B-163026, AUGUST 5, 1969, 49 COMP. GEN. 59

B-163026, AUGUST 5, 1969, 49 COMP. GEN. 59

CONTRACTS -- LABOR STIPULATIONS -- NONDISCRIMINATION -- AFFIRMATIVE ACTION PROGRAMS THE REVISED "PHILADELPHIA PLAN" PRESCRIBING THAT NO CONTRACTS OR SUBCONTRACTS SHALL BE AWARDED FOR FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION PROJECTS UNLESS THE BIDDER HAD SUBMITTED AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM THAT INCLUDED SPECIFIC GOALS OF MINORITY MANPOWER UTILIZATION TO PROVIDE EQUAL EMPLOYMENT OPPORTUNITY, CONFLICTS WITH THE INTENT OF THE CIVIL RIGHTS ACT OF 1964, AND EXECUTIVE ORDER NO. 11246, MAKING THE USE OF RACE OR NATIONAL ORIGIN AS A BASIS OF EMPLOYMENT AN UNLAWFUL EMPLOYMENT PRACTICE. THE PLAN DIRECTED TO CORRECTING PAST DISCRIMINATION BY LABOR UNIONS WOULD IN ESTABLISHING A QUOTA SYSTEM FOR THE EMPLOYMENT OF MINORITIES ACCORD PREFERENTIAL TREATMENT IN CONFLICT WITH THE PROHIBITION IN THE CIVIL RIGHTS ACT, AND IN PASSING UPON THE LEGALITY OF MATTERS INVOLVING EXPENDITURES OF APPROPRIATED FUNDS, THE ACT WILL BE SO CONSTRUED. BIDS -- COMPETITIVE SYSTEM -- COMPLIANCE REQUIREMENT CONTRACT CONDITIONS OR STIPULATIONS WHICH TEND TO RESTRICT THE FULL AND FREE COMPETITION REQUIRED BY PROCUREMENT LAWS AND REGULATIONS ARE UNAUTHORIZED UNLESS REASONABLY REQUISITE TO THE ACCOMPLISHMENT OF THE LEGISLATIVE PURPOSES OF THE APPROPRIATION ACT OR OTHER LAW INVOLVED, AND NO ADMINISTRATIVE AUTHORITY CAN LAWFULLY IMPOSE ANY REQUIREMENTS TO CONTRAVENE THE PROHIBITIONS IMPOSED BY STATUTE. THEREFORE, THE REVISED "PHILADELPHIA PLAN" IN IMPOSING AFFIRMATIVE ACTION PROGRAMS FOR THE EMPLOYMENT OF MINORITIES CONSTITUTES DISCRIMINATION ON THE BASIS OF RACE OR NATIONAL ORIGIN IN CONTRAVENTION OF THE PROHIBITION IN THE CIVIL RIGHTS ACT OF 1964, AND EXECUTIVE ORDER NO. 11246. APPROPRIATIONS -- EXPENDITURES -- WITHOUT REGARD TO LAW -- LEGALITY DETERMINATIONS THE DUTY IMPOSED ON THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO) TO AUDIT ALL EXPENDITURES OF APPROPRIATED FUNDS INVOLVING THE DETERMINATION OF THE LEGALITY OF EXPENDITURES, INCLUDES THE DETERMINATION OF THE LEGALITY OF CONTRACTS OBLIGATING THE GOVERNMENT TO THE PAYMENT OF APPROPRIATED FUNDS, AND THE AUTHORITY TO RENDER DECISIONS PRIOR TO ACTIONS INVOLVING THE EXPENDITURES OF APPROPRIATED FUNDS HAS BEEN EXERCISED BY GAO WHENEVER ANY QUESTION OF THE LEGALITY OF A PROPOSED ACTION HAS BEEN RAISED, WHETHER BY AN AGENCY HEAD, OR BY COMPLAINT OF AN INTERESTED PARTY, OR BY INFORMATION ACQUIRED IN THE COURSE OF OTHER THAN AUDIT OPERATIONS, AND IN PASSING UPON THE LEGALITY OF THE EXPENDITURES OF APPROPRIATED FUNDS FOR FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION PROGRAMS, THE PROPRIETY OF CONDITIONS IMPOSED BY THE REVISED "PHILADELPHIA PLAN" WILL BE FOR CONSIDERATION. (BUT SEE CONTRACTORS ASSN. OF EASTERN PENNA., ET AL. V SECY. OF LABOR, ET AL., CIVIL ACTION NO. 70-18, AND B-163026, APRIL 28, 1970.)

TO THE SECRETARY OF LABOR, AUGUST 5, 1969:

WE REFER TO AN ORDER ISSUED JUNE 27, 1969, TO THE HEADS OF ALL AGENCIES BY THE ASSISTANT SECRETARY FOR WAGE AND LABOR STANDARDS, DEPARTMENT OF LABOR. THE ORDER ANNOUNCED A REVISED PHILADELPHIA PLAN (EFFECTIVE JULY 18, 1969) TO IMPLEMENT THE PROVISIONS OF EXECUTIVE ORDER NO. 11246 AND THE RULES AND REGULATIONS ISSUED PURSUANT THERETO WHICH REQUIRE A PROGRAM OF EQUAL EMPLOYMENT OPPORTUNITY BY CONTRACTORS AND SUBCONTRACTORS ON BOTH FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION PROJECTS.

QUESTIONS HAVE BEEN SUBMITTED TO OUR OFFICE BY MEMBERS OF CONGRESS, BOTH AS TO THE PROPRIETY OF THE REVISED PHILADELPHIA PLAN AND THE LEGAL VALIDITY OF EXECUTIVE ORDER NO. 11246 AND OF VARIOUS IMPLEMENTING REGULATIONS ISSUED THEREUNDER BOTH BY YOUR DEPARTMENT AND BY OTHER AGENCIES. IN VIEW OF POSSIBLE CONFLICTS BETWEEN THE REQUIREMENTS OF THE PLAN AND THE PROVISIONS OF TITLES VI AND VII OF THE CIVIL RIGHTS ACT OF 1964, PUBLIC LAW 88-352, DISCUSSIONS HAVE BEEN HELD BETWEEN REPRESENTATIVES OF OUR OFFICE, YOUR DEPARTMENT, AND THE DEPARTMENT OF JUSTICE, AND YOUR SOLICITOR HAS FURNISHED TO US A LEGAL MEMORANDUM IN SUPPORT OF THE AUTHORITY FOR ISSUANCE OF THE EXECUTIVE ORDER AS WELL AS THE REVISED PHILADELPHIA PLAN PROMULGATED THEREUNDER.

THE MEMORANDUM PRESENTS THE FOLLOWING POINTS IN SUPPORT OF THE LEGAL PROPRIETY OF THE PLAN:

I. THE EXECUTIVE HAS THE AUTHORITY AND THE DUTY TO REQUIRE EMPLOYERS WHO DO BUSINESS WITH THE GOVERNMENT TO PROVIDE EQUAL EMPLOYMENT OPPORTUNITY.

II. THE PASSAGE OF THE CIVIL RIGHTS ACT OF 1964 DID NOT DEPRIVE THE PRESIDENT OF THE AUTHORITY TO REGULATE, PURSUANT TO EXECUTIVE ORDERS, THE EMPLOYMENT PRACTICES OF GOVERNMENT CONTRACTORS.

III. THE REVISED PHILADELPHIA PLAN IS LAWFUL UNDER THE FEDERAL GOVERNMENT'S PROCUREMENT POLICIES, IS AUTHORIZED UNDER EXECUTIVE ORDER 11246 AND THE IMPLEMENTING REGULATIONS, AND IS LAWFUL UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.

WITHOUT CONCEDING THE VALIDITY OF ALL OF THE ARGUMENTS ADVANCED UNDER POINTS I AND II, WE ACCEPT THE AUTHORITY OF THE PRESIDENT TO ISSUE EXECUTIVE ORDER NO. 11246, AND THE CONTENTION THAT THE CONGRESS IN ENACTING THE CIVIL RIGHTS ACT DID NOT INTEND TO DEPRIVE THE PRESIDENT OF ALL AUTHORITY TO REGULATE EMPLOYMENT PRACTICES OF GOVERNMENT CONTRACTORS.

THE ESSENTIAL QUESTIONS PRESENTED TO THIS OFFICE BY THE REVISED PHILADELPHIA PLAN, HOWEVER, ARE (1) WHETHER THE PLAN IS COMPATIBLE WITH FUNDAMENTALS OF THE COMPETITIVE BIDDING PROCESS AS IT APPLIES TO THE AWARDING OF FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION CONTRACTS, AND (2) WHETHER IMPOSITION OF THE SPECIFIC REQUIREMENTS SET OUT THEREIN CAN BE REGARDED AS A LEGALLY PROPER IMPLEMENTATION OF THE PUBLIC POLICY TO PREVENT DISCRIMINATION IN EMPLOYMENT, WHICH IS DECLARED IN THE CIVIL RIGHTS ACT AND IS INHERENT IN THE CONSTITUTION, OR WHETHER THOSE REQUIREMENTS SO FAR TRANSCEND THE POLICY OF NON-DISCRIMINATION, BY MAKING RACE OR NATIONAL ORIGIN A DETERMINATIVE FACTOR IN EMPLOYMENT, AS TO CONFLICT WITH THE LIMITATIONS EXPRESSLY IMPOSED BY THE ACT OR WITH THE BASIC CONSTITUTIONAL CONCEPT OF EQUALITY.

OUR INTEREST AND AUTHORITY IN THE MATTER EXISTS BY VIRTUE OF THE DUTY IMPOSED UPON OUR OFFICE BY THE CONGRESS TO AUDIT ALL EXPENDITURES OF APPROPRIATED FUNDS, WHICH NECESSARILY INVOLVES THE DETERMINATION OF THE LEGALITY OF SUCH EXPENDITURES, INCLUDING THE LEGALITY OF CONTRACTS OBLIGATING THE GOVERNMENT TO PAYMENT OF SUCH FUNDS. AUTHORITY HAS BEEN SPECIFICALLY CONFERRED ON THIS OFFICE TO RENDER DECISIONS TO THE HEADS OF DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, PRIOR TO THE INCURRING OF ANY OBLIGATIONS, WITH RESPECT TO THE LEGALITY OF ANY ACTION CONTEMPLATED BY THEM INVOLVING EXPENDITURES OF APPROPRIATED FUNDS, AND THIS AUTHORITY HAS BEEN EXERCISED CONTINUOUSLY BY OUR OFFICE SINCE ITS CREATION WHENEVER ANY QUESTION AS TO THE LEGALITY OF A PROPOSED ACTION HAS BEEN RAISED, WHETHER BY SUBMISSION BY AN AGENCY HEAD, OR BY COMPLAINT OF AN INTERESTED PARTY, OR BY INFORMATION COMING TO OUR ATTENTION IN THE COURSE OF OUR OTHER OPERATIONS.

THE INCORPORATION INTO THE TERMS OF SOLICITATIONS FOR GOVERNMENT CONTRACTS OF CONDITIONS OR REQUIREMENTS CONCERNING WAGES AND OTHER EMPLOYMENT CONDITIONS OR PRACTICES HAS BEEN A FREQUENT SUBJECT OF DECISIONS BY THIS OFFICE, MANY OF WHICH WILL BE FOUND ENUMERATED IN OUR DECISION AT 42 COMP. GEN. 1 (1962). THE RULE INVARIABLY APPLIED IN SUCH CASES HAS BEEN THAT ANY CONTRACT CONDITIONS OR STIPULATIONS WHICH TEND TO RESTRICT THE FULL AND FREE COMPETITION REQUIRED BY THE PROCUREMENT LAWS AND REGULATIONS ARE UNAUTHORIZED, UNLESS THEY ARE REASONABLY REQUISITE TO THE ACCOMPLISHMENT OF THE LEGISLATIVE PURPOSES OF THE APPROPRIATION INVOLVED OR OTHER LAW. FURTHERMORE, WHERE THE CONGRESS IN ENACTING A STATUTE COVERING THE SUBJECT MATTER OF SUCH CONDITIONS HAS SPECIFICALLY PROHIBITED CERTAIN ACTIONS, NO ADMINISTRATIVE AUTHORITY CAN LAWFULLY IMPOSE ANY REQUIREMENTS THE EFFECT OF WHICH WOULD BE TO CONTRAVENE SUCH PROHIBITIONS. IT IS WITHIN THE FRAMEWORK OF THESE PRINCIPLES THAT WE CONSIDER THE ORDER PROMULGATING THE REVISED PHILADELPHIA PLAN.

THE ASSISTANT SECRETARY'S ORDER STATES THE POLICY OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE (OFCC) THAT NO CONTRACTS OR SUBCONTRACTS SHALL BE AWARDED FOR FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION IN THE PHILADELPHIA, PENNSYLVANIA, AREA (INCLUDING THE COUNTIES OF BUCKS, CHESTER, DELAWARE, MONTGOMERY, AND PHILADELPHIA) ON PROJECTS WHOSE COST EXCEEDS $500,000 UNLESS THE BIDDER SUBMITS AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM WHICH SHALL INCLUDE SPECIFIC GOALS OF MINORITY MANPOWER UTILIZATION, MEETING THE STANDARDS INCLUDED IN THE INVITATION OR OTHER SOLICITATIONS FOR BIDS, IN TRADES UTILIZING THE SEVEN CLASSIFICATIONS OF EMPLOYEES SPECIFIED THEREIN.

THE ORDER FURTHER RELATES THAT ENFORCEMENT OF THE NONDISCRIMINATION AND AFFIRMATIVE ACTION REQUIREMENTS OF EXECUTIVE ORDER NO. 11246 HAS POSED SPECIAL PROBLEMS IN THE CONSTRUCTION TRADES; THAT CONTRACTORS AND SUBCONTRACTORS MUST HIRE A NEW EMPLOYEE COMPLEMENT FOR EACH CONSTRUCTION JOB AND OUT OF NECESSITY OR CONVENIENCE THEY RELY ON THE CONSTRUCTION CRAFT UNIONS AS THEIR PRIME OR SOLE SOURCE OF THEIR LABOR; THAT COLLECTIVE BARGAINING AGREEMENTS AND/OR ESTABLISHED CUSTOM BETWEEN CONSTRUCTION AND SUBCONTRACTORS AND UNIONS FREQUENTLY PROVIDE FOR, OR RESULT IN, EXCLUSIVE HIRING HALLS; THAT EVEN WHERE THE COLLECTIVE BARGAINING AGREEMENT CONTAINS NO SUCH HIRING HALL PROVISIONS OR THE CUSTOM IS NOT RIGID, AS A PRACTICAL MATTER, MOST PEOPLE WORKING THE SPECIFIED CLASSIFICATIONS ARE REFERRED TO THE JOBS BY THE UNIONS; AND THAT BECAUSE OF THESE HIRING ARRANGEMENTS, REFERRAL BY A UNION IS A VIRTUAL NECESSITY FOR OBTAINING EMPLOYMENT IN UNION CONSTRUCTION PROJECTS, WHICH CONSTITUTE THE BULK OF COMMERCIAL CONSTRUCTION.

IT IS ALSO STATED THAT BECAUSE OF THE EXCLUSIONARY PRACTICES OF LABOR ORGANIZATIONS, THERE TRADITIONALLY HAVE BEEN ONLY A SMALL NUMBER OF NEGROES EMPLOYED IN THE SEVEN TRADES, AND THAT UNIONS IN THESE TRADES IN THE PHILADELPHIA AREA STILL HAVE ONLY ABOUT 1.6 PERCENT MINORITY GROUP MEMBERSHIP AND THEY CONTINUE TO ENGAGE IN PRACTICES, INCLUDING THE GRANTING OF REFERRAL PRIORITIES TO UNION MEMBERS AND TO PERSONS WHO HAVE WORK EXPERIENCE UNDER UNION CONTRACTS, WHICH RESULT IN FEW NEGROES BEING REFERRED FOR EMPLOYMENT. THE OFCC FOUND, THEREFORE, THAT SPECIAL MEASURES REQUIRING BIDDERS TO COMMIT THEMSELVES TO SPECIFIC GOALS OF MINORITY MANPOWER UTILIZATION WERE NEEDED TO PROVIDE EQUAL EMPLOYMENT OPPORTUNITY IN THE SEVEN TRADES.

SECTION 7 OF THE ASSISTANT SECRETARY'S ORDER OF JUNE 27 INDICATES THAT THE REVISED PLAN IS TO BE IMPLEMENTED BY INCLUDING IN THE SOLICITATION FOR BIDS A NOTICE SUBSTANTIALLY SIMILAR TO ONE LABELED "APPENDIX" WHICH IS ATTACHED TO THE ORDER. SUCH NOTICE WOULD STATE THE RANGES OF MINORITY MANPOWER UTILIZATION (AS DETERMINED BY THE OFCC AREA COORDINATOR IN COOPERATION WITH THE FEDERAL CONTRACTING OR ADMINISTERING AGENCIES IN THE PHILADELPHIA AREA) WHICH WOULD CONSTITUTE AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM, AND WOULD REQUIRE THE BIDDER TO SUBMIT HIS SPECIFIC GOALS IN THE FOLLOWING FORM:

IDENTIFICATION EST. TOTAL EMPLOYMENT FOR NUMBER OF MINORITY

OF TRADE THE TRADE ON THE CONTRACT GROUP EMPLOYEES PARTICIPATION IN A MULTI-EMPLOYER PROGRAM APPROVED BY OFCC WOULD BE ACCEPTABLE IN LIEU OF A GOAL FOR THE TRADE INVOLVED IN SUCH PROGRAM.

THE NOTICE ALSO PROVIDES THAT THE CONTRACTOR WILL OBTAIN SIMILAR GOALS FROM HIS SUBCONTRACTORS WHO WILL PERFORM WORK IN THE INVOLVED TRADES, AND THAT "FAILURE OF THE SUBCONTRACTOR TO ACHIEVE HIS GOAL WILL BE TREATED IN THE SAME MANNER AS SUCH FAILURE BY THE PRIME CONTRACTOR PRESCRIBED IN SECTION 6 OF THE ORDER *** ." SINCE SECTION 6 OF THE ORDER CONTAINS NOTHING RELATIVE TO "FAILURE," WE ASSUME THE INTENDED REFERENCE IS TO SECTION 8, WHICH READS AS FOLLOWS: POST-AWARD COMPLIANCE

A. EACH AGENCY SHALL REVIEW CONTRACTORS' AND SUBCONTRACTORS' EMPLOYMENT PRACTICES DURING THE PERFORMANCE OF THE CONTRACT. IF THE GOALS SET FORTH IN THE AFFIRMATIVE ACTION PROGRAM ARE BEING MET, THE CONTRACTOR OR SUBCONTRACTOR WILL BE PRESUMED TO BE IN COMPLIANCE WITH THE REQUIREMENTS OF EXECUTIVE ORDER 11246, AS AMENDED, UNLESS IT COMES TO THE AGENCY'S ATTENTION THAT SUCH CONTRACTOR OR SUBCONTRACTOR IS NOT PROVIDING EQUAL EMPLOYMENT OPPORTUNITY. IN THE EVENT OF FAILURE TO MEET THE GOALS, THE CONTRACTOR SHALL BE GIVEN AN OPPORTUNITY TO DEMONSTRATE THAT HE MADE EVERY GOOD FAITH EFFORT TO MEET HIS COMMITMENT. IN ANY PROCEEDING IN WHICH SUCH GOOD FAITH PERFORMANCE IS AN ISSUE, THE CONTRACTOR'S ENTIRE COMPLIANCE POSTURE SHALL BE REVIEWED AND EVALUATED IN THE PROCESS OF CONSIDERING THE IMPOSITION OF SANCTIONS. WHERE THE AGENCY FINDS THAT THE CONTRACTOR OR SUBCONTRACTOR HAS FAILED TO COMPLY WITH THE REQUIREMENTS OF EXECUTIVE ORDER 11246, THE IMPLEMENTING REGULATIONS AND ITS OBLIGATIONS UNDER ITS AFFIRMATIVE ACTION PROGRAM, THE AGENCY SHALL TAKE SUCH ACTION AND IMPOSE SUCH SANCTIONS AS MAY BE APPROPRIATE UNDER THE EXECUTIVE ORDER AND THE REGULATIONS. SUCH NONCOMPLIANCE BY THE CONTRACTOR OR SUBCONTRACTOR SHALL BE TAKEN INTO CONSIDERATION BY FEDERAL AGENCIES IN DETERMINING WHETHER SUCH CONTRACTOR OR SUBCONTRACTOR CAN COMPLY WITH THE REQUIREMENTS OF EXECUTIVE ORDER 11246 AND IS THEREFORE A "RESPONSIBLE PROSPECTIVE CONTRACTOR" WITHIN THE MEANING OF THE FEDERAL PROCUREMENT REGULATIONS.

B. IT IS NO EXCUSE THAT THE UNION WITH WHICH THE CONTRACTOR HAS A COLLECTIVE BARGAINING AGREEMENT FAILED TO REFER MINORITY EMPLOYEES. DISCRIMINATION IN REFERRAL FOR EMPLOYMENT, EVEN IF PURSUANT TO PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT, IS PROHIBITED BY THE NATIONAL LABOR RELATIONS ACT AND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964. IT IS THE LONGSTANDING UNIFORM POLICY OF OFCC THAT CONTRACTORS AND SUBCONTRACTORS HAVE A RESPONSIBILITY TO PROVIDE EQUAL EMPLOYMENT OPPORTUNITY IF THEY WANT TO PARTICIPATE IN FEDERALLY INVOLVED CONTRACTS. TO THE EXTENT THEY HAVE DELEGATED THE RESPONSIBILITY FOR SOME OF THEIR EMPLOYMENT PRACTICES TO SOME OTHER ORGANIZATION OR AGENCY WHICH PREVENTS THEM FROM MEETING THEIR OBLIGATIONS PURSUANT TO EXECUTIVE ORDER 11246, AS AMENDED, SUCH CONTRACTORS CANNOT BE CONSIDERED TO BE IN COMPLIANCE WITH EXECUTIVE ORDER 11246, AS AMENDED, OR THE IMPLEMENTING RULES, REGULATIONS AND ORDERS.

IT IS OUR OPINION THAT THE SUBMISSION OF GOALS BY THE SUCCESSFUL BIDDER WOULD OPERATE TO MAKE THE REQUIREMENT FOR "EVERY GOOD FAITH EFFORT" TO ATTAIN SUCH GOALS A PART OF HIS CONTRACTUAL OBLIGATION UPON AWARD OF A CONTRACT. THE PROVISIONS OF SECTION 8 OF THE ORDER WOULD THEREFORE BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH THE CONTRACTOR'S PERFORMANCE WOULD BE JUDGED IN THE EVENT HE FAILS TO ATTAIN HIS STATED GOALS, JUST AS MUCH AS HIS STATED GOALS BECOME A PART OF THE CONTRACT SPECIFICATIONS AGAINST WHICH HIS PERFORMANCE WILL BE JUDGED IN THE EVENT HE DOES ATTAIN HIS STATED GOALS.

AS INDICATED AT PAGE 4 OF THE ORDER, THE ORIGINAL PHILADELPHIA PLAN WAS SUSPENDED BECAUSE IT CONTRAVENED THE PRINCIPLES OF COMPETITIVE BIDDING. SUCH CONTRAVENTION RESULTED FROM THE IMPOSITION OF REQUIREMENTS ON BIDDERS, AFTER BID OPENING, WHICH WERE NOT SPECIFICALLY SET OUT IN THE SOLICITATION. THE PRESENT STATEMENT OF A SPECIFIC NUMERICAL RANGE INTO WHICH A BIDDER'S AFFIRMATIVE ACTION GOALS MUST FALL IS APPARENTLY DESIGNED TO MEET, AND REASONABLY SATISFIES, THE REQUIREMENT FOR SPECIFICITY.

HOWEVER, WE HAVE SERIOUS DOUBTS COVERING THE MAIN OBJECTIVE OF THE PLAN, WHICH IS TO REQUIRE BIDDERS TO COMMIT THEMSELVES TO MAKE EVERY GOOD FAITH EFFORT TO EMPLOY SPECIFIED NUMBERS OF MINORITY GROUP TRADESMEN IN THE PERFORMANCE OF FEDERAL AND FEDERALLY ASSISTED CONTRACTS AND SUBCONTRACTS.

THE PERTINENT PUBLIC POLICY WITH RESPECT TO EMPLOYMENT PRACTICES OF AN EMPLOYER WHICH MAY BE REGARDED AS CONSTITUTING UNLAWFUL DISCRIMINATION IS SET OUT IN TITLES VI AND VII OF THE CIVIL RIGHTS ACT. TITLE VI, CONCERNING FEDERALLY ASSISTED PROGRAMS, PROVIDES IN SECTION 601 (42 U.S.C. 2000D) THAT NO PERSON IN THE UNITED STATES SHALL, ON THE GROUND OF RACE, COLOR, OR NATIONAL ORIGIN, BE EXCLUDED FROM PARTICIPATION IN, BE DENIED THE BENEFITS OF, OR BE SUBJECTED TO DISCRIMINATION UNDER, ANY PROGRAM OR ACTIVITY RECEIVING FEDERAL FINANCIAL ASSISTANCE. SECTION 703(A) (42 U.S.C. 2000E-2(A)) OF TITLE VII STATES THE PUBLIC POLICY CONCERNING EMPLOYER EMPLOYMENT PRACTICES BY DECLARING IT TO BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR AN EMPLOYER (1) TO FAIL OR REFUSE TO HIRE OR TO DISCHARGE ANY INDIVIDUAL, OR OTHERWISE TO DISCRIMINATE AGAINST ANY INDIVIDUAL WITH RESPECT TO HIS COMPENSATION, TERMS, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT, BECAUSE OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN; OR (2) TO LIMIT, SEGREGATE, OR CLASSIFY HIS EMPLOYEES IN ANY WAY WHICH WOULD DEPRIVE OR TEND TO DEPRIVE ANY INDIVIDUAL OF EMPLOYMENT OPPORTUNITIES OR OTHERWISE ADVERSELY AFFECT HIS STATUS AS AN EMPLOYEE, BECAUSE OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. SECTION 705(A) (42 U.S.C.2000E-4(A)) CREATES THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, AND SECTION 713(A), RULES AND REGULATIONS (42 U.S.C. 2000E-12-(A)), PROVIDES THAT THE COMMISSION SHALL HAVE AUTHORITY FROM TIME TO TIME TO ISSUE, AMEND, OR RESCIND SUITABLE PROCEDURAL REGULATIONS TO CARRY OUT THE PROVISIONS OF THAT TITLE.

THE PUBLIC POLICY REGARDING LABOR ORGANIZATION PRACTICES IS DELINEATED IN SECTION 703(C) (42 U.S.C.2000E-2(C)) WHEREIN IT IS STATED THAT IT SHALL BE AN UNLAWFUL EMPLOYMENT PRACTICE FOR A LABOR ORGANIZATION (1) TO EXCLUDE OR TO EXPEL FROM ITS MEMBERSHIP, OR OTHERWISE TO DISCRIMINATE AGAINST, ANY INDIVIDUAL BECAUSE OF HIS RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN (2) TO LIMIT, SEGREGATE, OR CLASSIFY ITS MEMBERSHIP, OR TO CLASSIFY OR FAIL OR REFUSE TO REFER FOR EMPLOYMENT ANY INDIVIDUAL IN ANY WAY WHICH WOULD DEPRIVE OR TEND TO DEPRIVE ANY INDIVIDUAL OF EMPLOYMENT OPPORTUNITIES, OR WOULD LIMIT SUCH EMPLOYMENT OPPORTUNITIES OR OTHERWISE ADVERSELY AFFECT HIS STATUS AS AN EMPLOYEE OR AS AN APPLICANT FOR EMPLOYMENT, BECAUSE OF SUCH INDIVIDUAL'S RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN; OR (3) TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN INDIVIDUAL IN VIOLATION OF THAT SECTION.

WHETHER THE PROVISIONS OF THE PLAN REQUIRING A BIDDER TO COMMIT HIMSELF TO HIRE--OR MAKE EVERY GOOD FAITH EFFORT TO HIRE--AT LEAST THE MINIMUM NUMBER OF MINORITY GROUP EMPLOYEES SPECIFIED IN THE RANGES ESTABLISHED FOR THE DESIGNATED TRADES IS, IN FACT, A "QUOTA" SYSTEM (AND THEREFORE ADMITTEDLY CONTRARY TO THE CIVIL RIGHTS ACT) OR IS A "GOAL" SYSTEM, IS IN OUR VIEW LARGELY A MATTER OF SEMANTICS, AND TENDS TO DIVERT ATTENTION FROM THE END RESULT OF THE PLAN--THAT CONTRACTORS COMMIT THEMSELVES TO MAKING RACE OR NATIONAL ORIGIN A FACTOR FOR CONSIDERATION IN OBTAINING THEIR EMPLOYEES.

WE VIEW THE IMPOSITION OF SUCH A REQUIREMENT ON EMPLOYERS ENGAGED IN FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION TO BE IN CONFLICT WITH THE INTENT AS WELL AS THE LETTER OF THE ABOVE PROVISIONS OF THE ACT WHICH MAKE IT AN UNLAWFUL EMPLOYMENT PRACTICE TO USE RACE OR NATIONAL ORIGIN AS A BASIS FOR EMPLOYMENT. FURTHER, WE BELIEVE THAT REQUIRING AN EMPLOYER TO ABANDON HIS CUSTOMARY PRACTICE OF HIRING THROUGH A LOCAL UNION BECAUSE OF A RADICAL OR NATIONAL ORIGIN IMBALANCE IN THE LOCAL UNIONS AND, UNDER THE THREAT OF SANCTIONS, TO MAKE "EVERY GOOD FAITH EFFORT" TO EMPLOY THE NUMBER OF MINORITY GROUP TRADESMEN SPECIFIED IN HIS BID FROM SOURCES OUTSIDE THE UNION IF THE WORKERS REFERRED BY THE UNION DO NOT INCLUDE A SUFFICIENT NUMBER OF MINORITY GROUP PERSONNEL, ARE IN CONFLICT WITH SECTION 703(J) OF THE ACT (42 U.S.C.2000E-2(J)) WHICH PROVIDES AS FOLLOWS:

NOTHING CONTAINED IN THIS SUBCHAPTER SHALL BE INTERPRETED TO REQUIRE ANY EMPLOYER, EMPLOYMENT AGENCY, LABOR ORGANIZATION, OR JOINT LABOR MANAGEMENT COMMITTEE SUBJECT TO THIS SUBCHAPTER TO GRANT PREFERENTIAL TREATMENT TO ANY INDIVIDUAL OR TO ANY GROUP BECAUSE OF THE RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN OF SUCH INDIVIDUAL OR GROUP ON ACCOUNT OF AN IMBALANCE WHICH MAY EXIST WITH RESPECT TO THE TOTAL NUMBER OR PERCENTAGE OF PERSONS OF ANY RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN EMPLOYED BY AN EMPLOYER, REFERRED OR CLASSIFIED FOR EMPLOYMENT BY ANY EMPLOYMENT AGENCY OR LABOR ORGANIZATION, ADMITTED TO MEMBERSHIP OR CLASSIFIED BY ANY LABOR ORGANIZATION, OR ADMITTED TO, OR EMPLOYED IN, ANY APPRENTICESHIP OR OTHER TRAINING PROGRAM, IN COMPARISON WITH THE TOTAL NUMBER OF PERCENTAGE OF PERSONS OF SUCH RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN ANY COMMUNITY, STATE, SECTION, OR OTHER AREA, OR IN THE AVAILABLE WORK FORCE IN ANY COMMUNITY, STATE, SECTION, OR OTHER AREA.

WHILE THE LEGISLATIVE HISTORY OF THE CIVIL RIGHTS ACT IS REPLETE WITH STATEMENTS BY SPONSORS OF THE LEGISLATION THAT TITLE VII PROHIBITS THE USE OF RACE OR NATIONAL ORIGIN AS A BASIS FOR HIRING, WE BELIEVE A REFERENCE TO A FEW OF SUCH CLARIFYING EXPLANATIONS WILL SUFFICE TO FURTHER SHOW THE SPECIFIC INTENT OF CONGRESS IN SUCH RESPECT WHEN ENACTING THAT TITLE. PAGE 6549, VOLUME 110, PART 5 OF THE CONGRESSIONAL RECORD, THE FOLLOWING EXPLANATION BY SENATOR HUMPHREY IS SET OUT:

*** AS A LONGSTANDING FRIEND OF THE AMERICAN WORKER, I WOULD NOT SUPPORT THIS FAIR AND REASONABLE EQUAL EMPLOYMENT OPPORTUNITY PROVISION IF IT WOULD HAVE ANY HARMFUL EFFECT ON UNIONS. THE TRUTH IS THAT THIS TITLE FORBIDS DISCRIMINATING AGAINST ANYONE ON ACCOUNT OF RACE. THIS IS THE SIMPLE AND COMPLETE TRUTH ABOUT TITLE VII.

THE ABLE SENATORS IN CHARGE OF TITLE VII (MR. CLARK AND MR. CASE) WILL COMMENT AT GREATER LENGTH ON THIS MATTER.

CONTRARY TO THE ALLEGATIONS OF SOME OPPONENTS OF THIS TITLE, THERE IS NOTHING IN IT THAT WILL GIVE ANY POWER TO THE COMMISSION OR TO ANY COURT TO REQUIRE HIRING, FIRING, OR PROMOTION OF EMPLOYEES IN ORDER TO MEET A RACIAL "QUOTA" OR TO ACHIEVE A CERTAIN RACIAL BALANCE.

THAT BUGABOO HAS BEEN BROUGHT UP A DOZEN TIMES; BUT IT IS NONEXISTENT. IN FACT, THE VERY OPPOSITE IS TRUE. TITLE VII PROHIBITS DISCRIMINATION. IN EFFECT, IT SAYS THAT RACE, RELIGION, AND NATIONAL ORIGIN ARE NOT TO BE USED AS THE BASIS FOR HIRING AND FIRING. TITLE VII IS DESIGNED TO ENCOURAGE HIRING ON THE BASIS OF ABILITY AND QUALIFICATIONS, NOT RACE OR RELIGION.

IN AN INTERPRETATIVE MEMORANDUM OF TITLE VII SUBMITTED JOINTLY BY SENATOR CLARK AND SENATOR CASE, FLOOR MANAGERS OF THAT LEGISLATION IN THE SENATE, IT IS STATED (PAGE 7213, VOLUME 110, PART 6, CONGRESSIONAL RECORD):

WITH THE EXCEPTION NOTED ABOVE, THEREFORE, SECTION 704 PROHIBITS DISCRIMINATION IN EMPLOYMENT BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. IT HAS BEEN SUGGESTED THAT THE CONCEPT OF DISCRIMINATION IS VAGUE. IN FACT IT IS CLEAR AND SIMPLE AND HAS NO HIDDEN MEANINGS. DISCRIMINATE IS TO MAKE A DISTINCTION, TO MAKE A DIFFERENCE IN TREATMENT OR FAVOR, AND THOSE DISTINCTIONS OR DIFFERENCES IN TREATMENT OR FAVOR WHICH ARE PROHIBITED BY SECTION 704 ARE THOSE WHICH ARE BASED ON ANY FIVE OF THE FORBIDDEN CRITERIA: RACE, COLOR, RELIGION, SEX, AND NATIONAL ORIGIN. ANY OTHER CRITERION OR QUALIFICATION FOR EMPLOYMENT IS NOT AFFECTED BY THIS TITLE.

THERE IS NO REQUIREMENT IN TITLE VII THAT AN EMPLOYER MAINTAIN A RACIAL BALANCE IN HIS WORK FORCE. ON THE CONTRARY, ANY DELIBERATE ATTEMPT TO MAINTAIN A RACIAL BALANCE, WHATEVER SUCH A BALANCE MAY BE, WOULD INVOLVE A VIOLATION OF TITLE VII BECAUSE MAINTAINING SUCH A BALANCE WOULD REQUIRE AN EMPLOYER TO HIRE OR TO REFUSE TO HIRE ON THE BASIS OF RACE. IT MUST BE EMPHASIZED THAT DISCRIMINATION IS PROHIBITED AS TO ANY INDIVIDUAL. WHILE THE PRESENCE OR ABSENCE OF OTHER MEMBERS OF THE SAME MINORITY GROUP IN THE WORK FORCE MAY BE A RELEVANT FACTOR IN DETERMINING WHETHER IN A GIVEN CASE A DECISION TO HIRE OR TO REFUSE TO HIRE WAS BASED ON RACE, COLOR, ETC., IT IS ONLY ONE FACTOR, AND THE QUESTION IN EACH CASE WOULD BE WHETHER THAT INDIVIDUAL WAS DISCRIMINATED AGAINST.

THERE IS NO REQUIREMENT IN TITLE VII THAT EMPLOYERS ABANDON BONA FIDE QUALIFICATION TESTS WHERE, BECAUSE OF DIFFERENCES IN BACKGROUND AND EDUCATION, MEMBERS OF SOME GROUPS ARE ABLE TO PERFORM BETTER ON THESE TESTS THAN MEMBERS OF OTHER GROUPS. AN EMPLOYER MAY SET HIS QUALIFICATIONS AS HIGH AS HE LIKES, HE MAY TEST TO DETERMINE WHICH APPLICANTS HAVE THESE QUALIFICATIONS, AND HE MAY HIRE, ASSIGN, AND PROMOTE ON THE BASIS OF TEST PERFORMANCE.

TITLE VII WOULD HAVE NO EFFECT ON ESTABLISHED SENIORITY RIGHTS. ITS EFFECT IS PROSPECTIVE AND NOT RETROSPECTIVE. THUS, FOR EXAMPLE, IF A BUSINESS HAS BEEN DISCRIMINATING IN THE PAST AND AS A RESULT HAS AN ALL WHITE WORKING FORCE, WHEN THE TITLE COMES INTO EFFECT THE EMPLOYER'S OBLIGATION WOULD BE SIMPLY TO FILL FUTURE VACANCIES ON A NONDISCRIMINATORY BASIS. HE WOULD NOT BE OBLIGED--OR INDEED, PERMITTED -TO FIRE WHITES IN ORDER TO HIRE NEGROES, OR TO PREFER NEGROES FOR FUTURE VACANCIES, OR, ONCE NEGROES ARE HIRED, TO GIVE THEM SPECIAL SENIORITY RIGHTS AT THE EXPENSE OF THE WHITE WORKERS HIRED EARLIER. (HOWEVER, WHERE WAITING LISTS FOR EMPLOYMENT OR TRAINING ARE, PRIOR TO THE EFFECTIVE DATE OF THE TITLE, MAINTAINED ON A DISCRIMINATORY BASIS, THE USE OF SUCH LISTS AFTER THE TITLE TAKES EFFECT MAY BE HELD AN UNLAWFUL SUBTERFUGE TO ACCOMPLISH DISCRIMINATION.)

AT PAGE 7218 OF VOLUME 110 THE FOLLOWING OBJECTIONS, WHICH HAD BEEN RAISED DURING DEBATE TO THE PROVISIONS OF TITLE VII, AND ANSWERS THERETO BY SENATOR CLARK ARE PRINTED:

OBJECTION: UNDER THE BILL, EMPLOYERS WILL NO LONGER BE ABLE TO HIRE OR PROMOTE ON THE BASIS OF MERIT AND PERFORMANCE.

ANSWER: NOTHING IN THE BILL WILL INTERFERE WITH MERIT, HIRING, OR MERIT PROMOTION. THE BILL SIMPLY ELIMINATES CONSIDERATION OF COLOR FROM THE DECISION TO HIRE OR PROMOTE.

OBJECTION: THE BILL WOULD REQUIRE EMPLOYERS TO ESTABLISH QUOTAS FOR NONWHITES IN PROPORTION TO THE PERCENTAGE OF NONWHITES IN THE LABOR MARKET AREA.

ANSWER: QUOTAS ARE THEMSELVES DISCRIMINATORY.

WHILE, AS INDICATED ABOVE, WE BELIEVE THAT THE PROVISIONS OF THE PLAN AFFECTING EMPLOYERS WHO HIRE THROUGH UNIONS CONFLICT WITH SECTION 703(J) OF TITLE VII, AND THAT THE ABOVE STATEMENT BY SENATOR HUMPHREY FURTHER INDICATES THAT THE ACT WAS NOT INTENDED TO AFFECT VALID COLLECTIVE BARGAINING AGREEMENTS, WE FURTHER BELIEVE THAT THE APPROPRIATE DIRECTION OF ANY ADMINISTRATIVE ACTION TO BE TAKEN WHERE IT IS THE POLICY OF A UNION TO REFER ONLY WHITE WORKERS TO EMPLOYERS ON FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION IS INDICATED IN THE FOLLOWING QUESTION AND ANSWER SET FORTH IN THE INTERPRETATIVE MEMORANDUM BY SENATOR CLARK AND SENATOR CASE (PAGE 7217, VOLUME 110):

QUESTION. IF AN EMPLOYER OBTAINS HIS EMPLOYEES FROM A UNION HIRING HALL THROUGH OPERATION OF HIS LABOR CONTRACT IS HE IN FACT THAT TRUE EMPLOYER FROM THE STANDPOINT OF DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, OR NATIONAL ORIGIN WHEN HE EXERCISES NO CHOICE IN THEIR SELECTION? IF THE HIRING HALL SENDS ONLY WHITE MALES IS THE EMPLOYER GUILTY OF DISCRIMINATION WITHIN THE MEANING OF THIS TITLE? IF HE IS NOT, THEN FURTHER SAFEGUARDS MUST BE PROVIDED TO PROTECT HIM FROM ENDLESS PROSECUTION UNDER THE AUTHORITY OF THIS TITLE.

ANSWER. AN EMPLOYER WHO OBTAINS HIS EMPLOYEES FROM A UNION HIRING HALL THROUGH OPERATION OF A LABOR CONTRACT IS STILL AN EMPLOYER. IF THE HIRING HALL DISCRIMINATES AGAINST NEGROES, AND SENDS HIM ONLY WHITES, HE IS NOT GUILTY OF DISCRIMINATION--BUT THE UNION HIRING HALL WOULD BE.

WE BELIEVE IT IS ESPECIALLY PERTINENT TO NOTE THAT THE "FINDINGS" STATED IN SECTION 4 OF THE ORDER OF JUNE 27 AS THE BASIS FOR ISSUANCE THEREOF, CONSIST ALMOST ENTIRELY OF A RECITAL OF PRACTICES OF UNIONS, RATHER THAN OF CONTRACTORS OR EMPLOYERS. THUS, IN ATTEMPTING TO PLACE UPON THE CONTRACTORS THE BURDEN OF OVERCOMING THE EFFECTS OF UNION PRACTICES, THE ORDER APPEARS TO EVINCE A POLICY IN CONFLICT WITH THE INTERPRETATION OF THE LEGISLATION AS STATED BY ITS SPONSORS.

IN THIS CONNECTION YOUR SOLICITOR'S MEMORANDUM CONTENDS THAT THE PRINCIPLE OF IMPOSING AFFIRMATIVE ACTION PROGRAMS ON CONTRACTORS FOR EMPLOYMENT OF ADMINISTRATIVELY DETERMINED NUMBERS OF MINORITY GROUP TRADESMEN, WHEN SUCH PROGRAMS ARE FOR THE PURPOSE OF CORRECTING THE EFFECTS OF DISCRIMINATION BY UNIONS PRIOR TO THE CIVIL RIGHTS ACT OF 1964, IS SUPPORTED BY THE DECISIONS IN QUARLES V. PHILIP MORRIS, 279 F. SUPP. 505; U.S. V LOCAL 189, U.P.P. AND CROWN ZELLERBACH CORP., 282 F. SUPP. 39; AND LOCAL 53 OF HEAT AND FROST INSULATORS V VOGLER, 407 F. 2D 1047. FIND, HOWEVER, THAT DECISIONS OF THE COURTS HAVE DIFFERED MATERIALLY IN SUCH RESPECT; SEE GRIGGS V DUKE POWER, 292 F. SUPP. 243; DOBBINS V LOCAL 212, 292 F. SUPP. 413; AND U.S. V PORTER, 296 F. SUPP. 40.

ADDITIONALLY, YOUR SOLICITOR'S MEMORANDUM CITES CASES INVOLVING AFFIRMATIVE DESEGREGATION OF SCHOOL FACULTIES (U.S. V JEFFERSON COUNTY, 372 F. 2D 836 (1966), AND U.S. V MONTGOMERY COUNTY, 289 F. SUPP. 647, AFFIRMED 37 LW 4461 (1969) IN PARTICULAR). HOWEVER, THERE IS A CLEAR DISTINCTION BETWEEN THE FACTUAL AND LEGAL SITUATIONS INVOLVED IN THOSE CASES AND THE MATTER AT HAND. THE CITED SCHOOL DECISIONS REQUIRED REALLOCATION OF PORTIONS OF EXISTING SCHOOL FACULTIES IN IMPLEMENTATION OF THE REQUIREMENT FOR DESEGREGATION OF DUAL PUBLIC SCHOOL SYSTEMS, WHICH HAD BEEN ESTABLISHED ON THE BASIS OF RACE, AS SUCH REQUIREMENT WAS SET OUT IN THE 1954 AND 1955 DECISIONS OF THE SUPREME COURT IN THE BROWN V BOARD OF EDUCATION CASES (347 U.S. 483 AND 349 U.S. 294). IN THE BROWN CASES DESEGREGATION OF FACULTIES WAS REGARDED AS ONE OF THE KEYS TO DESEGREGATION OF THE SCHOOLS, AND IN THE JEFFERSON COUNTY CASE THE COURT READ TITLE VI OF THE CIVIL RIGHTS ACT AS A CONGRESSIONAL MANDATE FOR A CHANGE IN PACE AND METHOD OF ENFORCING THE DESEGREGATION OF RACIALLY SEGREGATED SCHOOL SYSTEMS, AS REQUIRED BY THE BROWN DECISIONS.

THE REQUIREMENTS OF THE REVISED PHILADELPHIA PLAN DO NOT INVOLVE A COMPARABLE SITUATION. EVEN IF THE PRESENT COMPOSITION OF AN EMPLOYER'S WORK FORCE OR THE MEMBERSHIP OF A UNION IS THE RESULT OF PAST DISCRIMINATION, THERE IS NO REQUIREMENT IMPOSED BY THE CONSTITUTION, BY A MANDATE OF THE SUPREME COURT, OR BY THE CIVIL RIGHTS ACT FOR AN EMPLOYER OR A UNION TO AFFIRMATIVELY DESEGREGATE ITS PERSONNEL OR MEMBERSHIP. THE DISTINCTION BECOMES MORE APPARENT WHEN IT IS RECOGNIZED THAT THE ORDER OF JUNE 27 PERTAINS TO HIRING PRACTICES OF AN EMPLOYER. HIRING WAS NOT AT ISSUE IN THE SCHOOL CASES, AND THOSE CASES DO NOT PURPORT TO HOLD THAT A SCHOOL DISTRICT MUST, OR EVEN MAY, CORRECT A RACIAL IMBALANCE IN ITS FACULTY BY AFFIRMATIVELY REQUIRING THAT A STATED PROPORTION OF ITS TEACHERS SHALL BE HIRED ON THE BASIS OF RACE. TO THE CONTRARY, THE COURT RECOGNIZED IN ITS DECISION IN THE JEFFERSON COUNTY CASE (PAGE 884) THAT THE "MANDATE OF BROWN *** FORBIDS THE DISCRIMINATORY CONSIDERATION OF RACE IN FACULTY SELECTION," AND SUCH CONSIDERATION IS EXPRESSLY PROHIBITED BY SECTION VIII OF THE COURT'S DECREE IN APPENDIX A OF THAT CASE.

THE RECITAL IN SECTION 6B.2 OF THE ORDER (AND IN THE PRESCRIBED FORM OF NOTICE TO BE INCLUDED IN THE INVITATION) THAT THE CONTRACTOR'S COMMITMENT "IS NOT INTENDED AND SHALL NOT BE USED TO DISCRIMINATE AGAINST ANY QUALIFIED APPLICANT OR EMPLOYEE" IS IN OUR OPINION THE STATEMENT OF A PRACTICAL IMPOSSIBILITY. IF, FOR EXAMPLE, A CONTRACTOR REQUIRES 20 PLUMBERS AND IS COMMITTED TO A GOAL OF EMPLOYMENT OF AT LEAST FIVE FROM MINORITY GROUPS, EVERY NONMINORITY APPLICANT FOR EMPLOYMENT IN EXCESS OF 15 WOULD, SOLELY BY REASON OF HIS RACE OR NATIONAL ORIGIN, BE PREJUDICED IN HIS OPPORTUNITY FOR EMPLOYMENT, BECAUSE THE CONTRACTOR IS COMMITTED TO MAKE EVERY EFFORT TO EMPLOY FIVE APPLICANTS FROM MINORITY GROUPS.

IN YOUR SOLICITOR'S MEMORANDUM IT IS ARGUED THAT THE "STRAW MAN" SOMETIMES USED IN OPPOSITION TO THE PLAN IS THAT IT "WOULD REQUIRE A CONTRACTOR TO DISCRIMINATE AGAINST A BETTER QUALIFIED WHITE CRAFTSMAN IN FAVOR OF A LESS QUALIFIED BLACK." WE BELIEVE THIS OBSCURES THE POINT INVOLVED, SINCE IT INTRODUCES THE ELEMENT OF SKILL OR COMPETENCE, WHEREAS THE ESSENTIAL QUESTION IS WHETHER THE PLAN WOULD REQUIRE THE CONTRACTOR TO SELECT A BLACK CRAFTSMAN OVER AN EQUALLY QUALIFIED WHITE ONE. WE SEE NO ROOM FOR DOUBT THAT THE CONTRACTOR IN THE SITUATION POSED ABOVE WOULD BELIEVE HE WOULD BE EXPECTED TO EMPLOY THE BLACK APPLICANT, AT LEAST UNTIL HE HAD REACHED HIS GOAL OF FIVE NONMINORITY GROUP EMPLOYEES, AND THAT IF HE FAILED TO ACHIEVE THAT GOAL HIS EMPLOYMENT OF A WHITE CRAFTSMAN WHEN AN EQUALLY QUALIFIED BACK ONE WAS AVAILABLE COULD BE CONSIDERED A FAILURE TO USE "EVERY GOOD FAITH EFFORT." IN OUR VIEW SUCH PREFERENTIAL STATUS OR TREATMENT WOULD CONSTITUTE DISCRIMINATION AGAINST THE WHITE WORKER SOLELY ON THE BASIS OF COLOR, AND THEREFORE WOULD BE CONTRARY TO THE EXPRESS PROHIBITION BOTH OF THE CIVIL RIGHTS ACT AND OF THE EXECUTIVE ORDER.

IT IS ALSO CONTENDED IN YOUR SOLICITOR'S MEMORANDUM THAT SUBSTANTIAL JUDICIAL SUPPORT FOR ADMINISTRATIVE AFFIRMATIVE ACTION PROGRAMS REQUIRING COMMITMENTS FOR CONTRACTORS FOR EMPLOYMENT OF SPECIFIED NUMBERS OF MINORITY GROUP TRADESMEN IS CONTAINED IN THE DECISION OF THE OHIO SUPREME COURT IN WEINER V CUYAHOGA COMMUNITY COLLEGE DISTRICT, 19 OHIO ST. 2D 35 (JULY 2, 1969) 249 N.E. 2D 907. THAT DECISION UPHELD THE AWARD OF A FEDERALLY ASSISTED CONSTRUCTION CONTRACT TO THE SECOND LOW BIDDER, AS A PROPER ACTION IN IMPLEMENTATION OF THE POLICIES OF THE CIVIL RIGHTS ACT OF 1964, AFTER APPROVAL OF AWARD TO THE LOW BIDDER WAS WITHHELD BY THE FEDERAL AGENCY INVOLVED FOR FAILURE OF THE LOW BIDDER TO SUBMIT AN AFFIRMATIVE ACTION PROGRAM (INCLUDING MANNING TABLES FOR MINORITY GROUP TRADESMEN) WHICH WAS ACCEPTABLE TO THAT AGENCY PURSUANT TO AN OFCC PLAN ESTABLISHED FOR CLEVELAND, OHIO.

WHILE THE DECISION IN WEINER CASE (WHICH WAS A MAJORITY OPINION BY FIVE OF THE JUSTICES WITH DISSENTING OPINIONS BY TWO) HAS SOME BEARING ON THE ISSUES HERE INVOLVED, SINCE THE DECISION APPEARS TO BE BASED IN SUBSTANTIAL PART ON THE CONFLICTING OPINIONS OF FEDERAL COURTS CITED EARLIER WE DO NOT BELIEVE THE DECISION CAN BE CONSIDERED AS CONTROLLING PRECEDENT FOR THE VALIDITY OF THE REVISED PHILADELPHIA PLAN.

IN SUPPORT OF THE REQUIRED PROCEDURE, WHICH IS ADMITTED AT PAGE 33 OF THE SOLICITOR'S MEMORANDUM TO REQUIRE CONTRACTORS TO TAKE ACTIONS WHICH ARE BASED ON RACE, THE MEMORANDUM RELIES UPON THE ACCEPTANCE BY THE COURTS, IN SCHOOLS, HOUSING AND VOTING CASES, OF THE USE OF RACE AS A VALID CONSIDERATION IN FASHIONING RELIEF TO OVERCOME THE EFFECTS OF PAST DISCRIMINATION. ASIDE FROM OTHER DISTINCTIONS, WE BELIEVE THERE IS A MATERIAL DIFFERENCE BETWEEN THE SITUATION IN THOSE CASES, WHERE ENFORCEMENT OF THE RIGHTS OF THE MINORITY INDIVIDUALS TO VOTE OR TO HAVE UNSEGREGATED EDUCATIONAL OR HOUSING FACILITIES DOES NOT DEPRIVE ANY MEMBERS OF A MAJORITY GROUP OF HIS RIGHTS, AND THE SITUATION IN THE EMPLOYMENT FIELD, WHERE THE HIRING OF A MINORITY WORKER, AS ONE OF A GROUP WHOSE NUMBER IS LIMITED BY THE EMPLOYER'S NEEDS, IN PREFERENCE TO ONE OF THE MAJORITY GROUP PRECLUDES THE EMPLOYMENT OF THE LATTER. IN OTHER WORDS, IN THOSE CASES THERE IS PRESENT NO ELEMENT OF REVERSE DISCRIMINATION, BUT ONLY THE CORRECTION OF THE ILLEGAL DENIAL OF MINORITY RIGHTS, LEAVING THE MAJORITY IN THE FULL EXERCISE AND ENJOYMENT OF THEIR CORRESPONDING RIGHTS.

IN ADDITION IT MAY BE POINTED OUT THAT IN THOSE CASES THE JUDICIAL RELIEF ORDERED IS DIRECTED SQUARELY AT THE PARTIES RESPONSIBLE FOR THE DENIAL OF RIGHTS, AND WE THEREFORE DO NOT CONSIDER THEM AS SUPPORTING REQUIREMENTS TO BE COMPLIED WITH BY CONTRACTORS WHO, UNDER THE FINDINGS OF THE PLAN, ARE THEMSELVES MORE THE VICTIMS THAN THE INSTIGATORS OF THE PAST DISCRIMINATORY PRACTICES OF THE LABOR UNIONS. MOREOVER, IN THE COURT CASES THE REMEDIES ARE APPLIED AFTER JUDICIAL DETERMINATION THAT EFFECTIVE DISCRIMINATION IS IN FACT BEING PRACTICED OR FOSTERED BY THE DEFENDANTS, WHEREAS THE PLAN IS A BLANKET ADMINISTRATIVE MANDATE FOR REMEDIAL ACTION TO BE TAKEN BY ALL CONTRACTORS IN AN ATTEMPT TO CURE THE EVILS RESULTING FROM UNION ACTIONS, WITHOUT SPECIFIC REFERENCE TO ANY PAST OR EXISTING ACTIONS OR PRACTICES BY THE CONTRACTORS.

WHILE IT MAY BE TRUE, AS STATED IN THE PLAN, "THAT SPECIAL MEASURES ARE REQUIRED TO PROVIDE EQUAL EMPLOYMENT OPPORTUNITY IN THESE SEVEN TRADES," IT IS OUR OPINION THAT IMPOSITION OF A RESPONSIBILITY UPON GOVERNMENT CONTRACTORS TO INCUR ADDITIONAL EXPENSES IN AFFIRMATIVE ACTION PROGRAMS WHICH ARE DIRECTED TO OVERCOMING THE PRESENT EFFECTS OF PAST DISCRIMINATION BY LABOR UNIONS, WOULD REQUIRE THE EXPENDITURE OF APPROPRIATED FUNDS IN A MANNER NOT CONTEMPLATED BY THE CONGRESS. IF, AS STATED IN THE PLAN, DISCRIMINATION IN REFERRAL IS PROHIBITED BY THE NATIONAL LABOR RELATIONS ACT AND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, IT IS OUR OPINION THAT THE REMEDIES PROVIDED BY THE CONGRESS IN THOSE ACTS SHOULD BE FOLLOWED. SEE ALSO IN THIS CONNECTION SECTION 207 OF EXECUTIVE ORDER NO. 11246.

WHILE, AS INDICATED IN THE FOREGOING OPINIONS AND IN YOUR SOLICITOR'S MEMORANDUM, THE PRESIDENT IS SWORN TO "PRESERVE, PROTECT AND DEFEND THE CONSTITUTION OF THE UNITED STATES," WE QUESTION WHETHER THE EXECUTIVE DEPARTMENTS ARE REQUIRED, IN THE ABSENCE OF A DEFINITIVE AND CONTROLLING OPINION BY THE SUPREME COURT OF THE UNITED STATES, TO ASSESS THE RELATIVE MERITS OF CONFLICTING OPINIONS OF THE LOWER COURTS, AND EMBARK UPON A COURSE OF AFFIRMATIVE ACTION, BASED UPON THE RESULTS OF SUCH ASSESSMENT, WHICH APPEARS TO BE IN CONFLICT WITH THE EXPRESSED INTENT OF THE CONGRESS IN DULY ENACTED LEGISLATION ON THE SAME SUBJECT.

IN THIS CONNECTION, IT SHOULD BE NOTED THAT, WHILE THE PHRASE "AFFIRMATIVE ACTION" WAS INCLUDED IN THE EXECUTIVE ORDER (10925) WHICH WAS IN EFFECT AT THE TIME CONGRESS WAS DEBATING THE BILLS WHICH WERE SUBSEQUENTLY ENACTED AS THE CIVIL RIGHTS ACT OF 1964, NO SPECIFIC AFFIRMATIVE ACTION REQUIREMENTS OF THE KIND HERE INVOLVED HAD BEEN IMPOSED UPON CONTRACTORS UNDER AUTHORITY OF THAT EXECUTIVE ORDER AT THAT TIME, AND WE THEREFORE DO NOT THINK IT CAN BE SUCCESSFULLY CONTENDED THAT CONGRESS, IN RECOGNIZING THE EXISTENCE OF THE EXECUTIVE ORDER AND IN FAILING TO SPECIFICALLY LEGISLATE AGAINST IT, WAS APPROVING OR RATIFYING THE TYPE OR METHODS OF AFFIRMATIVE ACTION WHICH YOUR DEPARTMENT NOW PROPOSES TO IMPOSE UPON CONTRACTORS.

WE RECOGNIZE THAT BOTH YOUR DEPARTMENT AND THE DEPARTMENT OF JUSTICE HAVE FOUND THE PLAN TO BE LEGAL AND WE HAVE GIVEN MOST SERIOUS CONSIDERATION TO THEIR POSITIONS. HOWEVER, UNTIL THE AUTHORITY FOR ANY AGENCY TO IMPOSE OR REQUIRE CONDITIONS IN INVITATIONS FOR BIDS ON FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION WHICH OBLIGATE BIDDERS, CONTRACTORS, OR SUBCONTRACTORS, TO CONSIDER THE RACE OR NATIONAL ORIGIN OF THEIR EMPLOYEES OR PROSPECTIVE EMPLOYEES FOR SUCH CONSTRUCTION, IS CLEARLY AND FIRMLY ESTABLISHED BY THE WEIGHT OF JUDICIAL PRECEDENT, OR BY ADDITIONAL STATUTES, THAT WE MUST CONCLUDE THAT CONDITIONS OF THE TYPE PROPOSED BY THE REVISED PHILADELPHIA PLAN ARE IN CONFLICT WITH THE CIVIL RIGHTS ACT OF 1964, AND WE WILL NECESSARILY HAVE TO SO CONSTRUE AND APPLY THE ACT IN PASSING UPON THE LEGALITY OF MATTERS INVOLVING EXPENDITURES OF APPROPRIATED FUNDS FOR FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION PROJECTS.

IN THIS CONNECTION IT IS OBSERVED THAT BY SECTION 705(D) OF THE ACT, CONGRESS CHARGES THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WITH THE SPECIFIC RESPONSIBILITY OF MAKING REPORTS TO THE CONGRESS AND TO THE PRESIDENT ON THE CAUSE OF AND MEANS OF ELIMINATING DISCRIMINATION AND MAKING SUCH RECOMMENDATIONS FOR FURTHER LEGISLATION AS MAY APPEAR DESIRABLE. THAT PROVISION, WE BELIEVE, NOT ONLY PRESCRIBES THE PROCEDURE FOR CORRECTING ANY DEFICIENCIES IN THE CIVIL RIGHTS ACT, BUT ALSO SHOWS THE INTENT OF CONGRESS TO RESERVE FOR ITS OWN JUDGMENT THE ESTABLISHMENT OF ANY ADDITIONAL UNLAWFUL EMPLOYMENT PRACTICE CATEGORIES OR NONDISCRIMINATION REQUIREMENTS, OR THE IMPOSITION UPON EMPLOYERS OF ANY ADDITIONAL REQUIREMENTS FOR ASSURING EQUAL EMPLOYMENT OPPORTUNITIES.

WE REALIZE THAT OUR CONCLUSIONS AS SET OUT ABOVE MAY DISRUPT THE PROGRAMS AND OBJECTIVES OF YOUR DEPARTMENT, AND MAY CAUSE CONCERN AMONG MEMBERS OF MINORITY GROUPS WHO MAY BELIEVE THAT RACIAL BALANCE OR EQUAL REPRESENTATION ON FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION PROJECTS IS REQUIRED UNDER THE 1964 ACT, THE EXECUTIVE ORDER, OR THE CONSTITUTION. DESIRABLE AS THESE OBJECTIVES MAY BE, WE CANNOT AGREE TO THEIR ATTAINMENT BY THE IMPOSITION OF REQUIREMENTS ON CONTRACTORS, IN THEIR PERFORMANCE OF FEDERAL OR FEDERALLY ASSISTED CONTRACTS, WHICH THE CONGRESS HAS SPECIFICALLY INDICATED WOULD BE IMPROPER OR PROHIBITED IN CARRYING OUT THE OBJECTIVES AND PURPOSES OF THE 1964 ACT.