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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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.