I have gone on record as being opposed to this agreement. (See enclosed memorandum.) If I can be of further assistance, please contact me. Very truly yours, Enclosure. COLSTON A. LEWIS, Commissioner. AUGUST 28, 1974. Memorandum for: John H. Powell, Jr., Chairman. I have reviewed the proposed draft letter forwarded to me for my comment as per your memorandum of August 23, 1974. I am opposed to the sending of the Draft Letter to the AFL-CIO as proposed by you. I further feel that no action should be taken on this matter until there has been a meeting of the full Commission to discuss this subject thoroughly, before determining what would be the proper course of action with respect to this subject. I shall, at said meeting, share my concerns and questions with my colleagues. I trust that no further action shall occur until such a meeting is held. COLSTON A. LEWIS, Commissioner. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Memorandum to: Chairman John H. Powell, Jr. This memorandum is for the purpose of further clarifying my position in connection with the rejection, by the majority of the Commissioners at the meeting on September 4, 1974, of the proposed letter from EEOC to AFL-CIO outlining a procedure for self-enforcement of Title VII rights inconsonant with the normal procedure. I will preface my remarks by stating that there are at least five important factors involved in my consideration and decision which I would like to reiterate: 1. I participated in the meeting and in the discussion of the proposed agreement and letter with an open mind and without a pre-determined opinion or decision. 2. I had a number of questions to ask in reference to the legality and as to the adequacy of a number of the procedural steps incorporated in the proposed procedure as they apply to Title VII. I considered the answers to these questions and concerns as essential in reaching a decision. 3. Unfortunately a number of the answers or explanations were not, in my opinion, persuasive enough or satisfactory to clearly establish the fact that all of the procedures outlined were legal and provided full protection for the Charging Party as required by Title VII. 4. In arriving at my decision, I was very much aware of and took into serious consideration the following facts: (a) The Chairman and the Commissioners have a responsibility to: (1) Protect fully the rights of the Charging Party as directed by Title VII. (2) Be fair and just to the Respondent in arriving at a solution to the charge. (3) Make every effort to establish innovative procedures that are within the legal framework of Title VII in order to reduce the present enormous backlog of charges and bring investigations up-to-date. (4) Maintain the proper image and credibility of EEOC before the people of our Country. There have been two instruments presented to the Commissioners outlining a procedure for self-enforcement of Title VII rights by AFL-CIO incongruous with the normal procedure. First of all, a Memorandum of Understanding (July 25, 1974) and secondly, a proposed Letter (August 23, 1974). According to the information provided to the Commissioners on the proposed variation of the normal procedure in the processing of charges filed against the labor unions, it has been stated emphatically by the General Counsel (EEOC) that the proposed Memorandum of Understanding between AFL-CIO and EEOC could well be unlawful. On the other hand there seems to be an agreement by the Chairman and the General Counsel that a similar procedure as outlined in the Memorandum of Understanding, with a few modifications but basically the same procedure, would be legal and in full compliance with Title VII, if undertaken by EEOC on the basis of a letter (August 23, 1974) to AFL-CIO signed by the Director of Compliance instead of a Memorandum of Understanding signed by the Chairman and the President of the AFL-CIO. I might mention that I have taken into account the statements made by the General Counsel, at the Commissioners' meeting, approving the proposed Letter; however, there are a number of concerns which in my honest judgment and opinion have not been cleared or resolved and which I will attempt to present below. Paragraph two of a Memorandum, dated August 23, 1974, from the Chairman to the Commissioners states in part: "As you know, similar procedures are currently being used in the AT&T followup and are included in the recently signed conciliation agreement with El Paso Natural Gas." However, it appears to me that the proposed draft Letter to the AFL-CIO cannot be equated to the AT&T and EPNG Agreements inasmuch as the AFLCIO and its member unions are not a single entity as is AT&T and EPNG. The AFL-CIO member unions enjoy a degree of independency and autonomy that is not found in the AT&T and EPNG structures. Also, the AT&T and EPNG Agreements were preceded by a thorough investigation by EEOC, and the AFL-CIO and its member unions have not been similarly investigated. Further, the draft Letter to Mr. Pollard of the AFL-CIO can be equated to the AT&T and El Paso Natural Gas Agreements only if one assumes that said draft Letter is an enforceable formal agreement. This is due to the irrefutable fact that the AT&T and EPNG Agreements are enforceable formal agreements. It appears that the draft Letter incorporates the salient features of the earlier proposed contractual Memorandum of Understanding. As previously stated, the General Counsel has expressed very serious doubts as to the legality of said contractual Memorandum of Understanding. Therefore, it naturally follows that these same "serious doubts" are applicable to the draft Letter inasmuch as equated to the AT&T and EPNG Agreements it represents an enforceable agreement. The following are a number of serious objections by the General Counsel to such a proposed procedure as stated in memoranda from the General Counsel to the Chairman and to the Commissioners. July 25, 1974 (General counsel to the chairman): Page 1: "There are some questions in terms of the Section 706 (b) prohibition against 'public' disclosure of charges as to dissemination to the international and Civil Rights Division." Page 2, Par. 1: "Once a charge is forwarded to a respondent union, there is nothing in the statute which prevents the local, assisted by its international and/or the Civil Rights Division of the AFL-CIO, from investigating the allegations and attempting its own resolution with the aggrieved party." Page 2, Par. 2: "Beyond the aforementioned, however, we are not prepared to say that the proposal is lawful and should be executed. We have serious doubts whether the Commission may enter into an agreement of this nature." Page 2, Par. 3: (In reference to Section 705 (g) (1) of the Act which states: "(g) The Commission shall have power (1) to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individual")—"Although this could be construed as authorizing the Commission to enter into contracts with individuals for various purposes, we submit that the Congress did not intend the Commission to enter into written agreements with others to investigate or enforce charges arising under Title VII." Page 2, Par. 3: "The Senate report accompanying Senate Bill 2515, in its section by section analysis states: This subsection would amend Section 705 (g) (1) of the present Act to permit the Commission to accept uncompensated services. It is intended to permit the Commission to utilize these services for such purposes as education, publicity and the collection of data. It would not be expected to accept such services in connection with the prosecution or decision of cases before it except in extraordinary situations. (Legislative History of EEOC Act of 1972 at 1978.) We submit that although the language refers to the use of uncompensated services, which language was later deleted, the inference is raised that Section 705 (g) (1) should not be utilized as a substitute for the Commission's basic responsibilties of investigation and conciliation by informal methods as provided for in Section 706." Page 3, Par. 3: "Concurrently, serious doubts are raised by the proposed procedure of requiring the Commission to evaluate a respondent union's proposal and take action thereon within 30 days of submission of the proposal to a District Office. Time limitations on the Commission would require that the same treatment be afforded to all respondents even though in ordinary circumstances this would constitute a major deviation from our normal administrative process." Page 3. Par. 4: "As currently proposed, the agreement must be evaluated and action taken in 30 days. Additionally, with 97,000 charges in backlog, it could appear that District Offices would be sorely tempted to rely upon the union investigation and settlement and close the case. This possible pressure for closure, coupled with the original referral of the charge by the Commission to the alleged wrongdoer may create in the minds of the Charging Parties a feeling that the Commission is abdicating its administrative responsibilities under Title VII." Page 4, Par. 2: “In conclusion, we believe that it would be more proper, legally, to establish some informal method of agreement with the AFL-CIO which would allow it an opportunity to review and attempt to resolve charges filed against its constituent unions without spelling out specifically the Commission's 'obligations' in this regard." July 30, 1974 (Memorandum from the General Counsel to the Chairman): Page 1, Par. 1: "As you know, I indicated this office's serious reservations regarding the propriety of executing the proposed agreement between the Commission and the AFL-CIO in my July 25, 1974 memorandum to you. Since you have expressed your desire to proceed with concluding this agreement, I am submitting this office's comments on the July 24, 1974, version of the Memorandum of Understanding, pursuant to your instructions." Page 1, Par. 2: "While we were pleased to learn of the Compliance Staff's suggested language changes, particularly in paragraph 9, we are still concerned that the details of this proposed charge referral procedure do not entirely comport with the spirit of Title VII." August 5, 1974 (Memorandum from the General Counsel to the Commissioners): Page 1, Par. 1: "This office was requested by the Chairman to review a draft proposed EEOC-AFL-CIO agreement. A copy of my July 25, 1974 memorandum regarding this office's review of that agreement is attached. On July 26, 1974, this office was informed that the Chairman would proceed with concluding a Memorandum of Understanding between EEOC and the AFL-CIO, and a draft copy of that Memorandum of Understanding was submitted to this office for comments. This office's comments on the July 25 version of the Memorandum of Understanding are contained in my memorandum of July 30, 1974. At a meeting between the staff of the Office of General Counsel and the Executive Director, Director of the Office of Compliance, and staff on July 31, 1974, the comments of this office contained in my July 30 memorandum were discussed. While this office believes that the revisions suggested in the July 30, 1974 memorandum could alleviate some of the chilling effects we fear, for all the reasons we have previously expressed, we adhere to our position that the written memorandum of understanding is of sufficient doubtful validity that we cannot say it is lawful. We reiterate our belief that the goal sought to be achieved may be achieved through the Commission's present internal mechanisms." (Emphasis mine.) It is purported by the General Counsel that the proposed Memorandum of Understanding and the substitute proposed Letter are two different types of instruments, however, for all intent and purposes, they are both basically the same, since they incorporate similar procedures and they commit the Commission to a divergent procedure. The only difference is in the format and in the fact that one is to be signed by both the Chairman and the President of AFL-CIO and the other one to be signed by the Director of Compliance (EEOC). Both instruments commit the Commission to a certain referral procedure and are similar in that they can both be terminated on appropriate notice. Therefore, it is logical to arrive at the conclusion that if the legality of the procedure outlined in the Memorandum of Understanding was questioned by the General Counsel, then the proposed Letter which incorporates a similar procedure would also be legally questionable. Changing of the format involving different signatures does not eliminate the basic legal objections by the General Counsel and does not necessarily comply with the intent and spirit of the law. The General Counsel's memorandum of July 30, 1974, recommends several additions and changes to the proposed AFL-CIO-EEOC Memorandum of Understanding in order for it to be "more consistent with the objectives of the Act." Although a few of the General Counsel's recommendations were implemented in the proposed draft Letter to the AFL-CIO, several of those directed at protecting the Charging Party were not implemented. These are as follows: 1. Page 2, comment No. 2: (a) Recommends that: "In view of the fact that Respondent(s) may contact the Charging Party for 'fact finding' purposes (16), the Charging Party should be apprised of all written communications between the Commission and Respondents . . ." Although the contacting of the Charging Party for "fact finding" portion was not included in the proposed draft Letter, it stands to reason that any investigation conducted by Respondent (s) would entail contacting the Charging Party. At any rate, the proposed draft Letter does not provide for the furnishing of copies of all written communications between the Commission and Respondent(s) to the Charging Party. Recommends that: "Charging Party should be informed immediately that he or she can refuse to participate in this procedure Page 3 of the draft Letter states: "The Charging Party will likewise be informed. and the right to reject any remedy proposed under this procedure and to the full utilization of Title VII processing." The above quoted portion of the draft Letter is not responsive to the General Counsel's reconmmendation and implies that Charging Party is obligated to participate in the proposed procedure inasmuch as he or she can reject any "remedy proposed under this procedure." The "right to the full utilization of Title VII processing" appears to be applicable only after Charging Party has participated in the procedure and exercised his or her right to reject the proposed "remedy." 2. Pages 3-4, comment No. 3: This recommendation stated that no meeting between the Respondent (s) and Charging Party concerning the allegations of the charge would take place without a Commission representative present. The recommendation stated: "To minimize the abuses that may occur in a procedure that has the approval but not the oversight of the Commission, it seems best to afford the Charging Party the additional protection of direct Commission involvement in any contacts made by the Respondent(s) for purposes of 'fact finding.' The recommendation was not implemented in the draft Letter. 3. Pages 4-5, comments Nos. 4 and 5: This recommendation provided that: "In order to insure that no Commission evaluation will be made in a vacuum, the Charging Party should be afforded an opportunity to consider the Respondent (s) finding of fact and proposed relief, and present, if he or she desires, rebuttal evidence or a counter remedy. This should be done before the Commission 'evaluates' the Respondent (s) 'package.' This recommendation was not implemented in the draft Letter. 4. Page 5, comment No. 6; This recommendation provided additional protection for the Charging Party with respect to retaliation by Respondent. This recommendation was not implemented in the draft Letter. A statement was made by the General Counsel at the Commissioners' meeting on August 30, 1974, reported by the reporter in the draft of the minutes of said meeting, "Procedurally, in my judgment, the matter is well within the programmatic responsibilities and authority of the Executive Director and the Director of Compliance." I interpret his statement to mean that in his opinion this proposed procedure whether by formal agreement or so-called informal letter is not a matter of policy. How do we equate this statement with another statement made by the General Counsel on the same occasion, but not included by the reporter in the draft of the minutes-“. . . for example, to wait 30 days before terminating such an agreement which because of its being denominated a memorandum of understanding or an agreement and in the manner in which it was written seemed to us to present a clear and present danger that reasonable people could read the agreement and believe that the Commission was obligating itself to deviate from its normal policies and procedures and to give the impression to reasonable people that there was a degree of abnegation of the Commission's administrative responsibilities." (Emphasis mine.) Within the context of this statement by the General Counsel he clearly indicates that this whole matter involves policy which is in contradiction to his previous statement to the effect that this is a programmatic responsibility and authority of the Executive Director and the Director of Compliance. Policy is a direct responsibility of the Commissioners. OTHER AREAS OF CONCERN 1. Why is it necessary that EEOC become involved in an internal administrative procedure of AFL-CIO and its member unions which can be implemented without written approval by the Commission? 2. Will this proposed procedure give the impression to the Charging Party that EEOC is abnegating its responsibility and is appointing the AFL-CIO as judge, jury and prosecutor? 3. Will the Charging Party feel that undue pressure is being put on him or her to settle the charge by EEOC sanctioning self-enforcement by the AFL-CIO and its member unions? 4. The proposed Letter committing EEOC to a deviation of normal procedures does not mention or outline the procedure to be followed by AFL-CIO and its member unions in order to arrive at a settlement of a charge once they receive a copy of the charge. 5. If EEOC does not conduct the investigation and is not familiar with all of the facts and details of the charge, how does EEOC determine whether or not a proposed settlement is fair, adequate and just? How are the rights of the Charging Party fully protected as required by Title VII? How are class issues treated? 6. If EEOC does not investgiate the charge how do we comply with the Title VII mandate of a Commission investigation prior to conciliation? 7. It is my understanding that the proposed letter has not been submitted for the consideration and reaction of the District and Regional Directors who have the immediate operational responsibility in compliance. 8. I also wonder what would be the reaction of the average union member to such a procedure being implemented without taking him or her into account? 9. It would be interesting to learn what the reaction of the Senate Committee on Labor and Public Welfare would be to such a proposed procedure, in view of the fact that this Committee has an interest and responsibility in the implementation of Title VII by the Commission? 10. As a general concern, I believe that EEOC must always make certain that in implementing new internal procedures, or joint procedures with employers, that they do not tend to reflect negatively or critically upon the integrity and responsibility of the Commission or any one participating. In conclusion, I would like to state that as one Commissioner, I will seriously consider with an open mind any additional information or facts presented that may dissipate the questions and concerns, as indicated in this memorandum, to such a proposed procedure, in an effort to develop a procedure which will be to the best interests of all concerned and which is in compliance with Title VII. I sincerely hope that we may continue in a joint effort with the AFL-CIO and others to explore the possibility of developing workable and acceptable procedures that are within the boundaries of Title VII in order that we may effectively and adequately reduce the backlog of charges, and so that we may better serve the American people. I respectfully request that this memorandum be included as part of the official minutes of the Commissioners' Meeting on September 4, 1974. OCTOBER 3, 1974. Hon. JOHN H. POWELL, Jr., Chairman, Equal Employment Opportunity Commission, DEAR MR. POWELL. We welcomed the opportunity to discuss the elimination of the backlog of pending employment discrimination complaints at the Equal Employment Opportunity Commission with you last week. As we indicated, there were a number of questions which time constraints prevented our asking. Accordingly, we would appreciate receiving your replies to the following questions within ten (10) days in order that they may be inserted into the official record of these hearings. |