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feel very strongly that you can't impose upon this employer a great deal of all sorts of conditions, without recognizing that he has some problems, too.
Mr. FOWLER. I agree with that.
Mr. PUCINSKI. And that is why I feel so very strongly about this tax credit. Until we deal effectively with the economic factor, I feel that they are going to continue resisting the suggestions.
Now there is only one question left, and I wonder if you would care to comment on that. If the committee should include age in the bill, as you have in New York, do you think that such action would hasten the day when we would take a more realistic approach to solving the collateral problems involved in this whole concept of nondiscrimination?
Mr. FOWLER. I do believe this to be so.
Mr. HAWKINS. Mr. Fowler, I also want to commend you and your fine presentation, and also the fine work that you are doing. It is very excellent.
Mr. FOWLER. Thank you, sir.
Mr. Hawkins. I think at one place you said that the commissioner has held more hearings in the past 3 years than he did in the previous 17. Now, was this as a result of the increase in the coverage of the act that led to this tremendous increase in the work load?
Mr. FOWLER. No, sir. I don't think that was the primary reason. I believe that the primary reason is that the commission has recognized the need to move more vigorously than we have moved. Let me see if I can just pinpoint how we get into these public hearings.
The law spells out the administrative steps. The case is assigned to a commissioner. He makes a finding of probable cause or no probable cause. Incidentally, this is not a legal kind of judgment. It is not one of guilt or nonguilt. He believes that there is enough evidence to lead him to the conclusion that there is probable cause, or that there is none. If he finds no probable cause, he dimisses the complaint.
When he finds probable cause, he calls the respondent in, and says to him, “Look, give the fellow that job."
And then, let us assume the respondent takes the position that he is not going to give him the job, that he doesn't believe that the commissioner's finding of probable cause is justified, the commissioner, by law, must order the case for a public hearing.
Now at that point, the chairman appoints three hearing commissioners, with one as the presiding hearing oficer, and they hear the case de novo. They go into it on a legal basis, with evidence, and the whole thing.
Commissioners are now prone to order cases for public hearing faster than they did in the past. There was a time when, maybe, the commissioner would even compromise a little more on the basis for terms of conciliation. But I think that all of this, Mr. Hawkins, is evidence of the recognition on the part of the Commission for Human Rights that the only way it is going to be able to accomplish the job the Government requires of it is to establish in the minds of the citizens confidence that it is not going to be timid about it, but that it is going to move out into the open.
Now the fact that we have had these public hearings—we have had 28 public hearings, cases ordered for public hearing this last year—and it is interesting the effect that the ordering of a public hearing has in the resolution of problems.
Out of the 28, I think
Mr. FOWLER. Yes, sir. Out of the 28 cases ordered for public hearing, we only had to really go through with about 8 of them. I think there were eight or nine, and the reason for it was that once the employer or the respondent recognized that his "dirty linen" was going to be brought out for all the world to see, he took a litle advice from his lawyers, many times, and said, "OK, fellows, what do you want us to do and we will do it."
And also, this has had the effect of building confidence within the community. After all, one of the big problems in this area is that so many Negroes and Puerto Ricans, particularly, have a sort of feeling that, ,well, you know, all the publicity as regards our effort to achieve equal opportunity is sort of on the negative side. I say this is the feeling.
The sit-ins, lie-ins get the publicity. I am not suggesting that they are wrong in their methodology, but I am suggesting that there are so many people who, if they can point to Government moving in on this thing and holding hearings, I think that they get the confidence that they need.
Mr. HAWKINS. How many cease-and-desist orders have you actually issued ?
Mr. FOWLER. Well, we had eight-well, let me say this. The legal procedure is this. At the end of a public hearing, the commissioners, the hearing commissioners, on behalf of the commission, issue an order. In every case, the order has been accepted by the respondent. At the same time we issue the order, the cease-and-desist order, we move into court, so that if the respondent does not agree, or does not live up to the cease-and-desist order, well, then the court adopts or issues its own order, which is based on our order, and the person, of course, is in contempt of court—the respondent is in contempt of court if he does not abide by the court order.
Mr. HAWKINS. All right, and in how many instances have you actually had to do this?
Mr. FOWLER. Eight this past year.
Mr. HAWKINS. Now, do you believe that without that power, that you
could have obtained the results that you have obtained? Mr. FOWLER. No, sir. Mr. HAWKINS. At the lower level at conciliation ?
Mr. FOWLER. No, sir. I thing that you have got to have in the background of every respondent's mind the knowledge that this law can be enforced in the courts, and will be enforced in the courts, unless the respondent goes along with a reasonable decision of the Commission.
Mr. ROOSEVELT. Would the gentleman yield at this point?
Mr. ROOSEVELT. And under the present Federal statute, title 7, the requirement of a de novo trial is really almost an indication not to cooperate with the Commission, is it not? Because they say, at least I think many of them would say to themselves, “Well why should I pay attention to this? Because if I don't really want to do it, I will have my day in court de novo. Why do I put all my cards on the table now? It is better to hold back for something by the law allows me to do, or which forces the Commission to do, which is to hold a separate trial in court.”
"And it can be dragged on beyond the useful life of any complainant."
Mr. FOWLER. Well, I think this: I think that a charge of discrimination and a public hearing on a charge of discrimination is a posture that most respondents don't want to find themselves in, and I think there are some economic factors involved. I mean, after all, a big company is certainly not going to look with much happiness on having a public hearing on its employment policy.
A big housing setup would have the same view. I believe that the existence of the power to hold public hearings and to have enforcement power serve as remedial factors.
Mr. ROOSEVELT. Now, again, this only comes after the private conciliation has been exhausted.
Mr. FOWLER. Yes, sir.
Mr. ROOSEVELT. And has been ineffectual, and then you have the public hearing power after that.
Mr. FOWLER. Yes.
Mr. ROOSEVELT. Of course, followed up by the right to issue a ceaseand-desist order.
Mr. FOWLER. I would wonder if I could just deal for one moment with a concept that I fear most people are not acquainted with, and that has to do with the concept of conciliation. I did labor mediation for 8 years, and my idea of conciliation and mediation is a little different from the conciliation and mediation to which we are addressing ourselves here.
In a labor situation, a typical labor situation, the employer offers 10 cents, and the union says it want 15 cents, and the job of the mediator or conciliator is to get in there and try to find something in between. So he comes up with 12 cents, and he did a good job.
But in our operation, you don't find that. Here is what you find in the typical case, employment situation case assigned to a Commissioner. Ile finds probable cause. He says, “Yes, I believe that this man was not given the job because he is a Vegro." He calls in the employer, and say to him, “Look, I believe that the fellow didn't get a job because he is a Negro. Now give him a job.”
It is as simple as that. If the resepondent says, “I am not going to give him the job," then the conciliation has failed, and then he orders the case to a public hearing.
Let us take in the area of housing. In a housing complaint the result of a finding of probable cause can only lead to the commissioner saving to the landlord, "Give him the apartment."
And if he says, "No, I am not going to give him the apartment," then you have got a public hearing.
What I am suggesting is that the nature of "conciliation" in quotes, as we use it, more epitomizes an order, and take-it-or-leave-it kind of thing, given by the commission, with the respondent not really having leeway to say, “I will tell you, I will give him a half of an apartment."
I just want to make this year, because I think that even complaintants get the idea sometimes that we have a weak law, because what we really do is find that the complaint is right, and then we compromise his rights.
We water them down. This simply is not the case. Now, the public hearing comes about because--usually comes about because of some legal concept that the respondent has. I mean, it is amazing how it is the nice respondents, in many instances, who are willing to have a public hearing because they feel pretty annoyed about the thing-feel maybe they are being mistreated. But in most instances, respondents at the thought of a public hearing will be much easier to deal with and will do the right thing.
Mr. HAWKINS. Just one final question, Mr. Fowler.
Mr. HAWKINS. I think you have mentioned this already, but I think it can be said, perhaps, a little clearer. Your difference of opinion as to whether or not this proposal should contain a provision which would give the State first crack at a case, I think that you did say that you were considering this from the viewpoint of the law in New York?
Mr. FOWLER. Yes, sir.
Mr. HAWKINS. And I got the inference that where a State law is not as strong as a Federal law, you would not, in that instance, give the same answer.
Mr. FOWLER. That is correct. I would feel that in the States where you don't have vigorous, strong agencies, that the State or the Federal Government ought to step in, and it wouldn't bother me at all if they handled all the cases.
Mr. HAWKINS. Thank you very much.
Mr. ROOSEVELT. The Chair wishes to tell the gentleman from New York, Mr. Goodell, that Mr. Fowler has been very patient. We do have one more witness.
Mr. GOODELL. I won't be long. I just have a couple of questions. Mr. ROOSEVELT. The Chair recognizes Mr. Goodell.
Mr. GOODELL. Thank you. Mr. Fowler, it is nice having you with us this morning.
Mr. Fowler. It is nice being here, thank you.
Mr. GOODELL. Would you give us an indication of how many cases you process in a year, and how many of those actually get to a hearing, and how many get to court, in New York State?
Mr. FOWLER. Yes; I would be delighted to.
Since 1945, we have had 12,730 complaints. During the past 2 or 3 years, the number annually has increased. I think we have had, last year, what did we have? One thousand one hundred and sixtyone. Out of the total number there were 2,646 probable cause findings. No probable cause, but other discrimination found and adjusted was in 1,829 cases. No probable cause and no other discrimination found, we had 6,245 cases.
We had 419 cases withdrawn by the complainant. In 976 cases that were filed with us, the Commission lacked jurisdiction. Out of the 12,730 complaints, 9,388 were employment matters.
Mr. GOODELL. How many cases actually had to get into court?
Mr. FOWLER. Well, we have had no more than a half dozen cases, over this period of time, that went to court.
Mr. GOODELL. How many reached what you call your hearing stage? Mr. FOWLER. 160.
Mr. GOODELL. In other words, from experience in New York, which has a strong law, and fortunately, getting stronger and more effective, if the law is a good law, you can normally work these things out without actually getting into a formal proceeding.
Mr. FOWLER. That is correct.
Mr. GOODELL. In this instance, you made the point that you feel that because of the good law we have in New York State, there are some other examples of this, that some question about the ceding of jurisdiction of process for doing so, under the proposed bill.
The Taft-Hartley law, section 10, also provides that the NLRB can cede jursdiction through agreement with the State, and I think there have been no instances whatsoever when it has been done, and I think this is a point that would cause concern to people such as you and myself from New York, where we have been operating in this field longer than any other State.
Would you expect that there would be very many cases in New York where you would not be able to cope with the problem, and need Federal law to back you up!
? Mr. FOWLER. I would think there would be very few cases where the New York State commission could not handle the matter.
Mr. GOODELL. It is possible there might be some cases where a State jurisdiction was not sufficient to cover an employment situation, and then I presume you would gladly forward this to the Federal ?
Mr. FOWLER. Yes; I believe there are some situations, as I stated earlier, that in the nature of things could well use a Federal-State attack on the problem. I think that the real tough ones might require this.
For example, you might have big companies with Federal contracts, and with State contracts. Well, one of the ways of moving them into position would be to have the Federal Commission working with us, to have the Federal (Commission touch the right sources to let them know that the violation of the law might affect their Federal contracts.
Mr. ROOSEVELT. If the gentleman will yield for a moment.
Mr. GOODELL. If this could be done on a cooperative basis. Yes; I would be glad to.
Mr. ROOSEVELT. The gentleman wasn't here when we had our previous discussion. I just wanted to point out that one of the points which is of particular concern to some members of the committee, is not the case of New York or Illinois, or California, or a State of this type, but the possibility that a Commission might be set up for the sake of taking jurisdiction under the act, and then doing nothing about it at all.
Mr. GOODELL. Well, that would bother me, too, but this comes to the next point. I would not like a situation where that could be done, with an illusory process set up that really gave no protection.