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SUPPLEMENTAL VIEWS We, the undersigned, support fair employment legislation because We believe that it is contrary to the national policy to discriminate in employment because of an individual's race, creed, color, national origin, ancestry, or age. We are confident that an overwhelming majority of Americans support this principle. Properly drafted legislation, administered by an effective commission, could furnish dramatic leadership in the elimination of discrimination in employment practices.
We regret that the President has utterly failed to give any leadership to this vital cause. It is a matter of grave concern that the President has repudiated his clear campaign commitments to provide Presidential leadership in the whole field of civil rights legislation. It is obvious that this bill will go nowhere unless the President assumes his responsibility to fight for it unremittingly.
As a result of last-minute full committee action, without the concurrence of minority members, section 9(a) of the bill was changed to provide that a member of the Commission, as well as an aggrieved person, may file a charge. The importance of this change cannot be overemphasized. The Commission would now become a self-starting agency with the power to conduct fishing and harassing investigations, to be carried out under the broad investigative authority granted in section 11(a).
To couple broad investigative power with an unlimited right to file charges is unwise and unnecessary. It should be pointed out, moreover, that investigative power of this type has been denied to the Secretary of Labor in the Welfare and Pension Plans Disclosure Act and to the National Labor Relations Board under the TaftHartley Act.
The problem of discrimination because of age deserves and demands more than the offhanded, superficial treatment it was given in hearings on this bill.
A review of the hearings reveals that there was very little testimony regarding discrimination on the basis of age and, when given, it was always in the nature of an afterthought. Specific examples of discrimination on the basis of race, creed, or color were fully documented. On the other hand, virtually none of the problems associated with discrimination on the basis of age was explored. No welfare and pension plan or other experts were called to testify regarding this subject.
Mr. Herbert Hill, representing the National Association for the Advancement of Colored People, presented the following summation:
Mr. Hill. First, I should like to clarify our position, sir. NAACP does support legislation to end discrimination because of age. We do support it.
We do support it. I want to make this absolutely clear. I am in favor of this. I think it is vitally necessary.
Solely as a practical question, as an administrative issue, in terms of the empirical consideriations, we are opposed to throwing it in and giving it to an agency that has a variety of other responsibilities, because we think that both groups, both those who are the victims of employment discrimination because of race, creed, color, and national origin and those who are the victims of employment discrimination because of their age, require the most intense and specialized services possible. We do not think that either group is going to get it in the establishment of a commission that deals with everything.
Now, we say this solely on the basis of analyzing the administrative experience of the State commissions that have this responsibility now.
I work with many of these State agencies. This is just an added difficulty. It becomes an afterthought. They do not have sufficient staff, sufficient personnel, and those which they do have do not have the special training required for work in this field.
I want to make it very clear that we are for aid to those who are the victims of discrimination because of age. But we do not want it thrown into this general FEPC bill and given to the Commission that we hope will result from such a bill, because it would greatly limit the ability of an agency to function on the basic question.
We think the Commission should concentrate. We think there should be a narrower area of coverage, so that the agency, the Commission, could concentrate and bring to bear all of its efforts in terms of this very serious problem. And similarly, another agency should deal with old-age problems as a separate question elsewhere. And this is
being done today in many State operations, In summary, the provision which grants the Commission unlimiied investigatory power should be replaced by a provision which will insure fuir and reasonable administration. Unless this step is taken, such an unwise provision may well be the weapon which is used to kill this bill and perhaps similar legislation in future sessions of Congress. Additional hearings should be held and careful study should be given to the important problem of age discrimination before appropriate and fair statutory language can be prepared. We urge that this be done without delay.
CARROLL D. KEARNS.
MINORITY VIEWS Certainly a majority of the citizens in this country, both North and South, agree that there should be no discrimination in employment because of race, creed, color or age. This is now our national policy and I wholeheartedly endorse and support it. A restatement of this policy at this time, although useful as a reminder, is not critical. Nondiscrimination in employment is generally accepted and practiced by both employers and unions. It would be both unfortunate and unwise if through our pronouncements it is implied, or could be assumed, that discrimination in employment is the general rule rather than the exception. It would also be a cruel disservice to the many dedicated citizens, government officials, union leaders, and employers who have worked tirelessly in this area and who, through their combined efforts, have effected on a voluntary basis great and lasting progress:
My disagreement with the majority is over how best to implement this national policy. The majority has concluded that the only effective way is to enact a far-reaching statute which will establish a large and powerful new Federal agency, with a web of field offices and broad investigative and rulemaking powers.
I cannot accept this proposal. Experience has proven that a state of mind or a matter of conscience cannot be successfully legislated. Even though there is a law and an enforcing agency, discrimination will find a way if the employer, union, or employment agency wishes to discriminate. A Federal agency can be fooled and the spirit of the law can be violated even while the letter of the law is being observed.
Moreover, if such a law is enacted, all of the employers and unions who do not discriminate, and who are also doing their best to help eliminate discrimination where it presently exists, would be subjected to the same arbitrary rules and regulations, and all too often the same investigations, as those who do discriminate. This is a terrible price to pay, expecially when this approach has failed in the past.
THE LESSON OF THE NATIONAL LABOR RELATIONS BOARD
Of the many agencies and commissions created by Congress, the National Labor Relations Board most nearly parallels the proposed Equal Employment Opportunities Commission. It too was established to administer and enforce a law which, among other things, prohibited discrimination in regard to hire or tenure of employment or any term or condition of employment. Both employers and unions are covered by the law and the prohibited acts are designated unfair labor practices.
It was anticipated that the National Labor Relations Board, by reason of its expertise in the field of labor-management relations, would be able to formulate and issue decisions and pronouncements which would specify what is and what is not prohibited conduct. In this way, carefully defined guidelines would be established for the use and guidance of employers and unions. Thus, those who wisheu to comply with the law would have no difficulty for the way would be clearly marked, while the few who committed unfair labor practices could be easily identified and quickly brought to the bar of justice. It should follow that as the years go by the definition and the designation of the unfair labor practices would become more precise, the violations fewer in number, and the work of the Board would drop off.
Unfortunately the opposite has been true. Each year the Board's caseload grows,
additional employees are required, and the expenditures go up. Petty distinction has been piled on petty distinction and conduct which is not an unfair labor practice today may be one tomorrow if the composition of the Board is changed as a result of a change in administration. All too often the parties cannot be sure that their conduct is or is not unlawful until the Supreme Court has finally ruled. Congress has amended the statute twice in a major fashion and twice in a minor fashion in order to show up its weaknesses and meet some of the more compelling criticism. Meanwhile, the Board is under constant attack by employers and unions alike and the general dissatisfaction is reflected and repeated in the many studies and reports.
As a result, the formulation of policies and courses of conduct in the field of labor-management relations is today a game that only lawyers can play. In the event an employer or a union wishes to act fairly it must first turn to a lawyer for advice. In the present legal and administrative jungle, the element of good will, of trying to do the right thing, of basing decision on conscience and principle is irrelevant and may even lead the unwary and the unsophisticated into a costly violation. The question, "What can I legally get away with?” has replaced the question, "What is morally right?
Can't we profit by a hard-learned lesson? The National Labor Relations Board approach has been unsuccessful. Must we now take this same barren approach in our attempt to deal with what is an even more difficult and controversial field of human conduct?
It is true, as the majority pointed out, that the present bill does not give the proposed Commission the authority to hear cases. only investigate, mediate, and prosecute. This I agree is a very wise restriction on the powers of the proposed Commission and does meet some of the objections and criticisms which have been directed at the National Labor Relations Board.
However, it should be noted that the original Powell bill and the original Roosevelt proposal established the Commission along the
1 To wit:
Unfair labor practice cases
Board em- Expenditures
1937 1950. 1980.
3, 124 5, 809 11, 357
646 1, 489 1, 750
$788, 838 8,594, 453 15, 105, 977
: For example, only recently a Kennedy appointee to the NLRB has announced that neither he nor the "new" Board will be bound by fixed rules or precedents but rather will decide matters brought before tbem on a case-by-tase basis (Feb. 9, 1962, address of Board Member Gerald A. Brown before the Institute on Labor Law, Duke University Law School).
> "Administration of the Labor-Management Relations Act, by the NLRB," report of the Subcom. mittee of the Education and Labor Committee, September 1961: “Organizational Procedure of the National Labor Relations Board,"
report to the Senate Committee on Labor and Public Welfare, Feb. 2, 1960: "Re. port of the American Bar Association Special Committee," June 15, 1961.
same lines as the NLRB. It was only through subcommittee action that this objectionable feature was eliminated and it was provided that the initial trial should be before a U.S. district court. It is also my understanding that the chief supporters of this legislation are not at all happy over the fact that the Commission has been stripped of its hearing powers and insist that the Commission be given the same powers that the NLRB had under the original Wagner Act. This, of course, would make the Commission judge, jury, prosecutor, and investigator with no independent General Counsel and complete discretion over what cases should or should not be heard before hearing officers who report directly to the Commission.
TRUE PURPOSE OF THE BILL
Significantly, the real purpose behind this legislation is disclosed in sections 9 and 11 of the bill. In these sections the Commission is given the unlimited authority to investigate on its own motion to determine whether a company or a union is committing or has committed an unlawful employment practice. It also has broad subpena powers to support and enforce these investigations. Section 11(a) provides:
The Commission or its designated representative may gather data regarding the practices of any person and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as may be appropriate to determine whether the respondent has committed or is committing an unlawful employment prac
tice, or which may aid in the enforcement of this Act. This is broader power than the Secretary of Labor has under the provisions of the Pension and Welfare Plans Disclosure Act amendments. It is broader power than that which the National Labor Relations Board has. It is far broader power than has been given to the Federal Bureau of Investigation.
Under section 9(a), once the Commission has filed a charge or has received a charge, it is then under a statutory mandate to investigate that charge. Moreover, the Commission will then have the power to investigate, interrogate, and explore until it finally uncovers evidence to convict an employer or a union of the charged violation or any other violation it may uncover during the course of such investigation. This is like having a policeman in the front seat of a car with pencil poised ready to write up any violation, advertent or inadvertent, that may occur.
STATE ANTIDISCRIMINATION LAWS
In addition to the fact that the passage of this type of Federal legislation would bring, as we have previously indicated, an end to voluntary action by individuals, employers, and unions, it also would bring an end to State action. At the present time 18 States have antidiscrimination laws. Each of these laws is specifically tailored to the needs of a particular State and the wishes of the citizens in that State. If there is to be legislation in this very difficult field, this is the
Alaska, California, Connecticut, Illinois, Indiana, Kansas, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New Mexico, New York, Rhode Island, Ohio, Oregon, Pennsylvania, and Wisconsin.