Scott, Hon. Hugh, a U.S. Senator from the State of Pennsylvania. The Urban Coalition Action Council-Memorandum in Support of Legality CORRESPONDENCE, INCLUDING STATEMENTS OF VIEWS Amalgamated Plumbers Association of Philadelphia, Elmer J. Taylor, American Association of State Highway Officials, A. E. Johnson, executive AFL-CIO, Building and Construction Trades Department, Louis Sherman, general counsel, letters of October 17 and October 24, 1969, to Mr. Laurence Silberman, Solicitor, U.S. Department of Labor.. The Chesapeake & Ohio Railway Co. and The Baltimore & Ohio Railroad Co., S. R. Prince, general attorney, letter of November 7, 1969- Equal Employment Opportunity Commission, William H. Brown III, chairman, letter of October 24, 1969. International Association of Bridge Structural and Ornamental Iron- workers, John H. Lyons, general president, letter of November 17, 1969, with copies of correspondence with the Secretary of Labor. - - *McClellan, Hon. John L., Chairman, Senate Committee on Government Operations, letter of May 19, 1969, to the Comptroller General of the National Association of Manufacturers, Lambert H. Miller, general coun- sel, letter of October 24, 1969. National Association of Plumbing-Heating-Cooling Contractors, letter of November 14, 1969, from Lawrence P. Mutter, executive director, with article by James E. Curry, Jr., president, from Plumbing-Heating-Cooling National Electrical Contractors Association, Robert L. Higgins, executive vice president, letter of November 4, 1969__. Pucinski, Hon. Roman C., a Representative in Congress from the 11th Congressional District of the State of Illinois, letter of September 25, 196 235 238 220 222 Sheet Metal and Air Conditioning Contractors' National Association, Inc., James H. Ferguson, director of Industry Relations, letter of November The Urban Coalition Action Council, John W. Gardner, chairman, and Nicholas de B. Katzenbach, chairman, Law and Government Task Force, letter of Novemer 5, 1969, and memorandum__. 237 *A member of the Subcommittee on Separation of Powers. Civil Rights Act of 1964-Title VII-Equal Employment Opportunity.. 31_U.S.Č. 65-Auditing and Accounting, Congressional Declaration of 31 U.S.C. 74-Certified balances of public accounts; conclusiveness of balances certified by General Accounting Office.. S. 931-A bill to restore an appropriate separation of powers within the Federal Government in the area of equal employment opportunities and to preclude encroachment upon the legislative powers and functions of the Congress in this area; introduced by Hon. Paul J. Fannin, a U.S. Senator from the State of Arizona, 91st Congress, first Session_-_- ORDERS, OPINIONS, DECISIONS, AND MEMORANDUMS Executive Order 11246, Equal Employment Opportunity, September 24, Memorandum of the Philadelphia Federal Executive Board, Warren P. Opinion Letter of the Assistant Attorney General, Civil Rights Division, Department of Labor Order—the "Revised Philadelphia Plan”—June 27, Department of Labor, Office of the Solicitor, "Legal Memorandum, Authority Under Executive Order 11246", July 15, 1969.......... Decision of the Comptroller General of the United States (Decision B-163026) addressed to the Secretary of Labor, August 5, 1969-- Opinion of the Attorney General on the legality of the Revised Philadelphia Department of Labor Order, "Establishment of Ranges for the Imple- mentation of the Revised Philadelphia Plan", September 23, 1969--- AFL-CIO, Building and Construction Trades Department, in convention assembled at Atlantic City, N.J., September 22, 1969: Statement of Policy on Equal Employment Opportunity- Resolution No. 270, opposing the Philadelphia Plan, the Revised Philadelphia Plan, and the Amended Revised Philadelphia Plan... The Associated General contractors of America, in convention assembled in Seattle, Wash., September 19-23, 1969: Resolution No. 3, opposing the issuance of Department of Transpor- tation regulation known as "DOT-1000". Resolution No. 7, in opposition to the Philadelphia Plan__ The late Honorable Everett McKinley Dirksen, U.S. Senator from the State of Illinois-reprint from CONGRESSIONAL RECORD of February 4, 1969, "The Federal Government's Program for Equal Job Opportunities Fannin, Hon. Paul J., a U.S. Senator from the State of Arizona, reprint from Remarks by Assistant Secretary of Labor Arthur Fletcher at signing of Philadelphia Plan, Philadelphia, Pa., June 27, 1969-- Office of Federal Contract Compliance-Memorandum, "Manpower in trades and minority manpower available", July 31, 1969– Memorandum from Assistant Secretary of Manpower to Assistant Secretary of Labor, September 18, 1969. Memorandum for The Solicitor, from Deputy Assistant Secretary of Labor, "September 23, 1969, OFCC Order on the Philadelphia Plan-The Impact of the Program upon the Existing Labor Force"- Remmert, James E., article in The American Bar Association Journal, November 1969 "Executive Order 11246: Executive Encroachment". Aubin, Henry T., "Senators Clash at Hearing on Philadelphia Plan", The Philadelphia Evening Bulletin Washington Bureau, October 27, 1969-- Binzen, Peter H., "U.S. Voids Philadelphia Plan for Hiring of Negroes", The Sunday Bulletin, Philadelphia, March 9, 1969--- Bullen, Dana, "Congress Urged to End 'Philadelphia Plan' Row". The Evening Star, Washington, D.C., October 29, 1969- Business Week, "Shultz job plan for blacks hits snags", November 15, 1969. Cahill, Jerome S., "Philadelphia Plan Faces Two-Day Hearing Before Senate Foe", The Philadelphia Inquirer Washington Bureau, October 27, Cahill, Jerome S., "Builder Assails Quota System in Philadelphia Plan", The Philadelphia Inquirer Washington Bureau, October 28, 1969 Cahill, Jerome S., "U.S. Threatens Suits to Back Philadelphia Plan", The Philadelphia Inquirer Washington Bureau, October 29, 1969. Chapman, William, "Ervin Assails Plan on Minority Hiring", The Wash- Page The Coast Advertiser, Belmar, New Jersey, "Congressional Supervision 318 Detroit News, "Blacks Endorse 'Detroit Plan' for Trades Harmony", 217 Herbers, John, "Nixon Aides Explain the Goal of Job Plan", The New 318 Isaacs, Arnold R., "Bias-Program Race Quota Denied", Morning Sun, 319 Kohler, Saul, "Dixie Senator Acts to Halt Philadelphia Plan", The 320 322 Pittsburgh Press, "Senators Disagree on Legality; Philadelphia Plan 323 Rich, Spencer, "AFL-CIO Joins Foes of Plan on Minority Hiring", The 323 U.S. News & World Report, "Racial Hiring: Is a 'Goal' a ‘Quota'?”, 325 The Evening Star, Washington, D.C., “Unions Threaten Boycott Over 324 The Sunday Star, Washington, D.C., "Staats Fights New Minority Hiring 325 The Washington Post, "Chicago Unions Agree to Train More Blacks", 218 The Washington Post, "U.S. Sets Boston Plan on Minority Hiring", 215 HEARINGS ON ADMINISTRATIVE AGENCIES, THE DEPARTMENT OF LABOR'S "PHILADELPHIA PLAN" MONDAY, OCTOBER 27, 1969 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, Washington, D.C. The subcommittee met, pursuant to notice, at 10:35 a.m., in room 2228, New Senate Office Building, Hon. Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senator Ervin (presiding). Also present: Rufus L. Edmisten, chief counsel and staff director; Lawrence J. Brady, minority counsel, Professor Philip B. Kurland, chief consultant (University of Chicago). Senator ERVIN. The subcommitte will come to order. Today, the Subcommittee on Separation of Powers begins 2 days of hearings on the Department of Labor's revised Philadelphia Plan, a controversial effort to raise the percentage of minority group members working in six Philadelphia area construction trades. Over the past 3 months, the Philadelphia Plan has become the focal point of pressures and discontent which reach far into American society. At this moment, the Labor Department and the Comptroller General of the United States are in complete disagreement about the plan's legality. The Comptroller General, who believes the plan conflicts with title VII of the 1964 Civil Rights Act, has refused to allow any Government funds to be spent under the plan. The Labor Department, supported by the Attorney General, contends that the plan is legal and intends to implement it in nine other cities, with or without the Comptroller General's approval. During the next 2 days, our purpose will not be to debate the wisdom of the Philadelphia Plan, although its wisdom has been challenged in the Congress and in the streets of Chicago, Pittsburgh, and Seattle. We will not assess the social and political consequences which are inherent in any such policy. Rather, we will examine the plan as it relates to the doctrine of separation of powers and try to determine whether the Labor Department has usurped Congressional authority and violated legislative intent. We will ask the Labor Department to explain, in clear English, precisely what it means by "affirmative action goal" and by "specific numercial range." That task may not be easy. The Brookings Institution, in a report called "Jobs and Civil Rights," prepared for the U.S. Commission on Civil Rights some 2 years ago, aptly summarized the response of Labor Department officials when asked to define such terms: (1) "Compliance officials," the report found, "do everything they can to avoid directly facing questions involving preferences. The usual response when confronted with this issue is to fall back on the standard semantics that compliance is not so much a matter of set requirements as it is a matter of taking affirmative action which produce results. *** The current approach may enable the Government to go further than the Congress and public opinion would allow if its goals in this area had to be made more explicit.' Throughout the controversy over the Philadelphia Plan, one of the Labor Department's recurring arguments has been that the plan has been misunderstood by its critics. If the Department is sincerely concerned about any misunderstandings, now is the time to clarify them. Now is the time for the Department to be more candid than in the past: to explain its policies in everyday English, not to cloak them in the misleading language which the Brookings report describes. For the Department to persist in using "the standard semantics" would be to leave its policies as unclear and confusing as ever. I would like to point out that the Labor Department has been something less than cooperative in its dealings with the subcommittee. On the several occasions in which the subcommittee requested information from the Department, those requests were either ignored, answered incompletely, or answered after substantial delays. Ordinarily these would be small points, and I do not intend for them to become issues in these hearings. But if the Labor Department has in fact been misunderstood, perhaps this lack of cooperation is partly responsible for that situation. We will also ask the Labor Department to make clear what is meant by the "good faith effort" which is required of contractors under the Philadelphia Plan. Does that "good faith effort" compel contractors to discriminate against workers who are not members of any minority group, workers with seniority in their unions, workers with the immediate skills needed to complete a Federal construction project within the contract deadline? My observation is that it does, in view of the harsh pressures which the Office of Federal Contract Compliance can bring to bear on contractors subject to the plan. The subcommittee wants to be shown that the Philadelphia Plan, in forcing contractors to raise the percentage of minority group employment, does not violate title VII of the 1964 Civil Rights Act. That act certainly does not authorize any racial quota systems, by whatever names they may be called. At this point, I want to read into the record section 703 (j) of title VII: (j) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. |