2. With reference to States with State-registered apprenticeship programs, regional directors shall (a) Meet with the chief labor officers of such State governments to inform them of the third standard promulgated by the Secretary and to urge their prompt acceptance of the three standards; (b) Forward a report to the Administrator, to arrive no later than August 31, indicating the actions and intentions of each State, agency, or council, with respect to the adoption of the Secretary's standards as contained herein. 3. Give general publicity to the Bureau's broadened nondiscrimination policy and program and continuing leadership toward acceptance of these policies. Bureau staff should explain and promote these policies in all public speeches and appearances. 4. In those regions not yet staffed with an industrial training adviser, the regional director shall select an apprenticeship and training representative whom he considers best qualified for this activity to serve on the regional staff in the capacity of industrial training adviser until such time as recruitment of a specialist may be possible. 5. Recognizing that the policies set forth herein will effect their purpose only if qualified applicants from racial and ethnic minorities are informed with respect to apprenticeship opportunities that will be available under the revised standards, regional directors shall make special effort to assure that the organizations most useful in assuring such a supply of candidates (schools, minority group organizations, public employment service, etc.) are informed of the revised program. Regional directors should lay plans with such groups for the stepped-up information and counseling program that will be needed to obtain qualified minority applicants. 6. A separate BAT instruction is being developed on the detailed program for achieving compliance with the program standards presented herein. In the meantime, in addition to the specific actions listed above, regional directors should examine all aspects of the problem of achieving compliance in their regions. DEAR [Attachment A] U.S. DEPARTMENT OF LABOR, I am writing to you in your capacity as Director of the We share, I am sure, the conviction that the opportunity to work must be based on competence and ability, without regard to a person's race, creed, color, or national origin. A recent survey has been made by the President's Committee on Equal Employment Opportunity of employment practices on Federal projects in the District of Columbia. This survey shows that in some of the trades there is adherence to the principle of equal employment opportunity. It also shows, however, that patterns of discriminatory employment have developed in other trades. The Department of Labor is now undertaking similar surveys throughout the country pursuant to President Kennedy's request of yesterday that "all Federal construction programs be reviewed to prevent any racial discrimination in hiring practices, either directly in the rejection of presently available qualified Negro workers or indirectly by the exclusion of Negro applicants for apprenticeship training." The elimination of such discrimination depends, where there are apprenticeship programs involved, on taking steps to assure that significant opportunities are provided for qualified minority group applicants to gain admission to these apprenticeship programs. Such opportunities may be provided 1. Where the selections made would not themselves demonstrate equality of opportunity, by the selection of apprentices on the basis of merit alone, in accordance with objective standards which permit review, after full and fair opportunity for application; and 2. By taking whatever steps are necessary, in acting upon application lists developed prior to this time, to offset the effect of previous practices under which discriminatory patterns of employment have resulted. These standards will be supplied in determining compliance with Government contractors' obligations under Executive Order 10925 to take "affirmative action to insure" that there is no discrimination in their employment practices--which is a condition of their performance of Government contracts. I am also directing the Bureau of Apprenticeship and Training to use these standards in determining the eligibility of apprenticeship programs for continued certification under the Federal Apprenticeship Act; and I am proposing the same standards for use by the apprenticeship councils in the District of Columbia and in the various States. I request and urge your affirmative consideration of these standards in the discharge of the responsibilities of your apprenticeship program. What is involved here is a vital principle of working democracy: that everybody is entitled to a fair and equal chance to make a living. Yours sincerely, Secretary of Labor. Senator JAVITS. This is colloquial language but I have heard it said the unions could not care less if they are decertificated, especially the building trades unions in New York. As you know, we are having a major problem in New York right now; there are major demonstrations which have involved mass arrests, protesting the inadequacy of apprenticeship opportunities. This is a very real and burning issue in the city of New York. You know Peter Brennan's statement that they may be able to somewhat enlarge the situation now. I assume quite a few of these plans are registered out of New York City. The question is whether you have any real effective handle on the unions in view of the fact that all you are saying to the unions is, "Well, you can't put your apprentices at less than Davis-Bacon wages on union projects," and the unions might say, "We don't care. Keep them off if you want.' Mr. HENNING. Yes, Senator, that is a possibility, the sanctions have that inherent weakness. If the apprentices are denied employment on Federal works those responsible for the direction of a program could circumvent this by paying them journeymen wages, or the employer saying, "I will no longer have need for apprentices, I will hire journeyI trust that the union movement will not take the decertification lightly because it is more than merely the placement of the apprentices the honor of the trade union movement is here involved. Senator JAVITS. Now, Mr. Henning, is there any hearing procedure provided under the regulation? men." Mr. HENNING. We have not yet implemented the document of July 17 in terms of administrative procedures, but you may be assured there will be adequate hearing protections granted. Senator JAVITS. I was not thinking so much about it in terms of protection, though you are completely right about that, but I was thinking about it in terms of the public sanction. I think your decertification procedure could help, even though, as I said a minute ago, the curbstone reaction would be, well, "We could not care less." No union wants to be tabbed that way, I believe, provided there is some way in which decertification really could be made a very evident black mark against the union. If the charge has been heard, facts put in evidence, by deliberate action of the Secretary of Labor there has been an order of decertification, all of it very public, I think you might have a chance to have an effect which may not be inherent in the economic sanctions you can invoke. Mr. HENNING. I think inevitably the decertification would be public property. Senator JAVITS. In other words, it is the intention of the Department to utilize whatever influence it may have in this way fully in support of its order; is that right? Mr. HENNING. Yes; we have no intention to harass or humiliate the guilty, but certainly this is a matter of public information and public property. Senator JAVITS. And you would use it that way? Mr. HENNING. We would use it that way in the proper sense, again, without the process of vengeance or humiliation. Senator JAVITS. But, Mr. Henning, you would not for a moment equate the effectiveness of what you are doing with a provision of law which would conceivably be incorporated in an fair employment practice commission bill. Mr. HENNING. Not for one moment. Senator CLARK. Before you go, Mr. Secretary, I would like to raise a question of constitutionality with you. This is a matter which is bound to be raised during the course of our consideration of this bill. Have you prepared any memorandum of brief on this matter? Have you been in touch with the Department of Justice? Mr. HENNING. The Solicitor's Office has prepared a review of the constitutionality question. Mr. Robertson can speak to that. Mr. ROBERTSON. Senator, in answer to your question, the Solicitor's Office of the Department of Labor has prepared a very informal, not a legal brief type, memorandum commenting upon the possible constitutional attacks that might be made upon this type of legislation. It has concluded that in the light of similar attacks made upon the National Labor Relations Act, whose basic procedures are similar to the bills now being considered, and in the light of a similar attack upon the Fair Labor Standards Act, which is in a somewhat comparable area, there is no serious constitutional issue which could be effectively raised on this legislation. Senator CLARK. Are you in a position to make that study available to the committee, or would you like a little time to sharpen it up? Mr. ROBERTSON. I am sure, Senator, that in its present form it is so informal that it probably would not do any particular good in exposing it because I am sure it can be embellished, enlarged, and tightened. Senator CLARK. It seems to me, I wonder if my colleagues would agree, that it is quite important to have a definitive brief on the constitutionality of this proposed legislation not only from the thought of labor but I would hope concurred in by the Department of Justice. I am going to ask you gentlemen to take the initiative in seeing to it that we do get such a constitutional presentation at the earliest possible moment, in formal shape. Senator JAVITS. I hope, too, that the memorandum will deal with the constitutional basis in terms of the commerce clause and any other clause, such as the 14th amendment, which you think might be applicable, because we are going to be faced, I think, in regard to every piece of civil rights legislation with this question about the applicability of the commerce clause or the applicability of the 14th amendment. Personally I don't see where the 14th amendment would fit here, but nonetheless the question should be dealt with. The prevailing view seems now to be to base civil rights laws on every aspect of the Constitution which will sustain them as, for example, in the case of public accommodations section, on both the commerce clause and the 14th amendment. (Subsequently, the following communication and memorandum was submitted:) Hon. JOSEPH S. CLARK, U.S. DEPARTMENT OF LABOR, Chairman, Subcommittee on Employment and Manpower, Committee on Labor and Public Welfare, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: During the course of Under Secretary Henning's testimony on fair employment practices legislation before the subcommittee on July 24, the Department of Labor was requested to prepare a memorandum on the constitutionality of the fair employment practices bills which were the subject matter of the hearing. I am attaching a memorandum prepared by the Department of Labor in accordance with this request. The memorandum concludes that pending legislation, as proposed in S. 773, 1210, 1211, and 1937, is a constitutional exercise of the interstate commerce power. Yours sincerely, W. WILLARD WIRTZ, CONSTITUTIONAL BASIS FOR LEGISLATION BEFORE THE 88TH CONGRESS TO PROHIBIT DISCRIMINATION IN EMPLOYMENT BECAUSE OF RACE, COLOR, ETC. This memorandum is addressed to the question of the constitutionality, under the commerce clause, of legislative proposals pending before the Senate Committee on Labor and Public Welfare, 88th Congress, to prohibit discrimination in employment because of race, religion, color, national origin, and ancestry. It is concluded that the constitutionality of such proposals is abundantly clear. There can be no doubt as to the power of the Congress to enact this type of legislation. The purpose of this memorandum is to point out the principal factors involved in a consideration of the question. L. THE POWER OF CONGRESS TO PROHIBIT DISCRIMINATION IN EMPLOYMENT UNDER THE COMMERCE CLAUSE The constitutional authority of the Congress, in the exercise of the commerce power, to enact legislation of this nature is plain beyond doubt. The Supreme Court has repeatedly upheld regulation of employment relationships based on this power. A. The extent, in general, of congressional power under the commerce clause It has long been settled that the commerce clause extends not only to the movement of goods in commerce, but also to those related activities preceding or following such movements. Thus, in United States v. Darby, 312 U.S. 100, the Supreme Court in upholding the validity of the Fair Labor Standards Act stated that "the power of Congress to regulate interstate commerce extends to the regulations through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the congressional power over it." In addition, the Court pointed out that this power "extends to those activities intrastate which so affect interstate commerce or the exercise of the power over it so as to make the regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power to regulate interstate commerce. * * * The Sherman Act and the National Labor Relations Act are familiar examples of the exertion of the commerce power to prohibit or control activities wholly intrastate because of their effect on interstate commerce." Moreover, it must be borne in mind with reference to the constitutional basis of the Fair Labor Standards Act, which rests on "commerce" and the "production of goods for commerce," that the Supreme Court has several times empha sized that the Congress in providing this coverage stopped considerably short of the full reach of its constitutional power under the commerce clause (Kirschbaum v. Walling, 316 U.S. 516; Higgins v. Carr Bros. Co., 316 U.S. 564; Mitchell v. H. B. Zachry Co., 362 U.S. 310). In answer to the contention that an employer in an industry alleged to be "purely local in nature" should not be compelled to comply with the Fair Labor Standards Act, the Court declared that to the extent that his employees are engaged in commerce or in the production of goods for commerce, the employer is himself so engaged (Kirschbaum v. Walling, 316 U.S. 516; and see Mabee v. White Plains Publishing Co., 327 U.S. 178). It can therefore be authoritatively said that it is now well settled that the constitutional power extends to activities affecting commerce in any amount or volume not so minimal or sporadic as to fall within the doctrine of de minimis non curat lex. As the Supreme Court said in a National Labor Relations Act case, NLRB v. Fainblatt, 306 U.S. 1, the "power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small,” because "commerce may be affected in the same manner and to the same extent in proportion to its volume, whether it be great or small." See also NLRB v. Denver Bldg. & Constr. Tr. Council, 341 U.S. 675; Carpenters Union v. NLRB, 341 U.S. 707. And in NLRB v. Stoller, 207 F. 2d 305 (C.A. 9), certiorari denied, 347 U.S. 919, the National Labor Relations Act was held applicable to a local dry cleaner who purchased $12,000 worth of supplies from outside the State, the Court holding that this amount "was not so insignificant as to come within the rule de minimis non curat lex." Further, it must be borne in mind that the congressional power to regulate conditions of employment is not limited to those situations where the producer, seller, or furnisher of goods or services himself places the goods or services which he produces, sells, or furnishes in the channels of interstate commerce. This power also extends, for example, to the retail distribution of goods which have moved across State lines before they reach the retailer. Thus the National Labor Relations Act has exclusive jurisdiction with respect to labor relations problems of retailers handling such goods, even though all their sales are local. See Amalgamated Meat Cutters and Butcher Workmen of America v. Fairlawn Meats, Inc., 353 U.S. 20 (three retail meat markets, all of whose sales were intrastate but whose out-of-State purchases totaled slightly over one-ninth of total purchases): San Diego Building Trades Council v. Garmon, 353 U.S. 26 (two retail lumber yards whose out-of-State purchases totaled $250,000); Howell Chevrolet Co. v. NLRB, 346 U.S. 482 (retail car dealer purchasing from local General Motors warehouse autos and parts manufactured out of State). The authority of Congress to exercise power with respect to articles which "have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce" is also settled. In United States v. Sullivan, 332 U.S. 689, a druggist was convicted of failure to comply with labeling requirements for sulfathiazole which was sold to customers after it had moved in commerce. A recent exercise by Congress of this authority is Public Law 85-506 requiring certain information for prospective purchasers to be kept posted on new automobiles prior to their sale to the ultimate consumer. And, of course, another major example of the exercise of this power was the extension of Fair Labor Standards Act coverage, by the amendments of 1961, to certain retail establishments. Finally, it is also thoroughly settled that the question whether "the conduct of an enterprise affects commerce among the States is a matter of practical judgment." and that the "exercise of this practical judgment the Constitution entrusts primarily and very largely to the Congress" (Polish Alliance v. Labor Board, 322 U.S. 643). Under these principles, there is no doubt that a practical judgment by the Congress that discrimination in employment because of race or color has a substantial impact on commerce would be upheld by the courts. Such findings are, of course, contained in the pending bills on this subject. B. Congressional power under the commerce clause in the field of employment relations The areas in which the Congress has taken legislative action under the commerce clause by regulatory and/or criminal laws are legion. Any attempt to list them would unduly lengthen this memorandum. Attention should be directed, however, to some of the statutes most closely akin to the proposal here involved, namely, those which deal with employer-employee relationships. |