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are vague and ambiguous, and requirements that might very well be contrary to law.

Senator ERVIN. On that point, would you agree with me that one who makes contracts on behalf of the Federal Government or supervises the making of those contracts has no power to add anything to a contract that hasn't been authorized by law or to subtract anything from a contract that is required by law?

Mr. NAUMANN. It would seem to me that that is the way I was taught, and I would hope that we could always tie pretty tightly to that kind of a premise.

Senator ERVIN. And if that is not followed, we have a government of men and not a government of laws, don't we?

Mr. NAUMANN. We would agree.

Mr. BRADY. Sir, I believe you stated that the term affirmative action came into the Executive order in 1961.

Mr. NAUMANN. Yes.

Mr. BRADY. Prior to the enactment of the 1964 Civil Rights Act, was there ever any mention on the part of the executive department, any mention of quotas, goals, ranges or representative numbers?

Mr. NAUMANN. To my own knowledge, I believe not. We recognized, as you say, but because we do a lot of work and did do a lot of work and still do a lot of work for the Government, we had to very carefully watch the development of the responsibilities of the employer in connection with the whole matter of civil rights, so that we tried our best to make an interpretation, and we felt that as long as our company as a company had a policy of nondiscrimination, that we would be within the law, and that the special efforts, all of the special efforts that presently we are beset with-I might say we hope we are doing a pretty good job with

Mr. BRADY. I just wanted to point out that in the Civil Rights Act that was reported to the floor in the House a provision was included in that act which gave authority to the President to issue executive orders forbidding discrimination in employment by Government contractors. This was eliminated from the House bill and it was not put back in the Senate bill, and I believe the debate in the House at the time hinges on the thought that they were in no way, in absolutely no way either diminishing or increasing the President's power by taking the action that they did: Therefore if one can look at the situation and see that the idea of quota or range or whatever was not thought of at the time of the enactment of the 1964 act we can't say that the 1964 act approves of quotas or goals, can we?

Mr. NAUMANN. After the 1964 act was passed or during the process of its passage, certainly one of the basic comforts to the employer, especially the one who operated in several areas of the country, was the fact that quotas for all intents and purposes were forbidden by title 7, and on this basis a contractor who was at that point examining the whole question of civil rights and equal employment opportunity, and making it his business to find out all he could, felt that in so long as he did not discriminate, and so long as it was a basic policy of his company not to discriminate, and that under any circumstances not to carry out any acts or procedure that would lend to a pattern of discrimination or these kinds of things, that he would be in compliance with the law, and also at the same time it was certainly evident or the

thinking of contractors generally, that the passage of the act would be the final determination of position rather than an Executive order.

Mr. BRADY. My point is that we cannot subscribe quotas to the Executive orders prior to 1964, and furthermore the Attorney General's opinion of October 26, 1961, specifically deals with the question of prohibiting discrimination, not the question or legality of quotas or goals, but the question of prohibiting discrimination.

Mr. NAUMANN. That is right.

Senator ERVIN. Senator Fannin has introduced S. 931 which would provide that the remedies enacted by Congress to secure equal employment opportunities in the Civil Rights Act of 1964 should be the exclusive remedies available in this area, and which would have the effect of rescinding the Executive order and place the exclusive enforcement in the Equal Employment Opportunities Commission. Would that be of assistance to business, to have all enforcement in one place instead of having different agencies enforcing the laws?

Mr. NAUMANN. If the single agency proceeded on a basis of the remedies as contained in the civil rights act, yes. If at that point any agency started out on some different kind of enforcement arrangement, then it would again become confusing.

Senator ERVIN. Have you known of any instances when after the Office of Federal Contract Compliance had investigated a company, the Equal Employment Opportunities Commission would then investigate the company, and sometimes the State agency would conduct a third investigation?

Mr. NAUMANN. This happens, and amazingly enough as the chairman of the board, I am also the equal employment officer of the M. M. Sundt Construction Co., because I feel that if there is a responsibility, we feel the same way about safety, these things have to start at the top. Everybody has to be sold on it. The policy has to come from the top, and then everybody on down the line knows that they have to comply, and we make that fact very plain, that there is no discrimination in the company. And amazingly enough, it is my experience because of the complexity of what happens in compliance reviews, no matter where they might come from, on the 2d of November I am going to visit with one of my project managers in a certain area in Arizona, where he has two in the same day, one from the compliance people from the Bureau of Reclamation, another one from the compliance people from the Arizona State Highway Department.

Now, it is hard for you to leave the people who are in the field and whose prime responsibility is building the job, with all of the problems and keeping abreast of every action taken as a company or on the particlar project or on a group of projects, so we don't dare leave those people alone. You have to go with them so that they have the full story in the compliance review. So your question is very apropos, do we find a difference in the questions asked and the acceptable answer, and I say there is a difference.

We would hope, and the requirement of keeping very, very, meticulous records, we have files that are called actions taken, so that every time within a matter of company policy or a company action this is an item that has to do with the present interpretation of affirmative action, that it is a matter of record. This is the thing that I fear insofar as the Philadelphia Plan is concerned, that if it goes to other

sections of the country, that affirmative action cannot be proved by effort, but affirmative action is proved by results. That is a real harsh thing to face sometimes, no matter how hard you have worked, and this to my notion is part of the great danger of the alleged escape clause in the Philadelphia Plan.

Senator ERVIN. Thank you very much for your very interesting testimony.

Senator Fannin was to testify today, but he could not appear and will be here tomorrow. The committee will stand in recess until 10:30 tomorrow morning.

(Whereupon, the subcommittee recessed to reconvene at 10:30 a.m. Tuesday, October 27, 1969.)

HEARINGS ON ADMINISTRATIVE AGENCIES, THE DEPARTMENT OF LABOR'S "PHILADELPHIA PLAN"

TUESDAY, OCTOBER 28, 1969

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:30 a.m., in room 2228, New Senate Office Building, Hon. Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin and McClellan.

Also present: Rufus L. Edmisten, chief counsel and staff director; Lawrence J. Brady, minority counsel; and Prof. Philip B. Kurland, chief consultant (University of Chicago).

Senator ERVIN. The subcommittee will come to order.

Counsel will call the first witness.

Mr. EDMISTEN. Mr. Chairman, the first witness is Mr. Jerris Leonard, the Assistant Attorney General, Civil Rights Division, Department of Justice.

Senator ERVIN. Mr. Leonard, we wish to welcome you to the subcommittee and express our appreciation to you and to the Department of Justice for coming to give us the benefit of your views on the matter being considered. We would like you to identify those with you for the purposes of the record.

STATEMENT OF JERRIS LEONARD, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY BENJAMIN W. MINTZ, DEPUTY CHIEF OF THE COORDINATION AND SPECIAL APPEALS SECTION OF THE CIVIL RIGHTS DIVISION OF THE JUSTICE DEPARTMENT; AND HUGH M. DURHAM, DEPUTY CHIEF, LEGISLATIVE AND LEGAL SECTION, OFFICE OF THE DEPUTY ATTORNEY GENERAL

Mr. LEONARD. Thank you, Mr. Chairman. We are pleased to be here this morning. We appreciate this opportunity to testify.

To my right is Mr. Benjamin W. Mintz, who is Deputy Chief of the Coordination and Special Appeals Section of the Civil Rights Division of the Justice Department, to my left is Mr. Hugh M. Durham, who is Deputy Chief, Legislative and Legal Section, the Office of the Deputy Attorney General.

Mr. Chairman, I have a prepared statement this morning for the benefit of the subcommittee. With the Chair's permission, I would like to present that statement and request that it be printed in full

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in the record. However, in order to save some of the chairman's time I would like to run through it and excerpt some of the points.

Senator ERVIN. That will be fine. In other words, as the expression is in the vernacular, you are going to highlight your statement? Mr. LEONARD. Correct.

Senator ERVIN. Let the record show that the statement will be printed in full.

Mr. LEONARD. Thank you, Mr. Chairman.

Mr. Chairman and members of the subcommittee, I want to thank you for this opportunity to express the views of the Department of Justice on the Philadelphia Plan.

This Nation's commitment to equal employment opportunity is nowhere further from realization than in the construction industry. It has long been a matter of common knowledge that racial discrimination has resulted in the virtual exclusion of minority groups from many of the unions in the building trades. We all recognize the pressing need for effective, positive and immediate action by the Government to enforce the nondiscrimination guarantees of Federal law.

A major breakthrough in the fight for equality of opportunity in employment took place on June 27, 1969, when the Department of Labor issued the Philadelphia Plan.

This plan requires that construction employers in the Philadelphia area make good faith efforts to meet certain employment goals. The authority of the Department of Labor to issue that plan was upheld in an opinion by the Attorney General in September in which the Attorney General concluded the plan was not inconsistent with the provisions of title VII of the Civil Rights Act of 1964.

Executive Order 11246, which is the most recent in a long series of Executive orders going back to the time of President Franklin D. Roosevelt, requires that those who seek to do business with the Federal Government, contractors and subcontractors, take certain affirmative action in order to assure nondiscrimination in their employment practices. These requirements are applicable both to contractors doing direct business with the Government, and to those who are working on projects that are receiving Federal financial assistance.

These requirements are intended to implement what we believe is probably a constitutional obligation, but certainly a moral obligation on behalf of the U.S. Government, not to participate in and support unlawful discrimination by those doing business with employers who discriminate in employment.

Executive Order 11246 and similar orders which preceded it have been upheld by at least two courts of appeals as a lawful exercise of the authority of the executive branch of Government.

I think it is important to draw the contrast between the two kinds of employment covered by Executive Order 11246. In the usual industrial situation, where an employer has more or less a fixed group or complement of employees, the requirements of the Executive order ordinarily can be met if that employer engages in an affirmative recruiting program, for example, going into the minority areas in an attempt to seek out qualified minority group employees as new hires. In the construction industry, however, the situation is different. I know that the chairman and the subcommittee are fully cognizant of the difference, the fact that the contractor usually hires a new comple

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