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MINORITY VIEWS

Certainly a majority of the citizens in this country, both North and South, agree that there should be no discrimination in employment because of race, creed, color or age. This is now our national policy and I wholeheartedly endorse and support it. A restatement of this policy at this time, although useful as a reminder, is not critical. Nondiscrimination in employment is generally accepted and practiced by both employers and unions. It would be both unfortunate and unwise if through our pronouncements it is implied, or could be assumed, that discrimination in employment is the general rule rather than the exception. It would also be a cruel disservice to the many dedicated citizens, government officials, union leaders, and employers who have worked tirelessly in this area and who, through their combined efforts, have effected on a voluntary basis great and lasting progress.

My disagreement with the majority is over how best to implement this national policy. The majority has concluded that the only effective way is to enact a far-reaching statute which will establish a large and powerful new Federal agency, with a web of field offices and broad investigative and rulemaking powers.

I cannot accept this proposal. Experience has proven that a state of mind or a matter of conscience cannot be successfully legislated. Even though there is a law and an enforcing agency, discrimination will find a way if the employer, union, or employment agency wishes to discriminate. A Federal agency can be fooled and the spirit of the law can be violated even while the letter of the law is being observed, Moreover, if such a law is enacted, all of the employers and unions who do not discriminate, and who are also doing their best to help. eliminate discrimination where it presently exists, would be subjected to the same arbitrary rules and regulations, and all too often the same investigations, as those who do discriminate. This is a terrible price to pay, expecially when this approach has failed in the past.

THE LESSON OF THE NATIONAL LABOR RELATIONS BOARD

Of the many agencies and commissions created by Congress, the National Labor Relations Board most nearly parallels the proposed Equal Employment Opportunities Commission. It too was established to administer and enforce a law which, among other things, prohibited discrimination in regard to hire or tenure of employment or any term or condition of employment. Both employers and unions are covered by the law and the prohibited acts are designated unfair labor practices.

It was anticipated that the National Labor Relations Board, by reason of its expertise in the field of labor-management relations, would be able to formulate and issue decisions and pronouncements which would specify what is and what is not prohibited conduct. In this way, carefully defined guidelines would be established for the use

and guidance of employers and unions. Thus, those who wished to comply with the law would have no difficulty for the way would be clearly marked, while the few who committed unfair labor practices could be easily identified and quickly brought to the bar of justice. It should follow that as the years go by the definition and the designation of the unfair labor practices would become more precise, the violations fewer in number, and the work of the Board would drop off.

Unfortunately the opposite has been true. Each year the Board's caseload grows, additional employees are required, and the expenditures go up. Petty distinction has been piled on petty distinction and conduct which is not an unfair labor practice today may be one tomorrow if the composition of the Board is changed as a result of a change in administration. All too often the parties cannot be sure that their conduct is or is not unlawful until the Supreme Court has finally ruled. Congress has amended the statute twice in a major fashion and twice in a minor fashion in order to show up its weaknesses and meet some of the more compelling criticism. Meanwhile, the Board is under constant attack by employers and unions alike and the general dissatisfaction is reflected and repeated in the many studies and reports.3

As a result, the formulation of policies and courses of conduct in the field of labor-management relations is today a game that only lawyers can play. In the event an employer or a union wishes to act fairly it must first turn to a lawyer for advice. In the present legal and administrative jungle, the element of good will, of trying to do the right thing, of basing decision on conscience and principle is irrelevant and may even lead the unwary and the unsophisticated into a costly violation. The question, "What can I legally get away with?" has replaced the question, "What is morally right?"

Can't we profit by a hard-learned lesson? The National Labor Relations Board approach has been unsuccessful. Must we now take this same barren approach in our attempt to deal with what is an even more difficult and controversial field of human conduct?

It is true, as the majority pointed out, that the present bill does not give the proposed Commission the authority to hear cases. It can only investigate, mediate, and prosecute. This I agree is a very wise restriction on the powers of the proposed Commission and does meet some of the objections and criticisms which have been directed at the National Labor Relations Board.

However, it should be noted that the original Powell bill and the original Roosevelt proposal established the Commission along the

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? For example, only recently a Kennedy appointee to the NLRB has announced that neither he nor the "new" Board will be bound by fixed rules or precedents but rather will decide matters brought before them on a case-by-case basis (Feb. 9, 1962, address of Board Member Gerald A. Brown before the Institute on Labor Law. Duke University Law School).

"Administration of the Labor-Management Relations Act, by the NLRB," report of the Subcommittee of the Education and Labor Committee, September 1961: "Organizational Procedure of the National Labor Relations Board," report to the Senate Committee on Labor and Public Welfare, Feb. 2. 1960, **Report of the American Bar Association Special Committee," June 15, 1961.

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same lines as the NLRB. It was only through subcommittee action that this objectionable feature was eliminated and it was provided that the initial trial should be before a U.S. district court. It is also my understanding that the chief supporters of this legislation are not at all happy over the fact that the Commission has been stripped of its hearing powers and insist that the Commission be given the same powers that the NLRB had under the original Wagner Act. This, of course, would make the Commission judge, jury, prosecutor, and investigator with no independent General Counsel and complete discretion over what cases should or should not be heard before hearing officers who report directly to the Commission.

TRUE PURPOSE OF THE BILL

Significantly, the real purpose behind this legislation is disclosed in sections 9 and 11 of the bill. In these sections the Commission is given the unlimited authority to investigate on its own motion to determine whether a company or a union is committing or has committed an unlawful employment practice. It also has broad subpena powers to support and enforce these investigations. Section 11(a) provides:

The Commission or its designated representative may gather data regarding the practices of any person and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as may be appropriate to determine whether the respondent has committed or is committing an unlawful employment practice, or which may aid in the enforcement of this Act.

This is broader power than the Secretary of Labor has under the provisions of the Pension and Welfare Plans Disclosure Act amendments. It is broader power than that which the National Labor Relations Board has. It is far broader power than has been given to the Federal Bureau of Investigation.

Under section 9(a), once the Commission has filed a charge or has received a charge, it is then under a statutory mandate to investigate that charge. Moreover, the Commission will then have the power to investigate, interrogate, and explore until it finally uncovers evidence to convict an employer or a union of the charged violation or any other violation it may uncover during the course of such investigation. This is like having a policeman in the front seat of a car with pencil poised ready to write up any violation, advertent or inadvertent, that may occur.

STATE ANTIDISCRIMINATION LAWS

In addition to the fact that the passage of this type of Federal legislation would bring, as we have previously indicated, an end to voluntary action by individuals, employers, and unions, it also would bring an end to State action. At the present time 18 States have antidiscrimination laws. Each of these laws is specifically tailored to the needs of a particular State and the wishes of the citizens in that State. If there is to be legislation in this very difficult field, this is the

Alaska, California, Connecticut, Illinois, Indiana, Kansas, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New Mexico, New York, Rhode Island, Ohio, Oregon, Pennsylvania, and Wisconsin.

level at which it should be enacted. Certainly, a broad and sweeping Federal law would nullify the present State laws and would also bring an end to the enactment of additional laws at the State level.

NEED FOR THIS LEGISLATION NOT SHOWN

Very real progress is being made in the field of discrimination. Religious prejudices have largely disappeared. Ethnic origin discrimination is no longer existent. Race prejudice is rapidly being stamped out. AFL-CIO President Meany admitted he could not control all locals, but clearly showed many of them had taken action to correct the situation, and more were so doing. This is most encouraging and is itself evidence of the progress in this field.

Discrimination on account of age is serious. "Sorry, but company policy prevents our hiring anyone over 40" is a tragic greeting to many millions of able, well-qualified workers. The committee had practically no evidence and no hearings on either side of this age problem. Insurance companies prospering through vast increases in group pension plans might well again reexamine the actuarial bases upon which they have been limiting their contracts. Conceivably, they might well raise their minimums to 50 or even 55.

But this, in my opinion, is no matter for legislation. The employer must have authority to say that on job A he prefers a person with mature judgment, whereas on job B he designates physical strength, and on job C he needs youth, who can be trained over a period of years to develop the needed qualities for efficiency. Legislation simply cannot do this. And certainly the Federal Government is not justified in entering into a field where the need or practicability has not been shown.

CONCLUSION

I hope that this bill with its serious defects and equally serious consequences will be rejected. However, the fact that it has been proposed and has received substantial support should act as a clear warning. Those who do not wish to see even the disappearing discrimination in employment become the excuse for the establishment of still another wide-ranging and control-minded Federal agency should be on notice.

Even a dose of discrimination in employment is unnecessary and indefensible. It is a blot upon our good name, but the remedy is not legislation. This is a bad bill. It's enactment is completely unjustifiable. It should be defeated.

EDGAR W. HIESTAND.

PART IV-CONGRESSIONAL DEBATE ON TITLES VII AND XI

Introduction

An important part of the legislative history of any statute is the congressional debate that preceded its adoption. Through a combination of extraordinary circumstances, however, the congressional debate that preceded the adoption of the Civil Rights Act of 1964, and particularly the Title VII equal employment opportunity provisions, assumed an almost overriding importance.

The Title VII provisions that were adopted by the House and that were the subject of extensive discussion in the report of the House Judiciary Committee were modified substantially in the substitute measure adopted in the Senate. The substitute bill did not go through the usual committee procedure. Instead, it was hammered out in informal bipartisan conferences, with Majority Leader Mansfield (D., Mont.), Minority Leader Dirksen (R., Ill.), and Senators Humphrey (D., Minn.) and Kuchel (R., Calif.) as the principals.

As a result, there was no committee report on the Senate bill. Moreover, since the House then voted to accept the Senate bill without change, there was no Senate-House conference report.

With these usual guides to the legislative intent missing, the best available explanations of the intent behind the changes made by the Senate in the House bill are statements made at the opening of the Senate debate by Senators Dirksen (R., Ill.) and Humphrey (D., Minn.). Dirksen preceded his explanation by an annotated text of the House bill showing the changes made by the Senate substitute.

Also valuable in this respect are a comparative analysis of the two bills prepared by Congressman McCulloch (R., Ohio) and introduced into the Congressional Record by Senator Dirksen (R., Ill.) and a statement by Congressman Celler (D., N.Y.), floor manager for the bill in the House, explaining the changes made by the Senate in the House bill.

So Part IV of this legislative history begins with the pertinent excerpts from the Dirksen-Humphrey statements, the comparative analysis of the Senate and House bills, and the Celler statement on the changes made by the Senate in the House bill. These are followed by three other statements of a general nature: (1) a bill introduced by Senators Clark (D., Pa.) and Case (R., N.J.) as a substitute for both the House bill and the Dirksen amendment; (2) an interpretative memorandum on Title VII submitted jointly by Senators Clark (D., Pa.) and Case (R., N.J.), as Senate floor managers of the Houseapproved bill; and (3) a response submitted by Senator Clark (D., Pa.) to a memorandum by Senator Dirksen (R., Ill.) asking questions relating to Title

VII.

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