It should be noted that this agreement as finally hammered out, was hailed by Professor Alfred Blumrosen as a model of what the Government could do when it really cooperated and put its existing muscle to work.

Mr. Chairman, I think that is exactly the question before this committee. Is the government empowered by law to make those kinds of demands and forced agreements upon industry, or is it not, as I see it, actually prevented from forcing an employer to enter into an agreement which take factors other than qualifications for the job into consideration? In my view this type of coercion, or persuasion, or whatever you may choose to call it, is specifically excluded under the 1964 Civil Rights Act. Examination of the legislative history of the Act, Mr. Chairman-and you are far more familiar with that debate than I-indicates that the bill's sponsors went to great lengths to indicate that under title VII of the bill there would be no forms of quotas or goals or anything else. That prohibition against matching the demographic profile of an area with any specific work force was precluded by the provisions in the bill opposed to the awarding of "preferential treatment." (Sec. 703 (j))

Perhaps the broader question under examination here, Mr. Chairman, is the problem that confronts Congress as the branch of government closest to the people, in exercising its proper oversight of government activities.

In the question of the "revised" Philadelphia Plan, there has been much talk of the goals versus quota variety. Looking at the law, I find the question seems to turn on the awarding of "preferential treatment" for factors unrelated to qualifications for the job. Goals or quotas enter only into the legislative history, where the proponents of the 1964 Act were clamoring to say that this bill prohibits quotas.

Now the Comptroller General says he thinks the plan is illegal. The Attorney General says he thinks it is not. It is a little unusual to me, Mr. Chairman, to find that one of the reasons for "revising" the original Philadelphia Plan, as given by Labor Department spokesmen, was that the Comptroller General thought it to be illegal. Now, upon his finding that the "revised" plan is illegal in his opinion also, I find these same Labor people saying the Comptroller General's opinion was "unsolicited and "gratuitous" and of no particular relevance anyway. I am left wondering if in the Chairman's experience as a jurist he ever ran into a similar situation where a lawyer who feared he might get an unfavorable decision in one court, asked suddenly to be transferred to another court.

Mr. Chairman, I read the transcript of the news conference held several weeks ago when Mr. Arthur Fletcher made a good case for going ahead with the Philadelphia Plan on the basis of special need. He compared the Philadelphia Plan with the agricultural reconstruction bills passed in the 1930's to help farmers during the depression. He said the farmers needed help and the government gave it to them, and added that that is all that is behind the Philadelphia Plan.

I am appreciative, Mr. Chairman, of the sincerity of the Labor Department officials to get to the heart of the problem. But there is one basic flaw in the reasoning espoused by Mr. Fletcher which is, I believe, the whole crux of the problem.

The special legislation passed to help farmers was just that-legislation. It was not an Executive Order. Some may even argue over the real effectiveness of those agricultural bills, but the one thing they have that the Philadelphia plan does not possess is that they were passed by the Congress, signed by the President and thus enacted into law. That has not happened with the Philadelphia Plan.

Our beloved formed minority leader, Senator Dirksen, was moved so by the apparent intentional disregard of Congressional intent in this field, that he felt obliged to communicate with the Secretary of Labor on this point to the effect that should the Department attempt to go ahead with this plan in the face of Congressional doubts, that he Senator Dirksen-would offer riders to appropriations bills forbidding the use of Government money to liquidate contracts which had been entered into under the plan which the Comptroller General felt to be in violation of the 1964 Civil Rights Act.

Since the Senator's death, we have seen this revival of interest in not only imposing the plan on Philadelphia but pushing it into other cities as well.

In examination of the Attorney General's opinion on this matter, I find he seems to say, "We can require you to discriminate (e.g., abide by ranges of manpower utilization) but you must not be discriminatory." It is somewhat like bidding one to swim without getting wet.

He notes also that the Comptroller General's example of discrimination in the case of 20 plumbers-15 whites and 5 blacks-"would arise but infrequently." I would certainly be hesitant to point out legalities to the opinion writer, but I am sure the Chairman would point out to me that frequency has little relevance in law.

In fact, I recall the Chairman's statement last year in the opening days of the Judiciary Committee hearings on President Johnson's nominee to be Chief Justice. After listening to a rather lengthy recital of precedent by Attorney General Clark, I recall the Senator saying, "Murder has been committed down through the ages and so has larceny, but precedent has not made murder meritorious nor larceny legal."

In this troubled area of so-called "Civil Rights," this Nation long ago embarked upon the course that these rights can be legislated. Whatever the merits of that argument, it is passed. Now having turned to majority groups and in the name of the law demanded a pound of flesh for the minority, we cannot suddenly abandon that standard and cry "mercy" and "good faith agreements" and "affirmative action" when heretofore we have insisted on legal strictures outlawing preferential treatment for certain factors unrelated to qualification. Discrimination is two-edged. It may work in one direction as well as the other.

As regards this particular problem, Mr. Chairman, I believe it is a result of a combination of laws that require men to belong to an organization if they wish to work, whether they want to belong to that organization or not; and an overzealousness-perhaps born of good intentions-which seizes upon the most convenient method of accomplishing what is considered to be a good purpose.

The danger here, Mr. Chairman, is that if this principle of executive intervention in areas where Congress has clearly spoken and indicated how it wishes the problem handled-in this case by voluntary

and negotiating means-is allowed to go unchallenged, the administration of the regulations can be tightened to the point of absolute ruin and destruction of rights and Congress' power to represent the wishes of the people will have been that much more eroded.

If there is a cause for special legislation, as members of the Department of Labor seem to think, let them come before the appropriate committee with those proposals and we will take a look at it, and Americans will have an opportunity to express themselves to their representatives about it and we may vote upon it inconsideration of its merits.

In closing, let me commend the Committee for its efforts. You are helping to keep the form of government that has served so well. I think it is entirely appropriate and necessary from time to time for Congress, as the branch of government closest to the people, to remind members of the Executive occasionally that Congress is to make the law and their job is to administer it.

Thank you, Mr. Chairman, and the members of the Committee.

Senator ERVIN. I think you put your finger squarely on the valid objection to the Philadelphia Plan, and that is that the Philadelphia Plan commands the contractors to discriminate in a nondiscriminatory manner.

Senator FANNIN. That is just about the way it was stated and I think it is quite clear that that is what has taken place, Mr. Chairman. Senator ERVIN. It at least has the same virtue we have in my home town. A Naval Chaplain retired who had learned to curse very efficiently and very frequently in the Navy. He was a Methodist minister and would sometimes speak in rather fiery language of a profane nature on the streets, and so some of the Methodists got a young preacher to remonstrate him about his cursing. He told the young preacher he sometimes took the Lord's name in vain. So he looked up to the Chaplain and said he was very much distressed to learn that he had cursed publicly and sometimes went so far as to take the Lord's name in vain. And the Chaplain said, "I will have to confess that I do but when I do I always speak in a most reverent manner."

Your bill, S. 931. which is pending before this subcommittee, is a bill which would provide in substance that title VII of the Civil Rights Act of 1964 shall be the exclusive means under Federal law for enforcing equal employment opportunity.

Senator FANNIN. Yes, Mr. Chairman. There as been so much confusion and so many departments entering into the enforcement, supposed enforcement of the law that I felt that if we could have one agency that was responsible for this objective, that it would be far better than to have it spread over so many and have all the confusion. Senator ERVIN. Have you had complaints from businessmen that they have sometimes been investigated by both the Office of Contract Compliance in the Department of Labor and also by the Equal Opportunity Commission for the same thing?

Senator FANNIN. Mr. Chairman, I have had many complaints in that area.

Senator ERVIN. And have you had complaints that each one of these different agencies undertook to impose different requirements on them in this field?

Senator FANNIN. Yes, I have, sir. I have had several instances where this has happened and where it has cost vast amounts of money

and where one directive was given by one agency and then the next agency that would inspect them would not accept that standard of performance.

Senator ERVIN. And the objectives of your bill would do away with these different standards and bring everything under title VII of the Civil Rights Act of 1967?

Senator FANNIN. That is correct, Mr. Chairman.

Mr. KURLAND. Senator, may I ask whether it is the intention of this bill to preclude individual actions under such other statutes as 301 of Taft-Hartley, the National Labor Relations Act, or the Railway Act?

Senator FANNIN. No; it is not.

Senator ERVIN. It is strictly governmental enforcement as implied in title VII.

Senator FANNIN. That is correct.

Senator ERVIN. Thank you very much, Senator.

Senator FANNIN. Thank you, Senator.

Senator ERVIN. Senator Scott has requested that his statement be inserted in the record.

(The statement referred to follows:)

STATEMENT OF SENATOR HUGH SCOTT TO THE SENATE SUBCOMMITTEE ON SEPARATION OF POWERS, SENATOR SAM J. ERVIN, CHAIRMAN, OCTOBER 28, 1969 Mr. Chairman, I welcome this opportunity to reaffirm my support of the Philadelphia Plan. I endorse fully the Plan's goal of increasing minority employment opportunities in the building trades when the Federal taxpayer's dollars are involved, either directly or indirectly. The Philadelphia Plan says simply that a work force paid for by Federal tax money should reflect accurately the community in which a construction project is taking place. Certainly equity and fairness require at least this.

Mr. Chairman, my interest in this Plan is one of long standing. As you know, I personally urged, last May, that the Philadelphia Plan be revised and effectively continued. I am heartened by the Secretary of Labor's favorable reaction to this plea and by his stated opinion that the Philadelphia Plan is consistent with the Civil Rights Act of 1964, Executive Order 11246 and the regulations which have been issued to implement this order. I am heartened also by reports indicating that in the Plan's first year of operation in the Philadelphia area, actual minority employment on Federal construction projects increased from practically none to better than 25 percent of the construction work force in the five counties involved. I am persuaded that the Philadelphia Plan can effectively put minority workers into better paying construction jobs.

I am, of course, aware of the Comptroller General's opinion criticizing the Philadelphia Plan, but must respectfully disagree with the implication that this Plan represents a rigid quota system. Such a conclusion, in my opinion, fails to weigh properly the repeated assurance of the Office of Federal Contract Compliance that the Office, in administering this Plan, will use reasonable criteria · developed in the community and tailored to the special conditions of each Federally-assisted construction project. Further flexibility will be made possible by the intent to recognize also the "good faith" efforts of contractors who, for reasons beyond their control, are not able fully to comply.

Mr. Chairman, I, too, would oppose a rigid quota system, but I stress, once more, that this is not what the Philadelphia Plan envisions. Instead, the Philadelphia Plan represents an approach that combines fairness with practicability in attempting to guarantee to the minority taxpayer a reasonable opportunity to participate in the construction projects which his tax dollars, in part, make possible. I urge your Committee to view the Philadelphia Plan in this light. Senator ERVIN. We will leave the record open for 10 days and stand in recess subject to further call of the Chair.

(Whereupon, at 4:30 p.m., the subcommittee recessed subject to the call of the Chair.)

APPENDIX

Page

Additional Statements Submitted for the Record..

Correspondence, including statements of views submitted for the Record.

Legislative Materials__

Orders, Opinions, Decisions, and Memoranda_

Supplemental Materials_.

News Articles..

Additional Statements Submitted for the Record

197

220

243

244

279

309

STATEMENT OF BURTON F. MILLER, EXECUTIVE VICE PRESIDENT, AMERICAN ROAD BUILDERS' ASSOCIATION

The American Road Builders' Association has attempted to exercise imaginative leadership in developing programs to achieve equal employment opportunity in the highway construction industry.

We believe our efforts in the past two years demonstrate our good faith and our ability to make a meaningful contribution.

The primary thrust of our efforts has been in establishing training programs designed to help minorities acquire skills and quality for employment in highway construction.

ARBA-affiliated state contractor organizations sponsor these programs, which cover more than 55 classifications of skilled labor.

In a pilot project supported by a grant of manpower training funds from the U.S. Department of Labor, we have set up formal programs in five Southeastern States under the leadership of a regional director in Atlanta, Georgia. As we complete the first year of this program, 89 percent of the trainees are minority representatives. The states participating in this program are Alabama, Mississippi, Georgia, South Carolina, and Tennessee.

ARBA state affiliates in two other states, Florida and Pennsylvania, also have programs funded by the U.S. Department of Labor.

Other training programs sponsored by ARBA affiliates and approved by the Secretary of Transportation are being operated in Arkansas, Louisiana, North Carolina, Oklahoma, and Texas. Approval is pending on programs in Kentucky and Virginia.

Our state contractor affiliates in California, Connecticut, Ohio, Indiana, Massachusetts, Pennsylvania, and Wisconsin are joint sponsors of training programs with labor unions.

Altogether, these state programs trained approximately 3,186 workers in 1969. Nationwide, including the efforts of industry, labor unions, and State and Federal agencies, more than 12,590 training slots were made made available this year.

We believe this is an excellent start and we are planning to expand these programs.

These programs are being carried out pursuant to the special contract provisions relating to equal employment opportunity set forth in Federal Highway Administration Order Interim 7-2(1) dated March 17, 1969. Section 7(b) of the special contract provisions requires that "consistent with his manpower requirements and as permissable under Federal and State regulations, the contractor will make full use of training programs, i.e., preapprenticeship, apprenticeshin, and/or on-the-job training programs for the geographical area of contract performance."

FHWA Order Interim 7-2(1) was issued to implement Section 22 of the Federal-Aid Highway Act of 1968 (Section 140, Title 23, United States Code).

We have, therefore, an active training program based on an Act of Congress with specific application to the highway contracting industry. Difficulties arise when the same industry is made subject to conflicting

(197)