he should calm himself and take whatever tablets are required for the purpose. >> lawrence sill berman served as the undersecretary of labor during the nixon administration. mr. silberman discusses that era and osha. up next are excerpts from his interview. >> it's july 31, 2009 in washington, d.c. and i have the honor and privilege to interview judge laurence silberman. tell me how derek bach got you

to hawaii. >> i was going to clerk for a federal district judge in newark and come to a law firm in washington the following year. derek had recommended me to this federal judge. i was particularly interested in practicing labor law, and this federal judge had been roosevelt's labor counsel and it was well-known. his name is minden laurel, two weeks before i was to arrive as a law clerk, he died, which left me with a wife, two children, and no job for a year because my arrangement with the washington firm was the following year, and they had no opening immediately. derek found me in the library, i believe, at the business school

where i was writing a paper, and asked whether i'd be willing to go to hawaii. the only other alternative at the time, which sort of interested me but not my wife, was helping the nigerians write their constitution. she did not want to bring two little children to lagos and i told derek i'd never been west to cincinnati. he went along at great length about hawaii where he spent two years in the air force as a jag officer. hawaii had just became a state in '59, and the law firm that had approached him did all of the corporate labor work in the state and was largely composed of harvard law school graduates. so i agreed to talk with them, and they offered me a post. i think it was understood that if i didn't like it after a year, i'd come back to

washington. that would be my clerkship year, but i loved it and stayed and became a partner. >> how did you make the decision to come to washington to join the national labor relations board? >> in the aba convention in 1967, in the summer of '67, the general counsel of the national labor relations board, arnold orderm ordman and steve gordon came to my house for dinner. we had a good deal to drink, and they broached the possibility that i would come back and argue appellate cases for the section of the general counsel's office that defended the board decisions in the courts of appeal. i had won several cases in the ninth circuit against the board.

i suppose they thought it would be a good idea if i came back and sent some time arguing for them, and they also mentioned that they were under investigation by sam irvin's committee for being too pro-union. i thought it a good idea to have a open republican and management lawyer, corporate lawyer, come on to work for them for a while. so i aagrgreagreed, and i resigm my firm and my wife and three children at that the point came back to washington. at a substantial reduction in income, which my wife lamented after a while. >> had you missed -- well, you had not been in washington,

but -- >> yes, i had. i had always felt -- i graduated from harvard law school in '61, which was the time when the kennedy administration came to washington. many of my classmates came into government one way or the other. i was a republican. i wasn't anxious to serve in the kennedy administration, even as a young special assistant. but i did feel that i had some obligation to serve time in government, and so this was an opportunity to come back as ail civil servant. >> well, a republican does win in 1968, and how is it that you come to become the solicitor-general? >> solicitor of labor. >> solicitor of labor. >> well, it was peculiar. i had a rabbi, so it to speak, by the name of mcginnis, ken mcginnis, who was a lawyer who had been associate general

counsel in the eisenhower administration, and we had gotten to know each other. i think i was one of two lawyers in the nlrb who wore a nixon button in the time coming up to the election. everybody else was waearing humphrey buttons. and i was rather well-known in the west coast legal circles. so i had been recommended and i had applied for a political appointment, but i was thinking of a special assistant. i was only 32 or perhaps a deputy general counsel or something. rather to my surprise george schultz called me up, asked me to come over to be interviewed. i was surprised to realize he

was talking about the post of solicitor of labor. i had an advantage. i looked five years older than i was. the second advantage is that i was known republican and a corporate lawyer who had taken a year's rinse, neutral rinse as an lrb lawyer, so i was a unique commodity for tu yusly. george and i hit it off immediately, and he asked me to be solicitor of labor. >> you hadn't encountered him during the period? >> no. he was dean of the chicago business school, and he had served in the eisenhower administration when i was in college and law school -- or college. yeah, and then law school, too. >> the relationship with george schultz would be very important in your political -- your professional career. tell us about him as he's becoming secretary of labor.

what did you observe of him? how did you get to to know him in this early period? >> george is a fascinating man. he's very wise. he's very thoughtful. he's not flashy. perhaps not brilliant, but very smart. as i said before, very wise. he had the habit of listening carefully to a presentation not saying a word until you were finished, and then he would respond with a very thoughtful and sometimes critical response. you couldn't break back in

again. so i would occasionally feel, damn, i should have said that the first time. he taught me a great deal mostly about economics, because i -- when i went to harvard law school, economics was not as well understood by legal academics as it subsequently became by virtue of the influence of chicago school. but i learned my economics from george schultz sxwrand jeff moo and arthur laffer. and then i would pick up textbooks and read as much as i could. but i had enormous respect for george and do today, and i'm

enormously fond of him. >> when you come to the department, how long does it take for your -- before you find yourself thinkinging a and talk about the philadelphia plan? >> well, it was pretty quick. i should set the stage a little bit by saying george had recruited what he thought was a very talented group of assistant secretaries levels. and undersecretary jim hudson. i have to confess that arnie weber and i clashed almost from the beginning. arnie once said to me at a party

at george's house that george had recruited an enormously tal ented group of people to run the department without regard to politics, until it came to solicitor and then he had to have a republican. it was true that i was the most republican of all the presidential appointees in the labor department, other than george himself and probably more conservative than george in some up respects. so it's with this background that i have perhaps undue influence on the philadelphia plan and affirmative action, since i take a position which is perceived to be the on the left and since i'm the most conservative one, it has perhaps

added credibility. but what happens was the comptroller general, to make a long story very short, had declared that the -- well, the -- the philadelphia plan was defective in that it was too imprecise against which contractors would have to bid. and i came up with the idea of coming up with goals and timetables for minority recruitment and employment. that would add specificity, and then came up with the theory that this would not be in violation of the civil rights acts because it was goals rather than quotas, which as i've subsequently confessed was a

distinction more cleavver than real. the comptroller-general issued an opinion declaring my position illegal. i had previously gone to george schultz, of course, to explain my position to persuade him. he was a little nervous at the time because admittedly it was rather bold. but george was interested, as was i, in two things. no, i was particularly interested in providing asimulation. i had been shocked coming from hawaii to washington at the sense of racism and the year before we had had the riots in washington, which had an enormous impact on me. so nondiscrimination didn't seem adequate to me.

i thought the government should push harder for assimilation. george aagrgreed with that, but was also concerned about wages in the construction industry, and was concerned about governmental policies just as davis-bacon that prevented african-americans from getting adequate employment in the construction industry. so both of those factors influenced him, and i persuaded him that our position would be sustained legally and politically. well, after the comptroller-general issued a new opinion declaring that our philadelphia plan was illegal, the fat was in the fire. i went to see bill hrehnquist,

who was the assistant attorney general for the office of legal counsel, because i had told george that the best thing for us to do was the get an opinion from the attorney general. i had concluded that the comptroller-general had enormous power or was perceived to have enormous power because government employees engaged in government contracting were desperately afraid of taking on what he said he was illegal because of personal liability. i concluded that personal liability could not be enforced until the the attorney general per su p pursued it, since the comptroller-general had no legal authority to pursue anybody. so i figured i'd trump the

comptroller-general by going and getting an opinion from the attorney general. leonard was the assistant attorney general for civil wars and he was with me 100%. the question was how to persuade bill rehnquist. i went over and had a session with him and persuaded him. he was a little dubious, but i persuaded him. mitchell sent an opinion to schultz declaring the philadelphia plan legal, at which point then the aflcio, which was violently opposed to the philadelphia plan at that the point, violently opposed to goals and quotas in the employment, went to congress. about the same time senator

curtis and ruska, i think it was, sent a letter to nixon bitterly attacking me and urging my replacement. at which point george schultz asked me to give a one-page memo, come up with a one-page memo to be provided to nixon defending the philadelphia plan. i stayed up with my executive assistant john irving all night to write that one-pager. and in the defense i relied on with some imagination, creativity, the statement he had made as vice president under eisenhower using the term "affirmative action."

i sent that to the president. there was certainly people in the administration, not us, not the labor department, but people in the administration who thought it took some satisfaction out of the fact that the philadelphia plan and its ensuing initiatives divided the aflcio and the civil rights groups. in any event the aflcio had gone to congress to take away our funding for the philadelphia plan or like plans. the senate passed a rider to the appropriations bill disapproving the philadelphia plan or like plans.

boy, i was up against the wall. at that point i got a phone call from an editorial writer at t"te washington post" by the name of mckenzie that i think subsequently went to "the new york times." i understand you're up against the wall or about to go down the drain, but i want you to know, i'm going to save you. the next day there was an editorial in "the washington post" blasting or at least criticizing the civil rights groups for not standing up for the philadelphia plan because of pressure from the aflcio. at which point, the leadership of the civil rights, particularly joe rowe, as i recall, went into action at the house and killed the appropriations rider. thereafter the philadelphia plan

was challenged in federal district court in philadelphia, i think it was, and then up through the third circuit. we prevailed. in those days you couldn't lose on the left side of any civil rights issue. >> what role did arthur fletcher, assistant secretary, play? >> that's a fair question. i gave the philadelphia plan rationale to art fletcher, who was the assistant secretary for the office of federal contract compliance. art was an african-american, lieutenant-governor candidate as i recall in kansas, republican, but very interested in doing all that he could to enhance the republican party's image in civil rights, particularly in light of the southern strategy in the '68 election. i think that was part of my

thinking, too. and when we came up with the idea or i came up with the idea of the philadelphia plan, art thought it was from heaven. he jumped a little too quickly because i had urged him to first have a hearing finding discrimination in philadelphia. i think he anounsd tnnounced th and had the hearing afterwards, which was a bit dicey, but we got by. >> finding discrimination was important, was not it, to the rationale you provided bill rehnquist? wasn't that important for making the legal case? that you already found discrimination? >> yes, yes. but it was a little thin. the truth of the matter is the essence of the affirmative action plan was to take the statistics and come up with with

an idea that would generate greater participation on the part of african-americans. we said blacks in those days. in the various construction industries. we didn't care that much about the discrimination. that was more of a fig leaf, as we did think one -- i should say one ver persuasive to me i ran over and think back to what was right. it's not that we like to discriminate against blacks. we discriminate against everybody who is not in the family. in other words, the steel workers or the iron workers or carpenters would be limited to family members. so in that sense there was discrimination, but the truth of the matter is there were very few blacks that were family

members. >> please tell us a bit about labor order 4. >> well, of course, having spread affirmative action plans in the construction industry like johnny appleseed all across the country, the next year i became undersecretary of labor. we turned our attention to the whole industrial world and using the same peg, government contracting, we imposed an affirmative action obligation on -- which included goals and timetables for the recruitment and promotion of black americans on all industry that dealt as government contractors. when we were writing order number 4, pete nash had succeeded me as solicitor. i recall his sitting in my

office when i was undersecretary, and we were going -- by that time i was becoming more and more nervous about the straight quota notion. just the straight population and remedy based on the population. we ended up adding about five or six or seven other factors in there so that we weren't dealing with total quotas, although it was more apparent than real. >> you mentioned in describing art fletcher concern about the southern strategy. i assume just to unpack that for the person -- people listening, it was your concern that by trying to appeal to conservative democrats you would be losing the opportunity to open the door to more minority representation of the republican party? >> exactly right. many of us still thought of the

republican party as the desce descendant of abraham lincoln. although di-- we felt a little bif lent aboto nixon's appeal o the so-called strategy. there was always a question whether the southern strategy had a racial element, and we were anxious to rebut that. >> when you were doing labor order 4, there was some pressure on you to include women. could you tell us about that and then the decision to come out with a revised label order 4, or labor order 4 revised a year later, i think? >> i'm trying to remember what the revision was. >> i think discrimination on the basis of gender was added. >> did we add that? >> yeah. >> we didn't have goals and timetables for women, did we?

>> no. >> i don't think we did. i remember there was ayodele gags of women that came to see me when i was undersecretary. ruth ginsberg may have been one of them, but i can't remember for sure. which they -- in which meeting they demanded they focused on the skrukconstruction industry. you don't mean to suggest we would end up with a plan that hire 50% women as operating engineers on steel girders in new york? yes. it was sort of, if you build it, they will come, to use the phrase from a movie.

if you demand 50% women, they'll come. i said, wait a minute, there's no showing that women are available to perform jobs such as this. i think that's sort of ridiculous. they went out quite angry, and i was subsequently described in "esquire" magazine and "the washingtonian" as a notorious mail chauvinist pig. and i had been abrupt and rude to women that came to talk to me about this.chauvinist pig. and i had been abrupt and rude to women that came to talk to me about thimal chauvinist pig. and i had been abrupt and rude to women that came to talk to me about thie chauvinist pig. and i had been abrupt and rude to women that came to talk to me about this. one of the my assistants wrote to the magazine that's not fair. he's not discriminatory. he's abrupt to everyone. i said thanks a lot. i guess we did include the revision the next year, but without the goals and timetables for women. my view then -- i remember

telling this to those women. i did not deny there was discrimination against women in the workplace, but i was quite convinced that if we could eliminate discrimination against women, you would not need, we would not need the same kind of push towards integration that we needed for african-americans. that if you eliminated discrimination in many areas of our society, you would end up with virtual parity. i turned out to be correct in law, medicine, but it will never be true of operating engineers or paratroopers. let . >> let's talk a bit about your role in shaping osha, please. i read in june of 1970 over four days or so you met with members of the labor committee, democrats from the labor committee to try to hammer out a

compromise bill. could you tell us about the back story to that and what ensued? >> george schultz decided early on in '69 that we should come up with an initiative to deal with occupational health and safety, which was very much a concern of many in the congress. jim hodson was in charge of developing the legislative program, and i suppose as solicitor i played a rather key role in drafting and supervising the drafting of the legislation. we had many meetings on it.