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sure that we are talking to relatively very, very few employers. So in my judgment I find the notion of harassment to be unfounded. I think in almost every instance when we had negotiations or discussions with contractors, it resulted in some change that ought to have been made. Senator KENNEDY. Senator Dirksen?
Senator DIRKSEN. Mr. Sylvester, you are still with Health, Education, and Welfare?
Mr. SYLVESTER. No, Senator, I left the Government on January 20. Senator DIRKSEN. That was immediately after the event that took place upon the Capitol steps?
Mr. SYLVESTER. That is correct, sir.
Senator DIRKSEN. So you are in private business?
Mr. SYLVESTER. That is right.
Senator DIRKSEN. Are you a lawyer?
Mr. SYLVESTER. No, I am not.
Senator DIRKSEN. Can you tell me something about the statutory or constitutional authority for these Executive orders?
Mr. SYLVESTER. I can only say, Senator, that the Executive orders have been in existence, I guess, back to the days of President Truman. And I am sure that there is an appropriate legal basis for it. I am not competent to give you a detailed argument for it.
Senator DIRKSEN. Generally you know that there has to be some legal authority, some statutory authority as the base on which an Executive order stands?
Senator KENNEDY. Mr. Sylvester, would you yield on this point? As I understand, the Executive Order 10925 of 1961 states that discrimination because of race, color, creed, or national origin is contrary to the constitutional principles and policies of the United States. It thus refers to the Constitution as underlying authority.
Senator DIRKSEN. Well, I might comment, Mr. Sylvester, that that is the way vague Executive orders are born. They are born vaguely. My friend recites based on constitutional principles. Well, I want to know whether it is based on the Constitution or on the law.
Now, you are out of Government, and I suppose I will have to ask somebody else to look this up, and maybe we will get the orders in the record, so that we will have them.
(The materials referred to here by Senator Dirksen appear in an appendix to this hearing.)
Senator DIRKSEN. And they will speak for themselves. But there is some constitutional doubt about it. And especially so because of the tremendous power.
Now, in pursuance of Executive orders there have to be regulations issued. Are those regulations made up day by day to fit each case, or are they general regulations?
Mr. SYLVESTER. The Office of Federal Contract Compliance operated for several years under the regulations that were in existence at the time the Office was created. And those regulations grew out of the original Executive Order 10925. We then issued after appropriate discussions with contracting agencies and other interested parties, a draft of new regulations. And those regulations became effective July 1 of 1968. They are general regulations, and provide guidelines to contractors and agencies alike.
Senator DIRKSEN. So these have replaced everything else; is that correct?
Mr. SYLVESTER. That is correct.
Senator DIRKSEN. Are they voluminous?
Mr. SYLVESTER. Well, I suspect there my be 45 or 50 pages. I have a set here.
Senator DIRKSEN. I think it will satisfy me if you have a copy that we can put in the record. If it is 50 pages, I feel rather generous about the expenditure of public funds this morning, if it can serve a useful purpose. And so that would be money well spent. And who gets up these regulations?
(The material requested appears in an appendix to this hearing.) Mr. SYLVESTER. The regulations were developed in the Office of Federal Contract Compliance with the assistance of the Solicitor of the Department of Labor, and then circulated for comment to all Federal agencies, and then to private agencies or groups, including the Plans for Progress. And then as a result of this continuing round of discussion we finalized regulations that were suitable to all.
Senator DIRKSEN. Did the Department of Justice sit in in the formulation of these regulations?
Mr. SYLVESTER. Yes; the Department of Justice was consulted and did make comments on the regulations before issuance.
Senator DIRKSEN. Now, in pursuance of your regulations you make investigations, and if you find something that is not exactly cricket, maybe you utter a warning, or maybe you go further. I see you have power to apply sanctions. Just what is the sanction?
Mr. SYLVESTER. The sanction as provided by the Executive order can be contract termination, cancellation, suspension or anything short of these actions.
Senator DIRKSEN. Wait a minute. You say a sanction is something short of what?
Mr. SYLVESTER. I said the Executive order provides as a sanction the termination, suspension, or cancellation of contract. And it is possible under the Executive order to issue a sanction that does not go quite that far.
Senator DIRKSEN. So it is everything in between?
Mr. SYLVESTER. That is correct.
Senator DIRKSEN. That is pretty broad power, is it not?
Mr. SYLVESTER. It certainly is.
Senator DIRKSEN. If you are familiar with the procedure, and you have found recalcitrant industry, and you could not achieve anything by negotiation, and you advised them that you were going to terminate their contract, exactly how do you go about it?
Mr. SYLVESTER. The regulations provide a formal procedure that has to happen before the contract can in effect be canceled or terminated, including a hearing, with both sides presenting the arguments. The evidence for decision is presented, and then the Secretary
Senator DIRKSEN. Tell me about it so that I fully understand it. You notify corporation XYZ that their contract is going to be Mr. SYLVESTER. They are notified
Senator DIRKSEN. You send them a letter, don't you.
Mr. SYLVESTER. We send them a letter giving them an opportunity for a hearing which could lead to the termination, cancellation or suspension of their contracts. If they do not accept, then, of course, the Government would proceed to terminate, suspend, or cancel. If they do accept, then the Hearing Board is appointed, and there is a trial, so to speak, and the results of the Hearing Board are communicated to the Secretary of Labor, who then takes what action he deems appropriate. Senator DIRKSEN. Who actually does the determining as to suspension?
Mr. SYLVESTER. The contracting agency can be so ordered by the Secretary of Labor, or it can on its own motion initiate procedures for a sanction.
Senator DIRKSEN. Does the Secretary ask him to terminate, or does he order them to terminate?
Mr. SYLVESTER. The Executive order will permit him to order them to terminate.
Senator DIRKSEN. Order?
Mr. SYLVESTER. Order.
Senator DIRKSEN. And they have got to obey that order?
Mr. SYLVESTER. That is correct.
Senator DIRKSEN. Very well. Suppose the industry in question feels highly aggrieved, that is all a very unfair business, and there are millions of dollars involved in the cancellation, how do they get into court?
Mr. SYLVESTER. I do not know the precise legal device, but I am sure, and there is no question but that they do have recourse to go to court.
Senator DIRKSEN. How long have you been with this contract compliance group?
Mr. SYLVESTER. I was with the Office of Federal Contract Compliance from its inception in October of 1965 until July of 1968.
Senator DIRKSEN. You were there 3 years, weren't you?
Mr. SYLVESTER. Just about.
Senator DIRKSEN. Now, you are not going to tell me here this morning the presence of all these people that you do not know when you terminate a contract how to get in court?
Mr. SYLVESTER. During that year's period, Senator, no contract was terminated.
Senator DIRKSEN. Any canceled?
Mr. SYLVESTER. None was canceled.
Senator DIRKSEN. Was it all sweetness and light and purity and harmony, no bad feeling?
Mr. SYLVESTER. Senator, as I said earlier, and as Mr. Alexander's testimony certainly made clear, it is a long way from sweetness and light. Five contractors that I indicated earlier had been notified of a formal proceeding for sanctions, and those matters are still pending. We found that it was a much more effective device to get an understanding with a contractor prior to the award of contracts, rather than to get into the extensive procedure of contract cancellation. And in most instances when an employer was faced with a problem, we
found it was possible to conciliate and negotiate it out. And were that not the case, of course we would have proceeded with a contract termination notice as we did in the cases of the five companies that I talked about.
Senator DIRKSEN. Well, if the people who were aggrieved can see no way out, then of course they will do what they, not necessarily have to do, except as you insist on them doing, to comply in order not to have their contract terminated. They are reluctant to drag on, so to speak, if they had to wait for a hearing in court. And I must remind my distinguished chairman here that it runs in my mind that in the Constitution of the United States there is a little phrase about due process of law. Have you ever heard of it?
Mr. SYLVESTER. I have, Senator. And I must say that during that period I am unaware of any instance where a contractor was not afforded due process of law. And I must say that I find no more problem in requiring a contractor to meet the equal employment opportunity clause as I would in requiring him to meet any other clause, and to exercise the limit of administrative capability to get him to do that.
Senator DIRKSEN. Your Compliance Board scared the devil out of him; did they not?
Mr. SYLVESTER. Yes. If the contractor was wrong and had a problem, I think he should have been.
Senator DIRKSEN. No; that is not what did it. Here is a sanction as you call it, which was all the way to the end of the road. And there is nothing to show that it is reviewable in court. That is the point I make. Something is going to have to be done about it. Because that is alien to the whole American system.
Mr. SYLVESTER. Senator, I am sure that the appropriate legal authorities could give you a brief that would indicate that the Executive order does not preclude any contractor's right or ability to go to court.
Senator DIRKSEN. Well, I do not know where to find it. And you are no help, after 3 years with this crowd, in telling me where it is. Mr. SYLVESTER. As I think I said earlier on, Senator, I am not a lawyer.
Senator DIRKSEN. Well, I cannot find it in the act, and I cannot find it in title VII.
Now, would you say this is a fair statement, that in any case, no matter what it is, if there is a complaint, and somehow or other you cannot very well conciliate it, you try in court. Then at long last something has to be done about it. And at that point you become both the prosecutor and the judge, do you not? You are the compliance officer, that makes you the prosecutor. And you determine whether or not there is compliance. That makes you the judge. Is that right or wrong? Mr. SYLVESTER. Senator, the procedure is the same as the Government would use in determining any other aspect of delivery on a Government contract.
Senator DIRKSEN. I know what you are telling me here.
Mr. SYLVESTER. What I am saying is that procedurally the Government is acting consistently with the way it handles its contracts. And the fact that the subject is equal employment opportunity ought not to change that procedure. So that some contracting officer on almost any issue has to make a decision.
Senator DIRKSEN. I guess so. But they do not prosecute them, do they?
Mr. SYLVESTER. Well, I am sure that there are many cases on other issues where the contracting officer was not satisfied with the contractor's performance, and something happened, aside from continuing to spend the Government's money.
Senator DIRKSEN. If you are not the prosecutor, then I do not know what these words mean in your statement about termination, cancellation, or suspension of contracts. That is a broad, broad power. So you tell the Secretary of Labor, and of course there will be a hearing. But the particular industry affected thinks it is right, and you think you are right. So there you are. There is the issue, where do you go to have it reviewed? A little hearing, interdepartmental, down in the Department of Labor. That is no adjudication under the gun.
Mr. SYLVESTER. Well, the Hearing Officers that have been appointed so far in the case were not Department of Labor or Government employees, they were private citizens.
Senator DIRKSEN. That does not make any difference. This does not make any difference who they employed.
Mr. SYLVESTER. And the contractor does have the option of appealing from that court if he feels that he has been unfairly treated.
Senator DIRKSEN. That is what I am trying to find out. And, Mr. Sylvester, I will find out. I am not going to burden you. And if I cannot find it, then I am going to supply it and see that it goes in somewhere, so that the citizen has his day in court. That is the keystone, I think, of our prosperity and way of life.
Tell me how I define an affirmative action program? You mentioned that in your statement.
Senator KENNEDY. Would the Senator yield at this point?
Senator KENNEDY. As I understand it, the only condition that we are really establishing is that there is not going to be discrimination by companies contracting with the Government. We are merely trying to prevent discrimination. And we have established regulations to insure that nondiscrimination is part of a condition of a contract? Mr. SYLVESTER. And that the contractor would take affirmative action to insure that there is equal opportunity. Simple nondiscrimination as a passive activity does not meet the requirements of the Executive order.
Senator KENNEDY. Then the low bidder can get that contract once he evidences a willingness to comply, in terms of a written affirmative action plan.
Mr. SYLVESTER. The procedures are clear and fair.
Senator KENNEDY. And so all the contractor really has to show is that is not going to discriminate or fail to provide equal job opportunities, and he gets that contract?
Mr. SYLVESTER. That is correct.
Senator DIRKSEN. Well, Mr. Sylvester, you speak here about requiring the contractors of $50,000 or more and 50 or more employees to have available a written affirmative action program. Tell me what that is.
Mr. SYLVESTER. It goes on so say that that program should be based on a study of the utilization of minority employees in the contrac