Mr. HALL. If the Commission please, it is highly immaterial and improper, and particularly in this case, and I am asking that all remarks made by counsel be stricken and that the question be stricken.

Mr. CRONIN. Maybe I forgot; I will add one other thing. I don't want to belabor the issue. I just want to present it to you people. Mr. Fager, in giving information to Mr. Ducey, has violated, of course, a serious confidence by Presidential order that the investigative matters will be secret, as are the investigative matters done by the FEPC, and I think you people should know this.

Mr. HALL. I object and ask that it all be stricken as very prejudicial.

Mr. CRONIN. He has gone further and given information in violation of his confidence by the Federal Government by an order, to Mr. Ducey, so they can come against Motorola here.

Acting Chairman MYERS. I'm not familiar with what Mr. Fager's obligations are under Federal laws. I won't pretend familiarity. But assuming he has violated them or has not violated them, as the case may be, I cannot see how that has anything to do with the facts in the Myart case, which is what we are trying now. And I believe, unless you have in mind bringing in added evidence as to what transpired in the Myart matter, we are not going to continue along this line of investigation.

Mr. CRONIN. The only point I am making is that I would like to have the Commission know for its own benefit, excuse me, this could be additional evidence if we can get it right in in an answer to the question.

Mr. NYSTROM. This may open a whole new door to us.

Mr. CRONIN. Maybe Mr. Fager said nothing to him in the Myart case.

Acting Chairman MYERS. If you want to bring Mr. Fager in, I think this you can do. Mr. CRONIN. We cannot get him in because he is a Federal employee.

Mr. HALL. It should not be mentioned then because it is improper.

Acting Chairman MYERS. The question asked which led to this was, "Did you speak to Mr. Fager before the investigation?" Was that the question?

Mr. CRONIN. No. At any time before his investigation of the Myart matter, did he talk to Fager before he reported to you people as the full Commission that found substantial evidence against Motorola and thereupon issued a complaint, did Mr. Ducey, as I might add, gentlemen, as he did in the Thornton case, talk to Mr. Fager, and he submitted, in my opinion, gentlemen, false information to this full Commission, that is what I want to go into. I want to know if he got information from Fager that he put in his report to you people.

Mr. HALL. I'm objecting to that, I'm objecting to that.

Acting Chairman MYERS. I am sustaining the objection. I have the feeling there is an

Acting Chairman MYERS. I am going to allow the objection.

Mr. CRONIN. We never did discover this, it was discovered after April 18, or we would have presented it to you last time.

Mr. NYSTROM. You see, Mr. Myers, as you know, you are familiar with the act, that as far as the respondent in these matters is concerned, we fumble in darkness because of the fact the Civil Practice Act does not apply. We have no means of true discovery deposition, no means of any discovery. We stumble on things, and we have something here which we would like to have an answer to. It might just-we do not know-it just possibly may give us a new lead and a new door. Only for that purpose we would like to have the question answered. If the answer is "Yes," the door has been opened. If the answer is "No," it has been closed.

Acting Chairman MYERS. Since there is nothing in this record about any information exchanged between Mr. Fager and Mr. Ducey, I cannot see that this has any relevance to our present hearing.

Mr. NYSTROM. That is what we are trying to determine today, Mr. Myers, and for that purpose, we are only asking for a yes or no

answer.

Acting Chairman MYERS. You have gotten a ruling. The ruling is the question is improper.

Mr. CRONIN. Well, would you allow-well, I don't know what the situation is. It is difficult to make an off r of proof if I don't know what the answer would be.

Mr. HALL. You don't know what the proof is, you don't know what to offer then. Mr. CRONIN. It is exactly the same proof as in the Thornton case.

Mr. NYSTROM. This is the Myart case and still is the Myart case.

pertaining to

Now the question was whether Mr. Ducey obtained information in regards to the Myart case from Mr. Fager, and I think that is all it is, it is a very short and simple question. I think we are entitled to an answer in regard to the same. Mr. HALL. It is improper.

Mr. HALL. You can't fish every place, counsel, you know that.

Mr. CRONIN. The first chance we had is this, as he calls it, to fish, is after April 18, when Mr. Ducey is on the stand testifying under oath.

Acting Chairman MYERS. You had a good fishing expedition on April 18.

Mr. CRONIN. There was fishing all right, that is obvious.

Acting Chairman MYERS. We will proceed with this.

Mr. NYSTROM. All we want is the answer to

the question, yes or no. If that is not asking

too much.

Mr. HALL. He has ruled on it. Acting Chairman MYERS. I have given you a ruling on it.

Mr. NYSTROM. You are still not going to let him answer the question whether he has spoken to Mr. Fager or not?

Acting Chairman MYERS. I think it is irrelevant.

Mr. NYSTROM. I think it goes to the issues. Acting Chairman MYERS. There has been a ruling, gentlemen, and it was told to you last April 18, that if these rulings are in error, you have your remedy.

Mr. CRONIN. We recognize that, Mr. Myers. Acting Chairman MYERS. All right.

Mr. CRONIN. Will this Commission entertain as a part of this record, if I prepare under my own signature a memorandum relative to the testimony?

Acting Chairman MYERS. Do you wish to testify?

Mr. CRONIN. Please, may I, Mr. Myers?
Acting Chairman MYERS. Proceed.

Mr. CRONIN. I don't intend to testify, you want me to testify?

Acting Chairman MYERS. That is up to you. I say, if you wish to testify, you have the right.

Mr. CRONIN. That may not be testimony. Maybe you should hear the whole story of Mr. Ducey's conduct in the Thornton case. Maybe you should hear it. I was suggesting a memorandum be filed over my signature of Mr. Ducey's conduct in the Thornton case which was a case that didn't come to the full Commission, was disposed of before the hearing was ended. I think you have to take that into consideration.

Acting Chairman MYERS. This is you see where we differ, that what is involved in this case are the facts in the matter of Leon Myart and that is what we want presented now; and at any further hearings.

Mr. CRONIN. All right. I mean, are you going to take into consideration the credibility of the witnesses that appear, is that right?

Acting Chairman MYERS. We have to take into consideration the credibility of every witness that appears.

Mr. CRONIN. You have to take into consideration the credibility of Mr. Ducey as a witness.

Mr. HALL. Object to that.

Acting Chairman MYERS. I think there is an implication there I don't approve of, but certainly we will take into consideration the credibility of every witness.

Mr. CRONIN. That is why I want to enlighten the Commission as to the conduct of Mr. Ducey. Mr. Ducey is the investigator in the Myart case. This is a personal experience on the record that Ducey had in the Thornton case, just a different title, that is all it was, before the same Commission, and he was the investigator in both matters; and he submitted matters to you before the full Commission that he was not justified in doing.

Acting Chairman MYERS. Do you wish to testify?

Mr. CRONIN. I may have to testify, if necessary.

Acting Chairman MYERS. Is there anything further to come before the Commission?

Mr. NYSTROM. That is all, Mr. Myers.

Acting Chairman MYERS. As was earlier announced, the complainant has until June 20 to submit the names of added witnesses; subsequent to June 20 we will set a date for final hearing which will be no less than 10 days from June 20, and it is our hope that we will then have final testimony and arguments of counsel.

Mr. NYSTROM. Just one question, Mr. Myers, for the sake of the record, I will ask the same question asked by Mr. Gray:

When this was up April 18, would you be kind enough to state for the record the rule and regulation or the applicable section of the statute which permits this matter to be continued again?

Mr. MINSKY. What?

Acting Chairman MYERS. The rule and regulation. I think the section of the statute which provides we may do all things not inconsistent.

Mr. MINSKY. I didn't get the end of his question.

Acting Chairman MYERS. He wants to know under what authority we are continuing this matter. "To adopt, promulgate, and rescind rules and regulations not inconsistent with the provisions of this act." That is 6-D of the act.

Mr. NYSTROM. 6-D of the act?
Mr. MYERS. Yes.

Mr. NYSTROM. Of course then you are referring to these rules and regulations already adopted?

Acting Chairman MYERS. We didn't pass that, the legislature passed that.

Mr. NYSTROM. You are referring to the rules and regulations, these are the rules you are referring to?

Acting Chairman MYERS: I am referring to section 6-D of the Fair Employment Practices Act which was passed by the legislature of the State of Illinois.

Mr. NYSTROM. I understand that.

Acting Chairman MYERS. That says: "That the Commission may adopt rules and regulations not inconsistent."

Mr. NYSTROM. Which are these rules and regulations here?

Acting Chairman MYERS. We have adopted those rules and regulations but that does not preclude us from entering the sort of rule that was entered at this last meeting. Is there anything further?

Mr. CRONIN. Mr. Myers, just a final statement, if I might make it, sir, to you and the Commission that you indicated you were not familiar with the Federal practice. Naturally, of course, this is a State body.

Acting Chairman MYERS. I think I should

go further. I think for the purposes of this record, for the purposes of this hearing we cannot concern ourselves with that, this is a collateral matter.

Mr. CRONIN. It is collateral. The only thing is I want you to understand when you weigh the arguments that are going to be proffered before you, when you weigh the full record, I want you to take into consideration the matters that Mr. Ducey has testifled to here, and I want you to take into consideration his credibility and what weight should be given his testimony.

Now if I may cite for the record-if it is immaterial, it is immaterial, but I just want to put it in the record, if I may, and I am reading from "Government Contract Employment Rules and Regulations of the President's Committee Equal Employment"

on

Acting Chairman MYERS. If you want to give a citation. I have no objection; but frankly, we consider this completely irrelevant to the matter at hand. If you wish to get your citation into the record, do so; but do not read the statute.

Mr. CRONIN. I will cite it. 60-1.61, entitled "Access to Records of Employment." Now it is a very short paragraph and you would not want that read into the record?

Acting Chairman MYERS. No, sir. If there is nothing further

Mr. NYSTROM. I have only one question with regard to the adoption of rules and regulations. In other words, in your opinion, you can adopt a rule and regulation to apply to any subsequent hearing or any hearing?

Acting Chairman MYERS. If it is not inconsistent with the purposes of the act. If there is nothing further, we will stand adjourned until we give the parties notice of the next hearing.

Mr. CRONIN. Excuse me, I'm sorry. One question, if I might ask: The order of Mr. Bryant says "to cease and desist the use of the No. 10 test." Now we have abided by that. We have not used the No. 10 test. Can you please tell us when there will be a final order here? We have not used the No. 10 test for, well, ever since Bryant's order, the end of February.

Acting Chairman MYERS. Let me ask our technical adviser if, until the Commission has taken action, if they are bound by that? Did you hear that question?

Mr. MINSKY. Yes, I did. I don't have a ready answer for it.

Acting Chairman MYERS. I obviously cannot answer your question, although I guess you, as counsel for the company. will just have to give them the best advice you are able to give on that.

Mr. CRONIN. I won't take a chance on it. I don't want to be sued myself. I think the only advice we will give them is just desist from using it and cease as we have been ordered to from last February. All right.

(Whereupon these proceedings in the above entitled matter were adjourned until a date to be determined by the Commission.)

Mr. TOWER. Mr. President, I ask unanimous consent to have printed at this point in the RECORD an article entitled "Motorola Job Test Is Fair, Hearing Told; Can't Design a Biased Exam, Professors Say," published in the Chicago Tribune of Tuesday, May 26, 1964.

There being no objection, the article was ordered to be printed in the RECORD, as follows:

MOTOROLA JOB TEST IS FAIR, HEARING TOLDCAN'T DESIGN A BIASED EXAM, PROFESSOPJ SAY

Three Illinois Institute of Technology experts told the Illinois Fair Employment Practices Commission yesterday that the job employment test at Motorola, Inc., is not racially discriminatory. They said it is impossible to design such a test that discriminates against Negroes.

The three testified at a hearing of the full commission to consider the appeal by Motorola of an FEPC examiner's ruling that the test is discriminatory.

The examiner, Robert E. Bryant, on March 5 upheld the charge of Leon Myart, 6333 Dorchester Avenue, a Negro, that Motorola denied him employment as a "phaser and analyzer" because of his race.

TOLD TO HALT TEST

Bryant ordered the company to hire Myart and directed Motorola to stop giving the general ability test to job applicants because the test, he said, is unfair to "culturally deprived and disadvantaged groups."

The examiner's finding was opposed yesterday by Dr. Marion Groves, acting dean of the graduate school and associate psychology professor; Dr. Morris Aderman, associate psychology professor; and Dr. Robert Roth, assistant psychology professor.

The Motorola test. Professor Groves testified. "does not discriminate regarding race or color, but only measures verbal comprehension and simple reasoning."

TESTS FAVOR NEGROES

Studies made since World War I, he said, show that such tests "favor the Negro more effectively than other tests which might be administered" because Negroes have showed "the highest performance level" on "tests of verbal comprehension and simple reasoning."

Dr. Aderman said it is impossible by "design or not" to discriminate racially in tests like the Motorola test.

Robert Myers, Springfield attorney who is presiding officer at the hearing, continued the sessions until after June 20, the deadline for Myart to present additional witnesses.

Mr. TOWER. Mr. President, I yield back the remainder of my time.

Mr. CASE. Mr. President, I feel certain that no Member of the Senate disagrees with the views of the Senator from Texas concerning the Motorola case finding by the referee or examiner. However, it has no relation to the provisions that would be enacted by the bill. The Motorola case could not happen under the bill the Senate is now considering.

However, I object to the amendment suggested by the Senator from Texas because, first, it is unnecessary; second. the amendment would tend to complicate and make more difficult dealing with cases of actual discrimination and the elimination of them by persuasion as well as by enforcement procedures provided by the act.

If this amendment were enacted, it could be an absolute bar and would give an absolute right to an employer to state as a fact that he had given a test to all applicants, whether it was a good test or not, so long as it was professionally designed. Discrimination could actually exist under the guise of compliance with the statute. The amendment is unnecessary and would make much more difficult the elimination of discrimination, which is the purpose of the bill.

I hope the Senate will reject the amendment.

Mr. HUMPHREY. Mr. President, I yield myself 30 seconds to say that the substance of this amendment was given the most careful consideration at the time the leadership group met to perfect the so-called package substitute. Needless to say, the amendment was of grave concern to us because it refers to a case in the State of Illinois, and that matter was well represented by none other than the distinguished minority leader.

Every concern of which this amendment seeks to take cognizance has already been taken care of in title VII, as amended, and presented in the substitute. These tests are legal. They do not need to be legalized a second time. They are legal unless used for the purpose of discrimination. The amendment is unnecessary. It would only complicate the package amendment, which has been

carefully drawn and represents the considered views on the part of those concerned about title VII.

Mr. TOWER. Mr. President, I yield myself 2 additional minutes.

My purpose was not to be capricious.
Mr. HUMPHREY. I understand.

Mr. TOWER. Or to burden the bill with provisions that are redundant or unnecessary. As I read the measure, I see nothing that would prohibit this type of finding by the Equal Employment Opportunities Commission. I know that the Senator from Illinois [Mr. DIRKSEN] has given much thought to this problem. But I was thinking not only in terms of the State of Illinois, but also as an example of what might happen.

I am not commenting on the merits of that case because, as I understand, the FEPC has yet to make a report based on the finding of the examiner.

My amendment is so drawn that the test could not be used in a manner such as literacy tests are used in some States. It would have to be administered honestly and fairly and applied to all racial groups alike.

Mr. HUMPHREY. There is no power in the FEPC, in the bill before us, to take any administrative action. The most the Commission can do is to investigate. The most it can do, if it finds a pattern or practice of discrimination, is to recommend to the Attorney General that there be enforcement. That is a far cry from the original bill, under which the Commission could have taken administrative remedial action.

I think the amendment is redundant. I regret to say that it is unnecessary. It would only complicate our situation. I hope it will be rejected.

Mr. LAUSCHE. The Senator from Minnesota said that title VII contains provisions which cover the proposal submitted by the Senator from Texas. Will the Senator from Minnesota read the language in title VII that would make these tests valid and not subject to the charge of being discriminatory against applicants for jobs and applicants for promotions?

Mr. HUMPHREY. The point the Senator from Minnesota was making was that the National FEPC has no enforcement power; the test upon which this amendment is based related to Commission action that has enforcibility.

All that the National Commission could do under the substitute amendment-I regret to say this; I do not like it would be to investigate. Nothing

would be done in terms of enforcement other than to recommend to the Attorney General, if there were a large pattern of discrimination. Then the Attorney General might want to take some action. So the language of this provision is a far cry from the Illinois case.

Mr. LAUSCHE. If title VII contains no provision declaring under what circumstances such tests shall be valid, where in the bill are there provisions to make these tests valid, if the Senator can answer that question?

Mr. HUMPHREY. The Senator from Minnesota will be more than happy to do so. It is based on the experience in the States and upon the fact that there has been no declaration that they are invalid. Such tests are considered to be legal; there has never been a denial of that. The only point is that the test that is used for purposes of discrimination would be declared illegal.

It is not possible to write into the bill every action that will govern the conduct of an agency. The Senator's amendment would be much more pertinent and relevant if it were directed to

a

commission that had enforcement powers. But this Commission does not. If a bill reported by the Committee on Labor and Public Welfare were directed to title VII of the House bill, it would have some effect and some direct purpose to serve. But the most a national commission could do under the bill would be to take testimony and investigate. It could not enjoin; it could not in any way take remedial action.

Mr. TOWER. Mr. President, I yield myself 15 seconds.

My amendment would not legalize discriminatory tests. It would not make discriminatory tests permissive.

Mr. HUMPHREY. I understand that. Mr. CASE. Mr. President, I yield myself 15 seconds.

I want it to be clearly understood, so far as I am concerned-and I believe I speak for all members of the committee, the captains, and the leadershipthat our position against this amendment and the vote we shall cast against it do not mean approval of the Motorola case or that the bill embodies anything like the action taken by the examiner in that case. It is not necessary to have this amendment adopted in order to permit that result. Nothing in the bill authorizes such action as in the Motorola case. It would complicate the bill and possibly weaken the effectiveness of it.

Mr. MILLER. Mr. President, will the Senator yield for a question on my time? Mr. CASE. I am happy to yield.

Mr. MILLER. Is it the position of the managers of the bill, particularly those in charge of this title, that the opportunity and the right to give the tests that are covered by the amendment of the Senator from Texas would be authorized under subparagraph (h), on page 44? The reason I ask the question is that I know something about the amendment and its reference. I believe that during the development of the amendment, the question of its not being an unfair labor practice for an employer to provide for the furnishing of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings was discussed. Would not a test such as is covered by the amendment have to be included in the concept of such a system as I have mentioned?

Mr. HUMPHREY. That is correct. That amendment was one that was added after the original substitute package had been tentatively agreed upon. We reviewed the entire Motorola case, and then added that particular section.

Mr. MILLER. Let me say that I feel very strongly, as all other Senators do, about the Motorola case. When the amendment to which I have referred was drawn up, I was satisfied that such a situation would be prevented by the new language.

Mr. HUMPHREY. I believe the Senator spoke to me about that, at the time when the new language was added to the bill.

Mr. LAUSCHE. Mr. President, I yield myself 30 seconds.

The PRESIDING OFFICER. The Senator from Ohio is recognized for 30 seconds.

Mr. LAUSCHE. Let me ask whether the Senator from Iowa implied that his reading of the language he has just read was an answer to my question, which was as follows: Where in the bill are there provisions to insure that tests such as the one in the Motorola case are allowed?

Mr. MILLER. It is my interpretation-and that is why I wanted to clear this with the leadership, because I understood that during the drafting of this title, this was the intention-that the Motorola case was discussed

Mr. HUMPHREY. The Motorola case was discussed, discussed, and cussed.