17. Reopening of proceedings The Commission, upon its own motion or upon request of any Party or intervener, whenever justice so requires may at any time reopen any closed proceeding upon notice to all Parties and interveners. 18. Appeals from order of the Commission (a) Who may appeal. Any Party or intervener claiming to be aggrieved by a final order of the Commission, including without limitation a refusal to issue a Complaint, may appeal to the Circuit Court of the State of Michigan having jurisdiction provided by law. (b) Filing of transcript by Commission. Upon receipt by the Commission of notification from the Party initiating the appeal, the Commission shall cause to be filed in the circuit court in which such appeal has been taken, a transcript of the record of the proceedings before the Commission. (c) Availability of copy of record. The Commission's copy of the record shall be available during the regular office hours of the Commission to all Parties for examination, without cost, and for the purpose of appeal to the circuit court from the order of the Commission. The Commission's copy of the record in the discretion of the Commission or the Director, also shall be available to interveners and other persons, for such purposes and to such extent as the Commission or the Director may determine. 19. Modification, or setting aside of orders Until an appeal shall have been filed in a court, as hereinbefore provided, the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside in whole or in part any finding or order made by it. 20. Delegation of powers and duties Except where contrary to law, the Commission may delegate any of the wholly ministerial powers and duties of the Commission to the members of its staff. 21. Amendment of rules New rules may be adopted and any rule may be amended or rescinded by the Commission at a regular or special meeting, provided that at least five members are present and voting in favor of such amendment and notice thereof shall have been given to all members of the Commission at least ten days before the meeting at which action is to be taken. 22. Availability of rules The rules of the Commission shall be available to the public at all offices of the Commission. These rules shall be liberally construed to accomplish the purposes of the Constitution and the policies of the Commission. NATIONAL ASSOCIATION OF MANUFACTURERS, Hon. JAMES ROOSEVELT, Chairman, General Subcommittee on Labor, Committee on Education and Labor, Rayburn House Office Building, Washington, D.C. DEAR MR. CHAIRMAN: Thank you very much for your letter of July 2, 1965, inviting this association to have a witness appear and testify before your General Subcommittee on Labor regarding H.R. 9222 having the stated purpose to more effectively prohibit discrimination in employment because of race, color, religion, sex, or national origin, and for other purposes. I regret to advise that it will not be possible for us to have a witness available to testify on this matter as you suggest. We have, however, a few observations regarding this proposed legislation which we will submit herewith and if consistent and appropriate, would appreciate having them incorporated in the record of your hearings on this matter. As you know, title VII of the Civil Rights Act of 1964 only became effective on July 2, 1965. The Equal Employment Opportunity Commission provided for in title VII to administer this part of the act was appointed as recently as May 10, 1965. The procedural regulations which the Commission is authorized to promulgate were published in the Federal Register for July 1, 1965. Regulations governing recordkeeping and reporting, as well as "notices" to be posted, etc., have yet to be formulated. In light of the foregoing, it is clear that the laborious effort by the Congress in enacting the Civil Rights Act of 1964 has as yet had no opportunity to demonstrate whether or not it can or will be an effective device for eliminating discrimination in employment. It is our understanding that somewhat the same type of administrative agency arrangement and enforcement authority as provided for in H.R. 9222 was considered and discarded by the Congress during the course of legislative action on the Civil Rights Act of 1964. There is as yet no way of knowing whether this was a wise legislative decision or not, since this Title of the Act has been in effect less than a month and the first litigation thereunder filed within the past week or two. The foregoing will, of course, suggest reasons why we think it is entirely premature to give serious consideration to broadly amending the administration and enforcement provisions of an act which has been in effect less than a month. Despite the fears of some, it is possible that the provisions of the act as written by the Congress after full and careful consideration may prove adequate to accomplish its stated purpose and objectives. Lest these observations be in anywise misconstrued or misinterpreted, I should like to point out that American industry has already made a rather substantial contribution, on a voluntary basis, toward achieving the objectives sought by the Civil Rights Act. Even before title VII became effective, over 300 of the largest industrial companies in the country employing some 9 million employees had already subscribed to the President's plans-for-progress campaign. This involves a voluntary agreement, supervised and approved by the President's Committee on Equal Employment Opportunity to work toward elimination of discrimination in employment practices. In some respects these voluntary agreements go even beyond the requirements of the Civil Rights Act and it is our understanding and belief that all parties concerned are making a good faith effort to make these plans as effective and workable as possible. Following enactment of the Civil Rights Act and a year before title VII was to become effective, this association embarked on a program involving a series of seminars on title VII which will ultimately encompass practically every metropolitan area in the country. The design of these seminars is to explain and discuss the requirements of title VII to the end that understanding may serve to minimize controversy, misunderstanding, and litigation. Over 58 of these seminars have thus far been held. Participants, in addition to NAM personnel, have included State FEPC officials, Federal Government officials, on occasion officials of civil rights groups and business leaders with experience in the field. The success of these seminars is attested to by a letter from President Johnson when he wrote on May 20, 1965: "These seminars have contributed significantly to a better understanding of the Civil Rights Act of 1964 and to a fuller appreciation of the meaning of equal employment opportunity." The foregoing will indicate that American industry has already made a substantial effort to conform with the provisions of this act. Under the circumstances, you will understand and appreciate our view that to superimpose a broader enforcement authority through a different administrative agency arrangement in this area is quite uncalled for at the present time. Again, please accept our thanks for your thoughtful invitation and with best wishes. Sincerely, LAMBERT H. MILLER, STATEMENT IN SUPPORT OF H.R. 9222 BY EDWARD HOWDEN, EXECUTIVE OFFICER, CALIFORNIA FAIR EMPLOYMENT PRACTICE COMMISSION The California Fair Employment Practice Commission administers our State fair employment law which was enacted in 1959 under the vigorous leadership of Gov. Edmund G. (Pat) Brown. We have been at work nearly 6 years, and while acutely conscious of grievous conditions still afflicting minority group Californians, we have seen what an effective-and indispensable-influence law can be in making a living reality of equal opportunity in the field of employment. Most employers, like other people, want to obey the law. With clear public policy and with firm enforcement they will do what is right. To illustrate this in its practical application, it may be helpful to review some aspects of the California FEPC program that are relevant to discussion of H.R. 9222. From September 18, 1959, through June 30, 1965, a total of 4,202 individual complaints of job discrimination on account of race, religion, or national origin were docketed through the San Francisco and Los Angeles offices of FEPC. Each case originated with a verified complaint stating a cause of action under the law, and each was investigated by professional staff under supervision of an assigned commissioner. If there was no evidence or insufficient evidence of discrimination, the case was dismissed. If evidence of discrimination was found, the commissioner endeavored through conference, conciliation, and persuasion to obtain corrective action on behalf of the complainant-often with significant salutary consequences for others similarly situated. There was such corrective action, based on evidence of discrimination, in approximately one-third of the completed cases. With negotiations usually conducted in a spirit of conciliation, with full protection of all parties' rights, the FEPC aim has been not punitive, but corrective. The goal is to bring employers, employment agencies, and unions into compliance with the law, and to promote their continuing practice of fair employment. Generally, the avenues of conference, conciliation, and persuasion that the California FEPC and similar agencies in other States have followed appear also to be the main approaches that the new Federal Equal Employment Opportunity Commission will pursue in administering title VII of the Civil Rights Act of 1964. Our experience indicates that these are workable, desirable methods. But it is vital to recognize that the emphasis on conciliation must be backed by adequate enforcement powers. The H.R. 9222 provision for formal hearings and, where necessary, issuance of enforceable orders is perhaps its single most important addition to existing law. While the California FEPC continues necessarily to devote the bulk of its staff and commissioner time to investigating and resolving individual job complaints alleging discrimination because of race, religion, or national origin, in recent years it has placed increasing emphasis on two other types of compliance: Commission-initiated investigations and affirmative actions. As to the first of these, section 1421 of the California statute provides that the commission, on learning of an apparent violation, may initiate an investigation and seek corrective action through conference and conciliation. To date 120 such investigations have been undertaken; 63 of these have been completed and closed, while 57 are currently in progress. Such investigations may cover, for example, the practices of both unions and employers in a certain industry in a metropolitan area; or the upgrading practices of a major firm in several plants and offices throughout the State; or the status of minority workers and applicants in a large public institution, department, or municipality. Not infrequently, although formally classified as investigations, such undertakings take on more of the character of a cooperative undertaking in which our commissioners and staff assist the firm or union or public agency in self-examination of its practices and in working out, where needed, ways of improving these practices. Many thousands of members of the work force may be affected, over a period of years, by the outcome of one such FEPC investigation. The second of these methods of implementing broader compliance-the "affirmative action"-to a variation of the section 1421 investigation. It is different in two main respects: the effort does not stem from an allegation or supposition that an actual violation of the FEP law has occurred, and cooperation in the action is voluntary on the part of the employer or other organization concerned. Key features of the affirmative action process are willing cooperation of the employer, his positive commitment to full equality of employment opportunity throughout his establishment, and his use of FEPC's expert consultative services to broaden his utilization of minority manpower. Our first formally designated affirmative action was undertaken in 1963, although similar work in positive compliance had already been going on for several years. By July 1 of this year, 43 such actions had been undertaken; 29 are now in progress. Advantages of this approach are increasingly obvious. Basic recruitment and hiring patterns are expanded to include workers of all backgrounds. Well con ceived affirmative actions, carried out vigorously on a large scale over a considerable period, will no doubt tend to diminish the number and complexity of individual complaint cases-though provision for redress of such cases must always be retained. The old system of curing is now complemented by promising and increasingly proven means of prevention of discrimination in recruiting, hiring, assignment, and upgrading. Under title VII of the Civil Rights Act of 1964, there will exist a combination of Federal Government services with those of the approximately 25 States that have effective and enforcible FEP legislation to create a highly significant partnership, strengthening operations of existing statutes and, of course, providing service for those other States which do not have such legislation. In comparing this bill, H.R. 9222, with title VII, we strongly favor the elements similar to those in the California FEP Act-that provide for hearing and enforcement, giving the Federal Commission power to move against the respondent, where warranted, if voluntary compliance is not secured through conciliation; to hold a hearing, to issue a cease-and-desist order or to require appropriate affirmative actions to effectuate equitable remedies of unlawful employment practices found. Also desirable in the present bill are provisions for narrowing the range of exemptions to reach employers with 8 or more employees-rather than title VII's first-year exemption of employers of fewer than 100, with successive annual reductions until the employer of 25 or more is covered. The California act covers employers of five or more persons, and we have found this to be a reasonable coverage. We also approve the limitations of the nonprofit or religious employer exemptions, both in the pending bill and in title VII. In some State statutes, including our own, the traditional exemptions are unnecessarily broad. Another important provision of H.R. 9222 is that the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive. This, we think, is both essential and justifiable, if our Nation is to apply all reasonable strength to the elimination of racial and religious discrimination in employment. One of our principal concerns involves the creation of an effective working relationship between the Federal Commission and the State agencies, and we note that many of the excellent provisions of title VII in this respect are retained by H.R. 9222, such as those which call for utilization of State or local services, with reimbursement for costs, plus other forms of cooperation, and for written agreements. Such cooperative agreements are essential to avoidance of confusion and inefficiency in administration of the law by the respective Federal and State agencies. Whatever provisions are made concerning the confidentiality of case matters or endeavors at conciliation, the need for meaningful working cooperation between the respective agencies requires that information be shared and procedures be closely coordinated. In any Federal legislation which would replace title VII of the Civil Rights Act of 1964, we recommend inclusion of provisions such as those of section 709 (b) of the present title, clearly authorizing the Federal Commission and State and local agencies to enter into written agreements under which the Federal Commission may refrain from processing certain charges and may cede to the State agencies broad powers in this respect, subject, of course, to resission whenever warranted. We approve, too, of section 706(b) of title VII which allows States with effective nondiscrimination laws 60 to 120 days to act on all complaints within their States before the Federal Commission will proceed. This seems to us, from our State perspective, a very sound provision. We recognize, however, that there will be a better basis for evaluation of this deferment of case processing from the standpoint of overall national policy after title VII has been in effect a year or two. These provisions of title VII for Federal-State working relations have already stimulated a number of States to enact good fair employment legislation, and it is likely that there will be more such enactments. The Federal agency must-and, I am sure, will be alert to the possibility that some local or State laws or commissions may be lacking in strength, capacity, or commitment to the urgent purpose of the Nation's policy in this field. In regard to such cases, of course, the Federal Commission must have and exercise the option not to delegate its powers and responsibilities. H.R. 9222 appears to take into account these important considerations concerning the Federal-State mix of FEP powers and functions. Possibly some improvements could be incorporated as the bill is studied further. We urge that the measure be kept strong and clear in these respects. Since H.R. 9222 is intended basically to strengthen the Nation's new fair employment law, the committee and author may wish to devote study to the little-explored question of just what form or structure of FEP agency is likely to be most efficient and effective, while providing adequate safeguards to due process and to the rights of all parties. H.R. 9222 incorporates essentially the standard organizational model adopted in New York State in 1945 and largely— though not uniformly-followed ever since by other States and cities, then by the Congress in title VII. This model, now conventional among fair employment agencies, typically involves a commission which is not only responsible for policy and program formation and for hearing and review functions, but which is involved in one degree or another with operations and program administration. I suggest that certain kinds of problems are often engendered by this organizational structure which tend to impair the overall effectiveness of fair employment agencies. I do not propose a particular alternative at this time, but wish only to bring the matter to your attention as an important one warranting study. Finally, I would recommend that the bill set forth clearly the duty and authority of the Federal Commission not merely to attend to the particular instance of unlawful practice against an individual but to engage in broad affirmative action seeking to bring about more widespread adoption of positive recruitment, training, and upgrading practices. Major State FEPC's have been emphasizing such endeavors in the last several years. I have mentioned California's program along these lines, and shall append herewith a brief, illustrative report of this work. Any new Federal legislation, it seems to me, should take into account the actual, living content of the best of the State affirmative opportunity programs and should seek to establish the highest possible standards for the Nation in this regard. I stress "living content" of the program because you will not necessarily find this spelled out in the formal language of a statute, even though it may constitute excellent and faithful service to the spirit of the law. As a final example of an affirmative undertaking in this spirit, I wish to submit copies of a voluntary agreement reached between the California FEPC and the Bank of America in June 1964; two progress reports pursuant to that agreement; and a recent major address by Mr. Robert L. Gordon, senior vice president of the bank. (Additional copies of these materials will be provided if desired.) I hope that the following brief excerpt from Mr. Gordon's address will whet your interest in reading his full text: *** we have taken the view that merely neutral, or passive, equal opportunity programs are not enough. It is our determined opinion that employers cannot merely sit and wait, but must go out and encourage competent and trainable minority people ***. "Within our own organization, we began the practice of consistently and forcefully communicating with all officers at administrative and branch levels the bank's commitment to activism in seeking out and hiring qualified minority personnel, that is, members of Negro, oriental, other nonwhite, and Spanish surname groups." H.R. 9222 might well be strengthened, we suggest, by adding explicit recognition of the importance of affirmative endeavors to overcome the terribly deep, pervasive habits and sources of employment inequity which are still characteristic of much of our society today. Among possible strengthening amendments, for example, why should not the power be given to the Commission to investigate and press for correction of a pattern of inequity or resistance, as a parallel to the power conferred on the Attorney General by section 7(a) of the bill? Other such ideas might be developed in careful reexamination of the measure. It is eminently fitting that even as the Nation's first fair employment law is in its first month of administration a committee of the Congress is considering a measure which seeks to strengthen that law in ways suggested by the past two decades of State and local FEP experience around the country. We all recognize today that major educational and economic programs in addition to fair employment law are essential if the Nation is to progress with all possible speed toward the great goals set by President Johnson in his Howard University address. But |