Washington Lawyer

Legends in the Law: Betty Southard Murphy

(Appeared in Bar Report, October/November 1996)

A specialist in U.S. and international employment law, Betty Southard Murphy is the only person to have served as both chairman of the National Labor Relations Board and administrator of the Wage and Hour Division of the U.S. Department of Labor. Her five additional Presidential appointments include the Commission on the Bicentennial of the U.S. Constitution on which she chaired the International Advisory Committee and the International Center for Settlement of Investment Disputes. A partner in Baker & Hostetler since 1980, Murphy has tried cases in 25 states, and has appeared in nine U.S. Courts of Appeals, and the Supreme Court.

Bar Report: Tell us something about your background.
Betty Southard Murphy: My roots are in New Jersey and Ohio. I was born in East Orange, N.J. and brought up in Atlantic City with two brothers, Samuel and Harry. One of my ancestors was Samuel Lewis who was the son of Henry Southard and the brother of Isaac Southard. All three of them represented New Jersey in Congress at that same time, Henry and Isaac in the House, and Samuel in the Senate. Samuel had been president pro tempore of the Senate and became permanent president when Tippecanoe [William Henry Harrison] died and John Tyler became President. Samuel would have become President under the then succession rules if Henry Clay’s plan to force John Tyler to resign had gone forward. Although Clay was behind the mass resignation of Tyler’s Cabinet, Samuel did the right thing. He moved his supporters away from Clay and Tyler finished his term.

BR: What about your Ohio roots?
BSM: I lived in Atlantic City on and off until I went to Ohio State University. My father died when I was very young, and one of the reasons I became a lawyer was because my mother had never worked. She would always say to me, "You have to have a skill or a profession because what are you going to do if your husband dies or can’t work and you have to support your family?" At first she wanted me to be a schoolteacher, but later when I mentioned law, she gave me tremendous encouragement.

I went to Ohio State because my mother’s family was deeply rooted in Ohio and my Uncle, Don M. Casto, paid for it. I majored in Asian Studies. Then I had a small scholarship to study at the Sorbonne and the City University in Paris. While in Paris, my Uncle gave me an airplane ticket to go around the world, one that I couldn’t cash in. He told me that nobody was going to send me any money, and I had $600 which I had earned. He thought that I would be gone two or three weeks, but it was almost a year later that I showed up.

What I did was write articles along the way, short and funny articles on French Student Life or Teheran or the Pyramids or wherever I happened to be. I’d send the article to 10 or 15 newspapers in different circulation areas in the United States. If they bought it, they would send the money ahead to the next American Express, where I received my mail. And if they didn’t buy it, the money wouldn’t be there.

BR: What brought you to Washington?
BSM: I came to Washington because I always wanted to live in Washington. I applied for jobs writing everywhere; nobody would hire me. I kept going back to UPI, because I had done some stringer work in India for UPI, but I didn’t really know anybody there. I think they eventually hired me to get rid of me.

BR: Why did you decide to go to law school?
BSM: Charlotte Moulton who was covering the Supreme Court for UPI told me that she was going to be leaving the court in a year for a desk job. I thought, "Gee, I’m going to get that job!" which was very egotistical of me since I was just starting out and didn’t know anything about it. I decided that to get an edge I would take a couple courses at Washington College of Law [at American University] evening division. I took Constitutional Law and Legislation. I really liked it, so I started a second semester in the evening division.

Then my hours at UPI were changed. I would be working as a reporter from 10 am to 7 pm, so I couldn’t go to day school or night school. When I told one of my professors, Dr. Edwin A. Moores, that I would be dropping out, he said,"Miss Southard"—I wasn’t married then—"if you got a scholarship would you continue full time?" I said "Yes," and the next night when I went in he said, "Oh, Miss Southard, I have good news. You’ve been awarded the Dean’s Scholarship." I never filled out a piece of paper, never filled out an application, but it never dawned on me to question him. I didn’t find out until I had been practicing for several years that there was no Dean’s Scholarship. Dean John Sherman Myers, the person for whom the new law school is named, paid for my tuition out of his own pocket. He’d been a very successful Wall Street lawyer and he and Mrs. Myers gave the law school $8 to $10 million. Years later, I heard a rumor and at a luncheon I went up to Dean Myers and said, "Dean Myers, did you pay my way through law school?" He became angry and finally said, "I never wanted you to find out." I said, "Why?" but he never gave me a reason.

BR: What happened after law school?
BSM: I never went back to UPI. When I was getting ready to graduate, Dr. Moores and Dean Myers said I had to decide whether I wanted to be a reporter with a law degree or a lawyer with a reportorial background. I decided it would be fun to be a lawyer. I must have graduated at the right time because I think I was offered something like 12 or 15 jobs in the government plus eight or nine jobs in law firms. I have to tell you that I was offered all these jobs because I spent about six months applying everywhere that hired lawyers. I didn’t have any contacts, so I went around calling up lawyers to ask for advice, not jobs. One lawyer I met this way was William A. Roberts, a prominent and well-respected lawyer with the firm Roberts & McInnis. He advised me to accept an offer from the National Labor Relations Board because they had the best supervisors in the federal government. Whether I learned anything about labor law wasn’t important, he said, because I’d learn how government operated which was important. I followed his advice and stayed at the NLRB for 18 months.

BR: What did you do at the NLRB?
BSM: I was very fortunate to be in the court-going section, the Enforcement Section, which does appellate work. I started work in July and by October I had my first appellate argument. That would never happen in private practice; I had two appellate arguments my first year out of law school.

My first argument was in the Seventh Circuit in Chicago and my second argument was in the Second Circuit in New York City. A garment maker in Brooklyn employed 18 Puerto Rican seamstresses who told him they wanted to join a union. He said, "What? You want a union! You’re fired!" It was such a simple case anybody could have won it. When I arrived at court, the clerk told me that my opponent wasn’t going to be there and asked what I wanted to do. I called Washington and the assistant general counsel said to argue the case anyway. So I argued the case, and when I was gathering up my papers the chief judge said, "Counsel, now the court would appreciate it if you would argue your opponent’s case as fully as he would have done if he could have been here." I went ha-ha-ha, but nobody else was laughing; he was serious. Well, you know the weaknesses in your own case, and even though it was what-you-want-a-union-you’re-fired, there were still credibility weaknesses, timing problems, and so forth. But a sense of fair play took over and I pointed out every weakness in the Board’s case, every weakness in the judge’s credibility findings, all the things that were wrong with the Board’s case… Then I worried all the way back to Washington that the 18 seamstresses were not going to get their jobs back because of me. I was really upset. The general counsel called me in and said, "I understand that you’re worried about these seamstresses. Well, Betty, I want you to look at this one way and one way only: No matter which way the court rules, you can’t lose." Fortunately, the Board won.

BR: Where did you go after the NLRB?
BSM: In 1960, I went into private practice with Roberts & McInnis, which had about 30 lawyers at that time. I was with the firm [which later became Wilson, Woods & Villalon] for over 12 years and made partner within two years. My first case taught me a lesson that I tell younger women today. It involved a government condemnation of a building, a question involving the rights of stockholders and bondholders. I was asked to write a memorandum to support the stockholders. I spent a lot of time on it, maybe three weeks and I was very proud of it. Colonel Roberts, as he was called, came in to review it on a Saturday morning and I went in to get praised. I sat on the edge of my chair while he read it.

When he finished, he picked it up, looked at me, and said, "This has to be the worst memorandum of law I have ever read in my entire life," and threw it in the wastebasket. I was stunned. What I had done was to write everything there was to write about stockholders’ rights, but I hadn’t focused on the issues that he wanted. He called his secretary in because it was due on Monday. My job that day—since he would never go into the library—was to go back and forth to the library to bring him books while he dictated it. I knew he had no motive for tossing my memorandum in the wastebasket except I had written the worst one he had ever read in his life. Now everyone speaks more carefully; then, he just told me the truth. It was very beneficial—and he didn’t have to tell me twice.

BR: What type of cases did you handle?
BSM: A great deal of litigation, labor matters, and many newspapers and prominent reporters in libel defense matters. Trailways Bus Company was a good client. Bill Roberts and Charles McInnis themselves owned or partially owned some Trailways lines. Along with everybody else in the firm, I handled every possible case you can think of for Trailways, from rate cases to labor, and defended their companies in all local courts in cases ranging from negligence to pollution to bus drivers accused of raping charter passengers. I should have paid them.

BR: What type of labor law did you do?
BSM: We handled employment law matters for major companies across the country as well as for various unions including the United Paperworkers and Papermakers. My partner, Warren Woods, was a brilliant lawyer and outside general counsel for the union which later became United Paperworkers International Union. I had the good fortune to represent companies as well as unions—not in the same case, but in the same field. The clients liked it very much. If I told the union it should drop a grievance because it didn’t have any merit, they thought I knew what I was talking about because I represented companies. Conversely, if I told a company that a union demand was equitable and should be granted without a fuss, they would do it for the same reason.

I also worked on a substantial number of civil rights cases. We defended companies and unions in Title VII cases all over the United States. Sometimes the cases were brought by the Department of Justice, sometimes by the EEOC, and sometimes by the NAACP Legal Defense and Education Fund, Inc.—called the INC Fund. Although the INC Fund lawyers and I were opponents, we worked together to reach fair and equitable results. My firm was involved in most of the cases concerning the paper industry.

BR: Tell us about the union Title VII cases.
BSM: Cases like Crown Zellerbach, (416 F.2d 980, 397 U.S. 919); Acuff v. UPP, 404 F.2d 169 (394 U.S. 987); Moody v. Albemarle, 474 F.2d 134 (1973), 422 U.S. 405 (1975), and a host of others never went to trial, but they changed the whole work structure and social environment in the paper industry and had great impact on other industries as well. Although the company lawyers changed from case to case, the plaintiffs’ lawyers and the union’s lawyers were almost always the same so we grew to know each other very well. Once I asked the INC Fund lawyers why they brought so many cases against the paper industry. They replied that they didn’t have a lot of money, that they wanted to use it the best way. So they picked an industry where they thought there was discrimination, where good records existed—and who would have better records than paper companies?—and, equally important, where the union lawyers were well-respected and honorable.

In many instances in the late ’60s, early ’70s, minorities were limited to certain jobs in the mills. There were two locals, one black and one white, neither of which wanted to be merged with the other. I was sent to convince them in a nice way to merge. It was a very difficult time because the employees did not always know what job they would do when they came to work that day. Sometimes their jobs were based on plant seniority, sometimes on job seniority, sometimes on department seniority. The Department of Justice kept changing its mind. Sometimes the unions provided bodyguards for me, but there was never any trouble.

We accomplished great social changes without anybody getting hurt, no one got beat up, there were never any riots, no vandalism—nothing. We opened up the good jobs for all qualified employees. As a result, the companies and the unions both became stronger. I was proud then and I am still proud of the way the employees, the companies, and the unions handled this.

BR: I understand that you also had EEO cases on behalf of women.
BSM: I was involved in a number of cases concerning women in the work force. For example, around 1973 I represented some women at the Department of State which had a rule then that when two employees in the Foreign Service married each other, one of them had to resign. Either the man or the woman could resign, but it seemed as though it was always the woman who did resign. The case was just about pro bono. An American woman serving in the U.S. foreign service in Venezuela started it by writing to me for help. She had married a retired American citizen and had two U.S.-citizen children. Since her husband wasn’t in the Foreign Service, she did not have to resign, but from the time she married she never received another promotion. It was an easy case to win because her file had notations like, "Mrs. ’Blank’ wants the best of both worlds. She wants to be a mother and have a career." Eventually, I had to choose between settling the case with the State Department which offered my client several promotions and also offered jobs to women employees who had to resign when they married—including a good friend of mine named Dorothy Sampas who is now U.S. ambassador to Mauritania. Or I could proceed with a lawsuit which could have resulted in back pay and good sized attorneys’ fees for my firm. I decided that it was in my client’s best interests to settle the case so she could receive her promotions and get on with her life: She wanted to retire in a year. That’s what we did, and there were no attorneys’ fees.

BR: You also did libel defense work?
BSM: My firm represented a number of newspapers, columnists, and reporters. Locally, we represented Jack Anderson, Les Whitten, and Britt Hume. We had numerous cases defending the rights of reporters not to disclose their sources. Once the FBI secretly subpoenaed several reporters’ office and home telephone records. We did not want to file a lawsuit, because when the government is sued it takes too long. So we filed a "Motion to Compel the FBI to Disgorge Telephone Records" which was assigned to Chief Judge John J. Sirica. We obtained an injunction prohibiting the FBI from using the records or contacting anyone whose phone number was on the records. On July 3, 1973, Judge Sirica entered an Order directing that the telephone records which had been turned over to the court "be destroyed by the Clerk of the Court." When the paper shredder wouldn’t work, the records were burned in a wastebasket in the courthouse basement. During Watergate, we defended reporters’ rights to print information from grand jury transcripts, again before Judge Sirica.

BR: How did the job as administrator of the Wage and Hour Division of the Department of Labor come about?
BSM: I was not looking for anything in government at that time. I had my life well-organized. My husband, Cornelius, is a doctor; he would leave the hospital about 4 p.m., pick me up, and we’d go home. We had two small children, Ann and Neil, and a wonderful housekeeper, Astevia Rodriguez, who just celebrated 27 years as a member of the family. Everything seemed to be well-organized, and I was having a good time. It was during the Nixon Administration and Bill Kilberg, who was at the Department of Labor , recommended me to Labor Secretary Peter Brennan, a Democrat, who asked me to become Wage-Hour administrator. I said I don’t know, I have small children … He said, "You a Republican?" I said, "Yes." He said, "Republicans are leaving the government. You should come in and help." I was confirmed in early May but I had two trials coming up in U.S. District Court in San Antonio. I would never desert a client, so I did not start the Wage-Hour job until mid-July. After President Nixon resigned a few weeks later, I went to Secretary Brennan and said, "President Nixon’s resigned. You don’t need me after all." He said, "You can’t leave, you’re confirmed, you have to stay!" But I was joking. At that point I intended to stay.

BR: What did you do at Wage-Hour?
BSM: The Wage and Hour administrator is responsible for over 70 labor statutes. My rulings had the force and effect of law and could be overturned only by a court of law. It is really an extremely important job with a terrific staff. Early that fall, a recession developed and we were able to save a lot of jobs. I remember a UAW plant in Cincinnati where the union and the company wanted to rotate cutting everybody’s hours and wages to avoid layoffs. The Wage and Hour regional staff had said, correctly, that the exempt status of employees could be lost and Equal Pay Act violations could also occur. The Wage-Hour administrator could take care of that and I did. That’s how the government should operate; it should not be rigid.

BR: How did you wind up back at the NLRB?
BSM: One night when I was in my office at Wage and Hour, the AFL-CIO general counsel telephoned to ask if I had received a call from the White House about the NLRB. I said, "I don’t want to go to the NLRB, it’s a stodgy old agency." The next night the deputy secretary [of the Labor Department] told me the White House was going to call me about becoming chairman of the NLRB. I said I didn’t want to leave Wage-Hour, and I really didn’t. I thought it would be a dull job. Then the director of White House Personnel invited me to go over and talk. I went in and said I wanted to think about it. He said, "Well, you think about it in a couple of minutes because I’m going to take you to meet the President and he’s going to announce his intent to nominate you." He didn’t announce it then, but that’s what I was told he was going to do and I did meet the President.

BR: Why did they want you?
BSM: I think they felt that I was acceptable to unions and to management and it would be an easy confirmation. Both George Meany, president of the AFL-CIO, and the president of the National Association of Manufacturers (NAM) testified favorably at my confirmation, either in person or by letters. I had worked at the NLRB before, at the bottom of the heap, and it was fun to come back as chairman.

BR: What were your biggest accomplishments at NLRB?
BSM: The person who succeeded me, John Fanning, who was appointed by both Republican and Democratic presidents, called my term was the "golden age of the Board" because labor and management worked well together. I formed the Chairman’s Task Force on the NLRB which enabled labor and management to sit down together, not in an adversarial setting, but voluntarily to work out—by consensus—procedural changes to speed up Board processes. I guess it was unusual to have the UAW [United Auto Workers], the IBT [International Brotherhood of Teamsters], and the AFL-CIO sit down with the Business Roundtable, the NAM and the U.S. Chamber—but they did. There were 25 members, many with diametrically opposed philosophies, but they worked out significant procedural improvements. That’s why there was a 30 percent increase in productivity during my chairmanship—with nobody working on Saturdays either.

It was a very proud moment for me when the AFL-CIO, the U.S. Chamber, and the NAM all issued statements when I resigned from the NLRB saying they were sorry to see me go. I had ruled against everybody, but I had no agenda. Sometimes I was wrong, of course. When I dissented, many of my decisions were adopted by the Courts of Appeals. In any event, I felt honored that, after I resigned, business and labor said the same things about me they had said at my confirmation hearing.

BR: What brought you to join Baker & Hostetler?
BSM: Ingrid Annibale, my long-time assistant, and I would have gone back to our old firm except that firm was no more. But we were very fortunate. I announced my resignation from the NLRB on Thursday or Friday, and by Monday afternoon I had queries from a number of law firms and a couple of law schools and a foundation. I wanted to find a law firm that practiced law the way I do, which is to be very honorable, which is you don’t write a 50-page brief when ten pages will do, which adheres to what I call "Midwestern ethics." I looked at the firms—they were all very fine firms—and I appreciated their interest. But even though I was offered more money elsewhere, I joined Baker & Hostetler because of its history and the high esteem in which people held it. I have been here ever since, and it has been exactly what I wanted.

BR: What type of cases do you handle?
BSM: Primarily employment law, but I also do other things. I’ve been outside general counsel for a string of newspapers and do other non-employment law work. The firm has excellent labor lawyers in Washington, including David Grantwith whom I’ve worked since 1980. I have been fortunate in that I have clients who are exceptionally fine people. They have been involved in exciting cutting-edge issues, but I cannot discuss their matters without their permission.

BR: Tell us about your appointment to the Commission on the Bicentennial of the U.S. Constitution?
BSM: During the Reagan Administration I was offered a spot on the U.S. Court of Appeals. I was in Taiwan when the call came, and when I returned, [Senator] Orrin G. Hatch, who is a very good friend, was urging me to take it. It was an election year, and the White House wanted a woman who could get confirmed. They thought I would be able to get confirmed because I had a number of friends on the Democratic side. But I didn’t want to go on the Bench because I thought the lifestyle there would be more sedentary, and I enjoy solving problems as quickly as possible and then moving on to the next one. I went over to the White House and—I say this jokingly—I was fortunate to trade the Bench for the Bicentennial Commission which I really wanted to do. President Reagan had only eight appointments to make to the Commission; the rest were determined by statute. It seemed that every law school dean, every senator, every constitutional scholar, every governor; everybody wanted to be on the Bicentennial Commission. I am still grateful to President Reagan for giving me the opportunity to serve as one of his eight appointees.

In 1986, Chief Justice Warren E. Burger, the chairman of the Commission, resigned as chief justice but remained as chairman. He named me chair of the International Advisory Committee, the only committee without a co-chair. [Senator] Ted Kennedy and [Senator] Ted Stevens were on the International Committee as well. We were very active. Among the projects we did for several years was to hold essay contests and debate contests all over the world. Chief Justice Burger was very conscious of the taxpayers’ money. He didn’t want to waste any, so all of the essay contests and debates that we held in over 60 or 70 countries didn’t cost the taxpayers any money. The Department of State, at the Chief Justice’s request, prepared guidelines for the contests. Local groups chose the subject, so long as it enabled young people to think about freedom and democracy and the benefits of a commercial republic and free enterprise. For example, in Japan the essays compared the U.S. and Japanese Constitutions; in Cyprus it was on what the government should do to foster private enterprise. U.S. Chambers in 14 Latin American countries held essay contests and so on.

BR: You are the chair now of the International Committee of the ABA’s Dispute Resolution Section, you chaired the Civil Rights Committee of the D.C. Bar, the Committee on the Status of Women of the Women’s Bar Association, the Arbitration of Civil Disputes Committee of the Bar Association of the District of Columbia, and you co-chaired the Employment Law Section of the Inter-American Bar Association, to name a select few of your bar association activities.
BSM: I believe it’s important to support the Bar, because the privilege of practicing law is more than just earning a living. You have an obligation to give something back, whether it’s pro bono activities or Bar activities or mentoring younger lawyers. I tell younger lawyers two things: join one Bar association committee, work hard at it, and become the chair. Then join one community organization—one that’s totally unrelated to the law and where you have nothing to gain except service. Young lawyers—actually lawyers of any age—can and should do a great deal to make things better.

BR: What is your greatest strength as a lawyer?
BSM: I like what I do. I have a favorite saying in the law—I always wanted to have it on a bracelet—"ubi jus, ibi remedium." It means "for every right a remedy," and I also interpret it to mean "for every right, a responsibility." If anybody asks me what I believe about the law, that’s what I believe.