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XXXXX-CLEL Newsletter Summer 03 Fall/Winter 2007 Newsletter THE COLLEGE OF LABOR & Vol. 9 No. 2 EMPLOYMENT LAWYERS 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, Chicago, 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 Arbitration. 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.
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