duction of goods for commerce, the employer is himself so engaged (Kirschbaum v. Walling, 316 U.S. 516; and see Mabee v. White Plains Publishing Co., 327 U.S. 178).

"It can therefore be authoritatively said that it is now well settled that the constitutional power extends to activities affecting commerce in any amount or volume not so minimal or sporadic as to fall within the doctrine of de minimis non curat lex. As the Supreme Court said in a National Labor Relations Act case, NLRB v. Fainblatt, 306 U.S. 1, the 'power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small,' because 'commerce may be affected in the same manner and to the same extent in proportion to its volume, whether it be great or small.' See also NLRB v. Denver Bldg. & Constr. Tr. Council, 341 U.S. 675; Carpenters Union v. NLRB, 341 U.S. 707. And in NLRB v. Stoller, 207 F. 2d 305 (C.A. 9), certiorari denied, 347 U.S. 919, the National Labor Relations Act was held applicable to a local dry cleaner who purchased $12,000 worth of supplies from outside the State, the Court holding that this amount 'was not so insignificant as to come within the rule de minimis non curat lex.'

"Further, it must be borne in mind that the congressional power to regulate conditions of employment is not limited to those situations where the producer, seller, or furnisher of goods or services himself places the goods or services which he produces, sells, or furnishes in the channels of interstate commerce. This power also extends, for example, to the retail distribution of goods which have moved across State lines before they reach the retailer. Thus the National Labor Relations Act has exclusive jurisdiction with respect to labor relations problems of retailers handling such goods, even though all their sales are local. See Amalgamated Meat Cutters and Butcher Workmen of America v. Fairlawn Meats, Inc., 353 U.S. 20 (three retail meat markets, all of whose sales were intrastate but whose out-of-State purchases totaled slightly over one-ninth of total purchases); San Diego Building Trades Council v. Garmon, 353 U.S. 26 (two retail lumber yards whose out-of-State purchases totaled $250,000); Howell Chevrolet Co. v. NLRB, 346 U.S. 482 (retail car dealer purchasing from local General Motors warehouse autos and parts manufactured out of State).

"The authority of Congress to exercise power with respect to articles which 'have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce' is also settled. In United States v. Sullivan, 332 U.S. 689, a druggist was convicted of failure to comply with labeling requirements for sulfathiazole which was sold to customers after it had moved in commerce. A recent exercise by Congress of this authority is Public Law 85-506 requiring certain information for prospective purchasers to be kept posted on new automobiles prior to their sale to the ultimate consumer.

"And, of course, another major example of the exercise of this power was the extension of Fair Labor Standards Act coverage, by the amendments of 1961, to certain retail establishments.

"Finally, it is also thoroughly settled that the question whether 'the conduct of an enterprise affects commerce among the States is a matter of practical judgment,' and that the 'exercise of this practical judgment the Constitution entrusts primarily and very largely to the Congress' (Polish Alliance v. Labor Board, 322 U.S. 643). Under these principles, there is no doubt that a practical judgment by the Congress that discrimination in employment because of race or color has a substantial impact on commerce would be upheld by the courts. Such findings are, of course, contained in the pending bills on this subject.

"B. Congressional power under the commerce clause in the field of employment relations

"The areas in which the Congress has taken legislative action under the commerce clause by regulatory and/or criminal laws are legion. Any attempt to list them would unduly lengthen this memorandum. Attention should be directed, however, to some of the statutes most closely akin to the proposal here involved, namely, those which deal with employer-employee relationships.

"The courts have often and consistently upheld the power of Congress to regulate activities in this area which affect interstate or foreign commerce. Thus in NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1, the Court said (at p. 33):

"Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject or condemnation by competent legislative authority

"In similar vein, the Court spoke as follows respecting discrimination which infringes on the right to work free from racial discrimination in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (at p. 561):

""The desire for fair and equitable conditions of employment on the part of persons of any race, color, or persuasion, and the removal of discrimination against them by reason of their race or religious beliefs is quite as important to those concerned as fairness and equity in terms and conditions of employment can be to trade or craft unions or any form of labor organzation or association. Race discrimination by an employer may reasonably be deemed more unfair and less excusable than discrimination against workers on the ground of union affiliation.

"The Fair Labor Standards Act, of course, was enacted for the purpose of regulating various conditions of work such as wages, hours, child labor and the employment of learners and handicapped persons. This regulation is permitted because of the effect on interstate commerce of labor conditions in the production of goods for such commerce (United States v. Darby, supra).

"The National Labor Relations Act was enacted to prohibit engaging in unfair labor practices as therein defined. This statute relies on the term 'affecting commerce' (as applied to unfair labor practices) to define the reach of Federal regulation, and it too has been held constitutional (NLRB v. Jones & Laughlin Steel Corporation, supra). There the Court stated that the actions covered by this law are not immune from regulation because they grow out of labor disputes since 'it is the effect on commerce, not the source of the injury, which is the criterion' (at p. 32). This principle is, of course, equally applicable to the proposed legislation here under consideration.

"Relying upon the commerce clause, the Congress has also enacted the Railway Labor Act, regulating labor relations between the railroads and their employees. The Supreme Court upheld the constitutionality of this law in Texas & New Orleans R.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548.

"In Steele v. Louisville and Nashville R.R., Co., 323 U.S. 192, the Court further ruled that a union which is the exclusive bargaining representative under the Railway Labor Act has an obligation not to discriminate on the basis of race, notwithstanding a collective bargaining contract providing for such discrimination. There the Courts stated the point to be decided as follows (at p. 193): ""The question is whether the Railway Labor Act imposes on a labor organization, acting by authority of the State as the exclusive bargaining representative of a craft or class of railway employees, the duty to represent all the employees in the craft without discrimination because of their race, and, if so, whether the courts have jurisdiction to protect the minority of the craft or class from the violation of such obligation.'

"Under the Railway Labor Act the Brotherhood of Locomotive Firemen and Enginemen was the exclusive representative of the craft for purposes of bargaining. Negroes were excluded from membership in agreements with the railway company providing that vacancies as they occurred should be filled by white men, and restricting the seniority rights of Negro firemen. As a result Steele, who was a Negro fireman, lost a substantial amount of time, and was assigned to harder and less remunerative work. He sought injunctive relief which the Alabama courts denied. In reversing the Supreme Court held that the agreements were violative of the terms of the act, which were held to require that the labor organization, chosen as provided in the act 'to be the representative of the craft or class of employees is thus chosen to represent all of its members, regardless of their union affiliations or want of them ***. Unless the labor union representing a craft owes some duty to represent nonunion members of the craft, at least to the extent of not discriminating against them as such in contracts which it makes as representative, the minority would be left with no means of protecting their interests, or, indeed, their right to earn a livelihood by pursuing the occupation in which they are employed. *** Without attempting to mark the allowable limits of differences in the terms of contracts based on differences of conditions to which they apply, it is enough for present purposes to say that the statutory power to represent a craft and to make contracts as to wages, hours, and working conditions does not include the authority to make among members of the craft discriminations not based on such relevant differences. Here the discriminations based on race alone are obviously irrelevant and invidious.'

"In a concurring opinion Mr. Justice Murphy went somewhat further: "The economic discrimination against Negroes practiced by the brotherhood and the

railroad under color of congressional authority raises a grave constitutional question which should be squarely faced. The utter disregard for the dignity and the well-being of colored citizens shown by this record is so pronounced as to demand the invocation of constitutional condemnation. To decide the case and analyze the statute solely upon the basis of legal niceties, while remaining mute and placid as to the obvious and oppressive deprivation of constitutional guaranteees, is to make the judicial function something less than it should be. The constitutional problem inhert in this instance is clear ***. But it cannot be assumed that Congress meant to authorize the representative to act so as to ignore the rights guaranteed by the Constitution. Otherwise the act would bear the stigma of unconstitutionality under the fifth amendment in this respect. For that reason I am willing to read the statute as not permitting or allowing any action by the bargaining representative in the exercise of its delegated powers which would in effect violate the constitutional rights of individuals. If the Court's construction of the statute rests upon this basis, I agree. But I am not sure that such is the basis. * * * The Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed, or color. A sound democracy cannot allow such discrimination to go unchallenged. Racism is far too virulent today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation.'

"Another extremely important case is Railway Mail Assn. v. Corsi, 326 U.S. 88, which it appears should logically be considered at this point even though it did not involve the commerce clause. There the Supreme Court unanimously upheld a New York law which forbade labor organizations from denying membership or equal protection to any person because of race, creed, or color. The association was an organization of postal clerks which limited its membership to persons of the Caucasian race and native American Indians. It claimed that it was not a labor organization under the law and that if it was, the sections involved violated the due process and equal protection clauses of the 14th amendment and were in conflict with the Federal powers over post offices and post roads. Both issues in question were decided against the association.

"The opinion, written by Mr. Justice Reed, states that: 'We have here a prohibition of discrimination in membership or union services on account of race, creed, or color. A judicial determination that such legislation violated the 14th amendment would be a distortion of the policy manifested in that amendment which was adopted to prevent State legislation designed to perpetuate discrimination on the basis of race or color. We see no constitutional basis for the contention that a State cannot protect workers from exclusion solely on the basis of race, color, or creed by an organization functioning under the protection of the State, which holds itself out to represent the general business needs of the employees.'

"Mr. Justice Frankfurter, in a concurring opinion, used broader and more emphatic language: *** it is urged that the due process clause of the 14th amendment precludes the State of New York from prohibiting racial and religious discrimination against those seeking employment. Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance. Of course a State may leave abstention from such discriminations to the conscience of individuals. On the other hand, a State may choose to put its authority behind one of the cherished aims of American feeling by forbidding indulgence in racial or religious prejudice to another's hurt. To use the 14th amendment as a sword against such State power would stultify the amendment. Certainly the insistence by individuals on their private prejudices as to race, color, or creed, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of the State to extend the area of nondiscrimination beyond that which the Constitution itself exacts.'1

"And in Syres v. Workers International Union, 350 U.S. 892, the Court extended the doctrine which it had enunciated under the Railway Labor Act to the National Labor Relations Act; i.e., that a bargaining representative certified under the latter act cannot, with respect to its representation, discriminate on the ground of race or color. There the Court, on the authority of the Steele case, supra, as wel las Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, and Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768 (see

1 See also Tunstall v. Brotherhood of Locomotive Firemen and Engineers, 323 U.S. 210; Brotherhood of R.R. Trainmen v. Howard, 34c U.S. 766.

preceding footnote), reversed per curiam the judgment of the Court of Appeals for the Fifth Circuit in a case where the lower court had held (223 F. 2d 739) that no interpretation of the National Labor Relations Act or any other Federal law was involved in a class action by members of a Negro local union which 'amalgamated' with a white local so that both would be represented by a single bargaining committee, and the all-white committee negotiated a contract providing for two lines of seniority based solely on race.

"If a union acting under authority of an act of Congress has a duty not to discriminate because of race, it seems plain that the Congress has power to prohibit such discrimination. As the Supreme Court stated in Nebbia v. New York, 291 U.S. 502, 527 'the Constitution does not guarantee the unrestricted privilege to engage in business or conduct it as one pleases.' Certainly Congress has had no hesitancy whatever in passing laws which prohibit various types of discriminatory or retaliatory practices.

"C. Discriminatory parctices expressly prohibited by the Fair Labor Standards Act and the National Labor Relations Act

"Section 15(a)(3) of the Fair Labor Standards Act makes it unlawful for any person to discharge or in any way discriminate against any employee because the latter has filed any complaint or instituted any proceeding under or related to the act, or has testified or is about to testify in such a proceeding, or has served or is about to serve on an industry committee. Many cases have been successfully prosecuted for violations of this subsection and it has not been successfully challenged. See, e.g., Goldberg v. Bama Mfg. Corp., 302 F. 2d 152 (C.A. 5); Mitchell v. Goodyear Tire & Rubber Co., 278 F. 2d 562 (C.A. 8).

"Paragraphs (3) and (4) of section 8 of the National Labor Relations Act make it an unfair labor practice either to encourage or discourage membership in a union by discrimination in regard to hire or tenure of employment or any term or condition of employment, or to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the law.

"There are innumerable cases under these two paragraphs. No doubt was cast upon their validity even before 1941 when the Supreme Court in Phelps-Dodge Corp. v. N.L.R.B., 313 U.S. 177, held that this is not an unconstitutional interference with the conduct of a private employer's business.

"Since Congress, in the exercise of its power over interstate commerce, can make it unlawful to discriminate because of union membership and because of filing complaints or giving testimony under the foregoing labor laws, it is clear that the Congress also has power to prevent discrimination on the basis of race, color, religion, or national origin.

"II. THE SUPREME COURT'S DECISION IN THE CONTINENTAL AIR LINES CASE "This recent decision, Colorado Anti-Discrimination Com'n v. Continental Air Lines, 372 U.S. 714, decided April 22, 1963, upholding the constitutionality of Colorado's anti-discrimination-in-employment statute, is of much interest in connection with the matter under consideration.

"A number of States have anti-discrimination-in-employment laws, and the Colorado statute makes it an unfair employment practice for an employer to refuse to hire, to discharge, promote, or demote, or to discriminate in matters of compensation against any person otherwise qualified because of race, creed, color, national origin, or ancestry' (Colo. Rev. Stat. Ann. (Supp. 1960) sec. 80-24-6). "Petitioner, a Negro, applied for a job as a pilot with Continental Air Lines, Inc., an interstate air carrier. His application was rejected at the carrier's Denver headquarters. Pursuant to the Colorado law he then filed a complaint with the Colorado Antidiscrimination Commission which, after investigation and extensive hearings, found as a fact that the only reason he was not seletced for pilot training school was because of his race. The commission ordered Continental to cease and desist from such discrimination practices and to give petitioner the first opportunity to enroll at the next course in its training school.

"The State district court for Denver County set aside the commission's findings and dismissed petitioner's complaint. It held that the State antidiscrimination law could not constitutionally be extended to cover the hiring of flight crew personnel of an interstate air carrier because to do so would constitute an undue burden upon interstate commerce in violation of the commerce clause of the Constitution, and because the field of law concerning racial discrimination in the interstate operation of carriers is preempted by the Railway Labor Act, the Civil Aeronautics Act, and Federal Executive orders.

"On appeal to the Supreme Court of Colorado, that court affirmed the judgment of dismissal but discussed only the question whether the statute as applied in this case placed an undue burden on commerce, concluding that it did (368 P. 2d 970 (1962)). The U.S. Supreme Court granted certiorari because of the 'obvious importance of even partial invalidation of a State law designed to prevent the discriminatory denial of job opportunities.' (See 372 U.S. at p. 717.).

"On the merits, the Supreme Court reversed the judgment of the Colorado tribunal.

"The Court held that the Colorado statute involved, as applied in this case, did not impose a constitutionally prohibited burden on interstate commerce and that the field in question has not been so covered or preempted by Federal laws as to prevent Colorado from applying its Antidiscrimination Act under the circumstances of the case.

"The Court said that under its more recent decisions any State or Federal law requiring applicants for any job to be turned away because of their color would be invalid under the due process clause of the fifth amendment and the due process and equal protection clauses of the 14th amendment.

"On the question of preemption, the Court noted that the Civil Aeronautics Act of 1938, now the Federal Aviation Act of 1958, forbids air carriers to subject any particular person to ‘any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever,' and requires 'the promotion of adequate, economical, and efficient service, by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices."

"While stating that the foregoing is a familiar type of regulation aimed primarily at rate discrimination injurious to shippers, competitors, and localities (like the similar provision of the Interstate Commerce Act), the Court said that it might assume for present purposes that these provisions prohibit racial discrimination against passengers and other customers and protect job applicants or employees from discrimination because of race. However, although the act gives broad authority to the administering executive agency over flight crews of carriers, much of which has been exercised by regulations, the Court was satisfied that Congress had no express or implied intent to bar State legislation in this field. Hence the Colorado statute, at least so long as any power the administering agency may have remains ‘dormant and unexercised,' will not frustrate any part of the purpose of the Federal legislation.

"Similarly, the Court concluded that neither the Railway Labor Act nor the Executive orders show an intention to regulate air carrier discrimination on account of race so persuasively as to preempt the field and bar State legislation, and, like the Civil Aeronautics Act, they have never been used by the Federal Government for that purpose.

"By concluding that the Federal Government has not preempted the field in the case of carriers by air, there seems to be implicit in the Court's decision the proposition that the Government could do so should it so desire. Otherwise there would have been no occasion to consider this question. In order to preempt a field, such field must of course be one in which the Congress may validly legislate. "If the Congress may regulate this form of discrimination in one industry—that of carriage by air-it may do the same thing in other industries, or indeed in all industries to which its power under the commerce clause extends.

"III. CONCLUSION

"The measures which are the subject of this memorandum are solidly based on the power given by the commerce clause to the Congress. This authority is very broad, extending not only to the movement of goods in commerce, but also to those related activities preceding or following such movements. The power of Congress to regulate interstate commerce extends to the regulation by law of intrastate activities which have a substantial effect on the commerce or the exercise of the congressional power over it. Moreover, the question whether the conduct of an enterprise affects interstate commerce is a matter of practical judgment, the exercise of which is primarily vested in Congress by the Constitution. "It is thus readily apparent that anti-discrimination-in-employment legislation which would apply to virtually all types of employers could be validly enacted." Mr. CLARK. I conclude by saying that objection to the constitutionality of title VII can be nothing other than frivolous and not worthy of serious consideration. I turn now to the provisions of the title.