the Executive order the obligation to carry on affirmative action is required of all contractors. I simply point that out. In a sense the Executive order program as the history suggests originated first. There was no generalized authority to compel nondiscrimination and to provide remedies for discrimination. So the Government used its contracting authority. Subsequent to that we had a statute which applies to everybody which is title VII and the other matters I referred to. I am suggesting to you that the full congruence of the statute which precludes discrimination and presumably, therefore, as a remedy creates affirmative action, is sometimes difficult for people to separate from the affirmative action that is required under the Exeutive order without any showing of discrimination at all. That is the first thought in the paragraph you cited. The second thought in it I think is that as specified also in this history the number of classes of people who are subject to affirmative action programs, who will receive the benefits of affirmative action programs, has been expanded as the testimony makes clear, to include veterans, to include handicapped, and others. Questions have been raised in a number of people's minds about that process of expansion and what are the effects of its further expansion. I am only pointing out that that is the kind of question that one ought to think through for the future. Mr. HAWKINS. By expansion you are referring to other groups that have been added, I assume? Seretary DUNLOP. Yes. Mr. HAWKINS. I still cannot understand what obligation is assumed by contractors, those who do business on a contract basis, what obligation that they assume which is above an enforceable nondiscrimination obligation? Are you saying that the affirmative action program cannot be enforceable? Mr. KILBERG. Let me respond to that, Mr. Chairman. No; we are not saying that the affirmative action program cannot be enforceable. In fact, I think we have shown a record of some enforcement in that area. All we are suggesting is that as we expand the numbers and categories of groups who will benefit from the affirmative action obligation, that questions have been raised by some, and they are legitimate questions, as to whether there will not be additional administrative and enforcement problems arising from that expansion. Mr. HAWKINS. Are we talking about enforcement problems with respect to Executive Order 11246? Mr. KILBERG. We are talking about enforcement problems generally with regard to the Executive order Mr. HAWKINS. Let us confine it to Executive Order 11246. Are you suggesting there have been some enforcement problems arising with respect to Executive Order 11246 because other groups have been added? Mr. KILBERG. I think it is too early to any whether, in fact, that has been the case as yet. All we can say at this point is that some have raised this question as to whether the expansion of classes protected by the affirmative action obligation (e.g., handicapped persons and Vietnam era veterans) will impact adversely on affirmative action for 50-250-75-9 the previously protected classes; that is, minorities and women, whether the obligation upon them to affirmatively recruit, hire, and promote handicapped persons and Vietnam era veterans in particular will not have a long-term adverse effect on the promotion of greater numbers of minorities and women. That is a question that has been asked us. We don't have an answer at this point. At this point we have not seen such an impact. We are simply raising it as a legitimate question of query and priority. Mr. HAWKINS. Mr. Secretary, I will go on to another aspect of the presentation. On page 9 of the statement you indicate that "In addition the reach of the procurement process is not universal." Then you indicate it does not include unions and employment agencies who are out of its reach. I am sure you must be aware of sections 207 and 208 of the Executive order which give you that power to ascertain the situation with respect to unions and employment agencies that may discriminate. It gives you the power to look into this, to make recommendations to the Department of Justice, to the Equal Employment Opportunities Commission, and to other Federal agencies in case labor is violating the order. The contractor himself may also write into the contract stipulations that would protect the contractor against labor discrimination. In other words, are you ignoring completely the power that you have under the Executive order to make such recommendations and to take certain actions? And I don't know whether any of these actions have ever been taken by any Secretary of Labor but is it true to say that unions and employment agencies cannot be reached in some manner if they too discriminate? Mr. KILBERG. Let me answer that, Mr. Chairman. It is not true to say that they cannot be reached. In fact we have taken advantage of section 207 of the Executive order on a number of occasions, and referred a number of cases involving labor unions both to the Department of Justice and to the EEOC, both because of information that comes to our attention about overt acts of discrimination and because of information which comes to our attention about acts of the union which are designed to frustrate the employer's compliance with the affirmative action obligation. However, the Executive order, itself, because it deals with the procurement process, can only reach those persons with whom the Government has a contractual relationship, those persons with whom the Government is in privity. It is that point that we are making here. This is to be distinguished from title VII which deals not only with employers but with unions and employment agencies. Mr. HAWKINS. Cannot you reach the union by acting through the contractors? Have you ever done that? Mr. KILBERG. We have done it. It creates certain problems. Mr. HAWKINS. Will you explain what problems are created by trying to reach those discriminating? Mr. KILBERG. There is an obligation under the National Labor Relations Act on all employers who have collective bargaining relationshins to bargain with their unions about changes to their collective bargaining agreement. When we demand of contractors that they make. changes in their seniority systems, for example, to comply with obligations created under the Executive order we do not have the ability to reach the union. So, we are asking the employer to do something which he has an obligation to negotiate with his union prior to amendment. That creates delays, it creates confusion, it creates problems with the employer because we cannot reach the union directly under the contract compliance program. Mr. HAWKINS. Doesn't title VII bind the unions? Mr. KILBERG. Yes, but we do not enforce title VII. Mr. HAWKINS. You could make recommendations? Mr. HAWKINS. Have you ever made recommendations? Have you ever conducted any hearings in conjunction with this phase? Mr. KILBERG. Yes. The steel industry decree and the A.T. & T. decree are excellent examples of our cooperation with other agencies. Mr. HAWKINS. You cite two cases. How many other cases can you cite? Mr. KILBERG. If you would like, for the record, I can give you a list of those matters we have referred. Mr. HAWKINS. Can you submit for the record a list of those instances so that we will not consume the time this morning? Mr. KILBERG. Yes. [The material referred to follows:] EMPLOYMENT CASES INVOLVING UNIONS REFERRED TO THE DEPARTMENT OF JUSTICE UNDER EXECUTIVE ORDER 11246 Crown Zellerback Corporation, United Papermakers and Paperworkers, Local 189 (Bogalusa Papermakers) B & P Motor Express1 St. Louis Building and Construction Trades Council, et al. Chesapeake and Ohio Railway E. St. Louis Operating Engineers E. St. Louis Electrical Workers E. St. Louis Cement Masons Seattle Building Trades Newark Building Trades New York Pipefitters, Sheet Metal Workers and Ironworkers Kansas City Ironworkers Carolina Freight Carriers Cleveland Sheet Metal Workers Strickland Transportation Navajo Freight Philadelphia Elevator Constructors Interstate Motor Lines Lee Way Motor Freight Operating Engineers, Local 14, 15 (NY) Terminal Transport Mobile Building Trades East Texas Motor Freight Chicago Building Trades Chicago Sheet Metal Workers Trucking Employers, Inc. Allegheny-Ludlum (Steel Industry) Thurston Motor Lines, Inc. Nationwide Trucking 1 This referral did not result in the filing of a lawsuit based on the Executive order, but this company was sued by the Department of Justice on the basis of title VII of the Civil Rights Act of 1964. In addition, at least 700 complaints per year are referred for investigation to the Equal Employment Opportunities Commission.3 Mr. HAWKINS. On page 10 of the statement, Mr. Secretary, you speak of "the inherent uncertainty involved in establishing goals and timetables." Inasmuch as the Department has the power to issue such guidelines and to make them as clear as possible and as strong as possible, just what inherent uncertainty is there about establishing goals and timetables as required by the Executive order? Secretary DUNLOP. Let me comment first and then Mr. Kilberg should add his comments. First of all, there is great uncertainty in my mind as to the appro priate area to which data on which goals and timetables should refer. For some occupations it is one area, sometimes it is another. I think the Executive order fails to recognize that the areas from which people draw their labor force vary enormously by occupations depending on the state of the economy. In times of prosperity you may draw people from one labor market area, in times of recession you may draw them from a different range of areas. Perhaps I should also mention that the notion of goals and timetables is always in public discourse distinguished from quotas. We tell people that they should set themselves goals and timetables and make good faith efforts to deliver on them but there is no inherent requirement that they be achieved and therefore that creates some inherent uncertainty as to whether or not they will be achieved. The very concept of goals and timetables is one which does not make for certainty of results. Bill, would you like to add something? Mr. KILBERG. I would add only two points. First, the requirement of goals and timetables is not set forth in the Executive order, itself. It was a concept developed by regulations by the Department of Labor. Second, we have been challenged by the General Accounting Office in regard to order No. 4 which appears in title 41 of the Code of Federal Regulations, part 60-2, with regard to whether we give specific enough guidance to the employers because of the difficulty of setting numerical goals and timetables with any degree of scientific precision. To date we have been successful I think in defending our position that we do provide enough specificity. But I think that the points which the Secretary raises about the difficulty of defining under utilization, what would in fact be a full utilization of minorities and women in any particular job classification, in any particular establishment, of any particular company, at any given point in time, given the requisite skills and ability necessary to perform any particular job, is a difficult matter to determine and always leaves open a degree of uncertainty. Mr. HAWKINS. I assume that on page 9 you are referring to the statements that have been made about the difficulties with the GAO on being able to be more specific. I fail to see in what way you can't be specific about goals and timetables, and to spell out what you mean 2 This referral is still under consideration. This figure indicates all cases, not just those involving unions. by good faith efforts. It would seem to me that the GAO objections in its report are very valid in its criticism of the agency for its failure not to spell out when it has the authority what you really mean. If you are somewhat vague and general and not clear about what your own enforcement responsibilities are in the enforcement field, I don't see how you can expect enforcement to be successful. Are you saying that you cannot possibly be specific in the guidelines as to what you mean when you say goals and timetables? Secretary DUNLOP. Mr. Chairman, the instructions as I read them and have known them over the years are necessarily general because they are designed to apply to a whole wide area of all industry, firms of varying size and locations, and they apply to different States. It is our view that those generalized instructions are, if anything, as specific and detailed as the Department historically has known how to make them. But the problem of translating those into each particular occupation for each job classification, for each particular company in the United States is an enormous job, and we do not try to do that. We try to provide general guidelines. So that when you go back to deal with a specific company, there is great difficulty in being certain the procurement agencies to whom we delegate the responsibility have the capability of doing it, but there is great difficulty in knowing precisely whether the particular goal and timetable was reasonable under all the circumstances, and the very use of the words "good faith efforts" is, I trust you will agree with me, a matter that involves very great care in determining whether it has been achieved or not. Good faith effort is not always easy to ascertain. Mr. HAWKINS. We are not saying that it is always, but we conclude that it is sometimes. Secretary DUNLOP. I agree. Mr. HAWKINS. It would be unusual for us to have before this committee testimony that a vigorous job of enforcement is being done sometime in some of the fields. It seems to me that is really not the issue. It is our understanding that the General Accounting Office did send to you some weeks ago, as a matter of fact several months ago, a letter pertaining to the issuance of specific guidelines on this issue. Have you acted on that request, or that letter, or have you answered it? If so. what is the progress being made in order to be more specific? Secretary DUNLOP. May I ask Mr. DeLury to answer that question because the drafting of the letter in response to the GAO would initially be done by the Assistant Secretary's Office and Mr. Davis. Mr. DELURY. Mr. Chairman, we have completed some draft work on the response to the GAO and are getting some legal opinions now from the Solicitor's Office. We plan to be getting the response back to them shortly. The 60 days will be up soon. Secretary DUNLOP. The letter which I remember reading from Elmer Staats, Mr. Chairman, in accordance with established procedures is that our response must be back in 60 days. I don't believe that 60 days has yet elapsed. We will have our response in on time. The report to which you refer. Mr. Chairman, I personally read carefully. It contains, as you said, a whole host of matters. In my memory of it the largest range of those matters related, rather than to |