, 224, 300
seniority system, 73
collective bargaining agreements, 115
Safety and Health Committee, 115, 210
Stern, Andy, 244
Stern, David, 150, 153
Stern, Fritz, 23
Stirnweiss, Snuffy, 15
Stockton, John, 156
Strong, Ken, 119
Supreme Court of the United States, 112-13, 199, 204-06, 208-09, 213, 217-18, 226-27, 229,
231-33, 289, 291, 304-305
American Textile Manufacturing Institute versus OSHA case, 85, 102-05, 116, 195
Benzene case, 85, 195
Brown v. Pro Football Inc. case, 141
COVID, 94
Equal Employment Opportunity law, 72
H.K. Porter case. 67, 75, 200
if an employer could enjoin an unfair labor practice hearing from taking place, 49
inability to pay principle, 124
Steelworkers Trilogy, 64
Tamarin, Henry, 244
Tamarin, Nate, 244, 254, 267
Taylor, George, 99
Teamsters, 63, 73, 121, 167, 189
Textile Manufacturing Industry, 289
The Newspaper Guild (TNG), 20
Thomas, Bill, 273-74
Thomas, Isaiah, 142, 156
Tidewater Equipment Company, 49, 52
Tobias, Bob, 297-300, 307
Tretter, Frank, 27
U.S. Maritime Alliance (USMX), 266-67
U.S. Court of Appeals for the D.C. Circuit, 58, 67, 85, 101, 141, 198, 207, 224, 226-27, 230, 237,
289, 290-91, 296, 300-01
HK Porter (case), 197
U.S. Court of Appeals for the Eighth Circuit, 148, 279
U.S. Court of Appeals for the Fifth Circuit, 51-52, 58, 226, 230
U.S. Court of Appeals for the Ninth Circuit, 69, 84, 226, 230
A-12
U.S. Court of Appeals for the Second Circuit, 84, 95, 114, 138-39, 226, 229-31
U.S. Court of Appeals for the Third Circuit, 69, 84, 106, 226, 230
Villaraigosa, Antonio, 269, 293
vinyl chloride, 83, 95
Virk, Devki, 78, 309
Walsh-Healey Act, 219
Washington Post, 265, 305
Weil Gotshal (law firm), 140
Weinberg, Bob, 100, 104, 141, 208, 212, 214, 233, 306, 308-09
Weiner, Mike, 137
Weinfeld, Edward, 54
Weinreb, Alice, 182
Welles, Melvin (Mel), 49, 52, 56, 58, 126
Wertz, Bill, 157
White, Byron, 14, 35, 190, 194, 218
White, David, 190, 194
Wilkey, Malcolm, 300
Williams, Buck, 142
Williams, John, 172, 174
Williams, Stephen, 112
Winner, Louis (maternal grandfather), 3-4
Winter, Ralph, 139
Wodka, Steve, 99
Wolfe, Sydney, 99
Wright, J. Skelly, 85, 198
Wright, Mike, 99, 225
Ziegler, John, 157
B-1
Oral History of George Cohen, Esq.
Statutes and Citations
I. Statutes
Federal Employees Pay Comparability Act, 5 U.S.C. § 5301 et. seq. (1979), 297-98
National Labor Relations Act, 29 U.S.C. 151 et seq. (1947), 43, 46, 54, 124, 134, 148,
195-96, 198-99, 224
The Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (1970), 83, 87, 93-95,
101, 111-13, 219-20, 224, 229-30
II. Case Citations
A. U.S. Supreme Court
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1981), 219, 232
Buffalo Forge Co. v. Steelworkers, 428 U.S. 397 (1976), 202
Indus. Union Dept. v. Amer. Petroleum Inst., 448 U.S. 607 (1980), 83
H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970), 67, 75, 195-201, 207
United Steelworkers v. Rawson, 495 U.S. 362 (1990), reversing 115 Idaho 385 (1988),
209
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956)
Brown v. Pro Football, Inc., 518 U.S. 231 (1996), 141
B. Courts of Appeal
National Treasury Employees Union v. Nixon, 492 F.2d 587 (DC Cir. 1975), 288-89,
296-97, 307
American Iron and Steel Institute v. Occupational Safety and Health Admin., 577 F.2d
825 (3rd Cir. 1978), 230
B-2
Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 162 U.S. App. D.C. 331
(1974), 83
Oil, Chemical and Atomic Workers Intern. Union v. Occupational Safety and Health
Review Commission, 671 F.2d 643, 217 U.S. App. D.C. 137 (1982), 97
Society of Plastics Industry, Inc. v. Occupational Safety and Health Admin., 509 F.2d
1301 (2d Cir. 1974), 95
Bokat v. Tidewater Equipment Co., 363 F.2d 667 (5th Cir. 1966), 49
United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert.
denied, 453 U.S. 913 (1980), 83-84
C. District Court Cases
Collins v. National Basketball Players Ass’n, 850 F. Supp. 1468 (D. Colo. 1991), 146-
48
Silverman v. Major League Baseball Player Relations Committee, Inc., 880 F. Supp.
246 (S.D.N.Y. 1995), aff’d 63 F.3d 1054 (2d Cir. 1995), 136
George Cohen, Esq.
Biographical Sketch
George Cohen’s impressive career as a labor lawyer spanned six decades (1960-2014).
He initially got his “feet wet” at the National Labor Relations Board in Washington, D.C. (1960-
1966). First, as an attorney-advisor to member Gerald A. Brown, and then as an appellate court
advocate in the Office of the General Counsel.
Thereafter, Mr. Cohen entered private practice with the Washington, D.C. firm that
became known as Bredhoff & Kaiser. He was recognized as one of the nation’s leading labor
lawyers representing a wide array of private and public sector unions.
As a senior partner, Mr. Cohen developed three special fields of expertise (1) appellate
court advocacy, (2) negotiating collective bargaining agreements, and (3) specific substantive
subjects – the law of occupational safety and health and sports and entertainment law.
High spots of his accomplishments include arguing five landmark cases before the
Supreme Court and nearly 100 circuit court of appeals cases (25 or so before our home circuit,
the U.S. Circuit Court of Appeals for the District of Columbia Circuit).
Mr. Cohen’s major clients were the United Steelworkers; the AFL-CIO; the American
Federation of Musicians (General Counsel 1986-2005); the Major League Baseball Players
Association; the National Basketball Players Association; and numerous public sector unions
representing teachers, firefighters, and police.
After retiring from Bredhoff & Kaiser in 2005, Mr. Cohen commenced a career as a
mediator. He began by serving in a pro bono capacity for the prestigious Mediation Panel of the
U.S. Circuit Court of Appeals for the D.C. Circuit. In recognition of his skill in performing that
all-important function, President Barack Obama nominated him to be the Director of the Federal
Mediation and Conciliation Service, an independent agency established by Congress in 1947. He
was confirmed by the Senate and served from 2009 to 2014. Throughout that period, he
successfully mediated a number of high-profile disputes that posed a significant threat to the
nation’s economy – the International Longshoremen Association’s dispute with the shipping
industry; Verizon’s major dispute with their major unions, the Major Soccer League dispute with
the Players Association, and the threatened strike to shut down the BART system in
San Francisco, to name a few.
Mr. Cohen’s extracurricular activities are likewise notable. He served as adjunct professor
at Georgetown Law School teaching a variety of subjects, and he served as the Union Co-chair in
both the first ABA Committees on Safety and Health Law and Sports and Entertainment Law.
The number of awards he received parallel his career: A Legend of the D.C. Bar, the
Sports Lawyers Association Award of Excellence, the Cornell Law School Exemplary Public
Service Award, and the Eleanor Roosevelt Human Rights Award. He was also listed in the Best
Lawyers in America for 25 consecutive years.
Mr. Cohen graduated from Long Beach High School, Cornell University (BA), Cornell
Law School (LLB), and the Georgetown Law School (LLM).
Mr. Cohen’s wife of 61 years, Phyllis (deceased in 2020), was a world-class color
woodblock printmaker and civil libertarian. His son Bruce Cohen is a successful motion picture
producer (“American Beauty,” “Milk,” “Silver Linings Playbook,” and “Rustin.” He was named
by President Biden to co-chair the reestablished Committee on the Arts and Humanities. Bruce is
married to Gabriel Catone, and they have one five-star daughter, Ilaria.
Daughter Julie is a highly-respected documentary film producer and director; her works
include “RBG,” “Julia,” “My Name is Pauli Murray,” “Every Body,” “Gabby Gifford Won’t
Back Down.” Julie is married to Paul Barrett.

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Advocates for Labor and Progressive Institutions
805 15th Street NW Ste. 1000 ♦ Washington, DC 20005
Roger Pollak
Roger is a member of the firm. His practice focuses on assisting non-profit
organizations, including unions, in managing a wide variety of organizational matters.
He is outside general counsel of Union Privilege, a non-profit organization that develops
and promotes member benefits for unions affiliated with the AFL-CIO. In this capacity,
he handles all of Union Privilege’s legal matters, including its business, tax, HR, privacy
and information security, and governance issues.
For Union Privilege, Roger negotiates arrangements with banks, insurance companies,
telecommunications companies, and numerous other product and service providers
pursuant to which the services of these businesses are made available by Union
Privilege to more than ten million union members. Most notably, Roger is responsible
for managing both legal and business aspects of Union Privilege’s affinity credit card
program, which – with more than one million cardholders – stands as one of the largest
such programs in the world.
Roger also has responsibility for significant business-to-business contracting
undertaken by the AFL-CIO itself – a $100 million year organization – including Internet,
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software, telecommunications, data management, and other business relationships.
Roger handles similar responsibilities for numerous other firm clients.
Roger helped establish and is outside general counsel for Vital HealthCare Capital, a
national charitable loan fund that provides financing and development services to
support quality healthcare and good healthcare jobs in low-income communities, and
the BlueGreen Alliance, a partnership of unions and environmental organizations that
focuses on developing commonsense solutions to environmental challenges in a way
that creates and maintains quality jobs.
Roger has assisted with the creation of many other non-profits, some that have involved
the creation of sister 501(c)(3) and 501(c)(4) arrangements or for-profit subsidiaries.
And Roger provides ongoing legal support for board and committee functions and other
governance activities for many of these organizations.
Roger assists clients with trademark and copyright issues. He has negotiated numerous
trademark licensing agreements, helping clients obtain fair royalties, comply with IRS
requirements for ensuring the tax exempt treatment of such royalties, and protect the
ownership of their marks. He also assists non-profits more generally in protecting
intellectual property assets and dealing with trademark and copyright issues.
Roger addresses novel legal and managerial issues related to efforts of clients to make
effective use of the Internet. He helps clients negotiate contracts for website
development, hosting and other web-related services. He assists clients in crafting
appropriate privacy policies, user agreements, and community guidelines for their
websites and acceptable policies for use of email and the Internet by their employees.
He also counsels clients on information security issues.
In addition to his work with non-profits, Roger has also represented clients in complex
arbitrations, including interest arbitrations in the steel, postal, and airline sectors and
airline pilot seniority list integrations. He has also assisted in major renegotiations of
pilot and flight attendant collective bargaining agreements.
In approaching commercial contracting situations, Roger draws on his legal and
business experience and skills to assist his clients with conceptualizing how best to
structure a business relationship, how to reduce oral agreements to effective contract
language, and, frequently, how to manage such relationships on a continuing basis.
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Roger obtained his J.D. at Yale University, where he also received an M.B.A. from the
Yale School of Management. Roger received his B.S. from the University of California at
Berkeley, College of Natural Resources and was Valedictorian of his class. Prior to
graduate school, Roger was executive director of a non-profit environmental group in
Connecticut. During graduate school, he worked as a consultant for the firm of Brody &
Weiser, providing financial and organizational consulting services to non-profits.
Roger helped found and is President Emeritus of The Rosedale Conservancy, a
Washington, D.C. land trust that owns and manages a small urban historic landscape
and park.
Roger can be reached at rpollak@bredhoff.com.