Fall/Winter 2007 Newsletter THE COLLEGE OF LABOR & Vol. 9 No. 2 EMPLOYMENT

INSIDE THIS ISSUE: COLLEGE HOSTS EXCEPTIONAL COCKTAIL RECEPTION AT ABA ANNUAL MEETING Class of 2007 Fellows 2

NAA Policy Change 2 espite the scheduling of the Annual Induction Banquet for Philadelphia in November, College The EEOC’s Administrative 3 D Supoena Power Fellows who gathered for the ABA Annual Summer

Ron Cooper – 5 Meeting in San Francisco were treated to a unique reunion EEOC General Counsel reception at the historic University Club high up on Nob Paul Tobias – 7

The Labor’s Laborer Hill. Executive Director, Susan Wan, arranged for a Courtesy J. D’Alba

Reflections: luscious hors d’oeuvres menu accompanied by libations intended to sooth even the “savage” Ben Aaron 8 Bill Gardener 11 Fellow. The Club dates back 117 years to an era when young professional men did not establish

Spotlight on Fellows 10 households until marriage. Thus, the Club provided a William Harding Louis Kushner place to live, eat and enjoy the companionship of John Robinson like-situated other gentlemen. Now, open to women Don Spero Don Slesnick and men, it is still an interesting building of dark Topper Thompson Jay Waks wood paneling, large library, guest rooms, dining

College Fellows Convene 10 Courtesy J. D’Alba facility and turn-of-the-century (that’s the 19th/20th Fellows Mark Dichter and Christine Cooper Regional Meeting Updates 11 join College President Joel Glaustein millennium) western-styled serving bar. The cityscape

view from the back balcony was breathtaking, and the billiards table provided a new challenge

for the Fellows and their families. The President,

Joel Glanstein, was on hand to personally greet

everyone, in-house photographer Joel D’Alba was

snapping away and many newly elected Fellows (who

will be installed in November) were on hand to be Courtesy J. D’Alba Fellow Emeritus Jay Siegel joins welcomed to the College’s growing roster. All in all, it Honorary Fellow Bill Usery and his wife Fran was another memorable moment in a long list of such moments for Fellows who were in the Bay Area

and able to participate. Don Slesnick Roving College Reporter Page 2 Fall/Winter 2007

BOARD ELECTS FELLOWS FOR CLASS OF 2007

At a meeting of the Board of Governors on June 1st, the following distinguished lawyers were elected Fellows of the College. The induction ceremony, scheduled to take place in Philadelphia, Pennsylvania, will be held on Saturday, November 10th.

Gil Abramson, Baltimore, MD Barry W. Marr, Honolulu, HI Martin W. Aron, Short Hills, NJ Alison Buell Marshall, Washington, DC Katherine E. Bissell, Washington, DC John S. Marshall, Columbus, OH A. Stevenson Bogue, Omaha, NE Adrianne C. Mazura, , IL Harold P. Coxson, Jr., Washington, DC Paul S. Miller, Seattle, WA Howard C. Edelman, Rockville Centre, NY Bruce R. Millman, New York, NY Susan Nadler Eisenberg, Miami, FL Francis M. Milone, Philadelphia, PA James R. Erwin, Portland, ME Debra Dyleski-Najjar, Boston, MA Philip C. Eschels, Louisville, KY James R. Neely, Jr., St. Louis, MO Joseph M. Freeman, Atlanta, GA Robert J. Nobile, New York, NY William D. Frumkin, White Plans, NY Jeff S. Olson, Madison, WI Jon A. Geier, Chicago, IL Anthony J. Oncidi, Los Angeles, CA Joseph P. Goldhammer, Denver, CO Kathy A. Peck, Lake Oswego, OR Margaret P. Gryko, Buffalo, NY Michael Reiss, Seattle, WA Robert M. Hale, Boston, MA Richard H. Robblee, Seattle, WA Michael W. Hawkins, Cincinnati, OH Louis L. Robein, Jr., Metairie, LA H. Victoria Hedian, Baltimore, MD John H. Schmidt, Jr., Westfield, NJ Fredric R. Horowitz, Santa Monica, CA Robert E. Sheeder, Dallas, TX George S. Howard, Jr., San Diego, CA Fern H. Singer, Birmingham, AL Timothy H. Howlett, Detroit, MI John M. Skonberg, San Francisco, CA Stuart M. Israel, Royal Oak, MI Joel A. Smith, Baltimore, MD Robert G. Johnson, St. Louis, MO Paul E. Starkman, Chicago, IL Jean P. Kamp, Chicago, IL Marilyn S. Teitelbaum, St. Louis, MO Allan N. Karlin, Morgantown, WV M. David Vaughn, Clarksville, MD Danny J. Kaufer, Montreal, Quebec, Canada Frederick R. von Veh, Toronto, Ontario, Canada Jerome B. Kauff, New York, NY Charles E. Walker, Jr., Sharon, MA Sarah A. Kelly, Philadelphia, PA Carla R. Walworth, Stamford, CT Darold W. Killmer, Denver, CO Barry J. Waters, New Haven, CT Victor J. Kisch, Portland, OR Barry M. Willoughby, Wilmington, DE

NATIONAL ACADEMY OF ARBITRATORS – DUE PROCESS PROTOCOL REVISIONS Submitted by George Nicolau

Mr. Nicolau, who was a member of the Board of Governors of the College for two terms, has also been President of the National Academy of Arbitrators and the Society of Professionals in Dispute Resolution.

n 1997, the National Academy of Arbitrators, a major architect of the Due Process Protocol, Iadopted its Guidelines for Employment . The overriding purpose of the Guidelines, published as an aid to its members called upon to arbitrate statutory claims under employer-imposed plans, was to ensure fairness and due process in such mandatory plans, and to make certain that the arbitrator was invested with the same authority and remedial power as would reside in a court of law. Recently, the Academy revised the Guidelines to include, in addition to statutory claims, the arbitration of common law and contractual claims and to direct the Guidelines to all arbitrators whether or not Academy members. On May 27, 2007 the Academy’s Board of Governors unanimously approved a revised Policy Statement setting forth the Academy’s views as to such plans. The Statement reads: (cont’d. on pg. 12) The College of Labor & Employment Lawyers Page 3

THE EEOC’S ADMINISTRATIVE SUBPOENA POWER

By Spencer H. Lewis, Jr.

Mr. Lewis is District Director of the US Equal Employment Opportunity Commission’s New York District Office. He was inducted as a Fellow of College in 1997 and currently serves as a member of the College’s Board of Governors.

he Equal Employment Opportunity virtually any material that might cast light on the TCommission, EEOC, enforces Title VII allegations against the employer.” of the 1964 Civil Rights Under Title VII or the ADA, when a Act, as amended, the Respondent receives an EEOC subpoena, it can Americans with Disabilities comply, or object by filing a Petition to Revoke Act, the Age Discrimina- or Modify the Subpoena. The Petition is directed tion in Employment Act, to the District Director issuing the subpoena and the Equal Pay Act, within five (5) days of its receipt. On the other and is charged with hand, subpoenas served pursuant to the EPA and investigating charges of the ADEA do not have an administrative process discrimination brought for objection. A Petition to Revoke or Modify Spencer Lewis, Jr. pursuant to these statutes. must conform to C.F.R. §1601.16(b). It must Normally, EEOC investigations under each of separately identify each portion of the subpoena The EEOC these statutes follows a course consisting of a with which the party does not intend to comply, is authorized to cooperative exchange of information between and it must state, with respect to each such portion, the grounds on which s/he relies. The issue subpoenas during the Agency, Respondents, and Charging Parties which assist it in reaching an administrative Petition must be in writing, and if sent by mail, the investigation determination. Occasionally, however, the include a certificate of service. of any charge filed EEOC is compelled to utilize its subpoena pow- If a Respondent does not comply with an under each of the four ers to require the production of evidence from EPA or ADEA subpoena, the EEOC will file an anti-discrimination uncooperative parties to commence or complete enforcement action. However, upon receipt of a statutes it enforces. an investigation. petition to revoke or modify in a Title VII or an The EEOC is authorized to issue subpoenas ADA case, if the investigating District Director during the investigation of any charge filed agrees with Respondent’s position, it has the under each of the four anti-discrimination right to revoke or modify the petition as requested. statutes it enforces. The subpoena power enables However, if the District Director disagrees with the EEOC to obtain access to evidence (e.g., Respondent’s position, it will refer the case to the documents, files, facilities) and witness testimo- Commission for a decision on the petition to ny necessary for the investigation whenever met revoke or modify. Reviews by the Commission with an uncooperative party. If, even after receipt will be returned with a decision, which can range of a subpoena, the recipient party remains unco- from complete agreement with the District operative, the EEOC also has the authority to Director’s position to complete agreement with enforce its administrative subpoenas in the Respondent’s position. Of course, at any time appropriate federal court. The subpoena power is during the petition process or even during broad and normally, so long as the EEOC seeks enforcement proceedings, the parties can resolve evidence that is relevant and necessary to the res- the legal issues or issues (and often do) by olution of any issue in a pending investigation, coming to an agreement on the information that the federal court is likely to grant the Agency’s will be provided. enforcement requests. In fact, the Supreme In some instances, District Directors have Court in EEOC v. Shell Oil, Co., 466 U.S. 54, been compelled to issue and enforce a subpoena 68-69 (1984) held that the EEOC is entitled “to simply because the employers refuse to even

(cont’d. on pg. 4) Page 4 Fall/Winter 2007

(cont’d. from pg. 3) respond to the initial charge of discrimination. (enforcing EEOC subpoena requesting informa- For example, in 2005, the Boston Area Office tion on hiring practices in thirty of Respondent’s Director was obliged to file an enforcement restaurants). Of course, EEOC’s subpoena power action in a charge filed by Charging Party Sandra is not limitless but where the information Casey against Respondent Blaine Beauty School requested is relevant, the EEOC is likely to suc- (EEOC v. Blaine Beauty School, MBD 05-10173- ceed in an enforcement action. This is even true GAO). This enforcement action was occasioned where EEOC seeks information about charges by Respondent’s unwillingness to even respond that were not contained in the original charge, to Ms. Casey’s charge of discrimination and the but were discovered through investigation. EEOC’s multiple requests for information in See General Telephone v. EEOC, 446 U.S. 318, order to just commence the investigation. After 331 (1980)(“[a]ny violations that the EEOC failing to appear at a show cause hearing ascertains in the course of a reasonable investiga- before Judge O’Toole, Massachusetts Federal tion of the Charging Party’s complaint are District Court, an Order directing Respondent actionable.”). to comply was issued. The parties to an EEOC charge that The EEOC has also had success enforcing becomes the subject of subpoena enforcement administrative subpoenas involving charges of should be aware that while investigations are discrimination in active investigation where normally afforded confidentiality, once the The EEOC Respondents have opposed the EEOC’s requests EEOC files an enforcement action in a federal has also had success for information. For example, during the investi- court, the district court proceedings relating to gation of a sex discrimination charge filed by one the charge are public. In subpoena enforcement enforcing administrative female Charging Party, but also on behalf of proceedings involving class claims, the public subpoenas involving other similarly situated women, the EEOC was nature of district court proceedings to publicize charges of discrimination successful in obtaining class related information the investigation, often leading to the identifica- in active investigation on the claims made by Charging Party against tion of additional witnesses and class members. where Respondents have Respondent, Morgan Stanley. See EEOC v. This unintended consequence inures to the opposed the EEOC’s Morgan Stanley & Co., Inc. No. M 18-304 DLC, public benefit, but it may not be similarly viewed 1999 WL 756206 (S.D.N.Y., September 23, by the parties. requests for information. 1999). In finding that the EEOC was entitled to The EEOC filed 32 subpoena enforcement information about formal sex discrimination actions nationwide in FY 2006. Of these complaints made by all Morgan Stanley employ- subpoena enforcement actions filed, almost all ees nation-wide, the District Court noted that were enforced or otherwise settled by the parties the information sought was not only relevant but prior to any court action. Although the EEOC certainly would “cast light” on the Charging has significantly decreased its investigative Party’s allegations of discrimination, as well as backlog and most charges of discrimination are the existence of class-wide discrimination. resolved within 180 days, disputes about the Despite efforts by Respondents to narrow broad EEOC’s authority to request information will requests of information made by the EEOC in certainly lengthen any investigation. Where the context of charges raising claims of pattern subpoena enforcement proceedings may be and practice discrimination or systemic discrim- lengthy, requiring the action of both the ination, EEOC has also generally been successful Commission and the federal courts, the speed of in its subpoena enforcement actions. See general- the investigation is seriously compromised. In ly EEOC v. Roadway Express, Inc., 261 F.3d 634 the interest of administrative efficiency and given (6th Cir. 2001)(enforcing EEOC subpoena the legal reality of the EEOC’s ability to obtain requesting information related to claims of pat- relevant information necessary for it to fulfill its tern discrimination); EEOC v. McCormick & investigative mandate, objections to the EEOC’s Schmick’s, No. C 07-800065 WHA, 2007 WL requests for information should be made with a 1430004 (N.D. Cal. 2007, May 15, 2007) full understanding of the consequences. The College of Labor & Employment Lawyers Page 5

RON COOPER – EEOC GENERAL COUNSEL

By Wendy L. Kahn

Ms. Kahn is a partner with the Washington, DC firm of Zwerdling Paul Kahn & Wolly, PC. She was inducted as a Fellow of College in 2003 and served as Chairperson of the DC Circuit Credentials Committee this past year.

onald S. Cooper was sworn in for a four-year Rights Act of 1964, the Age Discrimination in Rterm as General Counsel of the Equal Employment Act (ADEA), the Equal Pay Act Employment Opportunity Commission (EEOC) (EPA), the Americans with Disabilities Act in August 2006. Growing (ADA), and the FLSA as well as claims under up in Athens, Georgia, state and local laws. His work included large Cooper thought he wanted class actions and government enforcement to be a — although proceedings. Later in his career at Steptoe, there were no lawyers in he represented employers and employees in his family. After graduat- restrictive covenant, trade secret, and executive ing from the University compensation matters. He also represented of Georgia (both under- clients in international employment law matters. graduate (where he was Cooper has been active in the ABA’s Labor elected to Phi Beta Kappa) and Employment Law (LEL) Section since 1976. and the Law School (J.D. At the beginning of his ABA involvement, he Ron Cooper 1969), he clerked for joined the Federal Labor Standards Legislation Judge Walter P. Gewin on the U.S. Court of Committee, later moving to the EEO As General Counsel, Appeals for the Fifth Circuit. During that clerk- Committee. His service also included five years Cooper manages the ship, he was exposed not only to serious substan- in the leadership of the Continuing Legal EEOC’s litigation tive work (drafting bench memos, talking Education Committee of the LEL Section. through outcomes with the Judge, and drafting After that he became Management Co-Chair program, which, opinions) but also to the joys of travel from his of the International Labor Law Committee, on average, has an active base in Tuscaloosa to hear cases in other cities in in which he had actively participated for the old Fifth Circuit — New Orleans, Dallas, several years. docket of approximately Jacksonville, Montgomery, Mobile, and Houston. While at Steptoe, Cooper authored numer- 450 cases in federal Instead of moving to Atlanta to begin ous books and articles on employment law practicing law after his clerkship, Cooper decided topics and appeared on television programs such district courts across to try to work in Washington for one year. as C-Span’s “America in the Courts,” and NPR’s the country. To find a job in DC, he wrote to two of his law “Diane Rehm Show,” representing the employer’s professors — his Securities Law professor and his perspective on employment law matters. His Labor Law professor. The latter, Ralph Beaird civic activities during this time included service had been Associate Solicitor in the US Department on the Board and as General Counsel of the Boys of Labor. Beaird’s response was quicker and & Girls Clubs of Greater Washington. more promising and Cooper began working in Near Thanksgiving 2005, Cooper was the Labor Department’s Solicitor’s Office in the approached by two former EEOC General summer of 1970. In a pattern familiar to many, Counsels who asked if he would be interested in Cooper’s planned short stay in the Washington being considered for that position. Recognizing area turned into permanent residence. this to be a unique opportunity to contribute After working briefly in the Office of from a different perspective in a field in which he Legislation and Legal Counsel (both OSHA and had long worked, Cooper entered the process. ERISA were pending at that time), Cooper President Bush nominated him on March 27, transferred within the Solicitor’s office to do Fair 2006 and the Senate unanimously confirmed Labor Standards Act (FLSA) appellate work. him in late July 2006. Finding himself less-than-fully challenged, in As General Counsel, Cooper manages the 1972 he moved to the private sector with Steptoe EEOC’s litigation program, which, on average, & Johnson, LLP, where he remained for 34 years has an active docket of approximately 450 cases until his 2006 move to the EEOC. in federal district courts across the country. He Steptoe was an “early entrant” into the then- also oversees the EEOC’s appellate program. developing “employment discrimination world,” The Commission handles its own appeals, and Cooper had a steady diet of that litigation except in the Supreme Court where the during his first ten years at the firm. Over the Solicitor General represents the government; years, he continued to specialize in employment the Commission also maintains an active law, handling cases under Title VII of the Civil appellate amicus docket to address important (cont’d. on pg. 6) Page 6 Fall/Winter 2007

(cont’d. from pg. 5) and novel legal issues relating to the various Asked what pleasant surprises he faced upon statutes that the EEOC enforces. assuming his GC responsibilities, Cooper Among Cooper’s priorities as General responded he has been impressed by the level of Counsel is the successful implementation of the talent, ability and dedication of so many of the Commission’s Systemic Initiative, a program that staff. Resource-related issues tend to predomi- is the result of a comprehensive study completed nate in the category of “unpleasant surprises.” before Cooper’s arrival at the EEOC. The goal While he knew, of course, that compared to a of this multi-pronged initiative is to identify and major law firm, the EEOC would have to run a develop more systemic cases — ones alleging dis- leaner litigation operation, he was not entirely crimination that has a broad impact on an indus- prepared for the extent of the budgetary con- try, profession, company, or geographic area — straints he has discovered. What is remarkable, rather than waiting for the cases to walk through he stated, is the fact that the Commission has the door. The Initiative’s tools include providing been able to maintain its high level of proficien- training and support for field staff to identify cy and professionalism despite these constraints. and litigate systemic cases; coordinating efforts In fact, Cooper noted, as measured by the among various district or area offices to address agency’s statistics, the EEOC’s litigation program discrimination within a single employer or is very effective. In particular, over the five-year industry; expanding the use of technology and period ending in FY 2006, the EEOC obtained information systems to identify systemic dis- positive results (consent decrees, settlement crimination; and expanding efforts to partner agreements, or favorable court decisions) in Asked about with plaintiffs’ bar and other federal and state approximately 92 percent of its cases. Moreover, agencies. Pursuant to this initiative, Cooper has the agency compares favorably with private the types of cases also focused on improving the way EEOC dis- plaintiffs’ counsel in terms of litigation out- the Commission brings, trict offices work with each other. Describing comes. Over the same period, the agency expe- the approach as a “national law firm” model, he Cooper stated that race rienced adverse pretrial dispositions of its cases explained that it partners attorneys from differ- (such as dismissals or summary judgments) at discrimination charges ent districts to take advantage of existing experi- approximately one-third the rate encountered by ence and expertise and ensures that cases are private attorneys. Further, the EEOC won about from African-Americans developed and litigated in the most appropriate 50% of the cases that were tried to a verdict — location, regardless of where the cases first arose. are still the largest single also faring better than plaintiffs in private litiga- He believes that this is essential in order for the tion. Similarly, in appellate litigation, the category of charges filed Commission to pursue cases that are regional or Commission prevailed substantially more often at the EEOC national in scope. Asked about the types of cases the than did plaintiffs in private-sector litigation. (and represented over Commission brings, Cooper stated that race In his role as General Counsel, in addition 20% of the cases discrimination charges from African-Americans to regular meetings with his own staff and the are still the largest single category of charges filed EEOC’s Chair, reviewing the appellate agenda filed in FY 2006). at the EEOC (and represented over 20% of the and keeping track of activity in the field, attend- cases filed in FY 2006). Cooper added that his ing ceremonial functions, and interacting with research has indicated that the Commission’s others to try to track and accomplish the litiga- litigation docket includes cases under all the tion priorities, Cooper spends considerable time statutes that the Commission enforces, in rough working on such matters as the continuing need proportion to their availability as potential to upgrade and train on technology. He also litigation vehicles. He emphasized that the works closely with the other commissioners as Commission seeks to maintain a balanced litiga- well as the Office of Legal Counsel and Office of tion program enforcing all of the laws entrusted Field Programs on issues of mutual concern such to the agency. Accordingly, in addition to race, as the Commission’s charge processing practices areas of anticipated attention include discrimina- and its policies for disclosing and reviewing tion against and among Asians and Hispanics, agency materials. national origin and religious discrimination, Cooper’s first year as General Counsel was disability discrimination, sexual harassment, marked by considerable travel. He visited about retaliation cases and ADEA and EPA cases. half of the district offices to meet with EEOC Commenting that the Commission can initiate lawyers. In addition, he made over 22 speeches ADEA and EPA cases without a charge being and presentations to outside audiences, totaling filed, Cooper explained that Title VII and ADA almost 2,000. These included ABA events, investigations require a charge by either a ALI-ABA conferences, a DRI Employment Law member of the public or a Commissioner. Conference, and meetings with the Corporate Cooper noted that, with the Systemic Initiative, Diversity Compliance Council and the Federalist the number of Commissioner charges has Society. increased. Cooper, inducted into The College of Labor (cont’d. on pg. 9) The College of Labor & Employment Lawyers Page 7

PAUL TOBIAS – THE LABOR’S LABORER

By Christine Perkins

This article was reprinted with permission from the Harvard Law Bulletin (Spring 2007 edition). The author, Christine Perkins, is the Class Notes and In Memoriam Editor.

Tobias was setting up his own shop, now known as Tobias, Kraus & Torchia, the tide began to turn. In the wake of legislation barring discrimi- nation in the workplace, there was a new demand for employment lawyers. In 1984, Tobias called for a meeting of lawyers in his field, arguing, “We have nothing to lose but our cases!” The following year, the Plaintiff (now National) Employment Lawyers Association was born. For the first five years, he ran the association out of his Cincinnati office. He wrote to the Equal Employment Opportunity Paul Tobias Commission requesting the names of attorneys on Title VII discrimination cases. Within two In 1984, hen Paul Tobias was not yet thirty, he years of its founding, the association had 450 Wwrote to Herbert Hoover, Carl Jung and members in 42 states. Almost 300 new members Tobias called for a several hundred others, seeking advice on turn- joined each year, and the number reached more meeting of lawyers ing seventy. The project was a birthday gift for than 2,000 by 1995. In 1987, Tobias co-wrote the first major in his field, arguing, his father, but the wisdom he received – keep a youthful spirit, pursue meaningful work, find treatise geared to plaintiffs’ attorneys, “Litigating “We have nothing to happiness in helping others – foretold his advo- Wrongful Discharge Claims.” He also published lose but our cases!” cacy on behalf of working people. For the past two survival guides for employees and helped twenty-five years, Tobias has defended the rights create an educational nonprofit, the National The following year, of nonunion employees, waging a “David and Employee Rights Institute, now known as the Plaintiff (now Goliath” fight for workplace fairness. In 1985, Workplace Fairness. Between 1990 and 2000, he banded together with a dozen other the number of employment discrimination cases National) Employment plaintiffs’ attorneys and founded the National filed in federal court increased by almost 250 Lawyers Association Employment Lawyers Association, whose now percent. “Companies are much more cautious in the way they run themselves now, because of was born. 3,000 members form what he calls “the thin red line,” protecting the rights of millions of their fear of lawsuits,” said Tobias. American workers. Watching the growth of the plaintiffs’ bar Tobias drifted into law school after a four-year has been thrilling for him, but he is discouraged stint with the CIA, contemplating government that there is still so much unfairness in the work- service. After landing in Archibald Cox’s class, place, such as the “antiquated and nefarious” at- he found the varied aspects of labor law will doctrine, which allows many employers to captivating, the conflict exciting. He began by terminate employees at any time, for any reason. representing management in Boston and went “People think that if they are treated unfairly, a on to defend both companies and unions in lawyer can help them,” said Tobias. “But they his hometown of Cincinnati. But over time, think the law is better than it is.” Now 76, Tobias he developed a niche representing union says he has no plans to retire. He is currently an members in cases involving the duty of fair ALI adviser on the “Restatement of Employment representation. “I think my liberal instincts came Law.” He has also helped form a senior law out,” said Tobias. “I just felt more comfortable division of the Cincinnati Bar and is hoping representing individuals than I did management.” to develop a National Senior Service Corps. And This role didn’t endear him to union lead- he is completing a book of advice for those over ers, and breaking into a bar association dominat- seventy, compiled from his father’s birthday letters. ed by management and union lawyers wasn’t “There is a great deal to be done in the easy. While he won important victories, he also world after one has achieved his three score and gained a reputation as a rebel. “I’ve made peace ten,” wrote Roscoe Pound to the senior Tobias. with them over the last 15 years,” said Tobias, “There is nothing that keeps one alive like steady now a Governor of the College of Labor and attention to worthwhile ventures.” Employment Lawyers. By the mid-1970s, just as Page 8 Fall/Winter 2007

REMEMBERING A LEGEND – BEN AARON

In this issue of the Newsletter, we note with sadness the passing of Fellow Emeritus Benjamin Aaron who died at the age of 91 this past August. Reprinted here is the obituary article that appeared in the Los Angeles Times shortly after his death. We also pay special tribute to Ben, as outstanding a scholar in the field of Labor Law as there has been, with a remembrance of him by Fellow Emeritus Theodore St. Antoine, his colleague for many years in the arena of labor arbitration.

Benjamin Aaron, 91; When Aaron joined UCLA’s year-old Institute of Industrial Relations in 1946, legal scholar, was experiencing unprecedented UCLA law professor prosperity amid a post-war boom in such indus- tries as aerospace, shipping and construction. mediated big labor Daniel Mitchell, who directed the UCLA disputes Institute from 1979 to 1990, said Aaron “came to UCLA when the whole issue of labor relations By Valerie J. Nelson, and management was very much a major public Los Angeles Times Staff Writer issue, and he was at the center of the public discourse.” Aaron arrived after spending four years August 31, 2007 on staff and serving as Executive Director of the Benjamin Aaron, a prominent legal scholar National War Labor Board, which handled thou- and UCLA professor known for mediating labor sands of labor disputes during World War II. disputes in major industries across the country, From the beginning, the UCLA Institute After a strike including settling the massive 1970 teachers recognized that its work was inextricably linked to many of society’s larger issues, Aaron said last by about 14,000 teachers strike in Los Angeles, has died. He was 91. Aaron, who also was the longest-serving director year in a UCLA Today Online story marking the crippled the Los Angeles of UCLA’s Labor Research Institute, died Institute’s 60th anniversary. He was its director Unified School District Saturday at UCLA Medical Center from a brain from 1960 to 1975. In recent years, the Institute has helped shape public policy through research in 1970, Aaron hemorrhage suffered after a fall, his family said. “He was a giant in the fields of labor law on such topics as job growth, labor law enforce- brokered the settlement and industrial relations,” said John Trumpbour, ment, union membership and work-family that ended the nearly research director for Harvard Law School’s Labor policies in the state, according to UCLA. “Ben and Work-Life Program, “and he had a key role Aaron played such a big role in building up the five-week walkout. in Los Angeles labor history.” institute,” Trumpbour said, “and knew how to After a strike by about 14,000 teachers build up alliances to keep it going. “He was crippled the Los Angeles Unified School District aware that some people did not like universities in 1970, Aaron brokered the settlement that to have labor programs, but he thought labor ended the nearly five-week walkout. It has issues should be an important component of become the longest teachers strike in the history university life.” His genteel manner made him of California public education. He also helped well-suited to the task, colleagues said. settle many labor disputes that plagued the state’s Last week, Aaron was quoted in a Times story aircraft companies after World War II, and he on political attacks on the University of played a major role in mediating farm labor California’s labor programs in the context of disagreements that often involved Cesar Chavez. deliberations over the state budget. Aaron Nationally, Aaron arbitrated labor agree- recalled that in the 1940s and ‘50s, he had spent ments in most major industries, according to his much time defending the institute against family. Five presidents — Harry Truman, charges that it advanced communist causes. “I’m Dwight D. Eisenhower, John F. Kennedy, not surprised,” Aaron had said of the current Lyndon B. Johnson and George H.W. Bush — attacks. “I’m depressed.” Internationally, Aaron appointed him to national boards and commis- also became known as a major figure in the field sions. One national panel he served on in the of comparative labor law, which examines how mid-1960s tried to deal with fears that technology countries around the world deal with labor would increase unemployment. “It was one of relations. “He made the academic world and the the earlier efforts to address the great pace of larger world aware of the fact that there was technological change and how it affects the more than one solution, which was a major world of work,” Trumpbour said. contribution,” Mitchell said. (cont’d. on pg. 9) The College of Labor & Employment Lawyers Page 9

(cont’d. from pg. 8) Since 1960, Aaron had been a professor at Association (now the Labor and Employment UCLA’s law school and remained an engaged Relations Association), and of the International professor emeritus since 1986. Dressed nattily, Society for Labor and Social Security Law. In and always wearing a tie, he continued working addition, he was a member of the International at UCLA until shortly before his death. “Ben was Labor Organization’s Committee of Experts. a scholar of enormous authority and influence,” I had the good fortune to have Ben as a Michael Schill, Dean of UCLA Law School, colleague on the Public Review Board of the said in a statement. “He was also a good man, a United Auto Workers for some thirty-two years. mentor and friend to many of us.” The PRB consists of seven outside persons, The youngest of four children, Aaron was mostly academics in the fields of labor law and born September 2, 1915, in Chicago to Henry industrial relations, who rule on claims by UAW and Rose Aaron. When he was 5, his mother members of unfair representation or other died of tuberculosis, and his father soon died of wrongdoing by the Union. By virtue of Ben’s multiple sclerosis. Raised primarily by an aunt experience, knowledge, and especially quality of and uncle, Aaron graduated with a bachelor’s mind, he might well have felt entitled to lean on degree in 1937 from the . other Board members to decide cases as he Three years later he earned a law degree from thought was right. That, of course, was not his . In an unpublished memoir, style. He was deferential almost to a fault. He Aaron wrote that he became a lawyer to follow searched for the best in everyone's analysis and his father and two uncles into the profession. By aimed for a satisfying and convincing consensus. his third year in law school, he said he had found Beyond Ben's commanding stature as scholar his “true calling” after taking a labor law class and professional leader, however, what especially taught by the dean. endeared him to all those who knew him was his Aaron is survived by his wife of 66 years, personal graciousness. He would go out of his Eleanor; daughters Louise Aaron Ozawa and way at meetings to welcome newcomers and Judith Aaron Turner; brother Daniel, a professor those who had not yet achieved any particular emeritus of English and American literature at renown, and offer them warm words of advice Harvard University; five grandchildren; and four and encouragement. With old friends, Ben and great-grandchildren. Instead of flowers, the fam- his equally astute wife Eleanor liked nothing ily suggests donating to the Benjamin Aaron better than to share a bottle of rare wine, Scholarship Fund, UCLA School of Law, Box gourmet cuisine, and what someone has aptly 951476, Los Angeles, CA 90095. described as "wickedly humorous" stories reach- ing back to Ben's days as Executive Director of ~~~~~ the National War Labor Board. At the time of his death Ben Aaron could When I called Eleanor (who has been recov- fairly be regarded as the dean of US labor law ering from a long illness herself), to convey my scholars. He was highly productive throughout condolences and to try my best to put into words his career, with a special emphasis on compara- what Ben meant to all of us, both professionally tive labor law, from which he drew constructive and personally, Eleanor listened politely but qui- lessons applicable to the American scene. etly. When I got to the unusually considerate His several books include Industrial Conflict: way he treated other people, however, she imme- A Comparative Legal Survey and Public-Sector diately broke in, “That was the kind of man he Bargaining. Ben was also the only person to was!” Spouses know. be President of the National Academy of – Theodore J. St. Antoine Arbitrators, of the Industrial Relations Research

(cont’d. from pg. 6) and Employment Lawyers, Inc. in 1997, believes program was of substantial mutual benefit to that there should be a role for College Fellows in the Commission and the Bar. assisting the professional development of Cooper has lived in Alexandria, Virginia, EEOC staff. He was active in the creation of the since moving to the Washington, D.C. area. EEO Committee’s Regional Liaison Program, He and his wife of 40 years, the former pursuant to which members of the private Carolyn Vardine, have two adult daughters, bar met regularly with lawyers from EEOC’s Stephanie J. Massey and Jessica K. Cooper, and district offices to exchange ideas and discuss one granddaughter, Lilly Massey. topics of mutual interest. He believes that this Page 10 Fall/Winter 2007

SPOTLIGHT ON FELLOWS

Fellow William Harding, from the Lincoln, standing service and support to the school. Nebraska firm of Harding Shultz & Downs, was It recognizes those whose career accomplish- named one of the Top 100 Labor Attorneys in the ments have been primarily within the field of for 2007 by the Labor Relations industrial and labor relations. The award was Institute, Inc. presented by ILR School Dean Harry C. Katz at a banquet celebration at the Grand Hyatt Fellow Louis Kushner, from the Pittsburgh Hotel in New York City on March 29, 2007. law firm of Rothman Gordon, has been named one of Pennsylvania Super Lawyers for 2007, Thompson Designated Chair of OSHRC listed in The Top 100 Pennsylvania Super On June 20, 2007, the President designated Lawyers, and listed on the Top 50 Pittsburgh Fellow Horace A. “Topper” Thompson, III to Super Lawyers. serve as Chairman of the Occupational Safety The American Inns of Court members have and Health Review elected Fellow John W. Robinson IV, of Fowler Commission, an inde- White Boggs Banker in pendent Federal adjudica- Tampa, Florida, as trustee tory agency created under for the 11th Circuit for a the Occupational Safety three year term. The and Health Act of 1970 to American Inns of Court decide contests of citations foster legal excellence and resulting from OSHA professionalism through inspections of American almost 300 local chapters work places. or Inns. Mr. Robinson is “Topper” Thompson Prior to joining the Board Certified in Civil Commission in June of last The Newsletter Trials, Business Litigation year, Thompson, a life-long resident of New and Labor and Employ- Orleans and the Mississippi Gulf Coast, lived Committee continues to John W. Robinson IV ment Law. with his wife Susan in Pass Christian, Mississippi. strongly encourage all Fellow Don Slesnick, managing partner of During his entire 38-year career as an attorney, Fellows to the Law Offices of Slesnick & Casey in Coral he concentrated his practice in labor and Gables, has been named a 2007 Super Lawyer, employment law, with a focus on occupational submit for publication included in this year’s edition of Best Lawyers in safety and health law. any honors, America, named one of the “Top Lawyers” in South Florida and recently elected to his fourth College Fellows Convene accomplishments or term as Mayor of Coral Gables, Florida. Fellows convened for the 9th Annual Labor- Management Conference sponsored by the New other notable Fellow Don Spero’s article, “Coverage of the England Consortium of State Labor Relations relative information. Fair Labor Standards Act, What Connection, Agencies in Portland, ME on July 12-13, 2007. With Commerce Brings an Employee Within Shown below are, seated, Mark Broth (manage- the Coverage of the Fair Labor Standards Act,” ment, Manchester, NH) and Richard Molan was published in two parts in the May and June (labor, Concord, NH); standing are current or issues of the Florida Bar Journal. This is the former co-chairs of the ABA Committee on State fourth time that he has been published in this and Local Government Collective Bargaining journal. Don is a mediator and arbitrator from and Employment Law, namely Parker Denaco Palm Beach Gardens, Florida. (Dover, NH, former neutral co-chair), Jim Waks Selected for Cornell’s 2007 Groat Award Allmendinger (Concord, NH, current labor Fellow Jay W. Waks, partner in the Litigation co-chair) and Allan Drachman (Wayland MA, Department of the New York office of Kaye former management co-chair and now a neutral). Scholer and Chair of the firm’s Employment & Labor Law Practice, has been selected to receive the 2007 Groat Award given by his alma mater, the School of Industrial and Labor Relations (ILR) of Cornell University. The Judge William B. Groat Alumni Award has been awarded annually since 1971 to honor distin- guished graduates who Jay Waks have demonstrated out- The College of Labor & Employment Lawyers Page 11

THE COLLEGE WOULD LIKE TO ACKNOWLEDGE THE PASSING OF FELLOW BILL GARDNER

ellow Bill Gardner passed away May 15th at the age of 73. He was an Honors graduate of the FBaylor School in Chattanooga, a Phi Beta Kappa graduate of the University of Alabama and an Order of the Coif graduate of the University of Virginia Law School. A fifth generation Alabama lawyer, he practiced law his entire career (since 1959) with the Cabaniss, Johnston Gardner Dumas & O’Neal law firm in Birmingham. In addition to being the only lawyer in Alabama to be elected a Fellow of the American College of Trial Lawyers, he was also named in Best Lawyers In America, America’s Leading Business Lawyers, International Who’s Who of Business Lawyers and the International Who’s Who of Labor & Employment Lawyers. Mr. Gardner was also recognized as one of the best labor defense attorneys in the nation by the National Law Journal, and had over 140 published decision in cases where he served as the principal Bill Gardner attorney. He is survived by his wife, two sons, their wives and five grandchildren. Mr. Gardner practiced law and guarded his family guided by the phase, amat victoria curam (victory favors those who take pains). His friendly demeanor, intelligent insights, and unique sense of humor will be missed by all those who lives he touched.

REGIONAL MEETING UPDATES

The Honorable Rosemary Collyer, US District three times per year, and tentatively decided to Court Judge for the DC Circuit, spoke at the follow the New York “model” of scheduling a DC/ Baltimore Area Regional Fellows Meeting substantive program (for CLE credit). on May 31, 2007. Approximately thirty Fellows attended the reception at the offices of Gibson Upcoming meetings include the 7th Circuit, Dunn & Crutcher, which was held in conjunc- to be held in Chicago, the 9th Circuit South, tion with the Board of Governors’ meeting on taking place in Los Angeles on January 17, 2008, June 1st. the 2nd Circuit/Northern New Jersey Regional Meeting at the offices of Epstein Becker & Green The Fellows of the Third Circuit had their in New York City, on November 5th and the first regional meeting at the offices of Ballard Ohio Fellows meeting, which will take place on Spahr Andrews & Ingersoll, LLP in Philadelphia. November 30th. Please contact Susan Wan at Sixteen Fellows attended included Fellows from (202) 955-8225 for more information about Pittsburgh and Liberty Corner, New Jersey. The these upcoming regional meetings, or if you are group agreed to try and meet approximately interested in planning a meeting in your area. Page 12 Fall/Winter 2007

(cont’d. from pg. 2)

NATIONAL ACADEMY OF ARBITRATORS POLICY STATEMENT ON EMPLOYMENT ARBITRATION SAN FRANCISCO, MAY 27, 2007 It is the position of the National Academy of Arbitrators that voluntary arbitration is always preferable, and that employees should be allowed to opt freely, post-dispute, for either the courts and administrative tribunals or arbitration. The abiding concern of the Academy is that all arbitration, including employment arbitration, be conducted in a manner that respects the rules of fundamental fairness essential to the integrity and credibility of the arbitration process. When serving in cases in which, as a condition of employment, an employee has signed an agreement that imposes arbitration as a substitute for direct access to either a judicial or adminis- trative forum for the pursuit of statutory rights and judicially recognized claims for relief, arbitrators should ensure the fairness of any employment arbitration procedures in light of the Academy’s Guidelines for Employment Arbitration. The Academy believes that the Policy Statement and Guidelines are of importance, not only to arbitrators, but also to all attorneys in the labor and employment fields so as to ensure the fundamental principle of fairness in which we all believe.

Newsletter Staff Board of Governors Don MacDonald, Editor Joel C. Glanstein, New York, NY –President Wendy L. Kahn, Contributor Lonny H. Dolin, Rochester, NY– Vice President Spencer H. Lewis, Jr., Contributor Barry J. Kearney, Washington, DC – Secretary William J. Kilberg, Washington, DC– Treasurer Susan Wan, Executive Director Donald J. Capuano, Washington, DC Joel A. D’Alba, Chicago, IL Hope B. Eastman, Bethesda, MD Margaret A. Harris, Houston, TX Kathy L. Krieger, Washington, DC The College of Labor & Spencer H. Lewis, Jr., New York, NY Employment Lawyers Adele Rapport, Washington, DC 1050 Connecticut Ave., NW Mark S. Rudy, San Francisco, CA Suite 300 John E. Sands, West Orange, NJ Washington, D.C. 20036 Robert A. Siegel, Los Angeles, CA (202) 955-8225 Telephone Paul H. Tobias, Cincinnati, OH (202) 467-0539 Facsimile Maurice Wexler, Memphis, TN www.laborandemploymentcollege.org

The views expressed herein are not necessarily those of The College of Labor and Employment Lawyers, Inc.