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Oral History of George Cohen, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Roger Pollak, and the interviewee
is George Cohen. The interview took place at the home of George Cohen on Thursday, June 22,
2022. This is the fifth interview.
MR. POLLAK: Today George is going to talk about his part of his career where he worked
in the entertainment law field. We’re going to start at the beginning,
which is how you had done all these other things that we’ve talked about,
OSHA and sports. How did you first become engaged in the
entertainment law area?
MR. COHEN: Well thank you, Roger. And again, thank you for being in the role you’re
playing here with me today. I think for context, I would say what you
already were alluding to. I joined the Bredhoff law firm, with Elliot
Bredhoff and Mike Gottesman, in 1966, and we’re now going to start
talking about post-1987. So for 21 years, the one thing I can assure you, I
had nothing to do with representing any men or women in the
entertainment industry. So this came as quite a remarkable shock to me.
My basic theme, which I’ve shared with you in these first four interviews,
is relationships and coincidences. I’ll be more than happy to illustrate the
applicability of those three words.
MR. POLLAK: That’s great. Well this is enough after you began that it’s getting close to
when I began at Bredhoff & Kaiser, which was in 1990. I didn’t realize
until now that your work with the musicians had begun so close to that
time.
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MR. COHEN: In 1981, what was then Bredhoff, Gottesman, Cohen, et cetera – I forget
what the firm’s name actually was at that time – we merged with the other
major labor law firm in Washington, Van Arkel and Kaiser. Henry Kaiser
brought with him to our firm his legendary experience as having been the
General Counsel of the American Federation of Musicians, going back to
the James Petrillo era in probably the late-1940s and continuing in that
role until about 1977 or 1978. During that period of time, he had
established himself as one of the premiere union labor lawyers in the
entertainment industry.
In 1978 or so, an outsider ran against the incumbent president. His
name was Victor Fuentealba. He was a Baltimore-based gentleman. He
beat the incumbent president and became the president of AFM and
brought with him a new general counsel, who I actually have had a longstanding
personal relationship, Cosimo Abato. Cos was a labor lawyer
himself in Baltimore and a very fine clarinet player as well. Cos Abato
served as the general counsel with Victor Fuentealba for about ten years
until about 1987. Of course for that ten-year period, Henry Kaiser had
nothing to do with his prior role as the general counsel. But in 1987, a
good friend of Henry’s who had been the Secretary-Treasurer of the AFM
for a number of years named Marty Emerson, decided to run against
Victor Fuentealba, and he won the election in 1987. At that point, Marty
renewed his relationship with Henry, tried to get Henry out of retirement
to become the new general counsel again. Henry reluctantly agreed, but at
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that particular election, an internal union challenge occurred. Henry knew
that I had spent quite a bit of time handling Landrum Griffin-related legal
issues, and he asked me to play the point person role in advising and
counseling Marty Emerson on how to handle the election dispute that was
going on within the AFM. And of course, Henry being the man he was, I
naturally agreed to do that.
MR. POLLAK: What happened next?
MR. COHEN: Well, what happened next was, as you would expect when you’re involved
in a difficult internal union election dispute, you spend a lot of time with
your new client, namely Marty Emerson, affectionately known as “Uncle
Marty.” He was a relatively short, rotund gentleman who was a renowned
jazz trombone player. He had a charismatic personality, which I
immediately embraced. He enjoyed being with me as a human being, and
during a three- to six-month period that the election protest was taking
place, we developed a really warm relationship. But I was cautiously
optimistic that when Marty ultimately prevailed, as he did in the union
internal dispute, and Victor chose not to file a formal complaint with the
Department of Labor, which meant Marty was now the President of the
AFM, I fully expected that Henry Kaiser would return to his long-standing
role as the general counsel. In fact, he agreed to do that. However, in
various private conversations with me, Henry had indicated that he was
not really excited about regaining that role at his stage in life, which put
me on notice of a potential ominous event.
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MR. POLLAK: Can you give us a little insight into what happened?
MR. COHEN: Well the ominous event took place much sooner than I had anticipated.
I’d say two or three months after Marty Emerson ascended to the
presidency, the union conducted a major Executive Board meeting, the
first one that Marty was going to preside over. It was in the West Coast of
Florida, Ft. Meyers, at a fairly run-down motel, if I remember correctly.
Then-General Counsel Henry Kaiser went along with his wife. I was
invited to join Henry, as I did. And in a very short period of time during
the internal discussions that took place, along with the executive board
meeting, Henry Kaiser decided on balance he was not willing to continue
in that role, and he resigned as general counsel while the executive board
meeting was in session. This meant, in essence, that I was the remaining
lawyer left standing for the American Federation of Musicians.
MR. POLLAK: Very interesting. So now it’s 1987, and all of a sudden you find yourself
as General Counsel of the AFM. I have a question that you didn’t ask me
to ask you, but I really am quite curious. At this time in the AFM, who
were the musicians? Was it mostly orchestra and symphony musicians, or
was it still a lot of jazz musicians?
MR. COHEN: That’s a great question. When I tell you what my first massive,
unbelievable assignment was, namely to negotiate the major five
collective bargaining agreements between the AFM and five different
industry groups, you will quickly know what the answer to that is. I was
told, within weeks after I ascended, that I had basically six months or so to
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get ready for the next round of three-year negotiations. There had been a
traditional three-year cycle in the AFM Industry negotiations, and I will
slowly relay to you what that meant.
The first agreement that was going to be negotiated was the
Phonograph Record Labor Agreement. That covered all professional
musicians who around the clock played for what were then the major
phonograph record companies in America. There were thousands of such
musicians.
The second collective bargaining agreement that faced me was the
Motion Picture Labor Agreement. There were a smaller number of
musicians, i.e., those who did the scores for all the major motion pictures,
whether it was Warner Brothers, Fox, Disney, 20th Century. You name
all of the major producers, there were probably several thousand
musicians working for those major motion picture companies.
The third agreement was a more fascinating, nuanced agreement.
It was called the Commercial Announcements Agreement, but everybody
in the Industry referred to commercial announcements as “Jingles.” If you
put on the television, and you watched a commercial and heard someone
sing with some musical background, those were the musicians who were
employed in that industry, a very interesting potpourri of individuals doing
that.
The fourth agreement was a more standard agreement covering the
TV networks. NBC, ABC, Fox, CBS. The Johnny Carson band was like
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the “gold standard.” It consisted of probably seven musicians who were
the most sought-after musicians in the world. They had a permanent
employment status. Their earnings in those days that I can tell you about,
the late 1980s and 1990s, probably $250,000 or more with incredibly
comprehensive fringe benefits. And, of course, they were, as I said, the
gold standard.
And the fifth, and also quite nuanced industry that I learned, was
called the Traveling Broadway Musicals. When whatever musical it was,
Oklahoma had an eleven-year run in New York City, and then Oklahoma
would go out on the road with a group of musicians who are a permanent
cadre from New York. But when they arrived at every single venue in the
United States, their local agreement kicked in and the local musicians
supplemented the musicians who were employed working out of New
York.
Each of those five agreements involved not one employer, not ten
employers, but an industry-wide group of employers. And Roger, each
one, as you would expect, had its own what? Its own history, its own
tradition, its own culture, its own way of addressing and enforcing
interpretive questions. And that package of agreements, which dropped in
my lap, and what I said at the time, and I repeat it now, in retrospect, it
was the most challenging assignment I ever had. I regularly asked myself
at that time, what have I gotten into? What can I do to possibly deal with
this?
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And before I leave the subject, added on to the challenge was the
following. Each of those five industries that I’ve described had been
represented for many years by many lawyers – who knew Henry Kaiser as
well – highly competent, really knowledgeable, and incredibly
experienced people in the actual agreements that were in place. Most of
them had negotiated three, four, five of the agreements before I showed
up.
MR. POLLAK: That’s something. So what did you do to get ready for the negotiations?
MR. COHEN: Besides panicking, which is what any rational person would do, I’m
twenty years into the practice of labor law, but nothing like this avalanche
or monstrosity had ever confronted me. So the first thing I did was try to
identify two or three AFM representatives who were going to become my
educators, whether they came from the International Union staff or
particular local unions or maybe consultants, and I would immerse myself
in meeting with them about these agreements. Specifically, as you would
expect, I would literally go through hundreds of pages of provisions in
contract language trying to absorb what it meant, why it was there, was it
important, was it a new provision or an old provision? And slowly but
surely, I began to develop a minimum amount of confidence that I at least
had some kind of grasp of the issues that I was to start to discuss with the
particular union negotiating committee. The negotiating committees
historically consisted of musicians who were staff representatives, the
local union presidents from the major locals in the major cities, New York,
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Chicago, Philadelphia, Los Angeles, San Francisco, Nashville. And each
of those locals had staff people who had actively participated as part of the
negotiating committee. But the bottom line was always the same: Henry
Kaiser ran those negotiations. Not the president of the union, not
anybody else. Henry Kaiser. Thus, the mantle that I inherited was we
expect George to be our chief spokesperson. And that’s quite different
than many of the other unions that I represented in collective bargaining
where I was sitting there as a legal adviser, a bargaining strategist. I
would play the lead role in an issue or two, but I was not the single person
with monumental responsibility to prepare for and conduct the
negotiations. The history for each one of their contracts negotiations was
that basically industry would block out a two-week period, Monday
through Friday, and the parties would meet and negotiate for two solid
weeks. There were always seven or eight other unions doing the same
thing but in another timeframe. So if you were talking about the motion
picture agreement, there was SAG, there was AFTRA, there was IATSE,
there was the Teamsters, on and on. It was a very compact period of time
in which each union was supposed to work its way to reach an agreement.
And if you didn’t in that time frame, you then sort of waited your turn
before you could be regrouping, often many months later, after other
unions had reached their agreements.
MR. POLLAK: So you had to manage the cadence as well as the content.
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MR. COHEN: Yes. And what I of course became secondarily focused on was trying to
establish a meaningful relationship with each of these chief negotiators
who were my counterparts. The good news was I did have a reputation as
someone who believed in the importance of negotiating collective
bargaining agreements. I knew as well as anybody else that if you’re a
union representative, unless and until you achieve a collective bargaining
agreement that’s going to stabilize your relationship for the next three
years or so, you basically have nothing. You have open season. And to
add insult to injury, this great union, the AFM, which at one time had a
substantial amount of bargaining power and leverage, a lot of that had
disappeared by the time I showed up. It wasn’t as if I was going to be able
to just make demands, stare people in the face and expect they would cave
in and give in to the concessions or agreements we were asking of them.
It was just one fascinating, challenging experience after another.
MR. POLLAK: Right. I take it that by 1987, the impact of digital music, of synthesizers,
was already underway.
MR. COHEN: Yes. Definitely underway. And very much on the priority list of every
self-respecting company because that usually meant, if nothing else, a lot
less live musicians to have to negotiate on behalf of.
MR. POLLAK: Anything you want to share about your first round or about the history and
how that changed over time, because certainly those dynamics, the change
of music technology, really influenced during the time you were general
counsel.
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MR. COHEN: Yes. It certainly did. I think it was very influenced by my counterparts.
The Phonograph Record Labor Agreement chief negotiator was an
incredible, charismatic character named Norman Samnick, who had been
doing it for years, who had an insatiable desire to both be in charge but
also be entertaining. The direct contrast between him and Nick Counter,
who was the number one negotiator for the motion picture industry, was
evident. Nick was solid as the Rock of Gibraltar, a former Colorado
University linebacker, a straight arrow, a man of great integrity and
knowledge. Fortunately, I was able to strike a responsive chord with each
of these two gentlemen. I believe they understood that they had a
challenge too because the worst thing for them was to come into a
situation where my arrival on the scene was going to generate chaos,
which they didn’t want to happen. I also believe they understood that it
was in their best interest to pay some degree of respect to an outsider
coming in for the first time. And that was equally true with Bernie Plum
from Proskauer Rose, who was the chief negotiator for the traveling
musicians industry, and a Washington, D.C. lawyer named John McGuinn,
who served in that capacity concerning the Commercial Announcement
Agreement.
I came out of that first round of negotiations with agreements.
Incidentally, AFM agreements are all subject to rank-and-file ratification
by secret ballot, et cetera. That’s an added dimension in terms of
collective bargaining. And I was very focused on making sure that once
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memoranda of agreements were executed, ratification letters were
expeditiously sent out to describe what we had achieved and what we
didn’t achieve, that information was very well understood. Before I
arrived, many members were concerned that agreements were being
shoved down their throats with not enough transparency. I was extremely
desirable of describing the dynamic of what had happened, what we had
on the table, and why we chose to accept what we agreed to. In retrospect,
I think that distributing my comprehensive summaries of the negotiations
played a major role in the rank-and-file ratifying by large majorities the
agreements that I had participated in negotiating.
MR. POLLAK: How did those communications take place? Did you do in-person like
road shows with groups of musicians?
MR. COHEN: Yes. We did both. Well obviously where the big locals were, New York
City had a famous local, Local 802. There were many thousands of
members of Local 802 for every type of music you can imagine. Still true
today. Los Angeles, it was Local 47. Similar story, but much more
focused on Hollywood. Nashville, country western and things of that
nature.
The Commercial Announcement Agreement covered more of a
sort of independent, free-spirited musicians who seemed to do that work,
and TV networks are always the regular bands that were playing live on
stage for TV.
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So the beauty of that, Roger, was I was engaged in all these
fascinating, completely different situations even in terms of who the rankand-
file musicians were that were going to actually have to ratify each
specific agreement.
MR. POLLAK: I bet you went to some interesting musical performances along the way.
MR. COHEN: I did. I also learned, which any labor lawyer in America understands,
unless and until you show your interest in what your clients are doing on
the job site, you’re not going to get all the respect from them that you
need. I’ve always been a great believer in that, but this was easy for me
because I started on a blank slate and had to teach myself what musicians
do in these diverse jobs. I sat through some scoring sessions in LA. I sat
through some phonograph record sessions. I sat through some commercial
announcement sessions. And once you do that, the musicians are rushing
over after they’re playing to tell you about themselves, what they do, and
they’re elated that you’re showing some interest in them. All a positive
thing.
MR. POLLAK: Was there particular bargaining improvements that you remember from
the five rounds that you worked through?
MR. COHEN: It was exactly as you might expect. The dynamic is always the same. The
young people want salary improvements now, and their more senior
colleagues, realizing there’s not an unlimited amount of money, want
pension and healthcare improvements. My job was to try to figure out
what the balance was between those two groups and then, this is no secret,
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negotiating with your own negotiating committee sometimes is more
challenging than negotiating with the other side. I don’t like to tell the
other side that too often, but I know that’s true, and there’s always that
dichotomy. There’s the very easily satisfied group. There’s the militant
group. There’s the group looking at you and saying who the heck is he.
He used to represent firefighters and policemen and teachers, and now
he’s the lawyer for musicians. I was not unaware of those kinds of
comments. So I would say I focused on that; but equally important was to
try to find what I would say there were a half a dozen critically important
working conditions provisions that either the committee wanted to get rid
of or hopefully ones that the musicians had not achieved but they wanted
to achieve. Improving working conditions in all the industries that I’ve
described is a pretty difficult task. Management is almost always reluctant
to changing the status quo. I worked very hard to overcome that.
MR. POLLAK: Fantastic. I think you wanted to talk a bit about the motion picture
agreement and the John Williams performance?
MR. COHEN: Yes. So, let’s talk about the unique challenges musicians in each industry
faced. Shortly before, and I’m not sure whether it was the 1993 or the
1996 negotiations. Before I showed up in Hollywood for our two week
event, I was told that some of the major motion picture managers had
realized that they could get talented musicians from either Eastern Europe
or other parts of the world who were high-quality performers and who
would work at considerably lesser rates of pay than our contract required.
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They started going to Eastern Europe and doing the scores for motion
pictures there. Now, to further complicate the matter, it’s just not saving
money on musicians. That was equally true on a lot of production costs,
so there actually came a time that I was being told that the industry was
having a conference, about a week before we were to begin bargaining,
with many Eastern European entrepreneurs who were extolling the virtue
of starting to do much more scoring overseas. Naturally my clients heard
this and were in a state of somewhere between disarray and panic because
in Hollywood, the musicians who do the scoring for motion pictures,
that’s their livelihood – 100 to 200 gentlemen and ladies who I called the
“A” team, who were earning $100,000 to $200,000 a year because every
contractor working for every motion picture producer knew who the best
trombone players were. They know the best drummers. They know the
best electrical guitar players, and they’re the ones being called to scoring
sessions constantly, making a lot of money up front and substantial fringe
benefits. And now all of this I’m being told okay George, here’s where
we are. You better be prepared to go in and beat the heck out of these
guys because we’re in trouble.
I had a few thoughts about what to do. I’m not averse every once
in a while to shaming my counterparts and letting them know what they’re
about to do is a disgraceful. After all these years of observing their highquality
product, no one ever challenged the contributions of the “A” team
scoring musicians in Hollywood. And to make a long story long, through
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a few close friends of mine in the industry, having nothing to do with the
AFM, I was told that John, he was called “Johnny Williams,” who had
composed all the music to Spielberg films and the Olympic themes and
who was a great fan of the LA-based musicians who did the scoring
sessions, might be willing to do a special program to showcase our
musicians. It was my job to convince him to do the program. With plenty
of help, I succeeded. It took place in a big theater where the Oscar awards
used to be given, which was owned by the Motion Picture Academy. The
renowned movie “ET” was going to be shown on the huge screen, and
Johnny Williams would be conducting 95 musicians who were all seated
directly under the screen playing live, doing the score of the movie while
it was being shown. The top level of the musicians’ heads were about six
inches below the bottom part of the screen. We had invited hundreds of
prominent industry personnel, including vice presidents of labor relations
and the company executives who had been at the conference the week
before with the Eastern European companies. Johnny Williams never
looked at the score. And I didn’t realize this, but music is involved in ET
for about 95% of the actual motion picture.
When it was over, you know he received about five standing
ovations. Every one of my counterparts realized that they had witnessed
an extraordinary event, sponsored by the very AFM representatives who
were about to begin negotiations with the Industry. I sincerely believe that
this particular demonstration, protest, whatever you want to call it, did
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play a role in calming the industry folks down, and that to me was a
memorable experience. I hosted a lunch the next day for all the union
officers and a number of the musicians and invited some management
folks as well. So we did a unique job on that one. Bottom line: We
reached a new collective bargaining agreement shortly thereafter.
MR. POLLAK: Great story. I know because I saw you in practice after 1990 and there
were other things you did in the world of the musicians. I’m interested in
who else you worked with around the country.
MR. COHEN: Yes. All these became offshoots of these five rounds of bargaining with
musicians all over the country in these major local unions. As you’d
expect, every one of these local unions had its own bevy of local lawyers
because a lot of the activity of union representation is done at the local
level. However, it just so happened, because I told you this is five
industries, and those industries cut across the geographical locations of
local unions that the AFM had historically, as an international union,
served as the chief negotiator in other industries as well.
One of the really terrific things that happened to me was that when
people see you in action and appreciate the way you interrelate with them,
I started receiving some “fringe benefits” from that. The one I think I
focused on first, which to me was the most fascinating to begin with, was
the Nashville Local. The number of musicians in Nashville was
increasing exponentially. What most people, including me, never
understood many musicians, whether they’re from New York, Chicago,
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LA, Baltimore, want to go to Nashville and be part of the Nashville scene,
which is a very music-oriented scene. So at one point in time, a sizable
group of musicians from New York, LA, and Chicago who had religious
backgrounds found out that there was this very special new major label
called the Christian Music Label. They were starting to become a bigtime
player, albeit in a smaller market, all doing their scoring in Nashville.
Before you knew it, there probably were a hundred or more
musicians from all over the country now working for the Christian Music
Label. And I got a call one day from the president of the Nashville Local,
an incredibly talented man named Harold Bradley, so talented that he and
his older brother Owen Bradley actually were the first two major country
western musicians recording in Nashville. The story is that for many
years they recorded five days a week, 50 weeks a year, 9:00 a.m. to
4:00 p.m., plus overtime. Every single major country western singer used
them. And at the Smithsonian Museum, there is a room which is a replica
of the recording studio that Owen Bradley had initially established.
Everyone in Nashville knew Harold Bradley. Harold Bradley was a
world-class guitarist. Harold said to me, we’re having a real problem with
the Christian Music Label because they have no interest in even talking to
a union. The president is a very religious man. Somehow his religious
beliefs and unions were not compatible. Harold scheduled a meeting with
the musicians who were getting increasingly unhappy about their low
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wages, no healthcare, and no pension plan. But they wanted desperately
to play for the Christian label.
On a Sunday afternoon, I showed up in Nashville, never having
met any one of the musicians, and you know what happened. Harold
Bradley announced we have the AFM General Counsel George Cohen
here to discuss our situation. And, of course, I said very little, and I asked
each of them who were the leaders of the group to get up and explain to
me why they were frustrated, what was the nature of the frustration. A
common theme emerged. It was very simple. They didn’t have any allimportant
benefits or any input in participating in what their terms and
conditions were, and they were all highly competent gentlemen and
worked in some instances for other employers where the AFM had a
contract. So after about an hour or an hour-and-a-half, slowly but surely, I
started explaining to them that you are the crème de la crème. You are the
critical components of the Christian Music Label, and all you have to tell
me is that you are together, you are unified, and you are prepared to say
the magic words to the other side – namely, you have to understand that
we have decided we are no longer willing to continue to perform for you
unless and until you sit down with our union and reach acceptable
agreement. Well, about two more hours went by, and I eventually said
you know, I cannot have a conversation with management with half of you
for it and half against. I’m going to leave now. You are in a position to
tell me whether you have a unanimous view that that is the message you
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want to have sent, and I will be honored to be your messenger. And I
excused myself. I think I’m telling it correctly. An hour later, I was
called back in. Everyone was by then a little excited and applauding and
supportive. That was the message they unanimously wanted me to convey
to their management, and I said okay, here we go.
I told Harold, who was a little worried about his reputation – he
was not known as a hard-nosed person; he was known as a wonderful
musician who was always very friendly with the other side which was
providing his members all this employment. I assured Harold I would be
the picture of tact and diplomacy. He arranged for a meeting to take place
with their president, lawyer, and executive director in New York City. I
walked into the room, and my first immediate shock was to see who they
had retained. It was like a novel. They had retained Norman Samnick, the
the notorious, charismatic, very, very ethnic spokesperson for a lot of
industries there representing the Christian Music Label.
What actually unfolded, and I’m trying to say in a way that’s not
too ethnically incorrect, it was clear that the notion of dealing with George
Cohen, a union lawyer, a Washington-based Jewish union lawyer no less,
was slightly antithetical to what the Christian Music Label had in mind.
What did they do? Retained their own Jewish lawyer, Norman Samnick,
as their spokesperson.
In any event, the negotiating session began. In my opening
remarks, I was the picture of tact, diplomacy, and respect. I explained that
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I wasn’t asking any of them to change any ideological concerns, that
indeed the musicians who work for them were dedicated to their Christian
principals. All I was there for was to work with them collectively, i.e., to
accommodate their needs as the producers and the musicians as their
employees. And I was “Mister Perfection” for almost two hours, with one
overriding exception. Every fifteen minutes, Norman Samnick would
interrupt and inject some Yiddish expression that I naturally believe they
don’t really understand. Eventually, their general counsel made clear he
understood fully what I was saying, but he didn’t understand what Norman
was saying!
At the end of a two-day session, we put together a beautiful
agreement, which probably, I hope, is still in place today. You know,
when you reflect on miscellaneous success stories, that was a success
story, and a beautiful one.
MR. POLLAK: That’s great. I think you also had the experience of negotiating collective
bargaining agreements for some different symphonies and orchestras
around the country.
MR. COHEN: Yes. That was another example of why you cannot ever understate what
we said to begin with – relationships and coincidences. Several of the
very important local union symphony leaders also played for the National
Symphony Orchestra here in Washington, Bill Foster, who also was on
several of the AFM negotiating committees, and at some point in time,
probably the late 1980s or early 1990s, came up to me and said you know,
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we’ve never used an AFM general counsel to negotiate. We always use a
special lawyer who knows symphony orchestra musicians, their mindset,
their frailties, their unique concerns about working conditions, et cetera,
but I think my committee might be ready for you. And I said Bill, that’s
your judgment. So the story began. Bill Foster introduced me to a
wonderful committee which consisted of probably seven of the very
proactive union musicians. The NSO then employed 92 or 93 musicians
with a wide range of ages, many senior at that point. The turnover had not
yet really begun. The NSO was in a state of flux because the musicians
were not happy with the maestro at that time. We had a very unusual
situation because there was a long-standing agreement in place between
the Kennedy Center and the NSO, which in essence provided that
whatever the shortcomings of the NSO’s finances, the Kennedy Center
would pick them up. What that meant was that in addition to the NSO, the
Kennedy Center was going to have a spokesperson participating in the
bargaining with us. And the lawyer for the National Symphony Orchestra
– who else? Norman Samnick. Norman and I went through, probably five
rounds of NSO negotiations, each resulting in three-year agreements. The
musicians were really engaged, really smart, and totally dedicated to
playing a major role regarding their working conditions. I spent as much
time in preparation for these 92 musicians and in the actual negotiating
process here in Washington for them as I did for 8,000 steelworkers.
Every single provision of their agreement was reviewed and reexamined.
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To get the respect of the other side concerning what the musicians had to
offer, and they had a lot to offer, was the major challenge – to get
management to relax and understand, even though they were “in charge,”
there was nothing wrong with getting intelligent “recommendations” as to
how to conduct their operations.
So I had a great time, and most importantly, I got there at a time
when I think, by any rational standard, these musicians were being
severely underpaid for their talent, their skill. Here’s a classic example:
You have a second violin position vacant. You’re going to get a hundred
applicants, some who graduated Juilliard. You’re going to get 25 who are
really extraordinarily talented. There’s going to be five who could be in
any symphony orchestra, and eventually it’s culled down, and the final
three appear in a closed setting so nobody knows who they are, and the
maestro actually ends up picking the one.
With respect to their all-important economic situation, by the time
I retired in 2005, the package had achieved significant improvements in
scale wages and fringe benefits. I left at the end of my Bredhoff and
Kaiser career, replaced first by Jeff, then by Trish, and now by Ann. So
I’m delight to say Bredhoff and Kaiser has continued to represent the NSO
for all these years.
MR. POLLAK: Indeed they have. I was talking to Ann about a question they had on a
non-bargaining issue just yesterday.
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MR. COHEN: It’s a beautiful relationship, and Bill has now retired. Alice Weinreb, who
is a close friend of mine, the flute player, has retired, but she is now
playing at my Maplewood facility. Glenn Garlick, the number two cello
player, was on the negotiating committee forever. He is now coming to
Maplewood and participating. So I’m still getting the fringe benefit of my
relationship with the people who were on the negotiating committee.
MR. POLLAK: I’ll ask you to relate one more story from the musicians’ representation.
That was the Internet Agreement that you negotiated and the story about
the Metropolitan Opera performances.
MR. COHEN: Okay. That was another ultimately wonderful but a long-term, frustrating
experience. Each one of the major symphonies is represented by a local
union, but when recordings take place, then for the first time, the AFM’s
jurisdiction was invoked because the AFM didn’t want one local doing
one thing with respect to recording and another one possibly undercutting
them. So the AFM actually conducted the negotiation on behalf of all the
locals who were doing recordings. This became known as the Internet
Agreement. I was the “victim” in the sense that I was asked to be the
point person to negotiate the effort to have the first major Internet
Agreement. There were other recording agreements before that, but
nothing like the Internet, all the new technology coming into play. I’m
basically told the following from my industry counterpart Marty
Oppenheimer from Proskauer, who was incredibly thoughtful, very smart,
very experienced, and knew his industry really well. The old business
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model in which musicians got a substantial up-front payment for the
number of hours they’d be recording was no longer a viable economic
model. For example, the tradition at that point I believe was like an $800
up-front payment, times 100 musicians, so that’s $80,000. Producers
would not find that to be acceptable for several reasons: classical CD
revenue was decreasing and recording in Eastern Europe for much less.
Well, musicians then had a choice. Were they willing to lower
their “standard” and accept something less up front, or were they going to
say absolutely not, it’s beneath our dignity, we are never going to do this,
i.e., undercutting our standard. And the latter was the mindset that I
inherited as manifested by a 30- or 40-member negotiating committee
from all these local unions. Slowly but surely, the amount of work was
drying up, and slowly but surely, I was successful in persuading them, if
you got $400 up front and some share of what might be generated in
revenue, that’s better than getting nothing, which is what you’re currently
getting from this non-product!
And I would say after several years, at least a substantial majority
of the “naysayers” agreed with that approach, subject to two conditions:
(1) musicians had to receive a fair share of the net revenue (gross minus
legitimate expenses), and (2) we insist on accountability. Our CPA must
have access to their books and records. Management agreed. But then
came the killer. Our musicians were insisting that the quid pro quo for
their agreeing to a much lower upfront payment, management had to agree
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that it could not record any specific musical numbers without the local
union’s prior written approval.
Now to say to managers, who have spent their whole life
selectively figuring out which composers to record, giving the union veto
power was met with very strong opposition. Not surprising.
After many hours of discussion at the bargaining table, the parties
were truly “deadlocked,” showing no room for compromise. It became
increasingly clear to me that we were not going to have any Internet
Agreement, even though both sides desperately wanted one. So I did what
I did in Nashville. I called a union caucus. I went around the room. I said
to my committee, I’m prepared to go into that room and tell the other side
you can have the Internet Agreement you want, but you can’t have it
without giving the local union this commitment in advance. I told the
committee in any judgment, there’s a 50/50 chance Industry would reject
that demand and we would leave here without any agreement. Does
everybody understand that? Then I told them that as their chief negotiator,
I would be left powerless if Industry rejected our demand and our
committee relented. To avoid that possibility, I asked each committee
member to stand up and raise his or her hand and say I understand George
that you’re going to say those words to them, and if they accept them,
we’re getting what we want, and if they reject them, we are going to go
home. I handpicked the people who were going stand up first, including
Bill Foster from the NSO. After much discussion, I was unanimously
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authorized to demand that management accept that condition or
negotiations would be finished.
We resumed negotiations. I said folks, here’s where we are.
Every single member of my committee has authorized me to say the
following words. We want an agreement and are willing to make a major
concession – lowering the up-front payment. But all we’re asking of you
is to come back in the room and say yes, you will agree to this one
condition in advance of any other negotiations. And there was the usual
chaotic response. I said no, no. It’s no sense us talking together. We’re
going to go into our caucus. You’re going to go into your caucus, and
you’ll call us when you’ve made your decision. They came back an hour
later and Marty Oppenheimer said you guys have some nerve, but we
agree we need an agreement. And the prerequisite that we were
demanding in retrospect probably didn’t keep one project from ever going
forward. That’s the way the world works. But it was a matter of principle
and a matter of assertiveness, right?
Yes, those are great days when you walk out of successful
negotiations and share with your colleagues what you achieved.
I want to say to you and for history, I am actually a believer of
drawing lines at times. I believe it is sometimes imperative for a union to
look the other side in the eye and insist upon some provision.
MR. POLLAK: Yes. You’ve got to have both.
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MR. COHEN: And you must have the employee support. You can’t do it on your own.
That’s the kiss of death. If you tried it on your own and you fail, you’re
through, right. You’re through. You’ve lost your total credibility.
MR. POLLAK: Well, and I would guess you would say that all the constructive and
interest-based bargaining that one does around the other 90% of
negotiations create some credibility and believability around the line when
it gets strong. People who draw lines all the time usually can’t hold them.
MR. COHEN: True. But I believe there can be exceptions. I don’t want to say it, but I
will say it because it’s history. The gun control issue, I believe, is an
example of the mistake that’s been made. I sincerely believe that when
the Republicans refused to agree to a ban on AR-15s or to increase the age
to 21, the Democrats should have responded this ends the negotiations.
We are going to campaign reminding every parent in America that the
Republicans will not accept any reasonable limits on guns that are killing
our children. That’s just my own assessment at what history is going to
show.
MR. POLLAK: Agreed. Well, before we go on to talk about other entertainment unions
you worked with, you looped back to working on some collective
bargaining issues in your role at the FMCS, which we’re going to talk
further about it another session, but maybe you’d like to talk about a
couple of those mediations.
MR. COHEN: The interesting thing was I retired from Bredhoff and Kaiser in 2005, as
you know. I then did private mediation for four or five years, and then in
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2009, I had the honor of being named Director of FMCS. Early in that
career, I was jointly requested to mediate two disputes with Bruce Simon,
counsel to AFM Local 802, and his industry counterparts from the
Metropolitan Opera and the New York Philharmonic. And while in the
normal course, their issues and those two orchestras might not have
generated enough national attention to justify FMCS involvement, just the
idea that it was New York City and these two highly-respected and
renowned institutions, and I said you know what, I’m a train ride away.
I’ll see if I can play a constructive role. I had a wonderful time with Peter
Gelb, the very powerful managing director of the Metropolitan Opera.
The parties were down to one issue, and with a little persuasive quality on
my part, I was able to sell a simple reality: to pay an extra $600 increment
was well worth the price for achieving three years or four years of labormanagement
stability. In just a one-day session, he came to the same
rational conclusion, and an agreement was reached. The parties shook
hands, and I then enjoyed my relationship with the Metropolitan Opera
after that.
The New York Philharmonic mediation was much tougher. It
lasted probably seven or eight days around the clock. Bruce Simon is a
world-class union negotiator, and Willis Goldsmith, his counterpart from
the New York Philharmonic, was equally knowledgeable and impressive.
They worked hard to resolve a core pension issue. The thing I remember
the most is the orchestra was scheduled to take a major tour through the
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Far East, and all of the musicians’ instruments were about to be loaded
onto trucks and then transported by air overseas in these very special
protective luggage compartments. The parties understood “No agreement,
no tour.” Those are the beautiful moments because that’s when both sides
have to sit there and “face the music” and say what are we doing to each
other? Experience teaches that there’s a little extra added inducement
when you may or may not have a world-class tour of the of the Far East
hanging in the balance. And yes, that’s how one or two extra little added
provisions find their way into a collective bargaining agreement.
MR. POLLAK: So interesting. So in addition to the musicians, I know you did work with
the Directors Guild of America and also SAG and AFTRA involving a
range of different projects after you began with the musicians in 1987.
MR. COHEN: So that, again, Roger, those are the wonderful offshoots of what I had been
doing on behalf of the AFM. I’ll discuss the Directors Guild first because
I did a very precise number of small but important projects.
The Directors Guild of America was known by everyone in
Hollywood as the most important labor union in the Industry, period. In
part, that was because if you looked and saw who the officers had been –
Martin Scorsese, Steven Spielberg, Stephen Sondheim – you might say to
yourself that sounds like the most powerful “entrepreneurs” imaginable.
Well, they were “union” directors extraordinaire. In fairness, the
Directors Guild of America has many thousands of assistant directors who
are much more like rank-and-file white-collar employees. But in any
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event, that was the history, culture, and tradition. And in part, because
those named directors were so highly respected and possessed enormous
bargaining leverage, the Directors Guild ascended to the role that they
usually negotiated first in every major round of bargaining. This was met
with acceptance, maybe begrudgingly by some of the more left-wing
leaning unions like the Writers Guild. In any event, everyone in
Hollywood knew that the studios had to get an agreement with the
Directors Guild if they wanted to make movies. Certainly the musicians
understood that, as did SAG (the actors), IATSE, and the Teamsters.
Also, keep in mind Hollywood has been and remains 95% unionized – a
world apart from any other Industry.
Jay Roth and I had had an excellent long-standing relationship. He
had once been a key lawyer for the Machinists Union. A great bargainer,
a great litigator. Then he assumed the leading role as the Executive
Director for the Directors Guild of America. He served as the chief
negotiator in all the union’s collective bargaining with the Motion Picture
Industry. He knew I had certain sports-related specialties, and there came
a time that the Directors Guild were particularly interested in the
relationship between a union, its members, and their agents – a subject that
I was intimately familiar with as counsel to the NBPA and MLBPA. And
then he also was anxious to have me share with him some bargaining
strategy. As a result, I was fortunate to get to know president Michael
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Apted, a famous director, and his successor, Taylor Hackford, and a
fabulous TV director named Paris Barclay.
Jay was a fan of my son Bruce Cohen, who had been a member of
the Directors Guild before becoming a major motion picture producer –
Academy Award winning “American Beauty,” “MLK,” and “Silver
Linings Play Book” to name a few. The result was that any time the
Directors Guild/committee officers had a matter in Washington, I
participated in their high-level strategy, and I did play a role in some of
the agency-related issues.
It was just a nice feather in my cap to be recognized by the
Directors Guild of America, which is still the number one Hollywood
union. I was fortunate to get to meet a number of different union officers
and key staff in my numerous visits to LA on musicians’ business.
One day, completely out of the blue, I received a very unusual call
– unlike any I had ever received. On the phone were both the Executive
Director of SAG, Bob Pisano, and Greg Hessinger of AFTRA.
Bob Pisano was a very well-known former management labor lawyer, and
his general counsel turned out to be David White, who later ascended to
the Executive Director of SAG. This is what I was told: SAG and
AFTRA have had a twenty-year history of “dancing around the bush with
each other,” should we get together or should we not? Should we merge?
Should we affiliate? We’ve had various, what’s the word?, dalliances, that
never turned to fruition, but we think we’re getting close to the right time
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for this, and we’d like you to agree to be the designated facilitator for the
discussions that are about to begin. This is going to be a big job because
we each have committees of fifty officers and staff. We have all these
often divergent separate interests. SAG historically turned down its nose
at AFTRA. SAG members proclaim “the greatest success in my life was
the day I got my SAG card,” and they’re looking negatively at these
AFTRA members just doing the television work. Conversely, the AFTRA
folks are saying these elitist SOBs. I’m listening. I’m saying well guys,
you’re telling me I can’t facilitate this dispute! Why are you doing this to
me or yourselves? No, no, no. The time is right. I say well I have only
two conditions. I don’t know anything else about your organizations, but I
know you each have a lot of lawyers. So first, I’m only going to be
responsible to you two because you’re the Executive Directors talking to
me, and I’m comfortable knowing whatever I do with you two, it’s either
going to be agreements with you and me or I can’t do this, right? And
they said you’re absolutely right. I said and I have another condition.
Once we talk about pensions or health care, I’m not accepting any other
consultants or experts to work with other than Penny Clark and Bredhoff
and Kaiser, because this is my team. I didn’t have Jeff Freund in mind at
that moment, but once I began to serve as facilitator, I said to them I also
need a colleague with internal union governance expertise, and Jeff started
playing a major role with me that lasted at least six months.
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The format went something like this: for five days a week, several
weeks per month, joint committee meetings took place in an LA hotel.
These meetings consisted of about a hundred people in a room, including
two executive directors, side by side with the presidents of their respective
unions, staff representatives, and committee men and women. The task
was monumental. The constitutions and bylaws of each union was
reviewed in detail with the view of creating a new overall governance
structure. You can imagine. In the midst of all these challenges, there
was unlimited, unprecedented entertainment.
Now here I am, I had represented firefighters, steelworkers,
basketball players, but I had never seen anything like what SAG/AFTRA
discussions were like. A member would get up and make an emotional
speech, and halfway through, a few actually started to cry, and some
fellow member would come over with a box of tissues, and then to calm
down the trauma level, the other side would say, well we baked chocolate
chip cookies today because we anticipated this was going to be an
emotional situation. I’m not making this up. This actually happened
during the course of these discussions. There would be shouting. There
would be emotion. There would be a little crying. A lot of cookies would
be distributed. And then once in a while, an outstanding, thoughtful
person would make a brilliant presentation, and everyone would pay a lot
of attention and even applauded!
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I did my damndest. We spent hours behind the scenes just with the
two executive directors, the presidents and their lawyers. We drafted, I
don’t know, six major governance documents, constitutions for each,
constitutions for a prospective combined organization. It was not going to
be a merger. It was going to be an affiliation, because if you used the
word “merger,” the SAG team members would walk out of the room.
Was it very close to a merger? Of course. Was it going to lead to a
merger? Of course. But you couldn’t call it that, at least not yet. That
was just one of the many, many political nuances I had to deal with. At
the end of the process, we would be working around the clock, and for me,
all billable hours. From Bredhoff and Kaiser’s standpoint, this was a
really big six- to nine-month client. Not that we were charging that much,
but we had two clients, and they were each paying us a reasonable hourly
rate.
Okay. The documents are done. It was a Herculean effort. Rankand-
file approval was required. What you’d expect. Road trips. I did not
go on road trips. I’m the facilitator. The key officers and staff gave a
detailed presentation plus distributing all applicable documents. Then
came the moment of truth. My wife and I were vacationing at a friend’s
house outside of Tanglewood. I was sitting by their lovely pool, and I get
the message. AFTRA members approved by a large majority, 75% “Yes.”
Fantastic. SAG members, 58.5% approval. But SAG had a “super
majority” provision in its constitution – 60% required – and therefore, the
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deal has gone down the tubes because only 58.5% of its members voted
yes. And I was not a happy camper. Without a doubt, this was the most
disappointed I have ever been about an effort to resolve a dispute.
MR. POLLAK: I’m certain.
MR. COHEN: The good news is that a number of years later, a merger was
consummated. One other redeeming fact: I remained good friends with
David White, who has just retired as the Executive Director of
SAG/AFTRA. A gentleman from Disney named Robert Johnson and I
developed, together with Bruce and Julie, a whole family friendship. I had
all these fringe benefits from this debacle. I’m exhausted, right?
MR. POLLAK: Yes. Well that brings us to the end of our discussion today, although I
must say I hate to end on a downer story.
MR. COHEN: Well it was like everything in life, what was the most disappointing was
when you think as all the people who called me almost tearful were saying
where in the world would you get 58.5% vote in a secret ballot election
where thousands of people have cast their ballots and still go down the
tubes? That was the single most objectively distressing thing. What do
you say?
MR. POLLAK: Well thank you.
MR. COHEN: Thank you.
MR. POLLAK: Another fascinating discussion. I believe not the last one that we’ll have,
so we’ll be back together again next month.