In the Federal-aid highway program, the States award the contract, pay the contractors for work satisfactorily completed, and seek the Federal pro rata share in the form of reimbursement. Should a project be under the Philadelphia Plan, and should the Comptroller General's opinion be interpreted that a State is involved in an illegal contract, a State could have difficulty in collecting its Federal-aid reimbursement, or might not be able to collect it at all. The State highway departments are pleased that your Committee has gone into this matter. Yours truly, A. E. JOHNSON, Mr. RUFUS L. EDMISTEN, THE CHESAPEAKE & OHIO CO., THE BALTIMORE & OHIO RAILROAD Co., Counsel for the Subcommittee of the Senate Judiciary Committee, DEAR MR. EDMISTEN: The Subcommittee on Separation of Powers of the Senate Committee on the Judiciary has before it S. 931, a bill introduced by Senator Fannin which would make Title VII of the Civil Rights Act the sole means of enforcement and remedy in the field of equal employment. The opening statement of Senator Sam J. Ervin, Jr., the Chairman of the Subcommittee, pointed out in the hearings held on October 27 and 28 that S. 931 would suspend the use of Executive Order 11246 in order to preserve the primacy of the Congress in all legislative matters. Although the testimony in the hearings dealt with conflicts between provisions of Title VII of the Civil Rights Act, on one hand, and with the unrestricted provisions of Executive Order 11246, as implemented in the so-called "Philadelphia Plan," on the other, the Subcommittee's major interest is in the unconstitutional implications (see U.S. Constitution Article I, Section 1) of all conflicts between the Act and the Executive Order. In the hearings on the 27th and 28th, the Subcommittee was chiefly concerned with Section 703 (j) of Title VII, forbidding preferences to remedy racial imbalances, since this is the main area of conflict with the Philadelphia Plan. Further, Senator Ervin's opening statement declared the Subcommittee's desire to maintain "the intent of Congress that Title VII should not interfere with seniority systems." Equally serious conflicts arise between the Executive Order and other sections of Title VII of the Civil Rights Act, notably with Section 703 (h) which reads as follows: "(h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin; . . .” It is one thing for the Attorney General in a "pattern suit" based on section 707 of Title VII of the Civil Rights Act to seek an order merging separate seniority rosters and substituting a new grouping having a revised seniority rank (a so-called "plant seniority date") for groupings and ranks provided in the governing collective bargaining agreement, but it is a vastly different thing when the Attorney General seeks the same relief independently on the basis of Executive Order 11246. If and when the Attorney General bases such a claim for relief upon the provisions of Title VII of the Civil Rights Act, he, of course, must overcome the defense that the rank and grouping of the employees are protected under Section 703 (h), as the products of "a bona fide seniority or merit system." The Attorney General in such a suit has an opportunity to defeat that defense by proving that such differences are the result of an intention to discriminate because of race, rather than a bona fide system. In contrast, in a suit in which the same relief is sought by virtue of the provisions of Executive Order 11246, the parties to the collective bargaining agreement do not have the protection of any provisions comparable to those defenses which Congress permits in 703 (h) of Title VII. Thus, on this account, defendants, who are parties to a collective bargaining agreement, after proving that the grouping and seniority ranks which have been attacked by the Attorney General genuinely are the products of a bona fide seniority system, may discover that their defense is futile for the reason that identical relief is claimed by the Government on the authority of the Executive Order. While prudent counsel for defendants in such a case would contend that the limitations on the rights of minorities established in Title VII should limit rights claimed under the Executive Order, there is no assurance that such an argument would prevail. I presume, however, that the Subcommittee (mindful of U.S. Constitution, Article III, Section 1) is disinterested in weighing or otherwise evaluating such contentions; but, on the other hand, I further presume that the Subcommittee is definitely interested in the fact that the Executive Department apparently is contending that the sysem of protection of minority rights established by the President through the Executive Order is an independent system. With respect to conflicts other than the conflict with Section 703 (h), it should be noticed that under Title VII, a Section 707 action cannot properly be instituted without proof that the defendants are engaged in "a pattern or practice of resistance to the full enjoyment" of the right to employment without discrimination. So far as we know, there is no comparable provision in Executive Order 11246. Additionally, under Title VII, the Congress carefully provided that the United States District Court could order affirmative action only if the Court found that the respondent had "intentionally engaged in or is intentionally engaging in an unlawful employment practice"-Section 706 (g). So far as we know there is no comparable provision in the Executive Order. My understanding of the position of the Executive Department, is derived in part from several pending Civil Rights cases against railroads, including one against The Cheasapeake and Ohio Railway Company and two important railroad brotherhoods. In that case I am one of the attorneys representing the railway company. By relying upon Executive Order 11246, the Attorney General aims at retroactive subordination of long-standing seniority rights of majority persons, which antedate the effective date of the Civil Rights Act of 1964. Such action by the Attorney General is without regard to the fact that those rights are derived under collectively bargained seniority provisions which are of the ordinary and customary sort found throughout the railroad industry. If we have correctly understood the position of the Attorney General in regard to this matter, then the Subcommittee should be interested in this information, since the conflict arising between the Executive Order and the Civil Rights Act under Section 703 (h) of that Act is entitrely different from the conflict which was the principal subject of the evidence at the two days of recent hearings. It is our thought that enactment of the pending Bill S. 931 should be very helpful to the litigants and Courts where the Government relies partly upon the Executive Order and the Civil Rights Act since the cases would thereafter be decided only upon the substantive law declared in the Civil Rights Act, even though the matter of remedies might still be open to the prescription of penalties by the Executive Department. Inasmuch as Assistant Attorney General Jerris Leonard, in charge of the Civil Rights Division, has already been heard by your Subcommittee at length in opposition to S. 931, it is submitted that it is not improper to express the views stated above. At the same time I am submitting a copy of this letter to the attorney representing the Attorney General in the case already mentioned. Yours very truly, S. R. PRINCE, General Attorney. Hon. SAM J. ERVIN, Jr., EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Chairman, Subcommittee on Separation of Powers of the Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in reply to your letter of October 15 inviting my comments concerning the Department of Labor's revised "Philadelphia Plan." The Equal Employment Opportunity Commission is strongly committed to the concept of affirmative action as a remedy for employment discrimination. Experience has demonstrated that the effects of past discriminatory practices linger long after the adoption of outwardly neutral criteria, and continue to have an adverse effect on minority employment. The Philadelphia Plan, and similar efforts, are responsive to the problem presented by this situation in being oriented toward real rather than merely theoretical results. Since the Attorney General has determined that the Plan does not contravene existing law in anyway, and since it does in fact complement Title VII of the Civil Rights Act of 1964, I welcome it as a source of meaningful progress. It is only fitting that the Government lead the way in this most important area. I hope the above will be useful to your Subcommittee in its deliberations. If I may be of further assistance to you, please do not hesitate to contact me. Sincerely, WILLIAM H. BROWN III. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND ORNAMENTAL IRON WORKERS, St. Louis, Mo., November 17, 1969. Re Hearings on the Philadelphia Plan before the Senate Subcommittee on the Separation of Powers. Hon. SAM J. ERVIN, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: Your letter of October 15, 1969 requested my views as General President of the International Association of Bridge, Structural and Ornamental Iron Workers with respect to the revised Philadelphia Plan in general and specific comments on the practical results of its implementation. I agree with Comptroller General Staats that the Plan is illegal in that it violates the prohibition against quotas in the Civil Rights Act. I believe that attempts to fulfill the suggested quotas will require job opportunity consideration based on race which is illegal and the very thing that the Civil Rights Act attempts to eliminate. Our International Association has four local unions located in Philadelphia. They are (1) Structural and Ornamental, Local Union No. 401; (2) Reinforcing, Local Union No. 405; (3) Riggers, Local Union No. 161; and (4) Fabricating shop, Local Union No. 502. Each of these represent employees engaged exclusively in the construction industry. Unquestionably, every major construction project in Philadelphia involves employment for the membership of all four local unions. In addition, virtually every contract that will involve the Philadelphia Plan will also involve all four local unions. The approximate racial composition of the membership in these locals are as follows: In our Reinforcing local union, minorities make up thirty percent of the total; in our Riggers local union, minorities make up thirteen percent of the total; and in our Fabricating shop, minorities make up twelve percent of the total. In our Structural and Ornamental Local Union No. 401, the percentage of minorities is quite low. This is true, notwithstanding a five year effort to increase minority interest. In fact, in a sincere effort to improve the minority percentage, every person of minority groups who has applied by formal application for entrance to our apprenticeship program in this local union in the years 1968 and 1969 has been admitted. It is clearly evident that there must be existent numerous considerations to properly evaluate the low minority participation in our Structural and Ornamental Local Union No. 401 when we include among them the five year recruiting program, the 1968 and 1969 apprenticeship entrance results, and the record of all of our construction local unions in Philadelphia. So that the record is clear, let me point out that the Philadelphia Plan is not applicable to our other three construction local unions in Philadelphia but only to our Local Union No. 401. In light of the above facts, let me comment on the statistics relied upon by the Department of Labor to set up the goals under the Plan. Your attention is called to the exhibits in the hearings record accompanying the statement of C. J. Haggerty, President of the Building and Construction Trades Department. AFL-CIO. In exhibit #3 there is a Schedule entitled "Summary Minority Employment and Unemployment, Five Pennsylvania Counties in Philadelphia Areas". This compilation was adopted as a "Manpower Administration Survey" by the simple expediency of writing "Manpower Administration Survey” in longhand in ink at the top of the page, without any supporting data. Further, there is a memorandum included in this exhibit dated July 31, 1969 addressed to the files by Alfred Blumrosen which states that the figures contained therein were given to Blumrosen as conservative estimates by Ben Stalvey without any indication as to the procedures followed to secure the information, or any supporting data. Despite the highly questionable authenticity of the figures contained therein, the Department of Labor accepted and incorporated them in the Department of Labor release dated September 23, 1969 which established the ranges for implementation of the revised Philadelphia Plan. By this means, the findings and conclusion supporting the need for the Plan are based upon an unsupported contention that 302 qualified ironworkers from minority groups were available in the Philadelphia labor market. In that such figures were completely contrary to the information in our possession, I addressed a telegram dated September 30, 1969 to the Secretary of Labor requesting that he make available to our Association specific information relating to these 302 qualified ironworkers so that appropriate steps could be taken to immediately improve the minority employment situation in our Local Union No. 401. Attached hereto is copy of that telegram. On October 15, 1969 the Secretary of Labor replied to my telegram-copy of which is attached hereto. You will note from the attached that the 302 qualified ironworkers who were identified in the findings and conclusions supporting the need for the Plan are not actually available at the present time and possibly not available in the immediate future. It further notes that the figure of 302 relates to "minority persons employed in the designated trades for all industries", as well as "those working in related occupations in nonconstruction industries who would be qualified with some orientation or minimum training". In that this International Association has three other local unions involved exclusively in the construction industry in Philadelphia, both on the jobsite and in the fabricating shops and since these three other local unions contain a substantial number of minority persons, however, they are not one of the "designated trades", it can well be that the minority persons referred to in the above two quoted categories are already members of this International Association working in the construction industry in that segment of the ironworkers trade that apparently they prefer, rather than that portion of the ironworkers trade represented by our Local Union No. 401 membership, which is a "designated trade". The decisions made many years ago by the membership of this International Association to have four local unions in the construction industry in Philadelphia related directly to situations involving employer-employee relations and hiring practices in that vicinity. This approach to effective and harmonious collective bargaining relationships indeed has worked well in protecting the interests of the individuals following our trade and holding membership in our union, as well as the interests of the employer in his proper concerns toward labor relations. It could well be that carrying out the provisions of the revised Philadelphia Plan would result in switching employees from one part of the construction industry and the iron workers' trade to another so as to comply with the ranges set forth in the Plan. This could deprive our minority group members of much of the employment security they now enjoy as well as posing a potential reduction in annual wages. This is particularly true in view of the contracting processes involved in our trade. In virtually every case contracts are awarded on a furnish, deliver, and erect basis in accordance with drawings and specifications. Accordingly, many of the contractors who will be bound by the Plan are not engaged exclusively in jobsite erection but rather engaged also in the fabrication, including all of the related responsibilities to be met by a company to successfully compete in our industry. It can, therefore, develop that for a contractor to profitably compete, within the framework of the Philadelphia Plan, as well as to bid other types of job including those not covered by the Plan, will be forced into some form of synthetic switching of minority employees from a noncovered project to a covered project or from the fabricating shop to the jobsite so as to comply with the ranges set forth under the Plan. This point is most important since some contractors would indeed be in a much more favorable competitive position on federal projects than other contractors, based upon his ability to engage in synthetic switching, particularly from the fabricating plant to the jobsite. It is our experience that our membership follow particular branches of our trade and thereby hold membership in different local unions of this International Association because of personal preferences, as well as the type of advantages or disadvantages that relate to their individual viewpoints. Whenever an unusual situation develops that results in both the local union officers and some employers jointly seeking to encourage individual members to temporarily move from one part of our trade to another, such efforts are met with considerable resistance. Let me point out at this time that the hourly wage rate of our rigging, reinforcing, Structural and Ornamental local unions is approximately the same, and whereas the hourly wage rate in our shop local unions is lower, there are many other considerations-such as total hours worked and travel and other costs to employee-that make the total annual net income of all members relatively equal. To illustrate specifically the contracting processes and the employee relations with which the Philadelphia Plan becomes abrasive, let us look at the first contract awarded under that Plan. This was the award to Bristol Steel Company to furnish, deliver and erect the structural steel on the Children's Hospital, which contract was let in the early part of October and incorporated the Philadelphia Plan. This contract which is slightly in excess of $3,900,000.00 will involve all operating departments of this company commencing with the Sales Department, to the Engineering Department, to the Purchasing Department, to the Receiving Department, to the Fabricating Department, to the Shipping Department, and finally to the Erection Department. However, only the operations of the Erection Department are covered by the Philadelphia Plan, and that portion of the contract is approximately one-third of the total, or in the vicinity of $1,400,000.00. Beyond any question, no other part of the American Industry is asked to meet racial goals in one particular part of their overall business operations as is the steel industry under the Philadelphia Plan. Very truly yours, JOHN H. LYONS, General President. SEPTEMBER 30, 1969. Hon. GEORGE P. SHULTZ, U.S. Department of Labor, The Department of Labor release of September 23, 1969, which established the ranges for implementation of the revised Philadelphia Plan concluded that this plan was necessary and desirable based upon numerous findings which findings included the contention that 302 qualified iron workers from minority group persons were available in the Philadelphia labor market. This figure conflicts with the information obtained by the five year effort of our organization in that city to bring into employment increased numbers of minority group persons. I, therefore, request that you immediately make available to this international association the specific information relating to those 302 qualified iron workers. Including names, addresses and work experience data upon which the findings were made. Upon receipt of this information those 302 minority group persons will be given every assistance in attaining employment in the same manner that assistance is rendered to qualified iron workers and I am confident that if the findings of the September 23rd order as quoted above, as well as those findings of anticipated growth in the Philadelphia construction employment are accurate that the stated goals of the Philadelphia Plan will be exceeded both in percentages of employment and time without the need of the Philadelphia Plan by our efforts in behalf of qualified iron workers upon receipt of the above requested information. J. H. LYONS, Int'l Ass'n of Bridge, Structural and Ornamental Iron Workers. U.S. DEPARTMENT OF LABOR, Mr. J. H. LYONS, General President, International Association of Bridge, Structural, and Ornamental Ironworkers, St. Louis, Mo. DEAR MR. LYONS: This is in response to your recent telegram in which you request information relative to the availability of minority group persons for employment as ironworkers in the Philadelphia area labor market. As you know, section 3b of the September 23, 1969, Order establishing ranges for implementation of the Revised Philadelphia Plan sets forth the results of certain Labor Department surveys which indicate that minority workers are cur |