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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.