Senator CLARK. The subcommittee will stand in recess. I might say for the benefit of those interested that the subcommit tee is going to have at least 1 more day on fair employment practices legislation. This will have to be arranged at a later date when we are better able to know when the witnesses we are most anxious to have appear before us will be available. (Whereupon, at 11:57 a.m. the subcommittee recessed to reconvene at the call of the Chair.) EQUAL EMPLOYMENT OPPORTUNITY TUESDAY, AUGUST 20, 1963 U.S. SENATE, SUBCOMMITTEE ON EMPLOYMENT AND MANPOWER OF THE COMMITTEE ON LABOR AND PUBLIC WELFARE, Washington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room 4232, New Senate Office Building, Hon. Joseph S. Clark (chairman of the subcommittee) presiding. Present: Senators Clark (presiding), Pell, Kennedy, and Javits. Committee staff members present: Stewart E. McClure, chief clerk; Edward D. Friedman, counsel; and Dr. Garth L. Mangum, research director of the subcommittee; Raymond D. Hurley and John Stringer, minority associate counsel. Senator CLARK. The subcommittee will be in session. I am happy to say that the Department of Justice has responded to our request for an opinion on the constitutionality of fair employment practices legislation. I ask to have printed in the record a letter directed to me under date of August 15, from Deputy Attorney General Nicholas deB. Katzenbach, which after reviewing the pertinent cases concludes that it is the view of the Department that the fair employment practices bills pending before this subcommittee are constitutional. In view of the importance of this letter I will ask the staff to have it reproduced and sent to all members of the subcommittee. (The letter, dated August 15, 1963, from Deputy Attorney General Katzenbach follows:) Hon. JOSEPH S. CLARK, U.S. Senate, Washington, D.C. U.S. DEPARTMENT OF JUSTICE, DEAR SENATOR CLARK: This is in response to your letter of July 25, 1963, in which you request the views of the Department of Justice on the constitutionality of certain fair employment practices bills pending before the Subcommittee on Employment and Manpower. We believe that the commerce clause of the Constitution (art. I, sec. 8) provides authority for Congress to enact fair employment practices legislation. The courts have repeatedly upheld the power of Congress to regulate employment relations affecting interstate and foreign commerce. Texas and New Orleans Railroad Co. v. Brotherhood of Railway Clerks, 281 U.S. 543 (1930); N.L.R.B. v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937); see also N.L.R.B. v. Fainblatt, 306 U.S. 601 (1939); Polish National Alliance v. N. L. R. B., 322 U.S. 643 (1944). Thus, in Jones and Laughlin, supra, the court said (301 U.S. at 33): "Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority." The Supreme Court has spoken in similar terms of race discrimination which infringes upon the right to work free from racial discrimination. Justice Roberts, speaking for the unanimous Court in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938) at p. 561 said: "The desire for fair and equitable conditions of employment on the part of persons of any race, color, or persuasion, and the removal of discriminations against them by reason of their race or religious beliefs is quite as important to those concerned as fairness and equity in terms and conditions of employment can be to trade or craft union or any force of labor organization or association. Race discrimination by an employer may reasonably be deemed more unfair and less excusable than discrimination against workers on the ground of union affiliation." [Italic added.] In connection with the general civil rights legislation now pending before Congress, we have taken the position that discrimination in places of public accommodation which affects interstate commerce may be prohibited by Federal legislation under the commerce clause. For your convenience, we are attaching a copy of a memorandum sustaining this contention. Similarly, we believe that legislation may be enacted safeguarding the right to work free from discrimination because of race, color, religion, or national origin, where interstate commerce would be affected. Nor would such legislation impose arbitrary restraints upon the conduct of private business in contravention of the due process clause. It is now clear that appropriate regulation of the hire and discharge of employees is not an unconstitutional abridgment of the contract right. Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177 (1941); N.L.R.B. v. Jones and Laughlin Corp., supra; see also Morgan v. Atlantic Coast Line Railway Co., 32 F. Supp. 617 (1940). The freedom of contract is not absolute, and is subject to reasonable regulations and prohibitions pursuant to valid governmental powers. See Nebbia v. New York, 291 U.S. 502, 527-28 (1934). It is clear, too, that labor organizations may be covered by fair employment practices legislation. Labor unions have been accorded the statutory right to act as exclusive bargaining agents for nonmembers as well as members under Congress' power over interstate commerce. Similarly, there is no question but that the Federal Government may, in exercise of the same power. impose necessary restrictions to prohibit labor unions from discriminating because of race, religion, or national origin. Cf. United States v. Classic, 313 U.S. 297, 326 (1941); Smith v. Allwright, 321 U.S. 649, 664 (1944). The essence of free government requires that power must be accompanied by responsibility. Indeed, the Supreme Court in Steele v. Louisville and Nashville Railway Company, 323 U.S. 192 (1944), held in a unanimous opinion that a Negro railway foreman who was discriminated against because of color by a union chosen by the majority to represent the craft under the Federal Railway Labor Act could enjoin the union, notwithstanding that such discrimination was buttressed by the contract between the union and the employer. The Court said (323 U.S. at 199, 203): "But we think that Congress, in enacting the Railway Labor Act and authorizing a labor union, chosen by a majority of a craft, to represent the craft, did not intend to confer plenary power upon the union to sacrifice, for the benefit of its members, rights of the minority of the craft, without imposing on it any duty to protect the minority." * [I]t is enough for present purposes to say that the statutory power to represent a craft and to make contracts as to wages, hours, and working conditions does not include the authority to make among members of the craft discriminations not based on such relevant differences. Here the discriminations based on race alone are obviously irrelevant and invidious. Congress plainly did not undertake to authorize the bargaining representative to make such discriminations. Cf. Yick Wo v. Hopkins, 118 U.S. 356; Yu Cong Eng v. Trinidad. 271 U.S. 500; Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Hill v. Texas, 316 U.S. 400. To the same effect is Tunstall v. Brothrhood, 323 U.S. 210 (1946); see also Morgan v. Virginia, 328 U.S. 373, and Railway Mail Association v. Corsi, 326 U.S. 83 (1945). State courts have also held that unions could not discriminate among their members because of race. Carroll v. Local 269, 133 N.J. Eq. 144, 31 Atl. (2d) 223, 225 (1943) and James v. Marinship Corp., 25 Calif. (2d) 721, 155 P. (2d) 329 (1945), noted in 160 A.L.R. 900; see also Betts v. Beasley, 161 Kan. 459, 169 P. (2d) 831 (1946). In short, it is our view that the fair employment practices bills pending before your subcommittee are constitutional. Sincerely, NICHOLAS DEB. KATZENBACH, Senator CLARK. We are fortunate in having with us this morning, as a representative of the U.S. Commission on Civil Rights, Dean Erwin N. Griswold, of the Harvard Law School, appearing in his capacity as the Commissioner of that Commission. Dean Griswold, would you please come forward and take the witness chair. I have had an opportunity of reading both your summary and your testimony. It has always seemed a little silly to me when there is only one Senator hearing the testimony and he has already read it to have it read again. If it is satisfactory to you, Dean, I would like first to express my appreciation and that of all the members of the subcommittee in your willingness to come down here and to give us this very valuable testimony in support of FEPC legislation, and I would like to ask you, if I might, when this resolution which you refer to on the first page of your testimony was unanimously adopted by the Commission? STATEMENT OF HON. ERWIN N. GRISWOLD, COMMISSIONER, Mr. GRISWOLD. Senator, it was adopted earlier this month at a meeting of the Commission which was the meeting of the Commission for consideration of the statutory report which we are required by law to file with the President and Congress before the 30th of September. Now, that report will be a fairly comprehensive report. Of course, it takes time to get it finished up and printed and everything is on schedule and it will be filed before the 30th of September, but as indicated here, I have been authorized by the Commission to advise this subcommittee of this particular resolution which was unanimously adopted by the Commission earlier this month. Senator CLARK. Could you give us a little idea of the investigations and studies which the Commission made preliminary to adopting this resolution? Mr. GRISWOLD. For the details of that, I think I would have to call on the staff of the Commission. The Commission has been in existence for 5 years and has already filed two biennial reports in both of which there is treatment of employment and of discrimination in employment and consideration of questions of something like a fair employment practices commission. The Commission has held hearings in many cities of the country and has found ample evidence of discrimination in employment. On the basis of those hearings and of staff investigations which have been reported to the Commission, the Commission has come to the conclu sion that one of the key factors in the overall civil rights problem is the element of employment and discrimination in employment and has finally come to the unanimous conclusion-I may say a conclusion not easily reached by many members of the Commission-that the only solution now is appropriate Federal action to eliminate or minimize discrimination not only in employment but in training for employment and in employment opportunities. I think it is fair to say that the Commission feels that the question is by no means confined to discrimination in employment; it is not so much that when three people present themselves for a job opening there is then and there discrimination against the Negro or the Puerto Rican or the Mexican or the Indian or various other groups. It is rather that the minority groups often do not know of the opening and never have an opportunity to present themselves for employment, or more specifically in some areas that the minority groups have no opportunity to secure the apprentice training or the basic educational background which are required to prepare themselves so that they can present themselves for employment, so that it is not merely an employment question but an opportunity question. Senator CLARK. So that this conclusion by the Commission is really the result of some pretty careful study of the whole problem of civil rights over several years? It is not something that has just sprung up in the last year or so? Mr. GRISWOLD. Yes, Senator; there is nothing novel about this. In our statutory report of 2 years ago there was one whole volume devoted to employment in which the work of the Commission and its staff indicating discrimination in employment was rather extensively summarized. Senator CLARK. Now, there are, of course, a number of cities and a good many States which have legislation dealing with fair employment practices and I assume, tell me if I am right, that before the Commission came to its unanimous conclusion to recommend Federal legislation you considered pretty carefully whether the same results could be achieved by local and/or State action? Mr. GRISWOLD. Yes, Senator; and it is quite obvious there are large sections of the country where there is not and does not seem any likelihood that there will be effective State action. Moreover, in the portions of the country which have local or State laws there are places where these could and should be strengthened. And there are also large sectors of employment which in one way or another depend upon Federal activity or Federal funds where it seems to us that the Federal Government should take the initiative and should, in a sense, lead the States into stronger action. Senator CLARK. Did your Commission give any consideration as to whether the legislation which you recommend is constitutional? Mr. GRISWOLD. Yes, Senator; we find-perhaps I should qualify this by saying that several members of the Commission are not lawyers and would not want personally, I suppose, to be in a position of giving a legal opinion, but the question was considered by the General Counsel of the Commission and three members of the Commission who are lawyers, and I know of no dissent any place as to |