I will also read into the record a section of the interpretative memorandum prepared in 1964 by Senators Clark and Case, the floor managers of title VII. In their statement, which begins on 110 Congressional Record 7213, they stated:

There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race.

To me, the texts of title VII and of the interpretative memorandum constitute clear evidence that the Philadelphia Plan contravenes the intent of the most avid proponents of the 1964 Civil Rights Act. They show that Executive Order 11246, which was designated merely to guarantee equal employment opportunity regardless of race, has been stretched beyond the limits of reason to lend legal justification to the Philadelphia Plan.

I ask the Labor Department to explain why the Philadelphia Plan does not compel contractors to hire on the basis of race. I ask the Department to show that the plan does not ignore the intent expressed in the Clark-Case memorandum.

The Philadelphia Plan, according to the Labor Department itself, requires minority group employment of 22 to 26 percent among ironworkers by 1973. It requires 20 to 24 percent among plumbers, and among pipefitters, and among steamfitters. It requires 19 to 23 percent among sheet metal, electrical, and elevator construction workers. These percentages rise every year. It would be a travesty for the Department to claim that they are not based on race.

We want the Labor Department to explain, without resorting to semantic devices, why the Philadelphia Plan disregards the intent of Congress that title VII should not hold contractors responsible for the membership practices of labor unions, practices over which the contractors can exercise absolutely no control.

I want to read another section of the Clark-Case memorandum into the record at this point:

Question: If an employer obtains his employees from a union hiring hall through operation of his labor contract is he in fact the true employer from the standpoint of discrimination because of race, color, religion, or national origin when he exercises no choice in their selection? If the hiring hall sends only white males is the employer guilty of discrimination within the meaning of this title? ..

Answer: An employer who obtains his employees from a union hiring hall through operation of a labor contract is still an employer. If the hiring hall discriminates against Negroes, and sends him only whites, he is not guilty of dis crimination-but the union hiring hall would be.

We would like the Labor Department to justify the Philadelphia Plan's apparent conflict with the intent of Congress that title VII should not interfere with union seniority systems.

In debating title VII in 1964, Senator Humphrey said that:

there is nothing in it that will give any power to the commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial "quota" or balance.

I believe the Philadelphia Plan requires just such a racial quota or balance, whether that quota is disguised as a "target," a "goal," a "range," or a "standard." The Brookings Institution report found, in fact, that "the compliance specialist often applies a form of subjective

quota in deciding how hard to push a given contractor." (Emphasis in original.) That report was completed more than 2 years ago, long before the revised Philadelphia Plan was adopted.

There is something every disquieting in all of this. In a statement made in January 1967, former OFCC Director Edward C. Sylvester admitted that "there is no firm and fixed definition of affirmative action. I would say that in a general way, affirmative action is anything you have to do to get results."

In making this statement, Mr. Sylvester no doubt had the high purpose of giving effect to his desire that all citizens be guaranteed equal employment opportunity according to ability. But his emphasis on results at the expense of procedure concerns me. We seem to have forgotten the admonition of Justice Frankfurter that "the history of American freedom is, in no small measure, the history of procedure." In seeking to raise artificially the percentage of minority group workers in Philadelphia through this misuse of an Executive order, the Labor Department is establishing a nearsighted precedent. For if we are lax today in adhering to the law, what may happen tomorrow when that practice is adopted by those who would subvert procedure to their own evil purposes? The power to twist procedure is one no good administrator should want and no bad administrator should have. We cannot allow our legal principles to be frittered away by manipulation of the law.

There is another point which concerns me greatly, a point which has largely been ignored in the arguments surrounding the Philadelphia Plan. Section 202 (1) of Executive Order 11246 requires Federal contractors to hire and treat their employees "without regard" to their race, color, religion, or national origin. It seems to me that those two words, "without regard," mean exactly what they say. They are clear and unambiguous.

Since all the sections of a law must be construed together, it is in the context of those words, "without regard," that the more general concept of "affirmative action" must be placed. Yes, the Executive order requires affirmative action, but only affirmative action which is taken "without regard" to race, color, religion, or national origin. It is here that the Philadelphia Plan is fatally defective. It compels contractors to make decisions based precisely on those four considerations. The plan is in conflict not only with title VII of the 1964 Civil Rights Act, it also is in conflict with the very Executive order under which it was created.

Whatever the courts may have decided about considering race as a factor in remedying inequities, those precedents cannot apply to the Philadelphia Plan. The language of Executive Order 11246 places an ironclad ban on racial considerations in employment by Federal contractors. It is no more legal for the Labor Department to reverse the meaning of the words, "without regard," that it would be for the Department to misspend a congressional appropriation.

I do not argue that the labor unions are violating the 1964 Civil Rights Act, and I want to make it very plain that this hearing is not designed to criticize labor organizations in any way. However, I must point out and I am sure that the Labor and Justice Departments are aware that the 1964 Civil Rights Act gives them ample tools to bring suits against labor organizations if they have sufficient evidence of

discrimination and can prove it in open court. It therefore appears to me illogical and unfair that the Department of Labor prefers to attack the alleged problem of exclusion by penalizing the contractors, who play no role in the membership practices of labor organizations. During the course of the Philadelphia Plan controversy, the Comptroller General has been accused of exceeding his authority in finding the plan unacceptable because it violates title VII. I want to comment on that criticism now. Under 31 United States Code 65, the "Budget and Accounting Act of 1921," the Comptroller General is directed to determine whether "financial transactions have been consummated in accordance with laws, regulations, or other legal requirements." Without question, that statute provides the Comptroller General with the authority to check the Philadelphia Plan against any and all laws, not merely those which deal with procurement.

Finally, the subcommittee has before it S. 931, a bill introduced by Senator Fannin, which would make title VII the sole means of enforcement and remedy in the field of equal employment. It would suspend the use of Executive Order 11246. We welcome the comments of our witnesses on that bill.

(S. 931 follows, together with title VII of the Civil Rights Act of 1964, Executive Order 11246, U.S. Department of Labor memorandum dated June 27, 1969 and U.S. Department of Labor order of September 23, 1969.)

[S. 931, 91st Cong., first sess.]

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

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the Congress hereby declares that in order to restore an appropriate division of governmental authority between the three coordinate branches of the Federal Government in the area of equal employment opportunities and to preclude encroachment upon the legislative powers and functions of the Congress through the issuance of Executive orders in this area, it is necessary to provide that the remedies enacted by Congress to secure equal employment opportunities shall be the exclusive Federal remedies available in this area.

(b) The actions, endeavors, investigatory proceedings, and other remedies provided by title VII of the Civil Rights Act of 1964 shall be the exclusive means under Federal law of enforcing the equal employment opportunities secured by such Act.

(c) Executive Order Numbered 11246, as amended, title VI of the Civil Rights Act of 1964, and any other law or Executive order of the United States securing equal employment opportunities, and all rules or regulations issued thereunder, are hereby superseded to the extent that they provide any actions, endeavors, investigatory proceedings, or other remedies with respect to any act or practice prohibited therein which would also constitute an act or practice made an unlawful employment practice under title VII of the Civil Rights Act of 1964. Nothing in this Act shall relieve any person of any obligation assumed or imposed under or pursuant to any such law or Executive order prior to the enactment of this Act.

(d) Nothing in this section shall apply with respect to any law of any State or political subdivision of a State.

CIVIL RIGHTS ACT OF 1964, JULY 2, 1964, PUB. LAW 88-352, 78 STAT. 253

TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY

DEFINITIONS

SEC. 701. For the purposes of this title—

(a) The term "person" includes one or more individuals, labor "Person." unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.

(b) The term "employer" means a person engaged in an industry "Employer." affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or a State or political subdivision thereof, (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of the Internal Revenue Code of 1954: Provided, That during the first year after the effective date prescribed in subsection (a) of section 716, persons having fewer than one hun

78 STAT. 254.

dred employees (and their agents) shall not be considered employers, and, during the second year after such date, persons having fewer than seventy-five employees (and their agents) shall not be considered employers, and, during the third year after such date, persons having fewer than fifty employees (and their agents) shall not be considered employers: Provided further, That it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex or national origin and the President shall utilize his existing authority to effectuate this policy.

(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person; but shall not include an agency of the United States, or an agency of a State or political subdivision of a State, except that such term shall include the United States Employment Service and the system of State and local employment services receiving Federal assistance.

(d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) one hundred or more during the first year after the effective date prescribed in subsection (a) of section 716, (B) seventy-five or

68A Stat. 163; 74 Stat. 534.

26 USC 501.

"Employment agency."

"Labor organization."