Page The Coast Advertiser, Belmar, New Jersey, "Congressional Supervision 318 Detroit News, "Blacks Endorse 'Detroit Plan' for Trades Harmony", 217 Herbers, John, "Nixon Aides Explain the Goal of Job Plan", The New 318 Isaacs, Arnold R., "Bias-Program Race Quota Denied", Morning Sun, 319 Kohler, Saul, "Dixie Senator Acts to Halt Philadelphia Plan", The 320 322 Pittsburgh Press, "Senators Disagree on Legality; Philadelphia Plan 323 Rich, Spencer, "AFL-CIO Joins Foes of Plan on Minority Hiring", The 323 U.S. News & World Report, "Racial Hiring: Is a 'Goal' a 'Quota"?", 325 The Evening Star, Washington, D.C., "Unions Threaten Boycott Over 324 The Sunday Star, Washington, D.C., "Staats Fights New Minority Hiring 325 The Washington Post, "Chicago Unions Agree to Train More Blacks", 218 The Washington Post, "U.S. Sets Boston Plan on Minority Hiring", 215 The subcommittee met, pursuant to notice, at 10:35 a.m., in room 2228, New Senate Office Building, Hon. Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senator Ervin (presiding). Also present: Rufus L. Edmisten, chief counsel and staff director; Lawrence J. Brady, minority counsel, Professor Philip B. Kurland, chief consultant (University of Chicago). Senator ERVIN. The subcommitte will come to order. Today, the Subcommittee on Separation of Powers begins 2 days of hearings on the Department of Labor's revised Philadelphia Plan, a controversial effort to raise the percentage of minority group members working in six Philadelphia area construction trades. Over the past 3 months, the Philadelphia Plan has become the focal point of pressures and discontent which reach far into American society. At this moment, the Labor Department and the Comptroller General of the United States are in complete disagreement about the plan's legality. The Comptroller General, who believes the plan conflicts with title VII of the 1964 Civil Rights Act, has refused to allow any Government funds to be spent under the plan. The Labor Department, supported by the Attorney General, contends that the plan is legal and intends to implement it in nine other cities, with or without the Comptroller General's approval. During the next 2 days, our purpose will not be to debate the wisdom of the Philadelphia Plan, although its wisdom has been challenged in the Congress and in the streets of Chicago, Pittsburgh, and Seattle. We will not assess the social and political consequences which are inherent in any such policy. Rather, we will examine the plan as it relates to the doctrine of separation of powers and try to determine whether the Labor Department has usurped Congressional authority and violated legislative intent. We will ask the Labor Department to explain, in clear English, precisely what it means by "affirmative action goal" and by "specific numercial range." That task may not be easy. The Brookings Institution, in a report called "Jobs and Civil Rights," prepared for the U.S. Commission on Civil Rights some 2 years ago, aptly summarized the response of Labor Department officials when asked to define such terms: (1) "Compliance officials," the report found, "do everything they can to avoid directly facing questions involving preferences. The usual response when confronted with this issue is to fall back on the standard semantics that compliance is not so much a matter of set requirements as it is a matter of taking affirmative action which produce results. ***The current approach may enable the Government to go further than the Congress and public opinion would allow if its goals in this area had to be made more explicit." Throughout the controversy over the Philadelphia Plan, one of the Labor Department's recurring arguments has been that the plan has been misunderstood by its critics. If the Department is sincerely concerned about any misunderstandings, now is the time to clarify them. Now is the time for the Department to be more candid than in the past: to explain its policies in everyday English, not to cloak them in the misleading language which the Brookings report describes. For the Department to persist in using "the standard semantics" would be to leave its policies as unclear and confusing as ever. I would like to point out that the Labor Department has been something less than cooperative in its dealings with the subcommittee. On the several occasions in which the subcommittee requested information from the Department, those requests were either ignored, answered incompletely, or answered after substantial delays. Ordinarily these would be small points, and I do not intend for them to become issues in these hearings. But if the Labor Department has in fact been misunderstood, perhaps this lack of cooperation is partly responsible for that situation. We will also ask the Labor Department to make clear what is meant by the "good faith effort" which is required of contractors under the Philadelphia Plan. Does that "good faith effort" compel contractors to discriminate against workers who are not members of any minority group, workers with seniority in their unions, workers with the immediate skills needed to complete a Federal construction project within the contract deadline? My observation is that it does, in view of the harsh pressures which the Office of Federal Contract Compliance can bring to bear on contractors subject to the plan. The subcommittee wants to be shown that the Philadelphia Plan, in forcing contractors to raise the percentage of minority group employment, does not violate title VII of the 1964 Civil Rights Act. That act certainly does not authorize any racial quota systems, by whatever names they may be called. At this point, I want to read into the record section 703 (j) of title VII: (j) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. I will also read into the record a section of the interpretative memorandum prepared in 1964 by Senators Clark and Case, the floor managers of title VII. In their statement, which begins on 110 Congressional Record 7213, they stated: There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. To me, the texts of title VII and of the interpretative memorandum constitute clear evidence that the Philadelphia Plan contravenes the intent of the most avid proponents of the 1964 Civil Rights Act. They show that Executive Order 11246, which was designated merely to guarantee equal employment opportunity regardless of race, has been stretched beyond the limits of reason to lend legal justification to the Philadelphia Plan. I ask the Labor Department to explain why the Philadelphia Plan does not compel contractors to hire on the basis of race. I ask the Department to show that the plan does not ignore the intent expressed in the Clark-Case memorandum. The Philadelphia Plan, according to the Labor Department itself, requires minority group employment of 22 to 26 percent among ironworkers by 1973. It requires 20 to 24 percent among plumbers, and among pipefitters, and among steamfitters. It requires 19 to 23 percent among sheet metal, electrical, and elevator construction workers. These percentages rise every year. It would be a travesty for the Department to claim that they are not based on race. We want the Labor Department to explain, without resorting to semantic devices, why the Philadelphia Plan disregards the intent of Congress that title VII should not hold contractors responsible for the membership practices of labor unions, practices over which the contractors can exercise absolutely no control. I want to read another section of the Clark-Case memorandum into the record at this point: Question: If an employer obtains his employees from a union hiring hall through operation of his labor contract is he in fact the true employer from the standpoint of discrimination because of race, color, religion, or national origin when he exercises no choice in their selection? If the hiring hall sends only white males is the employer guilty of discrimination within the meaning of this title? . . . Answer: An employer who obtains his employees from a union hiring hall through operation of a labor contract is still an employer. If the hiring hall discriminates against Negroes, and sends him only whites, he is not guilty of discrimination—but the union hiring hall would be. We would like the Labor Department to justify the Philadelphia Plan's apparent conflict with the intent of Congress that title VII should not interfere with union seniority systems. In debating title VII in 1964, Senator Humphrey said that : ... there is nothing in it that will give any power to the commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial "quota" or balance. I believe the Philadelphia Plan requires just such a racial quota or balance, whether that quota is disguised as a "target," a "goal,” a "range," or a "standard." The Brookings Institution report found, in fact, that "the compliance specialist often applies a form of subjective quota in deciding how hard to push a given contractor." (Emphasis in original.) That report was completed more than 2 years ago, long before the revised Philadelphia Plan was adopted. There is something every disquieting in all of this. In a statement made in January 1967, former OFCC Director Edward C. Sylvester admitted that "there is no firm and fixed definition of affirmative action. I would say that in a general way, affirmative action is anything you have to do to get results." In making this statement, Mr. Sylvester no doubt had the high purpose of giving effect to his desire that all citizens be guaranteed equal employment opportunity according to ability. But his emphasis on results at the expense of procedure concerns me. We seem to have forgotten the admonition of Justice Frankfurter that "the history of American freedom is, in no small measure, the history of procedure." In seeking to raise artificially the percentage of minority group workers in Philadelphia through this misuse of an Executive order, the Labor Department is establishing a nearsighted precedent. For if we are lax today in adhering to the law, what may happen tomorrow when that practice is adopted by those who would subvert procedure to their own evil purposes? The power to twist procedure is one no good administrator should want and no bad administrator should have. We cannot allow our legal principles to be frittered away by manipulation of the law. There is another point which concerns me greatly, a point which has largely been ignored in the arguments surrounding the Philadelphia Plan. Section 202(1) of Executive Order 11246 requires Federal contractors to hire and treat their employees "without regard" to their race, color, religion, or national origin. It seems to me that those two words, "without regard," mean exactly what they say. They are clear and unambiguous. Since all the sections of a law must be construed together, it is in the context of those words, "without regard," that the more general concept of "affirmative action" must be placed. Yes, the Executive order requires affirmative action, but only affirmative action which is taken "without regard" to race, color, religion, or national origin. It is here that the Philadelphia Plan is fatally defective. It compels contractors to make decisions based precisely on those four considerations. The plan is in conflict not only with title VII of the 1964 Civil Rights Act, it also is in conflict with the very Executive order under which it was created. Whatever the courts may have decided about considering race as a factor in remedying inequities, those precedents cannot apply to the Philadelphia Plan. The language of Executive Order 11246 places an ironclad ban on racial considerations in employment by Federal contractors. It is no more legal for the Labor Department to reverse the meaning of the words, "without regard," that it would be for the Department to misspend a congressional appropriation. I do not argue that the labor unions are violating the 1964 Civil Rights Act, and I want to make it very plain that this hearing is not designed to criticize labor organizations in any way. However, I must point out and I am sure that the Labor and Justice Departments are aware that the 1964 Civil Rights Act gives them ample tools to bring suits against labor organizations if they have sufficient evidence of |