Another practice is to require that an applicant obtain a written recommendation from several union members or the approval of a majority of the present union members. The Court of Appeals for the Fifth Circuit in the Local 53, Asbestos Workers case held that in the context of an all-white union, these requirements would "effectively" deny minority group persons the opportunity to join the union without regard to race. The same is true, the court held, if only relatives of members in an all-white union were admitted to membership. Other discriminatory practices operate equally effectively to exclude minorities from union membership. Some unions admit a person to membership if he passes a journeyman examination given by the union. We have found that some unions have excluded Negroes by refusing to give the examination, or, in another case, by giving a far more difficult examination than it had given before the effective date of Title VII. Another route to union membership is through joint apprenticeship programs and, as we shall see, minority group persons are usually excluded from these programs. Membership in a union is a substantial right and to exclude minority persons is to deny them significant benefits. Since many unions refer only members to jobs-a practice, by the way, which is unlawful under the Taft-Hartley Acta nonmember is much less to get a job. In addition, union membership gives the employee an opportunity to participate in union affairs, and carries with it various tangible benefits such as union medical and retirement programs, and the intangible benefits of status, prestige and dignity. b. Referral practices.-Referral through a union hiring hall is usually a prerequisite to employment in the construction industry. Our investigations show that few minority group persons are referred out of union hiring halls. Discriminatory referrals of whites only, or of members only, are important but by no means the only ways to deny jobs to minorities. Many collective bargaining agreements in the construction industry give priority in referral to persons with prior work experience under union collective bargaining agreements. These priorities might appear to be lawful because, on their face, they are nondiscriminatory. However, the Court of Appeals for the Eighth Circuit found in the Local 36, Sheet Metal Workers case that if in the past Negroes were discriminatorily barred from using the hiring hall and therefore from obtaining union jobs, referral priorities based on work experience under union agreements carried forward the past discrimination against Negroes and were therefore unlawful under title VII. Recognizing the critical importance of the hiring hall in the construction industry, the courts have given broad relief to remedying discriminatory referral practices. In the Local 36, Sheet Metal Workers case, the court of appeals ruled that the union must discontinue giving referral priorities based on experience under union contracts. The district court in the Local 73, Plumbers case imposed a first-in first-out referral system to remedy the union's discriminatory referral practices. In the Local 53, Asbestos Workers case, the court of appeals affirmed the district court order that the union refer one Negro for every one white person until objective membership criteria were developed. c. Apprenticeship programs.-Apprenticeship training is of critical importance in the construction industry. In many trades, it is the sole avenue to union membership. In addition, apprenticeship programs furnish training which qualifies persons for journeymen status and therefore for gainful employment in the construction industry. The Department of Labor made findings regarding the exclusion of minority group persons from apprenticeship programs in the Philadelphia area. Preliminary tabulations made by the Equal Employment Opportunity Commission based on the 1967 EEO-2 reports (again the most recent reliable nation-wide data) show extremely low minority group participation in apprenticeship programs in the construction industry. Of the 12 major programs surveyed, 5 showed 5 percent or less combined Negro and Spanish-American participation; 3 others showed less than 7 percent minority group participation; and 2 others showed 8 percent or less minority group participation. Our investigations have disclosed some of the techniques used by joint apprenticeship committees to exclude minority group persons from apprenticeship programs. We have found outright exclusion of minorities; we have also found nepotism-only friends and relatives of members of all-white unions are accepted. Apprenticeship committees also make extensive use of nonvalidated tests as a basis for acceptance in the program. These tests are not an accurate measure of the likelihood that the candidate will succeed in the apprenticeship program; they discriminate against all applicants and particularly against minority group persons with poorer educational backgrounds. We have also found that some apprenticeship committees rely heavily on subjective evaluation, for example, the impressions obtained at oral interviews, as a basis for selection. This practice, we know, invites racial discrimination. Thus, one investigation revealed that of 28 Negro applicants tested and interviewed, 23 scored on the non-oral portion of the evaluation process as well or better than the white candidates who were accepted; but all but one of the Negroes were rejected because they were given low scores on the oral, subjective, portion of the selection process. 5. Conclusion Equal employment opportunity in the construction industry is far from a reality. The Department of Labor's Philadelphia Plan is a major step toward removing the impediments to minority group participation in the building trades. The Attorney General has concluded that the Philadelphia Plan is lawful and our litigation experience under Title VII has shown the need for implementation of such programs as the Philadelphia Plan. The United States must vigorously enforce both Executive Order 11246 and Title VII in order to fulfill this Nation's commitment that every person has a right to a job without regard to his race, color or national origin. I want to thank the subcommittee for this opportunity to testify. I would be happy to answer any questions and to provide you with any additional information that you may need. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, STATUS OF CASES AS OF OCT. 24, 1969 Defendant St. Louis Building and Construc- Columbus Electrical Workers H. K. Porter Co. and United Cincinnati Electrical Workers St. Louis-San Francisco, Railway (Local 38-IBEW). Bogalusa Papermakers (Local Indianapolis Plumbers (Local Las Vegas Electrical Workers Sinclair Refining Co. and Oil, Chicago Ironworkers (Local 1)... T.I.M.E. Freight, Inc.. New York Lathers (Local 46).. Manor Baking Co.. See footnotes at end of table. Aug. 7, 19698 Aug. 8, 1969 June 19, 1968 Jan. 20, 19696. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, STATUS OF CASES AS OF OCT. 24, 1969.-Continued Defendant Jacksonville Terminal Co. and 14 railroad craft unions. AMBAC Industries... Associated Transport, Inc................... Cleveland Pipefitters (Local 120). Metro Personnel System, Inc., et al. Roper Hospital..... Parke, Davis & Co. C. & O. Railway Co., and 2 unions. Kayby Mills of North Carolina... Ohio Bureau of Employment Continental Can Co., and Local E. St. Louis Operating Engineers East St. Louis Electrical Workers (Local 309). East St. Louis Cement Masons (Local 90). Texas Longshoremen (International Longshoremen's Association and 37 locals). Cannon Mills Co.... Eastern District of III. Eastern District of በዚ Southern District of Central Motor Lines and 3 Northern District of Aug. 12, 1969 Teamsters Locals. 1 Relief denied. 2 Reversed and remanded. 3 Relief granted. 4 Affirmed. 5 Relief denied, in part; granted in part. • Consent decree. 7 Relief granted on remaining issues. • Complaint dismissed. • Dismissed. Senator ERVIN. Can you reconcile the provisions of the Philadelphia Plan with title VII of the Civil Rights Act of 1964? Mr. LEONARD. We can, Mr. Chairman. We believe that the prohibition in title VII is with respect to the establishment of racial quotas, its purpose is to prohibit reverse discrimination. We do not believe that the Philadelphia Plan establishes any racial quotas. It creates an obligation on the part of those who would do business with the Federal Government to make a good faith effort to try to achieve certain goals, those goals having been set by the Secretary of Labor after extensive investigation of the total construction business and employment in the construction industry in the particular area involved. Senator ERVIN. Is it the contention of the Department of Justice that the Philadelphia Plan would be a valid plan if Congress had never enacted the Civil Rights Act of 1964 ? Mr. LEONARD. Yes, Mr. Chairman, we believe that the executive branch of the Government has the authority to establish rules and regulations under which those wishing to do business with the Government must operate. Senator ERVIN. What provision of Constitution or Act of Congress does the Philadelphia Plan implement? Mr. LEONARD. Mr. Chairman, as my statement indicates, we think that there may well be a constitutional obligation for the United States not to participate in or to assist in unlawful discrimination in employment. Senator ERVIN. I have trouble finding any constitutional or statutory base for the plan. To my mind, the Philadelphia Plan amounts to legislation, not to regulation. I cannot find any statute authorizing the Philadelphia Plan. The first section of Article I of the Constitution says: All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of the Senate and the House of Representatives. I cannot find any authority for the Secretary of Labor to enact statutes or to create law. Mr. LEONARD. Mr. Chairman, at least one circuit court of appeals has clearly decided that the executive branch does have the authority to determine the terms and conditions upon which people may do business with the Federal Government. And, as my statement indicates, certainly there is a strong moral obligation on the part of the Federal Government not to support discriminatory employment practices. Now, this moral obligation is implemented through the authority of the Government to set reasonable terms and conditions for contracting with private employers. Senator ERVIN. I have never found anything in the Constitution which says the Congress can legislate morality or that the executive branch of the Government can lay down moral standards. I think that the Federal Government can only operate under laws and not under principles of morality. It is my understanding that the Department of Justice and the Department of Labor both take the position that the Philadelphia Plan is created by some power independent of the Civil Rights Act of 1964. What I would like to know is what act or statute authorized the President to set up the original Executive order, or authorized the Labor Department to adopt the Philadelphia Plan. Mr. LEONARD. Senator, I cannot give you the exact citation, but it is the act which authorizes the executive branch of Government to conduct the Government's business, to procure goods and services, to make and carry out contracts. Now, that act provides that the executive branch has the authority to set standards and policies of procurement; for instance, with respect to the quality of goods which the Government buys. Now, if the executive branch has the authority to establish the procedures and policies for procurement, it certainly also has authority to establish and to implement as part of those standards, the requirements that those who deal with the Government shall not discriminate racially. That is the legislative authority for requirements in Executive Order 11246. Senaor ERVIN. Congress did give the executive branch the authority to procure goods and services, but not to dictate employment. There is nothing in the act that I can find which gives the President any authority to issue Executive orders establishing standards which Congress has not established, and I do think when it gives the President the authority to carry out the laws of Congress, it means he is to carry out the laws of Congress and not add something to them. Mr. LEONARD. Senator, I think there are two points that are important there. No. 1, in Farkas v. Texas Instruments, Inc., the Fifth Circuit Court of Appeals said that the executive branch was exercising lawful authority under Executive Order 11246. No. 2, the President has not said that all employers must comply with the requirements of Executive Order 11246. All he has said was that "If you seek to do business with the Federal Government you shall not discriminate racially in your employment practices." Senator ERVIN. I understand that the Department of Labor and the Department of Justice take the position that the Philadelphia Plan is authorized by the Executive Order 11246. That Executive order says: During the performance of this contract the contractor agrees as follows: The contractor will not discriminate against any employee or applicant for employment because of race, creed, color or national origin. The contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, creed, color or national origin. Now, those words to me mean that they shall ignore considerations of race in employment. If they have another meaning, I would like to be enlightened on that subject, because that is the only meaning I can give to those plain English words. Mr. LEONARD. Senator, whether you find situations, as we have found, that there has been intentional exclusion of minority group members from particular employment opportunities, in that case, the paragraph that you read, Senator, requires that the employer take affirmative action to try to bring minority group employees into his employee complement. Senator ERVIN. Do you take the position that Executive Order 11246 authorizes the Department of Labor to practice discrimination in reverse? Mr. LEONARD. Senator, the Philadelphia Plan, which was instituted by the Department of Labor after the Attorney General's opinion that the plan is lawful, makes it clear that there is not to be any so-called reverse discrimination, any discrimination against whites. The purpose of the plan is simply to open the doors to employment in the construction and building trades to all persons without regard to their race or color, As an example, which I give in my formal statement, 28 Negroes applied to an apprenticeship program, 23 of them passed all of the requirements, until they got to the oral examination; 22 out of the 23 were cut out of the program based on the subjective results of the oral examination. This occurred in spite of the fact that all 23 of them were equally qualified with the whites who were taken into the program. |