Senator DONNELL. Mr. Herzberg, you would not advocate just passing a law and then winking at it, just passing it by? Mr. HERZBERG. I do not wink at actions of the district attorney. Senator DONNELL. I am talking about this bill. You are a lawyer, a member of the bar; Judge Proskauer is a member of the judiciary. Certainly you gentlemen are not advocating we pass a bill here on the theory that by tacit consent in some communities it may be enforced 100 percent and in some other communities that the enforcement may be lax and not properly conducted in accordance with the terms of the bill; you are not advocating that, are you? Mr. HERZBERG. No such general approach as that. But what I am advocating is that these commissioners should be men of judgment, and, like men of judgment, will not attempt the impossible. Senator DONNELL. They will be required to perform the duties set forth in this bill. Mr. HERZBERG. Exactly. I am sure, as I said, the commissioners in New York have not reached every case of discrimination, but, nevertheless, they advance the objectives that they have been sworn to advance. Senator DONNELL. Well, of course, this bill does not require that the Commission start out as what I might term a detective agency to find out where the violations are, but it provides in here that "whenever a sworn written charge has been filed by or on behalf of any person claiming to be aggrieved, or a written charge has been filed by a member of the Commission, that any person subject to the act has engaged in any unlawful employment practice, the Commission shall investigate such charge and if it shall determine after such preliminary investiga tion that probable cause exists for crediting such written charge, it shall endeavor to eliminate any unlawful employment practice by informal methods of conference, conciliation, and persuasion." There is a lengthy procedure along that line, and finally, if all these methods fail, then there comes into effect the provision that I have recited here from page 11, in which it is obligatory upon the Commission to state findings of fact and issue and cause to be served an order requiring the person whom it deems violating the law to cease and desist from the unlawful employment practice. Mr. HERZBERG. The law as is written, as most measures are written, but it still contemplates discretion, judgment. I am so anxious to see the principles embodied in this measure adopted that I do not want impractical considerations to impede the passage. Senator ELLENDER. You would expect it to be enforced if it is passed? Mr. HERZBERG. I would expect it to be wisely enforced and gradually and moderately enforced. Senator DONNELL. You mean "wisely enforced" where the Commission thinks it ought to be enforced and not where the Commission does not think so? Mr. HERZBERG. I mean to say very simply that if conditions are such that greater friction will be caused at one time at one place than will be removed, the Commission will proceed very slowly. Let me illustrate to you. There is a charge against a plant where there is discrimination, where a certain minority is excluded. It lies with that Commission to say, you take on one employee, or two or three. Let me tell you: Commissioner Reiss in New York explained how they approached a situation in up-State New York. There was a telephone exchange that employed no Negroes. The evidence of discrimination was clear; it was not denied. The operators said, if you cause us to take on Negroes, our white employees will leave. Now, if this Commission had enforced that act blindly and without discretion, they would simply have sat back and said, you have to take in a certain number. Instead of that, it urged the telephone exchange to take on a couple of the most favorable personality. That exchange did that and it worked. Now, you may say to me: There was a clear violation of the New York act, that as the New York law was written—and it is written no differently in this respect than the one before you that the Commission should have done something else than that, proceeded more vigorously. We do not feel that is a violation of the law; so clearly do we not that in a public address the commissioner of our State could say so. I do not expect wonders from this law. I know progress must be slow. But just because I know how slow that progress will be, I am confident that the fears attained with respect to that law are probably exaggerated. Senator DONNELL. Have you had any personal connection with the commission in New York, officially? Mr. HERZBERG. Not officially. Senator DONNELL. You have not been employed by the commission as counsel ? Mr. HERZBERG. No; but I have attended hearings; I have spoken to the attorneys for the commission; I have spoken to various commissioners. Senator DONNELL. I did not mean to imply lack of knowledge of the workings of the commission but I wanted to develop whether you had employment with the commission or acted as counsel for them. I understand you have not. Mr. HERZBERG. Yes, sir. Senator DONNELL. Mr. Herzberg, you have filed with the committee a statement of the American Jewish Committee in support of this bill, and would you like that statement regularly incorporated in the record along with your testimony that you have given this morning? Mr. HERZBERG. If that is agreeable to you. Senator DONNELL. It will be so ordered; yes, sir. Is there anything further you have, Mr. Herzberg? Mr. HERZBERG. No, sir. Senator DONNELL. Thank you very much, Mr. Herzberg, for coming. (The brief referred to is as follows:) STATEMENT OF THE AMERICAN JEWISH COMMITTEE IN SUPPORT OF BILL TO PROHIBIT DISCRIMINATION IN EMPLOYMENT The American Jewish Committee is wholeheartedly in favor of the bill to prohibit discrimination in employment because of race, religion, color, national origin, or ancestry, S. 984, and we urge upon the Congress its enactment. The purpose of the bill is well expressed in the findings and declaration of policy (sec. 2 (a)) and need not be repeated here. We are in thorough agreement with the statement that the kind of discrimination aimed at by this bill is contrary to the American principles of liberty and equality of opportunity. We may add that it has been asserted by economists that discrimination in employment which deprives a substantial segment of the citizenry of unrestricted access to employment is injurious to the national economy. The reason for this is apparent. At a time when we are straining to increase production, discriminatory employment practices, based upon race, color, religion, and national origin, artificially diminish the available manpower to do the job. This curtailment of the labor market necessarily retards production. Moreover, it is well known that racial and religious frictions have an adverse effect upon industry. The practice of discrimination in employment, aimed at by the act, has a strong tendency to keep alive antagonism that would be ameliorated if the restrictive practices disappeared. At this time when it is more urgent than ever before to keep the national economic machine running at full speed, the enactment of this bill is particularly important. It has been urged by those who oppose legislation of this sort that the coercive features and the imposition of legal sanctions would tend to increase racial and religious frictions and foment disturbances that do not at present exist. Similar objections were urged against the passage of the New York law which created the State commission against discrimination, so the answer to these objections can be found by reference to the experience of that commission during its 2 years of existence. The present bill before the Congress is substantially the same as the New York statute. The proponents of the New York law stated that they placed most reliance upon the conciliation provisions, and predicted that if the bill were enacted there would seldom be an occasion to resort to court proceedings. Experience has justified this prediction. At a roundtable meeting on recent developments on the State law against discrimination, held under the auspices of the Commerce and Industry Association of New York, Inc., on May 15, 1947, the Honorable Julian J. Reiss, one of the commissioners of the State commission against discrimination, stated: "Since the enactment of the law on the 1st of July 1945, 654 complaints have been filed by aggrieved persons. I am glad to be able to say that in every one of these complaints where the commission has found probable cause for believing an unlawful employment practice existed, justice has been brought to the complainant and the unlawful employment practice corrected by the first stage required by the law, which is one of conference with the respondent. In no instance has the commission been required to proceed to the second step which would consist of a hearing conducted by three commissioners and in whose deliberations the commissioner who conducted the original investigation and made the attempt at conciliation would take no part. This bespeaks the cooperation which we have had on the part of employers, labor organizations and employment agencies." This indicates that the fears expressed by the opponents of this law were unjustified. If at any time court proceedings were necessary, it would be reasonable to expect them in the early period of the commission, and that as the efforts of the commission progressed, its necessity would diminish. The fact that neither court proceedings nor hearings before the commission were necessary testifies eloquently to the effectiveness of the conciliation provisions of the law. During the 2 years that SAD has been in existence many employers have been educated and have learned the social and economic wisdom of the principles embodied in this legislation. There is reason, therefore, to believe the situation will continue to be ameliorated. Many illustrations of the beneficial operation of the act can be cited. We will quote one from the same statement of Commissioner Reiss: "In one case which came before me the employer was morst fearful of the dire consequences of such a move. It involved a large telephone company up-State where some 600 telephone operators were employed. Two Negro girls had applied for work with the company, had been turned down, and filed complaints. "The investigation of all applications made since the 1st of July 1945 indicated that all Negro applicants for this type of work had been refused employment. When the employer finally admitted discriminatory practice, he told how dif ficult it was to recruit the necessary number of telephone operators and stated that if he should ever employ Negro girls, so many would leave, and so few white girls would consider applying for this type of work, that his situation would become desperate and that service would collapse in the community. "Everything possible was related to him to relieve his apprehension in this regard by showing how fears in similar situations had not materialized. After all there was a law which had to be compiled with. With fear and apprehension, the company took the step. Negro operators were carefully chosen to initiate the move and it worked so successfuly that several weeks later, when a shower was being held for one of the old telephone operators who was to be married, the Negro girls were invited along with the rest." The experience of the New York SCAD in settling cases by negotiation is confirmed in the experience of the President's Temporary Fair Employment Practice Committee. In the report of the Committee to President Truman dated June 28, 1946, the Committee states: "FEPO during its 5 years satisfactorily settled nearly 5,000 cases by peaceful negotiation, including 40 strikes caused by racial differences. During the last year of the war, FEPC held 15 public hearings and docketed a total of 3,485 cases, settling 1,191 of them. These settlements were not publicized and generally escaped attention. The contrary impression, that FEPC normally met with unyielding opposition, was created by the comparatively few difficult cases which received emphasis through public hearings and public expressions of defiance by some recalcitrant employers and unions. "In fact, the bulk of FEPC's useful work was accomplished by the quiet persuasion of its regional representatives assigned to 15 regional and subregional offices located in major industrial centers." The report then adds: "The effective limits of persuasion appeared in the outstanding cases which FEPC never was able to settle. Relatively few in number, these employers and unions which successfully defied the national policy of nondiscrimination proved that persuasion must be backed by final authority if conformity with the policy is to be realized." The experience of the President's Commission is a demonstration of the workability of the present bill. Although the legal sanctions contained in the bill will seldom need to be invoked, their presence contributes that "final authority" which the report states is necessary. We believe that there are sufficient safeguards in this bill to relieve the fears of those who believe it might be abused. As we have already indicated, there can be no hearings before the Commission until all efforts at conciliation have failed. There will be no publicity attending the proceedings, and this we consider to be of great importance. And the impartiality of the law is evidenced by the fact that any employer who feels aggrieved has the same right as an employee to make a complaint. Antidiscrimination legislation of this sort is an experiment, but in the restricted laboratories in which it has so far been tested it has been found workable and to possess an educational value that ultimately must bring about diminution of a practice that is contrary to American creed and American tradition. STATEMENT OF FRANK GOLDMAN, NATIONAL PRESIDENT, B'NAI B'RITH, LOWELL, MASS. Senator DONNELL. Mr. Goldman, will you please state your name, your address, something of your background, educationally and along the line of practical experience in matters that would bear upon the subject matter before us? Mr. GOLDMAN. My name is Frank Goldman. I am a resident of Lowell, Mass., and I am a member of the bar; I was admitted to practice law way back in 1912. Senator DONNELL. That is not so far back, Mr. Goldman. Senator ELLENDER. I am 1913. Senator DONNELL. I started in 1907, so do not talk about it being so far back. You are now located in Lowell? Mr. GOLDMAN. Yes, sir; Lowell, Mass., and practicing law there. I am president of B'nai B'rith and have been associated with B'nai B'rith for a number of years. I do not want to go back to that date, if you do not mind. B'nai B'rith is an organization which may be described as the largest Jewish service organization in the world. Senator DONNELL. What is its membership in the United States? Mr. GOLDMAN. In the United States and Canada, there being a small proportion in Canada, there are approximately 300,000. Senator DONNELL. And how is that distributed over the Nation? Mr. GOLDMAN. We have approximately-not approximately but exactly, 782 men's lodges, 462 women's chapters, and approximately 1,000 youths' groups throughout the United States. Senator DONNELL. Do you have any members south of the Mason and Dixon line? Mr. GOLDMAN. Yes, sir; I should say about 20 to 25 percent. Senator DONNELL. Mr. Goldman, you are the national president of the order? Mr. GOLDMAN. That is right. Senator DONNELL. Does the order function through a house of delegates or convention, or what, I should ask, is its method of operation of formulating policies. Mr. GOLDMAN. We have conventions every 3 years. We held one about a month ago here in Washington; and in between conventions, the highest authority is vested in the executive committee. Senator DONNELL. Did the convention that was held here a month or so ago express itself by resolution on the subject matter of discrimi nation in employment? Mr. GOLDMAN. I do not think it did, but in our 1944 convention the resolution was adopted, from which I quote: This supreme lodge of B'nai B'rith, in convention assembled, expresses its appreciation of the purpose and achievement of the committee appointed by the Presi dent of the United States, and known as the Fair Employment Practice Committee, in eliminating un-American practices in the field of employment. Senator DONNELL. Is that the latest formal expression of the order? Mr. GOLDMAN. That is the latest formal expression and I take it that it is the present policy of B'nai B'rith. Senator DONNELL. Has your executive committee in the meantime passed any formal resolutions since 1944, May of 1944, on this general subject? Mr. GOLDMAN. No; it has not. Senator DONNELL. So the resolution you have read is the latest formal resolution? Mr. GOLDMAN. That is right. Senator DONNELL. You are authorized to appear here by virtue of your office? Mr. GOLDMAN. By virtue of my office. I have had many conversations with members of my executive committee and I know I express the viewpoint of our organization. Senator DONNELL. Very well, Mr. Goldman; proceed. Senator ELLENDER. The resolution that you have just mentioned, as I understand it, is based on the Executive order issued by the President in 1941? Mr. GOLDMAN. That is so, Senator. Senator ELLENDER. Of course you realize the difference between that order and the bill that is now being considered. One is on a voluntary basis purely and simply, and this is on the basis of enforcement. |