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Milwaukee, because in item 2, among other things, this is what was suggested, not by you, I guess

Mr. MOSKOWITZ. No, sir.

Senator DIRKSEN. But by the compliance agency.

Taking appropriate steps to create an image in the community in Milwaukee of an employer that does not discriminate against minority groups in its employment practices, including but not necessarily limited to publicizing through advertisements in the Milwaukee Journal, the Milwaukee Sentinel, the Milwaukee Star, the Milwaukee Courier, and other appropriate media.

I don't know how they left out television. Roger, where are you? Respondent's commitment to an affirmative program of equal opportunity in its recruitment and hiring practices.

In the name of good conscience, how far do they have to go to satisfy these governmental bureaus?

This is marked "A Proposed Agreement." It is an OFCC docket. Mr. Biermann, it is from your shop. But all through here there are a lot of rather interesting things.

Mr. MOSKOWITZ. Senator, though I wasn't part of that proposal, the suggestion, as you read it, I must say I think is reasonable for a company who may save some problems. As a suggestion, maybe they could come back and have some other way of doing it. But it didn't sound unreasonable to me, sir.

Senator DIRKSEN. What it says in effect is, the Government is saying to them, this is the image you create. We want it. And we are telling you what we want. And we are telling you how to go about it. That is going pretty far in a free enterprise system, isn't it?

Mr. MOSKOWITZ. And I think that may be the difficulty that we have, sir. I take it the contract clause speaks of affirmative action. And I would hope that the companies-if I were dealing with themwould come up with their conception of what an affirmative action is. But I think the Government has an obligation to suggest. And I read those suggestions as an affirmative action. And I read them also as something that many employees have done that have not been involved in this effort, and that is, the use of the advertising factor as being equal opportunity employers, seeking out media that deal with the minority group community. I think these are reasonable suggestions. And I say that here because we want to defend the documents, although I myself am not a part of them.

Senator DIRKSEN. I must say, Mr. Moskowitz, I am surprised by your answer. We will just let it stand.

Senator KENNEDY. Would the Senator yield on that?

Senator DIRKSEN. Indeed.

Senator KENNEDY. Mr. Moskowitz, all we are asking for are those who are interested in doing business with the Federal Government, isn't that correct?

Mr. MOSKOWITZ. That is correct.

Senator KENNEDY. So those are the only ones that are being asked for compliance?

Mr. MOSKOWITZ. That is correct.

Senator DIRKSEN. I have heard that before, too, long ago.

No. 4

There still remains some company housing that is occupied on a segregated basis.

I don't know anything about it, but evidently they have got some housing. And you doubtless do know.

Mr. MOSKOWITZ. I would strictly refer the Senator to the plan that Burlington offered where they talk about their housing problem. And I believe they have offered an adequate plan to solve it. But there is recognition of the fact that they maintained that these houses were rented at the time on a segregated basis. And not all the companiesand that is why I said some not all of the companies own housing,

but some do.

Senator DIRKSEN. But this question of goals and timetables is a very important one. And we are going to have to get at the root of this trouble, there is no question about that. This thing is not going to die in a couple of years, I am determined on that.

I just want to ask Mr. Biermann one or two questions.
Are you a lawyer, Mr. Biermann?

Mr. BIERMANN. No, sir; I am not.

Senator DIRKSEN. Well, this morning-I don't know whether you were here or not-but I raised this question of the authority in an Executive order to apply all these threatened sanctions which they said were not actually applied, but they are there, to strike some fear and apprehension into the business community of the country.

But I went back to check the record just a little bit, and when the act of 1964 was before the House, somebody did slip in a provision that would justify and give authority to the President to issue Executive orders that forbid discrimination in employment by Government contractors. Now, in that form the bill went to the House floor. And the chairman of the House Judiciary Committee, Mr. Celler, offered an amendment. And the House saw fit to strike that from the 1964 bill. And the Senate did not put it back. Had they tried I would have resisted the effort. I have been trying to pin down the authority for all these things that are done. And we are going to have to get to the heart of the matter sooner or later. Because an Executive order has got to stand on some legal basis or constitutional basis.

Mr. BIERMANN. Senator, I am not an attorney, but in my lay way I might point out that I understand that the Attorney General in 1962 advised the Secretary of Labor and the President that an Executive order was constitutional, and that its authority did reside in the Constitution. I also understand that in 1962 and 1963 the Comptroller General ruled that the Executive order for fair employment practices was an appropriate medium by which to assure equal opportunity among Government contractors. And I also understand that there have been two court cases, one in Texas and the other the Crown Zellerbach case that was referred to before, which cited the Executive order as having the effect and force of law. I can't give you the citation, sir, but I do understand those are precedents that might be pertinent.

Senator KENNEDY. We will obtain those and make them a part of the record.

I think that we should include in the record at this point the Crown Zellerbach case referred to by Mr. Biermann and the opinion of the Attorney General, dated September 26, 1961, upholding the validity of the Executive order prohibiting discrimination by Government


Senator DIRKSEN. That was prior to the 1964 act.

(The document referred to follows:)



(Civil Action No. 68-205, Section B)



This cause having come on for hearing on the motion of the United States for a preliminary injunction against the defendants, as well as a trial on the merits of the complaints of the United States and the plaintiff-intervenors, Anthony Hill, David Johnson, Sr., and Local 189a, United Papermakers and Paperworkers, for permanent injunctive relief.

IT IS NOW THE ORDER OF THE COURT that, for the reasons assigned, the relief sought be, and the same is hereby, GRANTED to the following extent: (a) The defendants Crown Zellerbach Corporation and Local 189, United Papermakers and Paperworkers, AFL-CIO, CLC, and United Papermakers and Paperworkers, AFL-CIO, CLC, their officers, agents employees, servants and all persons and organizations in active concert or participation with them, are hereby ENJOINED and RESTRAINED, pending the further orders of this Court, from discriminating against the Negro employees of the defendant Crown Zellerbach Corporation's paper mill at Bogalusa, Louisiana, in violation of Title VII of the Civil Rights Act of 1964, and in particular, the defendants are hereby ORDERED to ABOLISH forthwith the system of "job seniority" and any other seniority system designed to discriminate against the Negro employees at said plant or having the effect of so discriminating, insofar as such systems may apply to the promotion, demotion, or selection for training of Negro employees hired prior to January 16, 1966 in competition with employees of the opposite race; and the said defendants are ORDERED to ESTABLISH, with respect to such promotions, demotions and selection for training, and in the place of such "job seniority" or similar systems, a system of "mill seniority" as follows:

(1) Total mill seniority (i.e., the length of continuous service in the mill) alone shall determine who the "senior" bidder or employee is for purpose of permanent or thirty-day promotions, or for purposes of demotion in all circumstances in which one or more of the competing employees is a Negro employee hired prior to January 16, 1966;

(2) For jobs which operate only one shift per day, promotions to fill casual or vacation vacancies will be made on the same basis as permanent and thirty-day promotions;

(3) For jobs which operate more than one shift per day, promotions because of casual or vacation vacancies will be awarded to the senior (as determined in (1) above) qualified man on the shift and/or machine where the vacancy exists; (4) Promotions and demotions above shall not affect persons who have formal written waivers in effect at that time. Persons promoted shall go around a waived position in any job slot, and persons demoted shall likewise go around such a position on the way down ;

(5) Qualified employees shall be selected for training on the same basis as for promotion described above.

The provisions of this decree pertaining to the implementation by the defendants of a system of "mill seniority" shall be placed into effect within ten days from the entry of this order; prior to the implementation of the said "mill seniority" system, the defendants are ENJOINED and RESTRAINED from interfering and failing to comply with the agreement of March 19, 1967, as modified by the agreements of June 16, 1967 and January 3, 1968, between the defendant Crown Zellerbach Corporation and the Office of Federal Contract Compliance of the United States Department of Labor.

(b) The defendant Local 189, United Papermakers and Paperworkers, AFLCIO, CLC, and United Papermakers and Paperworkers, AFL-CIO, CLC, their officers, agents, members, employees, servants, and all persons and organizations in active concert or participation with them, are ENJOINED and RESTRAINED, pending the further orders of this Court, from interfering with or hindering, by striking, threatening to strike, or otherwise, the compliance by the defendants with the foregoing provisions of this order.


This action was filed by the Attorney General on behalf of and in the name of the United States on January 30, 1968, against Local 189 of the United Papermakers and Paperworkers, AFL-CIO, CLC (all the members of which are of the white race), its parent union, the United Papermakers and Paperworkers, AFLCIO, CLC, and Crown Zellerbach Corporation, seeking relief for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et sec., and from interference with the implementation of Executive Order 11246, 30 F.R. 12319 (September 28, 1965), forbidding racial discrimination in employment opportunities by government contractors. On February 15, 1968, Local 189a, United Papermakers and Paperworkers, AFL-CIO, CLC, (all the members of which are Negroes), David Johnson, Sr., and Anthony Hill, both of whom are Negro employees of Crown Zellerbach and members of Local 189a, filed a motion for leave to intervene as parties plaintiff herein and as class representatives. By orders of February 21, 1968 and March 8, 1968, this Court granted such leave and a complaint in intervention was filed. On March 20, 1968, this cause came on for hearing on plaintiff's motions for preliminary injunctions against defendant unions and against defendant Crown, and on the prayers for permanent injunctions by plaintiff and plaintiff-intervenors. By stipulation of the parties pursuant to Rule 42(b), the hearing was limited to the following issues:

"(a) Whether, under the facts and circumstances of this case, the job seniority system which was in effect at the Bogalusa paper mill prior to February 1, 1968, was unlawful?

"(b) If the answer to the above question is in the affirmative, what is the necessary or appropriate standard or guideline for identifying the seniority of employees for purposes of promotion and demotion?"

All other issues in this case were not submitted to the Court but were expressly reserved for the hearing which all parties agree will commence on April 30, 1968. We find, as a matter of fact, (1) that Crown and the white local actively engaged, prior to January 1966, in a pervasive pattern of discrimination against the Negro employees at Crown's Bogalusa paper mill with respect to employment opportunities of promotion, demotion and selection for training; (2) that the continuation of the "job seniority" system, or any seniority system which incorporates job seniority as a substantial factor in promotion, demotion and selection for training, operates, because of the situation engendered by the pervasive past discrimination by the defendants at Crown's Bogalusa paper mill, to effectively presently discriminate against Negro employees at the mill whenever Negro employees hired prior to January 1966 compete against white employees for promotion, demotion or selection for training; (3) that a system of "mill seniority," as defined in the Collective Bargaining Agreement between Crown and the local unions presently in force at the Bogalusa plant, would not have such a continuing discriminatory effect against the Negro employees; and (4) that "job seniority," as a consideration in the promotion and demotion of employees within a particular line of progression and in the selection of employees for training, is not necessitated by safety or efficiency factors, nor for any other reason is "job seniority" objectively a better or more desirable basis than "mill seniority" for promotion, demotion or selection for training of employees within the context of the present lines of progression in force at Crown's Bogalusa paper mill.

As a matter of law, we hold that this Court has jurisdiction of this action under 42 U.S.C. § 2000e-6(b) and 28 U.S.C. § 1331 and § 1345, and that discrimination against Negroes with respect to employment opportunities at this mill is properly subject to attack by the government pursuant not only to Title VII of the Civil Rights Act of 1964,' but also under § 209 of Executive Order 11246.2 That order, like the order in Farkas v. Texas Instrument, Inc., 375 F. 2d 629, 632 (5th Cir. 1967), is to be accorded the force and effect of statutory law, 375 F.2d 632, n. 1 and text.

The white local is not immune from suit or injunctive process of this Court by reason of the general terms of the Norris-LaGuardia Act, 29 U.S.C. § 101,

1 The parties have stipulated that Crown is an employer within the meaning of 42 U.S.C. $2000e (b) and is engaged in an industry affecting commerce within the meaning of 42 U.S.C. 2000e (n) and that Local 189 and its parent union are labor organizations within the meaning of 42 U.S.C. § 2000e (d) and are engaged in an industry affecting commerce within the meaning of 42 U.S.C. 2000e (e).

2 The parties have stipulated that, "Since at least 1961, the defendant, Crown, has supplied materials under government contracts and subcontracts, which contain_equal employment opportunity clauses similar to or the same as those appearing [in] the Executive Order 11246 and Executive Order 10925, to the extent required by those orders."

et seq. Even prior to the enactment of Title VII, the Supreme Court had held that racial discrimination by a union was not sanctioned or protected from corrective court orders by the Norris-LaGuardia Act. Virginian R. Co. v. System Federation, 300 U.S. 515 (1937); Graham v. Brotherhood of Firemen, 338 U.S. 232 (1949); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 774 (1952). These decisions were not predicated on any peculiarity in the antidiscrimination provisions of the Railway Labor Act, Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 458 (1957), and we find the holdings of these cases equally applicable to the provisions of Title VII and Executive Order 11246. Merely because § 706 of Title VII, 28 U.S.C. § 2000e−5(h), (authorizing private suits for the correction of Title VII violations), contains an express exemption from the anti-injunction provisions of the Norris-LaGuardia Act, while § 707, 280 S.C. § 2000e-6, (authorizing civil actions by the Attorney General), does not, fails to influence our holding. Section 707 provides, in the broadest possible language, for the protection of Title VII rights by suit by the Attorney General seeking "permanent or temporary injunction, restraining order or other order against the person or persons responsible as [may be]

necessary to insure the full enjoyment of Title VII rights." 42 U.S.C. § 2000e-6 (a). This language cannot be read to prohibit the remedy against unions which may be responsible for Title VII violations. Title VII read as a whole forbids such a restrictive interpretation. Section 2000e (a) defines "person" to include "one or more individuals, labor unions, . . .;" 2000e-2(c) specifically lists the acts of labor organizations which constitute "unlawful employment practices" under Title VII; § 2000e-2 (c) (3) makes it unlawful for a labor organization "to cause or attempt to cause an employer to discriminate against an individual in violation of [Title VII]." To hold such unlawful union practices subject to injunctive remedies sought by individuals under § 706 and not to the Attorney General seeking to correct what will usually be much more serious and pervasive "patterns or practices of resistance" under § 707 would be inconsistent and irrational, and destructive to the national achievement of the basic aims of Title VII.

It is undisputed-in fact the ultimate facts compelling the conclusion have been stipulated by all parties-that prior to May 1964 Crown followed an active program of discrimination in employment opportunities against its Negro employees at its Bogalusa plant, and that not until January 1966 were considerations of race fully obliterated with respect to the job opportunities of the employees at the plant. Although not equally responsible for this situation, the white local was in good measure at fault: the discrimination against Negro employees was possible because Local 189 was all white, and Negro employees excluded from that local had an organization of their own, Local 189a; discrimination was arranged by the device of granting "jurisdiction" over the more attractive lines of progression and the more lucrative jobs to the white local.

In the circumstances of this case, the seniority and recall system which defendant unions and defendant Crown maintained in effect at the Crown, Bogalusa, Louisiana paper mill prior to February 1, 1968, perpetuates the consequences of past discrimination, and is unlawful under Title VII of the Civil Rights Act of 1964, and under Executive Order 11246 and the contractual clauses required thereby. Obviously, that seniority system was not a bona fide seniority system within the meaning of § 703 (b) of Title VII. See Quarles v. Philip Morris, - F.Supp. (E.D.Va. 1968).

The government and plaintiff-intervenors have pressed on the Court the injustice of the "job seniority" system, its contribution to discrimination at Crown's Bogalusa plant, and the advantages of "mill seniority" over "job seniority." Although we agree with the application of these arguments to the situation involved here, we think it important to correctly express the underlying basis of this approach. "Job seniority" is certainly not inherently prejudicial to Negroes; there is nothing about "job seniority" systems themselves to make them necessarily offensive; nor do we think "mill seniority" necessarily a better system. It is not the job seniority system in and of itself, but rather the continuous discrimination practiced by the defendants within the framework of that system, which now requires that the system be abolished in this case. Within the framework of a "job seniority" system, Negro employees have been forced into the inferior lines of progression and the less desirable jobs. The defendants claim that active discrimination against Negroes has now ceased. But the fact that Negroes who, under the present liberalized policy, have only recently entered formerly white progression lines are forced to compete with white employees for promotion on the basis of "job seniority" con

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