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equal employment opportunity both in government employment and in employment on government contracts. (26 Fed. Reg. 1977, 1961)
There was a dramatic break with the past under the new order. While earlier orders had imposed an obligation on contractors not to discriminate on the basis of race, creed, color, or national origin, the Kennedy order also required the contractors to take affirmative action to make the policy effective.
Government contractors were required to do the following:
1. Not to discriminate against any employee or job applicant because of race, creed, color, or national origin.
2. To take affirmative action to ensure that applicants are employed and employees are treated during their employment without regard to race, creed, color, or national origin.
3. To state in all solicitations or advertisements for employees that all qualified applicants will receive consideration without regard to race, creed, color, or national origin.
4. To advise each labor union with which they deal of their commitments under the order.
5. To include the obligations under the order in every subcontract or purchase order, unless specifically exempted.
6. To comply with all provisions of the order and the rules and regulations issued by the Committee; to furnish all information and reports required by the Committee; to permit access to books, records, and accounts for the purpose of investigation to ascertain compliance.
7. To file regular compliance reports describing hiring and employment practices.
The new order had teeth in it. In addition to requiring contractors to file compliance reports, it gave the Committee specific enforcement powers. To assure compliance, the Committee was authorized to do the following:
1. Publish the names of noncomplying contractors and unions.
2. Recommend suits by the Justice Department to compel compliance.
3. Recommend criminal actions by the Justice Department against contractors who furnish false information.
4. Terminate the contract of a noncomplying employer.
5. Forbid the contracting agencies to enter into new contracts with contractors who have discriminated unless they can demonstrate that they have changed their policies.
The most effective method of achieving compliance, however, was the “plan for progress"-described by the Committee as a procedure for effecting com pliance through cooperation. At the time the Civil Rights Act was passed, there were more than 200 large companies operating under such plans. They require the contractor to set up effective recruitment programs to give members of minority groups equal opportunity of employment.
Under Executive Order 1114 issued by President Kennedy on June 22, 1963, the no-discrimination requirement was extended to all construction contracts paid for in whole or in part with funds obtained from the federal government or
borrowed on the credit of the government pursuant to a grant, contract, loan, insurance, or guarantee. It also was extended to contracts undertaken pursuant to any federal program involving such a grant, contract, loan, insurance, or guarantee.
On February 13, 1964, President Johnson issued Executive Order 11141 declaring a federal policy under which federal supply contractors and subcontractors are forbidden (1) to discriminate because of age in hiring, promoting, or discharging employees, or in connection with working conditions or privileges, and (2) to specify an age limit in help-wanted ads. Both prohibitions are subject to a qualification permitting discrimination based upon a bona fide occupational qualification, retirement plan, or statutory requirement.
Office of Federal Contract Compliance
Executive Order 11246 issued by President Johnson on September 24, 1965, transferred the functions of the President's Committee to the Labor Department, and Order No. 26-65 issued by Secretary of Labor Wirtz on October 5, 1965, established the Office of Federal Contract Compliance to carry out the responsi bilities assigned to the Labor Department by the executive order. The executive order was amended on October 13, 1967, effective October 13, 1968, to add sex as a forbidden basis of discrimination. (Executive Order 11246, 30 Fed. Reg. 12319, 1965; Executive Order 11375, 32 Fed. Reg. 14303, 1967)
Discrimination by Unions
The Committee set up by President Kennedy was directed to use its best efforts to get unions to cooperate with and comply in the implementation of the executive orders, but the Committee had no direct means of compelling compliance by unions. The obligation not to discriminate runs from the contractor to the government.
Shortly after the Civil Rights Act was adopted, however, the Committee provided for adoption for government-contract work of the Secretary of Labor's standards for nondiscrimination in apprenticeship and training.
The standards and compliance procedures for apprenticeship under federal programs were issued in December 1963. They require selection of apprentices on the basis of qualifications other than race, creed, color, or national origin. But they make clear that they do not require or support a quota system for minorities in apprenticeship programs.
STATE FEP LAWS
Beginning in the mid-1940's, a number of the states adopted fair employment practice laws. New York was the first state to act in this area. It adopted an enforceable fair employment practice law in 1945.
By the time the Civil Rights Act was adopted in 1964, over half the states had legislated in the area of equal employment opportunity. The statutes could be divided into the following three groups:
1. Those that provided for an administrative hearing and judicial enforcement of orders of an administrative agency or official. The following 21 states had laws of this type in 1964: Alaska, California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Kansas, Massachusetts, Michigan,
Minnesota, Missouri, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin.
2. Those that did not provide for any type of administrative agency or enforcement of orders but made employment discrimination a misdemeanor. The following four states had laws of this type in 1964; Delaware, Idaho, Iowa, and Vermont. (The Delaware law established a commission, but did not specifically provide for judicial enforcement of its orders.)
3. Those that were strictly voluntary and had no enforcement provisions. Three states had laws of this type in 1964: Nevada, Oklahoma, and West Virginia.
In addition to the above, Nebraska had a statute forbidding unions to discriminate in their collective bargaining capacity against individuals on the basis of race or color, and also prohibiting such discrimination by suppliers of military goods to the state or federal government.
FAIR REPRESENTATION BY UNIONS
During the period in which racial or religious discrimination in employment was being dealt with by state laws and executive orders of the federal government, there was another doctrine developed to deal with discrimination by labor unions. This was the doctrine of "fair representation" enunciated by the courts and the National Labor Relations Board.
Railway Labor Act Holdings
In cases arising under the Railway Labor Act, the U.S. Supreme Court laid down the rule that a statutory bargaining agent must represent all employees in the bargaining unit without arbitrary discrimination. Specifically, the Court held in 1945 that the Act requires the bargaining agent "in collective bargaining and in making contracts with the carrier, to represent nonunion or minority union members of the craft without hostile discrimination, fairly, impartially, and in good faith." (Steele v. Louisville & Nashville R.R. Co., US SupCt, 1945, 323 US 192, 65 SCt 226, 15 LRRM 708)
The Court later held that a union that discriminates by contract against a minority group may be enjoined from enforcing its contract in this respect. (Railroad Trainmen v. Howard, US SupCt, 1952, 343 US 768, 72 SCt 1022, 30 LRRM 2258)
During the same period, the NLRB was establishing a corresponding duty of certified unions to represent the members in their bargaining units equally and without discrimination. In a case decided in 1945, the Board indicated that it would have revoked the certification of a union that placed Negro members in a segregated local except for the fact that the union offered to give up its discriminatory practices during the proceeding. (Larus and Brs., NLRB, 1945, 62 NLRB 1075, 16 LRRM 242)
In 1962, the NLRB repeated that execution of a contract that discriminates on the basis of race would endanger the union's certification. It added that such a contract would not bar an election sought by a rival union. (Pioneer Bus Co., NLRB, 1962, 140 NLRB 54, 51 LRRM 1546)
A little over a week later, the NLRB handed down a three-to-two decision substantially broadening the doctrine of fair representation. It held that:
1. The Taft-Hartley Act gives employees the right to be free from "unfair or irrelevant or invidious treatment by their bargaining agent.'
2. If a union treats any worker it represents in this manner, it unlawfully restrains and coerces employees in the exercise of their statutory rights and thereby violates the unfair-practice provisions of the Act. The employer also commits an unfair labor practice if he participates in such arbitrary action by the union against an employee. The case did not involve racial discrimination, but it laid a basis for application of the principles laid down in cases involving such discrimination. (Miranda Fuel Co., NLRB, 1962, 140 NLRB 181, 51 LRRM 1585)
In a two-to-one decision in which there was no majority opinion, a panel of the U.S. Court of Appeals at New York denied enforcement of the Miranda holding. The NLRB did not carry the case to the Supreme Court. (NLRB v. Miranda Fuel Co., CA 2, 1963, 326 F.2d 172, 54 LRRM 2715)
The NLRB did not abandon its doctrine, however. On the same day in 1964 that President Johnson signed the Civil Rights Act, the NLRB issued a decision finding a union guilty of unfair labor practices and stripping it of its certification as bargaining representative because of its racially discriminatory practices. The union maintained segregated locals, and the white local refused to process a grievance for a Negro employee because of his race. (Independent Metal Workers Union, Locals Nos. 1 and 2 | Hughes Tool Co.], NLRB, 1964, 147 NLRB 1573, 56 LRRM 1289)
Some of the first efforts of the federal government to legislate in the area of equal employment opportunity grew out of the World War II Fair Employment Practice Committees. The objective was to give the Committees statutory status. World War II Proposals
One of the first bills of this type was introduced in February 1943 by Congressman Vito Marcantonio (ALP, N.Y.). On the other hand, a bill to abolish the FEPC established by executive order was introduced by Congressman Robert Ramspeck (D., Ga.) in December of the same year. Neither proposal got very far.
In the period between 1943 and 1963, bills were introduced in each house of each Congress to regulate or at least to conciliate complaints involving alleged employment discrimination based on race, creed, color, religion, sex, age, or national origin. The measures varied widely as to coverage, administration,
A bill introduced by Senator Robert A. Taft (R., Ohio) in 1945 proposed to resolve disputes over such discrimination in employment by voluntary methods. The Dawson-Scanlon bill of 1954. on the other hand, proposed to establish an agency with authority and power of enforcement similar to those of the National Labor Relations Board. A number of other bills would have made racial, religious, or other forms of employment discrimination unfair labor practices within the jurisdiction of the Labor Board.
Up until 1964, only one bill was passed by either house. Two others were killed in the Senate by extended debate. Other measures were shelved earlier during the legislative process, many of them in committee.
The McConnell Bill
The bill that passed one house was that sponsored by Congressman Samuel K. McConnell, Jr. (R., Pa.) in 1950. In an all-night session extending over Washington's Birthday to 3 a.m., February 23, the House voted to substitute McConnell's bill for one introduced by Congressman Adam Clayton Powell (D., N.Y.). The vote to substitute was 221 to 178; the substitute then was passed by a vote of 240 to 177.
The McConnell bill would have set up a Fair Employment Practices Commission with power to study the matter of discrimination on the basis of race, creed, or color, to recommend procedures for elimination of such discrimination, and to seek to create employment opportunities for members of minority groups without the use of compulsion. Discrimination on account of sex, physical disability, and political affiliation were added on the House floor as matters for concern before the substitute was adopted. Apparently the only power the FEPC would have had was that of subpoena to compel the attendance of witnesses.
The Powell bill, on the other hand, provided for enforcement of orders based on findings of illegal discrimination. Congressman Powell called the McConnell bill "nothing but good advice."
Consideration by Senate
The Senate also considered fair employment practice legislation in 1950. The legislation provided administrative enforcement with court review. The legislation never came to a vote on the Senate floor. An attempt to invoke cloture against extended debate was defeated when the “aye" votes fell short of the necessary two thirds. The vote was 55 for cloture to 33 against. A vote of 64 in favor of cloture was required.
This marked the second time that extended debate had blocked consideration of fair employment practice legislation in the Senate. A bill introduced by Senator Chavez (D., N. Mex.) reached the floor in 1946, but a cloture motion failed and no vote on the merits of the bill was taken.
Although many other bills were introduced, none reached the floor of either house until the 88th Congress. Hearings were held by committees, and some bills were reported. The Chavez bill that failed to survive the extended debate in the Senate in 1946, for example, was co-sponsored by Senator Ives (R., N.Y.) the following year, with some modifications, and was reported by the Labor Committee.
ACTION IN 87th, 88th CONGRESSES
After President Kennedy assumed office in 1961, efforts were made, with some success, to remove some of the congressional obstacles to adoption of liberal measures such as a fair employment practice law. First, the membership of the House Rules Committee was increased, and new members friendly to the Administration