Where We've Been
A Foundation in Labor
Seventy years old and counting, Bredhoff & Kaiser is the direct successor of Goldberg, Feller & Bredhoff, a firm founded by three labor lawyers who wished to practice law in an environment of collegiality and open intellectual exchange—more like a workshop than a hierarchy.
The senior partner of that firm, Arthur Goldberg, was general counsel to the Congress of Industrial Organizations (CIO) when he and the other two named partners formed the firm in 1952. That same year, Goldberg argued before the Supreme Court on behalf of the United Steelworkers of America in Youngstown Sheet & Tube Co. v. Sawyer, commonly known as the Steel Seizure Case. In an opinion still cited for its discussion of the scope of Executive Branch authority under our system of separation of powers, the Supreme Court held that President Truman exceeded his authority when he ordered the seizure of multiple steel companies to manage a major labor dispute.
Goldberg was not merely known as an accomplished appellate litigator; he enjoyed at least equal renown as a labor movement statesperson. In that role, he was instrumental in creating the AFL-CIO through the 1955 merger of the CIO and the American Federation of Labor.
Recognizing Goldberg’s achievements both in the labor-management relations arena and in the law, President John F. Kennedy appointed him Secretary of Labor in 1961 and then, eighteen months later, to the position of Associate Justice of the Supreme Court in 1962.
Elliot Bredhoff and David Feller, the other founding partners of the firm, were also leading lights of the labor bar. Among their many accomplishments, they helped establish the centrality of binding arbitration to the American system of collective bargaining through their work briefing and arguing the seminal “Steelworkers Trilogy,” three cases decided by the Supreme Court on the same day in 1960.
In 1967, David Feller left the firm to join the faculty of the University of California, Berkeley Law School. Elliot Bredhoff remained with the firm and served as the General Counsel of the Industrial Union Department of the AFL-CIO. The firm became known as Bredhoff & Kaiser in 1981.
The Rise of the Public Sector
The mid-1960s saw the widespread enactment of state legislation that, for the first time in American history, permitted public employees to engage in collective bargaining. In response, the firm expanded beyond its industrial-union client base to include public sector unions. Among the new clients from that era were many local public-safety unions, as well as the National Education Association—now the largest teachers’ union in the country and still a major client of the firm.
During this period of tremendous growth in public-sector unionism, Bredhoff & Kaiser attorneys briefed and argued numerous pathbreaking cases, including Perry v. Sindermann and Mt. Healthy City Board of Education v. Doyle. In Perry, the Court held that expectancy interests in continued employment, created by governmental customs, policies, or understandings—and not just formal statutory or contractual provisions—can trigger procedural due process protections for public school teachers, entitling them to a hearing before being discharged or nonrenewed. In Mt. Healthy, the Court held that if a government employer acts against a public employee for a combination of unconstitutional and permissible motives, the burden of proof is on the government, if it wishes to avoid liability, to establish that it would have taken the same action in the absence of the unconstitutional motive.
Safety and Security for All Workers
In the first half of the 1970s, Congress passed important legislation to protect workers. The Employee Retirement Income Security Act (ERISA) ensured, among other things, that employer pension promises could no longer be treated as mere gratuities that could be revoked at will. The Occupational Health and Safety Act (OSHA) created a federal regulatory regime aimed at making the workplace safer.
While developing expertise in new areas and representing new types of clients, the firm continued to work for its original, industrial-union clients. In the landmark 1979 Supreme Court decision of Steelworkers v. Weber, the firm successfully argued that race-conscious affirmative-action programs could be adopted in the private sector without violating Title VII of the Civil Rights Act.
Expanding Our Range
Beginning in the mid-1970s, the firm significantly expanded its capacity for trial-court work, aided by a number of lawyers who joined the firm after working for the District of Columbia Public Defender Service. The firm’s trial-court litigation practice began to grow, and both union and other clients regularly called upon the firm to handle complex civil litigation as well as certain criminal matters.
By the 1990s, civil litigation in trial courts accounted for the majority of the firm’s work. The firm’s reputation for high quality trial work was confirmed when our attorneys obtained a defense verdict in favor of a union client, before an Alabama jury, in a civil action brought under the federal Racketeer Influenced and Corrupt Organization Act (RICO).
While the firm’s trial practice constituted the area of the greatest growth in the firm’s fourth and fifth decades, the firm’s appellate practice continued to flourish. By the firm’s 50th anniversary in 2002, Bredhoff & Kaiser lawyers had argued over two dozen cases before the Supreme Court (including some still featured in Labor Law and Constitutional Law textbooks), submitted even more amicus briefs in the Supreme Court, and argued many times that number of cases in the federal courts of appeal. Despite the firm’s small size, the firm’s lawyers had argued cases in every one of the nation’s thirteen federal circuits.
And just as the firm was increasingly handling trial court litigation for clients other than unions, it also was handling appellate litigation for non-union clients. In one notable example, Bredhoff & Kaiser represented the estate of activist and radiation victim Karen Silkwood (played by Meryl Streep in the 1983 film, “Silkwood”). In Silkwood v. Kerr McGee, the firm’s lawyers persuaded the Supreme Court to reject a lower court decision holding that federal laws regulating the nuclear power industry pre-empted the award of punitive damages that Silkwood had received from a state-court jury. In another Supreme Court case, New York Times v. Tasini, the firm vindicated the intellectual property rights of freelance journalists whose articles, after being published in a newspaper, were later placed in electronic databases and sold as individual pieces separate from the broader publication in which they first appeared.
Committed to Change
The firm’s history is more than a recitation of its past accomplishments; it is the foundation of our ethos to this day. Never content to rest on our laurels or stick to what we already know, we continue to respond to changes in the legal landscape, just as we responded to the new public-sector collective-bargaining laws in the 1960s and the addition of new federal regulation of employee benefit plans in the 1970s. We are, in short, committed to change, even as we are determined to maintain the collegiality, informality, and spirit of intellectual exchange that have been constants since the firm’s formation.