sanction than the determination of the State to extend the area of nondiscrimination beyond that which the Constitution itself exacts."1

And in Syres v. Workers International Union, 350 U.S. 892, the Court extended the doctrine which it had enunciated under the Railway Labor Act to the National Labor Relations Act; i.e., that a bargaining representative certified under the latter act cannot, with respect to its representation, discriminate on the ground of race or color. There the Court, on the authority of the Steele case, supra, as well as Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, and Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768 (see preceding footnote), reversed per curiam the judgment of the Court of Appeals for the Fifth Circuit in a case where the lower court had held (223 F.2d 739) that no interpretation of the National Labor Relations Act or any other Federal law was involved in a class action by members of a Negro local union which "amalgamated" with a white local so that both would be represented by a single bargaining committee, and the all-white committee negotiated a contract providing for two lines of seniority based solely on race.

If a union acting under authority of an act of Congress has a duty not to discriminate because of race, it seems plain that the Congress has power to prohibit such discrimination. As the Supreme Court stated in Nebbia v. New

York, 291 U.S. 502, 527, "the Constitution does not guarantee the unrestricted privilege to engage in business or conduct it as one pleases." Certainly Congress has had no hesitancy whatever in passing laws which prohibit various types of discriminatory or retaliatory practices.

C. Discriminatory practices expressly prohibited by the Fair Labor Standards Act and the National Labor Relations Act

Section 15(a)(3) of the Fair Labor Standards Act makes it unlawful for any person to discharge or in any way discriminate against any employee because the latter has filed any complaint or instituted any proceeding under or related to the act, or has testified or is about to testify in such a proceeding, or has served or is about to serve on an industry committee. Many cases have been successfully prosecuted for violations of this subsection and it has not been successfully challenged. See, e.g., Goldberg v. Bama Mfg. Corp., 302 F. 2d 152 (C.A. 5); Mitchell v. Goodyear Tire and Rubber Co., 278 F. 2d 562 (C.A. 8).

Paragraphs (3) and (4) of section 8 of the National Labor Relations Act make it an unfair labor practice either to encourage or discourage membership in a union by discrimination in regard to hire or tenure of employment or any term or condition of employment, or to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the law.

There are innumerable cases under these two paragraphs. No doubt was cast upon their validity even before 1941 when the Supreme Court in PhelpsDodge Corp. v. NLRB, 313 U.S. 177, held that this is not an unconstitutional interference with the conduct of a private employer's business.

Since Congress, in the exercise of its power over interstate commerce, can make it unlawful to discriminate because of union membership and because of filing complaints or giving testimony under the foregoing labor laws, it is clear that the Congress also has power to prevent discrimination on the basis of race, color, religion, or national origin.

II. THE SUPREME COURT'S DECISION IN THE CONTINENTAL AIR LINES CASE This recent decision, Colorado Anti-Discrimination Com'n. v. Continental Air Lines, 372 U.S. 714, decided April 22, 1963, upholding the constitutionality of Colorado's antidiscrimination-in-employment statute, is of much interest in connection with the matter under consideration.

A number of States have antidiscrimination-in-employment laws, and the Colorado statute makes it an unfair employment practice for an employer "to refuse to hire, to discharge, promote, or demote, or to discriminate in matters of compensation against any person otherwise qualified because of race, creed, color, national origin, or ancestry" (Colo. Rev. Stat. Ann. (Supp. 1960) Sec. 80-24-6).

1 See also Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210; Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768.

Petitioner, a Negro, applied for a job as a pilot with Continental Air Lines, Inc., an interstate air carrier. His application was rejected at the carrier's Denver headquarters. Pursuant to the Colorado law he then filed a complaint with the Colorado Antidiscrimination Commission which, after investigation and extensive hearings, found as a fact that the only reason he was not selected for pilot training school was because of his race. The commission ordered Continental to cease and desist from such discrimination practices and to give petitioner the first opportunity to enroll at the next course in its training school.

The State district court for Denver County set aside the commission's findings and dismissed petitioner's complaint. It held that the State antidiscrimination law could not constitutionally be extended to cover the hiring of flight crew personnel of an interstate air carrier because to do so would constitute an undue burden upon interstate commerce in violation of the commerce clause of the Constitution, and because the field of law concerning racial discrimination in the interstate operation of carriers is preempted by the Railway Labor Act, the Civil Aeronautics Act, and Federal Executive orders.

On appeal to the Supreme Court of Colorado, that court affirmed the judgment of dismissal but discussed only the question whether the statute as applied in this case placed an undue burden on commerce, concluding that it did (368 P. 2d 970 (1962)). The U.S. Supreme Court granted certiorari because of the "obvious importance of even partial invalidation of a State law designed to prevent the discriminatory denial of job opportunities." (See 372 U.S. at p. 717.) On the merits, the Supreme Court reversed the judgment of the Colorado tribunal.

The Court held that the Colorado statute involved, as applied in this case, did not impose a constitutionally prohibited burden on interstate commerce and that the field in question has not been so covered or preempted by Federal laws as to prevent Colorado from applying its Antidiscrimination Act under the circumstances of the case.

The Court said that under its more recent decisions any State or Federal law requiring applicants for any job to be turned away because of their color would be invalid under the due process clause of the fifth amendment and the due process and equal protection clauses of the 14th amendment.

On the question of preemption, the Court noted that the Civil Aeronautics Act of 1938, now the Federal Aviation Act of 1958, forbids air carriers to subject any particular person to "any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever," and requires "the promotion of adequate, economical, and efficient service, by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices."

While stating that the foregoing is a familiar type of regulation aimed primarily at rate discrimination injurious to shippers, competitors, and localities (like the similar provision of the Interstate Commerce Act), the Court said that it might assume for present purposes that these provisions prohibit racial discrimination against passengers and other customers and protect job applicants or employees from discrimination because of race. However, although the act gives broad authority to the administering executive agency over flight crews of carriers, much of which has been exercised by regulations, the Court was satisfied that Congress had no express or implied intent to bar State legislation in this field. Hence the Colorado statute, at least so long as any power the administering agency may have remains "dormant and unexercised," will not frustrate any part of the purpose of the Federal legislation.

Similarly, the Court concluded that neither the Railway Labor Act nor the Executive orders show an intention to regulate air carrier discrimination on account of race so persuasively as to preempt the field and bar State legislation, and, like the Civil Aeronautics Act, they have never been used by the Federal Government for that purpose.

By concluding that the Federal Government has not preempted the field in the case of carriers by air, there seems to be implicit in the Court's decision the proposition that the Government could do so should it so desire. Otherwise

there would have been no occasion to consider this question. In order to preempt a field, such field must of course be one in which the Congress may validly legislate.

If the Congress may regulate this form of discrimination in one industry— that of carriage by air-it may do the same thing in other industries, or indeed in all industries to which its power under the commerce clause extends.

III. CONCLUSION

The measures which are the subject of this memorandum are soldily based on the power given by the commerce clause to the Congress. This authority is very broad, extending not only to the movement of goods in commerce, but also to those related activities preceding or following such movements. The power of Congress to regulate interstate commerce extends to the regulation by law of intrastate activities which have a substantial effect on the commerce or the exercise of the congressional power over it. Moreover, the question whether the conduct of an enterprise affects interstate commerce is a matter of practical judgment, the exercise of which is primarily vested in Congress by the Constitution.

It is thus readily apparent that antidiscrimination-in-employment legislation which would apply to virtually all types of employers could be validly enacted. Senator JAVITS. I would ask one other thing while we are on the question of what you could help us with in the way of data; if there is any analysis that has been made or can be made of the experience of complaints in States which have FEPC laws this would be valuable. The argument has always been made that the United States will be inundated with hundreds of thousands of complaints if you have a fair employment practice commission law.

Now, our experience in New York indicates precisely the contrary; the number of complaints is very manageable, the number of court proceedings is very manageable, but I think it would be useful if the Labor Department could give us a summary of experience under State fair employment practice law.

Mr. HENNING. We would be happy to, Senator. California experience has been comparable to that in New York; there have been only three court cases involved in the history of that act which was adopted in 1959, and until February of this year only 2,000 complaints filed with the commission, so I would say that the experience in California is like that of New York, and very much the experience throughout the 24 States which have such laws. We will be happy to provide that data.

Senator JAVITS. Thank you very much.

Senator CLARK. Thank you very much, Mr. Secretary. (The information requested follows:)

This experience is not customarily reported to the Department of Labor, and no current comparison of this information is presently available. In 1962, however, the House Education and Labor Committee conducted a survey of fair employment practice experience in 12 States, from the date of enactment of the State fair employment practice law through the end of 1961. The result of this survey, together with certain supplemental information, is attached. As the table indicates, 99.7 percent of the complaints received by the various State agencies were settled by mediation and conciliation without being scehduled for formal hearings.

Comparative complaint experience under State fair employment practice laws [From date of law until Dec. 31, 1961]

The Minnesota figures do not cover cases arising in Duluth, Minneapolis, or St. Paul, where local antidiscrimination laws apply.

2 The Missouri law became effective on Oct. 13, 1961. Of the 45 complaints received by July 23, 1963, 26 have been settled informally and 19 are still under investigation.

3 The figure given is that of the House committee survey. Testimony of the general counsel of the New York State Commission for Human Rights suggests that only 4 complaints have resulted in the issuance of cease and desist orders. See statement of Henry Spitz before Subcommittee on Employment and Manpower, Senate Committee on Labor and Public Welfare July 29, 1963.

Mr. ROBERTSON. Senator Clark, I wonder if I might make one comment in connection with your request for a brief on the constitutional aspects of this legislation.

That is, your comment or your first question as to whether or not there had been any consultation between the Department of Labor and the Department of Justice, and I understand there has not been any, and I would suggest, purely as a matter of approach to this, that perhaps the committee might address a communication to the Department of Justice rather than merely ask us to work with them in preparing something for the committee.

Senator CLARK. Well, if your executive protocol makes that a more desirable procedure the committee will be glad to follow it.

Mr. ROBERTSON. I am not saying that it requires it, but I am merely pointing out that so far as I know there has been no joint consideration between the two Departments.

Senator CLARK. Do you see any administrative difficulties in arriving at such a joint consultation?

Mr. HENNING. No, Senator.

Senator CLARK. Thank you very much, Mr. Secretary.

Our next witness is the Honorable Hubert H. Humphrey, the U.S. Senator from Minnesota, who has his own bill which as I understand it, Senator, you are going to introduce today. We are very happy to have you with us and I think we will waive the formality of having your legislation actually before us because I have every belief that it will shortly be before us and we can save a little time if we hear you

now.

(Senator Humphrey's bill, S. 1937, appears on p. 72.)

STATEMENT OF HON. HUBERT H. HUMPHREY, A U.S. SENATOR FROM THE STATE OF MINNESOTA

Senator HUMPHREY. I thank you very much, Mr. Chairman.

I have a prepared statement and if the subcommittee will indulge me I will go ahead with that statement and I hope that the members would feel free at any time to interrogate the witness.

Senator CLARK. Perhaps you would like to have it placed in full in the record at this point so it will be together in one place.

Senator HUMPHREY. Mr. Chairman, it is a privilege and honor and responsibility to appear before this Subcommittee on Employment and Manpower under the chairmanship of my good and distinguished friend from Pennsylvania, Senator Clark.

I might note briefly for the record that this subcommittee has been engaged in some of the most important and far-reaching investigations into fundamental questions relating to unemployment and manpower that have ever been held in Congress or anywhere else.

The chairman will be interested to know that the work of this subcommittee was the subject of considerable discussion in my recent meeting in Stockholm with leaders of the Scandinavian countries who are deeply concerned about the very same problems that you are discussing here.

I believe you had a witness from Sweden or three witnesses from the Scandinavian countries, at these hearings. The finding and recommendations of these hearings should provide invaluable guidelines as Congress and the executive branch seek to find workable solutions to the grave problems posed by sluggish economic growth, which, by the way, was again underscored in the morning's press, by unemployment, unused industrial capacity, and automation. I commend the chairman, the members of the subcommittee, and the staff for their fine work.

Senator CLARK. Speaking for myself only, there is nothing I enjoy more than flattery.

Senator HUMPHREY. It is really a helpful remedy for almost any problem that besets a political man.

Today the subcommittee turns to a matter of urgent national importance, the matter of recommending Federal legislation to insure nondiscrimination and equal opportunity in employment and related incidents of employment. Although the Congress has considered fair employment practice legislation in the past, the issue has at long last assumed a new urgency and importance. I once had the privilege of serving on the Committee on Labor and Public Welfare, and served in much the same capacity that Senator Clark now serves, and at that time we processed legislation which was reported to the Senate on fair employment practices, calling it the equal opportunity in employment program.

Now, anyone familiar with the basic causes of racial unrest and turmoil in the country knows that until we come to grips with the problem of job discrimination and inequality of job opportunities, as well as the inequality of job training and education, we will be considering only partial solutions to the civil rights crisis. In fact, I would say that job discrimination and unemployment for whatever its cause is