rently available for employment in the designated trades. These surveys were based upon the number of minority group persons employed in the designated trades for all industries, those minority group persons who are unemployed but qualified for employment in the designated trades, those who will be trained by 1970 by major Philadelphia recruitment and training agencies, and those working in related occupations in non-construction industries who would be qualified for employment in the designated trades with some orientation or minimal training. Because of the nature of the information gathering techniques used by the Department of Labor in arriving at the specific numbers outlined in section 3b it would be impractical to provide you with the names, addresses, and work experience data which you request. However, we do suggest that you contact the following organizations in the Philadelphia area, who, among others, should be able to assist in your efforts to find qualified minority ironworkers who you can refer for employment in the Philadelphia area construction industry: Mr. ANDREW FREEMAN, Opportunities Industrialization Center. Executive Director, Council for Equal Job Opportunity. Job Placement and Recruitment Project TEAM. President, Negro Trade Union Leadership Council. Chief Coordinator, Action Construction Team. I appreciate your offer to assist minority group persons in finding employment as ironworkers in the Philadelphia area. This cooperation shall contribute to the successful implementation of the Philadelphia Plan. If I can be of further assistance please do not hesitate to call upon me. GEORGE P. SHULTZ, U.S. SENATE, Hon. ELMER B. STAATS, COMMITTEE ON GOVERNMENT OPERATIONS, Comptroller General of the United States, DEAR MR. STAATS: Complaints have been received by this office concerning the obligations imposed upon government contractors by Executive Order 11246 and the regulations, rules, and requirements issued pursuant thereto and in implementation thereof by the Office of Federal Contract Compliance of the United States Department of Labor and various government agencies including, but not limited to, the Departments of Defense, Transportation, Health, Education, and Welfare, Housing and Urban Development and General Services Administration. Enclosed herewith are copies of Exceutive Order 11246, Office of Federal Contract Compliance Regulations, Federal Register Vol. 33, No. 104-May 28, 1968, Department of Defense Regulations Circular 67, issued January 1, 1969. incorporating OFCC Regulations, and Department of Transportation Regulations which also incorporate OFCC Regulations, notwithstanding the fact that Congress enacted specific equal employment opportunity provisions in the Highway Act of 1968. I do not have copies of the regulations of the other Federal agencies that award contracts or provide grants-in-aid, but I assume they are readily available to you. The aforesaid complaints stem from the disparity and apparent conflict between the policy, provisions, and requirements set forth in Executive Order 11246 and in the regulations promulgated pursuant thereto and the policy and requirements enunciated by Congress in title VII of the Civil Rights Act of 1964, P.L. 88-352. Complainants have also voiced their concern regarding the apparent failure of the Office of Federal Contract Compliance and various other government agencies to conform their regulations, rules, and procedures to the directives contained in the opinions which have issued from your office regarding the proper and lawful manner of awarding public contracts. Information which has come to my attention indicates that the regulations and requirements relating to affirmative action programs and pre-award examinations still in effect pursuant to Executive Order 11246, have added extra costs and have caused lengthy delays in the award of contracts involving various Federal and Federal-aid construction projects, particularly in the St. Louis, San Francisco, Cleveland and Philadelphia areas. Among specific examples are those which involved the Guepel Construction Company and the Peter Kiewit Company and with which I believe you are familiar. I also understand that pre-award examinations were continued by HEW on construction projects in the Philadelphia area after your office had questioned the legality of the procedure and that the matter is now pending in your office. And recently, as you know, hearings by the Senate Public Works Committee were precipitated by complaints regarding pre-qualification requirements and other regulations and procedures being applied throughout the country to bidders on federal-aid highway contracts by the Department of Transportation. The aforementioned complaints concerning Executive Order 11246 and the government contracting program promulgated pursuant thereto, give rise to serious questions of statutory and constitutional law. Accordingly, I would appreciate receiving your opinion at the earliest possible date, regarding the validity of Executive Order 11246, and the regulations, rules, procedures and requirements issued pursuant thereto and being applied by the Office of Federal Contract Compliance and other Federal agencies in the awarding of Federal and Federal-aid contracts. It is my own view that Congress in its enactment of title VII of the Civil Rights Act of 1964, made clear its intent that the law was not to be interpreted as requiring the introduction of quotas or other representative or preferential systems into the employment process. Section 703 (j) of title VII, expressly disallowed the granting of preferential treatment to any individual or group in order to correct any imbalance that might exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed as compared with the total number of such persons in any community, State, or other area, or in the available work force in any community, State or other area. Nothing in title VII imposed or authorized the imposition upon private industry of any duty or obligation to institute or finance any training, apprenticeship, recruitment, advertising, or other affirmative programs designed to enhance the employment opportunities or job qualifications of any employee, applicant for employment, or other person. Furthermore, Congress made it clear in Section 703 (h) that it was not its intent to outlaw or interfere with bona fide seniority or merit systems. It is also important to note that when it enacted title VII of the Civil Rights Act of 1964, entitled "Nondiscrimination in Federally Assisted Programs," Congress expressly provided that "Nothing contained in this title shall be construed to authorize action under this title by any department or agency with respect to any employment practice by any employer, employment agency, or labor organization, except where a primary objective of the Federal financial assistance is to provide employment." (Sec. 604). Despite the Congressional intent so clearly expressed in the legislation cited above, pre-award procedures, including elaborate requirements for "affirmative action" programs and what appear to be quota and minority representation systems, all of which are clearly inconsistent with and would appear to contravene such Congressional intent, have been incorporated in the regulations issued pursuant to Executive Order 11246. See Circular 67 issued by the Department of Defense for example. I participated in the Senate debate on the Civil Rights Act of 1964, and I am quite familiar with the fact that the Senate abandoned much of the House bill when it adopted the Dirksen-Mansfield substitute with twelve amendments which ultimately became the Civil Rights Act of 1964. One will note on page 13835 of the Congressional Record for June 18, 1964, that the changes effected in the House bill are clearly indicative of a Congressional intent to rule out quotas, reverse discrimination, and similar procedures. Furthermore, the fact that a provision contained in the House Committee bill H.R. 7152, which "directed the President to take such action as may be appropriate to prevent the committing or continuing of unlawful employment practices by persons in connection with the performance of contracts with Federal agencies", was dropped when the bill finally emerged from the House on February 10, 1964, clearly indicated a Congressional intent to withhold such authority from the President and the Executive Departments, as that which has been and is still being exercised pursuant to Executive Order 11246. The wide variance between the policy and program effected by and pursuant to Executive Order 11246 and Congressional intent as manifested in title VII of the Civil Rights Act of 1964, is pointed up in a recent report entitled "Jobs and Civil Rights" (Publication No. 16, April, 1969), prepared by Brookings Institution for the United States Commission on Civil Rights. And it is the variance and apparent conflict which immediately gives rise to the fundamental constitutional question of whether Executive Order 11246 constitutes proper implementation of title VII of the Civil Rights Act of 1964, or is, instead, a legislative enactment by the President in excess of his authority under the Constitution. It is a well-established principle of constitutional law that the President's power to issue an executive order must stem either from an act of Congress or from the Constitution itself. (Youngstown Sheet and Tube Co., et al v. Sawyer, 343 U.S. 579, 585). It is an equally well-established principle of constitutional law that although the President's general direction power is constitutional in its source, it is by no means absolute. On the contrary, its exercise is subject to important limitations. Foremost among these is the well-settled rule that an Executive order or any other Executive action, whether by formal order or by regulation, cannot contravene an act of Congress which is constitutional. Thus when an Executive order collides with a statute enacted pursuant to the constitutional authority of the Congress, the statute will prevail. Kendall v. U.S., 12 Peters 524. Neither the President nor a department head at the President's direction or with his approval, has authority to act at variance with valid statutory provisions. U.S. v. Symonds, 120 U.S. 46; Little v. Barreme, et al, 2 Cranch 170; Panama Refining Co. v. Ryan, 293 U.S. 388; Youngstown Sheet and Tube, supra. As Justice Frankfurter said in the Youngstown Sheet and Tube case, supra, "Where Congress has acted the President is bound by the enactment." And as Justice Holmes declared in Myers v. United States, 272 U.S. 52, 177, "The duty of the President to see that the laws be faithfully executed is a duty that does not go beyond the laws or require him to do more than Congress sees fit to leave within his power." In the Youngstown Sheet and Tube case, supra, President Truman's Executive Order providing for seizure of this country's principal steel mills, was challenged on the ground that the Executive Order amounted to law making by the President. What Justice Black, speaking for the Supreme Court, said in that case is, I believe, equally applicable to Executive Order 11246. Justice Black said: "The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress--it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution." Justice Black then went on to declare on behalf of the Court that "The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize taking private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this law-making power of Congress to Presidential or military supervision or control." The Courts have repeatedly held that in the framework of our Constitution the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. Youngstown Sheet and Tube, supra, page 587. Congress alone is invested by our Constitution with the power to legislate and Congress cannot delegate that power to the President. Panama Refining Company, supra; A.L.A. Schecter Poultry Corp. et al v. United States, 295 U.S. 495. Your cooperation in providing me with your opinion in this matter will be greatly appreciated. With kind regards, I am Sincerely, JOHN L. MCCLELLAN, Chairman. NATIONAL ASSOCIATION OF MANUFACTURERS, Hon. SAM J. ERVIN, Jr., DEAR SENATOR ERVIN: This will acknowledge and thank you for your recent letter inviting our President to testify before your Subcommittee on October 27 or 28, 1969 regarding the department of Labor's so-called revised Philadelphia Plan. Unfortunately, President Gullander's schedule is so firmly committed that it will not be possible for him to accept this invitation. We would, however, like to compliment you and your Subcommittee for initiating this inquiry for in our judgment it is a matter of real importance and certainly warrants a careful examination by the Congress. The course of action proposed by the Labor Department brings into sharp focus the growing tendency of the government to seek to accomplish by executive decree objectives which the Legislative Branch of the government has either failed or refused to authorize by statutory authority. I am sure you are aware of the numerous instances over the years where this has been attempted and frequently accomplished. The fact that it has been accomplished, however, does not necessarily make it right as a matter of good governmental policy and this in itself makes the work of your Committee of the greatest significance and value. We are aware, of course, of the difference in viewpoint as between the Labor Department supported by the Attorney General and the opposite views expressed by the Comptroller General. Since these opposing views will undoubtedly be examined in detail by your Committee with appropriate witnesses from the interested agencies, it would probably serve little purpose for us to undertake any extended argument here. As an overall observation, however, it does seem as though the effectuation of the Labor Department's revised Philadelphia Plan would inevitably result in discrimination against some qualified non-minority group workers as a result of governmental pressures on contractors to comply with the goals or quotas which the Plan seems to contemplate. As you know, a distinction is sought to be made in this Plan between a "goal" and a "quota." The distinction, however, is something less than clear and the net result would seem to be about the same. The establishment of quotas is, however, expressly forbidden by Title VII of the Civil Rights Act of 1964 and it is perhaps for this reason that the distinction is sought to be made. This Association is on record as favoring nondiscrimination in employment throughout the United States. We have exerted vigorous efforts through meetings, publications and various other devices to bring about understanding of the requirements of the law by our members and we firmly believe that the vast majority of industry is making a good faith effort to comply with these requirements. In our view there is legislation on the books and appropriate remedies available to bring about such compliance without the necessity for resort to additional governmental requirements enforceable with additional and severe penalties which have not had the sanction or approval of the Congress. Thank you again for your kind invitation and if you feel it appropriate or desirable, this letter may be incorporated in the record of your hearings. With highest regards and best wishes. Sincerely, LAMBERT H. MILLER, General Counsel. NATIONAL ASSOCIATION OF PLUMBING-HEATING-COOLING CONTRACTORS, Hon. SAM J. ERVIN, Jr., U.S. Senate, Washington, D.C., November 14, 1969. Committee on the Judiciary, MY DEAR SENATOR ERVIN: This is in reply to your recent letter inquiring as to our attitude towards the impact on various phases of construction contracting by the so-called "Philadelphia Plan." I am attaching herewith a copy of a column by Mr. James E. Curry, Jr., our President, which appeared in the September issue of Plumbing-HeatingCooling Business. I feel that this states the main concern we have over any plan which attempts to force a contractor or subcontractor to hire certain peo ple when the contractor is already under contractual obligations to the unions and others, the terms of which contradict the idea of his being free to hire anyone he pleases. The Davis-Bacon law normally sets forth only wage rates for apprentices and journeymen (sometimes superintendents and foremen), making no provision for any other type of employee who would be utilized at the job site. We sincerely hope that the various agencies of the Federal Government, with the help of Congress if necessary, will see fit to relieve the contractor of his present unenviable position. Cordially, LAWRENCE P. MUTTER, Executive Director. PUNCHLIST (By James E. Curry, Jr., President, NAPHCC) The revised "Philadelphia Plan," announced in late July by the United States Department of Labor, has been followed by several weeks of flap between government agencies, labor unions, contractor associations and several of the minority pressure groups. As most everyone knows by now, the "Philadelphia Plan" is a new effort on the part of the Federal Government-or at least one of its agencies-to bring about some more obvious results of the 1964 Civil Rights Act. The idea is that more minority people will be showing up on Federal construction jobs because the bidders will be required by the specifications to furnish minority group employees in various job categories much as they would furnish pipe, valves and fittings, or pay minimum wages and overtime rates when the work week exceeds 40 hours. As soon as the program was announced, various construction employer associations and labor unions protested vigorously to the Labor Department, pointing out that the establishment of "quotas" was illegal and in fact specifically prohibited by current Civil Rights laws. The solicitor, being the chief lawyer in the Labor Department, and his staff reviewed the whole question and stated that the order being issued as the "Philadelphia Plan" is legal. This opinion was quickly followed by one from the Comptroller General, who heads the General Accounting Office, stating that the new order goes too far, exceeds present laws and, further, any contracts awarded under such specifications would be illegal. Therefore, considerable doubt is created as to whether the General Accounting Office would hold up payment on such jobs. Here we see the contractor, including generals and subs, put in the untenable position of finding himself at a triple cross-fire: (1) one agency of the Federal Government threatening to cancel his contract if more minority workers do not appear on the jobs; (2) the applicable labor union failing to furnish minority employees in sufficient quantity while prohibiting the employer from hiring off the street, and (3) another Government agency delaying progress payments while they review the legality of the whole package. There is really nothing new in this kind of situation, which has developed in various forms ever since the crusade for integration in the construction industry really got under way. This kind of problem stems from the fact that the Federal Government has two completely different philosophies running through two sets of agencies that finally reach a point of collision, with the contractor sustaining injury but being essentially an innocent bystander. The old-line agencies and long-established labor laws are heavily larded with the philosophy of worker protection and insulation for the worker against exploitation by greedy management. This kind of thinking was undoubtedly applicable during the Industrial Revolution and into the early part of the 20th Century, but conditions are certainly not the same today. At the same time, the newer Government agencies and newer laws relating to labor and labor relations are oriented to more sociological considerations. They attempt to fix upon management the responsibility for hiring and training minority group people regardless of qualifications, competence, efficiency or any of the other factors |