ASSISTANT SECRETARY OF DEFENSE,
Washington, D.C., April 11, 1969.

Hon. AUGUSTINE F. HAWKINS,
House of Representatives,
Washington, D.C.

DEAR MR. HAWKINS: Secretary Laird has asked that I respond to your letter of March 18, 1969 regarding Negro civilian personnel in policy positions within the Department of Defense. Your comments and suggestions on this matter have been carefully reviewed by this Office. Please accept our assurance that such affirmative action, to assure equal employment opportunity at all levels within this Department, is a matter of first priority. As you may know, President Nixon's statement of March 28 on equal employment opportunity expresses his strong support for this program.

You also request that we supply a report on the presence of Negro civilian executives in key positions in this Department. In supplying this report we follow the paragraph order indicated in your inquiry:

1. The total number of supergrade positions currently allocated to the Department of Defense is as follows:

2. The number and grade of Negro executives occupying three of the above positions together with a description of functions is as follows:

(a) Stanley P. Hebert, Esquire, Deputy General Counsel, Department of the Navy (GS-17).

Provides legal advice and counsel on all aspects of Department of the Navy operations. Serves as a top legal officer in the Office of General Counsel of this Department and supervises civilian attorneys supplying legal analysis and advice to the Navy Department. (Served in 1967-1968 as Deputy Director of Investigations for the Kerner Commission.)

(b) Mr. James C. Evans, Civil Rights Counselor, Office of the Deputy Assistant Secretary of Defense (Civil Rights and Industrial Relations) (GS-16).

Reviews, audits and advises on policy formulation in equal opportunity programs for military and civilian personnel throughout the Department of Defense. Advises on all aspects of this program for the Armed Forces. Member of OSD Central Clearance Group.

(c) L. Howard Bennett, Esquire, Director for Civil Rights, Department of Defense (GS-16).

Responsibilities include policy formulation and program supervision of equal opportunity and equal treatment in the Armed Forces including special responsibilities for Military Academy recruitment and personal reviews of DoD installations to audit equal opportunity and equal treatment programs. Advises the Deputy Assistant Secretary of Defense (Civil Rights and Industrial Relations) on equal opportunity and equal treatment policy for all Military Departments and Defense Agencies.

3. The total number of positions by Department and level are provided in the attached summary of Executive Level Positions in the Department of Defense. At the present time all positions listed are filled by incumbents. However, in past years this Department has experienced periodic changes in assignments to these positions.

I wish to assure you that my personal attention will be supplied to all equal opportunity matters within the Department of Defense. The Secretary of Defense has directed us to formulate goals and methods to assure solid results at all levels of our civilian employment. In addition, we administer a similar program for contractors of all elements of DoD.

I am also supplying an attached copy of a recent statement by the Secretary of Defense expressing his personal support of the Equal Employment Opportunity Program. I hope that the above will supply the information requested.

Sincerely,

W. P. MACK,

Vice Admiral, U.S. Navy Deputy.

STATEMENT OF THOMAS HARRIS, ASSOCIATE GENERAL COUNSEL, AFL-CIO; ACCOMPANIED BY DON SLAIMAN, DIRECTOR, CIVIL RIGHTS DEPARTMENT

Mr. HAWKINS. Mr. Harris, you are the next witness.

Mr. HARRIS. I would like to request that my prepared statement be incorporated in the record.

Mr. HAWKINS. Without objection, so ordered.

(The document referred to follows:)

STATEMENT OF THOMAS E. HARRIS, ASSOCIATE GENERAL COUNSEL, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

My name is Thomas E. Harris. I am Associate General Counsel of the American Federation of Labor and Congress of Industrial Organizations, and I appear here on behalf of that organization.

For many years, and going back before 1964 when the Civil Rights Act of 1964 was passed, the AFL-CIO has consistently supported effective fair employment practices legislation. Such a law, we have always maintained, must apply to unions as well as to employers.

In 1962, George Meany testifying before a Subcommittee of the House Committee on Education and Labor stated:

***I do not hesitate to say that overwhelming instances of employment discrimination in this country are caused by the hiring and other personnel policies of employers.

"Having said this, let me also say again, as I have said in many other places, that discrimination does exist in the trade union movement.

"In short, I am not here to ask for special exemptions for unions; quite the contrary. I hope the law you draft will cover the whole range we ourselves have written into our constitution and we hope you will make sure the law will also apply to apprenticeship programs of every kind as I urged this very committee last August."

The proposal for which President Meany was testifying in 1962 and which has had the support of the AFL-CIO ever since, provided for an Equal Employment Opportunity Commission with enforcement powers modeled after those of the NLRB. The Civil Rights Act passed by the House of Representatives in 1964 was along those lines.

Unfortunately, because of practical exigencies of the situation in the Senate, Title VII of the 1964 Civil Rights Act, which was worked out between the Department of Justice and Senator Dirksen, left the Commission with little more than the power of persuasion. While Title VII is a lot better than no law at all, the Federal Government's attempts to insure fair employment practices suffer from two major deficiencies.

In the first place, the Equal Employment Opportunity Commission, which is the only government agency operating exclusively in this field, does not have the enforcement powers it needs. In the second place, there now exist multiple overlapping and conflicting remedies and agencies, which lend themselves to unwarranted harassment of unions and employers, though not to centralized and effective enforcement.

H.R. 1746 would substantially correct both of these deficiencies.

As respects enforcement, the Committee may be aware that the AFL-CIO has often complained that enforcement of the Labor Act is ineffective, and the Committee may therefore wonder how giving the EEOC enforcement powers patterned after those of the Labor Board would make the EEOC an effective agency.

There are three answers. I spelled these out for this Subcommittee in my testimony before you, Mr. Chairman, on December 2, 1969, but it may be worthwhile for me to reiterate them at this time.

In the first place, though the Labor Board is not nearly as effective as we would like, it is a great deal more effective than the EEOC, which has no en forcement powers at all.

In the second place, H.R. 1746 transfers to the EEOC the authority now vested in the Secretary of Labor under Executive Order No. 11246. The withholding of government contracts is a sanction far more formidable, for any company hav

ing major government contracts, than any remedy available to the Labor Board. It is a sanction so formidable that it has never been necessary actually to employ it: the mere threat has brought to heel such companies as Newport News Shipbuilding and Drydock, and Crown Zellerbach.

In the third place, some employers who resist unionization carry their opposition to great lengths. They do anything necessary to break the union, such as discharging employees who join, even though this conduct is in flagrant violation of the Labor Act. These employers spin out the legal proceedings as long as they can, and evidently regard any back-pay liability they incur as a cheap price for avoiding or postponing unionization.

For example, J. P. Stevens has been the respondent in twelve separate rounds of unfair labor practice proceedings, beginning in 1963 when the Textile Workers Union initiated an organizing campaign in its plants. In Stevens I the Company has, under court order, paid out $654,573.56 in back pay, and it is also involved in contempt proceedings. Thus far, however, the Company has shown no disposition to abandon its illegal anti-union campaign.

On the other hand no employer, or for that matter, union, has shown this degree of intransigence as regards Title VII. It is still respectable in some employer circles to violate the law in opposing unions, but it is not respectable to avow racism. Also employers do not have the financial stake in racial discrimination that they may have, or think they have, in opposing unionism. Thus the EEOC has a far easier job, in this respect, than does the NLRB.

If an employer, or union, is determined to resist the NLRA, or Title VII, to the utmost, and its counsel uses every possible delaying device, enforcement will be very slow, and that is true whether initial enforcement is placed in an administrative agency or in the federal district courts. However that sort of last ditch resistance has thus far occurred only against the NLRA, not Title VII.

Also, the available data suggests that the NLRB, even using a two-step procedure as it does, is faster than the district courts. That is one reason we prefer agency enforcement to district court enforcement, as proposed by the Administration last year. Here are the figures on NLRB handling of unfair labor practice proceedings:

Table A.-COMPARISON OF MEDIAN TIME (DAYS) ELAPSED IN PROCESSING CASES

[The figures for 1964-68 come from Hearings before Subcommittee of the Committee on Appropriations, House of Representatives, 90th Cong., 2d Session, Department of Labor, Related Agencies, p. 1106. The figures for 1970 were supplied by the Board's Director of Information.]

For comparison, here are some figures for the time required for the disposition of civil cases by U.S. District Courts:

TABLE B.-MEDIAN TIME INTERVAL (IN MONTHS) FROM ISSUE TO TRIAL FOR TRIALS COMPLETED IN THE UNITED STATES DISTRICT COURTS, FISCAL YEARS 1964 TO 1969

[Annual Report of the Director of the Administrative Office of the United States Courts, 1969]

It should be noted that the two sets of figures are not comparable in that those for the district courts include only the time "from issue" to trial. As any attorney knows, the time required to get to issue averages many months, and is easily spun out by dilatory counsel. Moreover, the delay in some district courts is worse than the medians given above. In the Southern District of New York, in nonjury trials, it was 35 months in 1969, while in the Eastern District of Pennsylvania, it was 44 months. The addition of any substantial volume of new litigation assigned to the district courts, the delays would, of course, only make the situation even worse than it is already.

There are other important advantages of agency as against district court enforcement. The EEOC has an expertise which 100 district courts, many of which would have few cases under Title VII, could not be expected to match. Also the agency could develop a consistent and unified body of doctrine, which 100 district courts could not. In both cases the 11 courts of appeals and the Supreme Court would have final review, but appellate review serves only to check arbitrary rulings or clearly erroneous statutory interpretations, not to develop a coherent body of law.

Now, I would like to discuss the problem of multiple overlapping and conflicting remedies, and the pointless harassment of unions and employers which results. While this subject is technical, I think it is necessary to go into it because some of the proposals which have been put forward would make the present impossible situation even worse.

At the present time, a union which is charged with discriminating, because of race, against employees it represents, or with making insufficient efforts to prevent an employer from discriminating, may be called to account in the following forums:

1. In federal court, in a suit for breach of the duty of fair representation. Steele v. Louisville & N.R. Co., 323 U.S. 192; Whitfield v. United Steelworkers, 263 F2d 546 (5th Cir. 1958); cert. denied, 360 U.S. 902.

2. In state court, in a suit for breach of the duty of fair representation. Vaca v. Sipes, 386 U.S. 171.

3. Certainly in federal court, and perhaps in state court, under the Civil Rights Act of 1866, 42 U.S.C. § 1981. (The most recent decision is Young v. IT&T, 3 FEP Cases 146 (3d Cir., Feb. 11, 1971).

4. Before the National Labor Relations Board, under the doctrine that breach by a union of the duty of fair representation is an unfair labor practice. Vaca V. Sipes.

5. Before a state or city fair employment practices commission, in areas where they exist. These commissions may or may not have enforcement authority.

6. Before the Department of Labor, Office of Federal Contract Compliance, under Executive Order 10925, in the case of employees of federal contractors or sub-contractors.

7. In federal court, in a suit brought by the Department of Justice under Title VII.

8. Before the Equal Employment Opportunity Commission, in a proceeding under Title VII. The Commission has authority to investigate and to attempt to secure voluntary compliance by conciliation. However, the Commission does not have the authority which the NLRB has to conduct formal hearings and issue orders enforceable by the federal courts of appeals. (S. 2453 would give the Commission those powers). Instead, Title VII is enforceable by suits in federal district court by the Attorney General (paragraph 6 hereof) or by aggrieved individuals.

These multifarious remedies and forums are not mutually exclusive, and our unions are sometimes burdened and harassed by a multiplicity of simultaneous or successive proceedings. An example is Local 189, United Papermakers and Paperworkers, etc., and Crown Zellerbach Corp. v. United States, 5th Cir., July 28, 1969. A charge was filed with the EEOC in 1965, and the union and employer negotiated a compliance agreement with EEOC which was satisfactory to that agency and was carried out. Some aggrieved individuals were not satisfied with this settlement, however, and brought suit in federal district court. Next, in 1967, the Office of Federal Contract Compliance, Department of Labor, entered the picture, and it insisted on certain remedies more far-reaching than those negotiated by the EEOC. When the union refused to agree, the Department of

Justice, in 1968, filed suit in federal district court. The Department, in turn, sought, and ultimately secured (1969) relief which went beyond that proposed by the OFCC.

"We cannot help sharing Crown Zellerbach's bewilderment at the twists and turns indulged in by government agencies in this case."

The court held, however, that the government was not barred from pursuing the suit.

We are strongly of the view that unions should not be subjected to these multiple proceedings, or employers either for that matter. The AFL-CIO believes that equal employment opportunity is a vital national policy which must be fully effectuated; and Title VII would never have been enacted without the vigorous support of the AFL-CIO. But that does not mean that we can support duplicative and overlapping enforcement procedures which are unduly and unecessarily burdensome to our unions.

H.R. 1746 would greatly improve the present situation. In its present form, it centers in the EEOC all authority now divided between that agency, the Department of Labor and the Department of Justice.

Section 11 of the bill would provide, through an amendment to Section 717 of the Civil Rights Act of 1964 (see Section 717 (f)), for transferring to the Commission all authority, functions and responsibilities vested in the Secretary of Labor pursuant to Executive Order 11246 relating to non-discrimination in employment by Government contractors and subcontractors, and non-discrimination in federally assisted construction contracts, together with necessary personnel, property, records and unexpended balances of funds. The Commission would thereafter have the authority to exercise the contract compliance functions heretofore exercised by the Department.

In addition, Section 5 of the bill would transfer to the Commission the socalled "pattern and practice" functions of the Attorney General under Section 707 of the Civil Rights Act of 1964. The bill would preserve all proceedings, orders and decrees in effect on the date of enactment of the bill, and the Commission would be substituted for the Attorney General as a party in all such actions. The bill specifies that from and after the date of its enactment, the Commission would have authority to investigate and act on charges of "a pattern or practice of discrimination" filed by aggrieved persons or a member of the Commission and that such proceedings shall be in accordance with "procedures set forth in Section 706, including the provisions for enforcement and appellate review contained in subsections (k), (1), (m), and (n) thereof."

The concentration of these powers and functions, together with those provided for in other provisions of H.R. 1746, in the EEOC is necessary to assure the Commission the effective enforcement authority it has heretofore lacked. At the same time it will make sure that it is the Commission to which parties must look, not a multiplicity of other agencies and jurisdictions, for enforcement or relief under the provisions of the bill.

The bill would not affect existing private remedies, such as those referred to in the paragraphs which I have numbered as 1, 2 and 3 above, and private litigants would indeed be given an additional remedy, in that persons aggrieved would have standing as parties in EEOC proceedings. We appreciate the desire of minority workers, and the organizations which represent them, to retain private rights of action, independent of the vagaries of and changes in government agencies. H.R. 1746 preserves and enhances those rights.

In addition to giving the Equal Employment Opportunity Commission additional enforcement functions, H.R. 1746 would broaden the scope of Title VII of the Civil Rights Act of 1964 to cover employers of eight or more instead of twenty-five or more employees and to cover unions with eight or more instead of twenty-five or more members. In addition, the bill would extend the coverage of Title VII to include state and local government employees.

There is no reason why small employers or unions should be exempt today, more than seven years after Title VII first went into effect, from the equal employment requirements of that Title. Indeed, some of the worst discrimination in employment occurs in small establishments and local unions. Similarly, there is no reason why state and local governments should not be required to comply with national standards with respect to non-discrimination in employment. Congress in 1966 extended the requirement for observance of fair labor standards to state and local employees in schools and hospitals and there is no doubt that the authority of the federal government with respect to interstate commerce is a proper basis for extending federal requirements calling for elimination of discrimination in employment to state and local government employment.