ago-but where the objection arose from employers, many of them— not all, but many-they insisted they had no objection to it so far as they were concerned. They would never discriminate so far as they were concerned. They feared this on account of their employees, that their employees wouldn't want to go along on the idea, and that has been one of the very interesting experiences of the permanent commission in the educational program which has been promulgated in connection with this, showing how there has been employee resistance to this kind of act which has been overcome by experience and by that type of approach. So you don't have that to fear.

Senator DONNELL. Senator Ives, was the contention made that employers have a right to select whom they might desire to employ and if for any reason they want to select John Smith and leave off Tom Jones they have that right?

Senator IVES. Yes.

Senator DONNELL. What view did the commission take with respect. to that contention?

Senator IVES. We didn't argue about the right of an employer to select employees, except we maintained steadfastly that he should not refuse to select an employee solely because of his race or his religion or his color or his national origin or ancestry. That contradicted the fundamental concept of our whole American establishment.

Senator ELLENDER. Well, now, who is to determine that, if not the employer?

Senator IVES. Who is to determine what, Senator?

Senator ELLENDER. I mean that question as to whether or not a refusal to employ was made on the basis of religion.

Senator IVES. Well, that is one of the things that the permanent commission has been checking on, as cases of alleged violation have come to its attention, and the commission itself in the hearings which it has held on matters of that kind have determined whether or not there has been discrimination for that reason.

Senator ELLENDER. Well, how is that to be determined if the employer should deny that that is the case?

Senator IVES. The employer can deny it easily enough, but I mean you always have evidence surrounding a thing of that character which indicates whether or not there is any truth to the denial.

Senator ELLENDER. Did you have any actual case of discrimination as between employer and employee and then did your commission follow that case through to determine the extent to which there was discrimination?

Senator IVES. We did in one or two cases of that kind. We, as I said earlier, didn't have to any extent at all, for a very simple reason. We had this other record, which was a very complete record of all cases of that character before us.

Senator ELLENDER. That is, a record similar to what you had here in Washington?

Senator IVES. Yes; under the State statute of a temporary war emergency nature.

Senator ELLENDER. But the commission itself, as I understand it, depended largely on what had been previously done by this temporary commission in New York-

Senator IVES. Temporary committee.

Senator ELLENDER. Yes: and other commissions such as that. Senator IVES. Well, we could depend on it, don't you see, becausethe record was so complete there. I mean had it not been for the experience of that temporary committee-let's get this difference here; one is a committee, the other is a commission-the temporary commission would have been obliged probably to have spent at least an addi-tional year before it could have reached any conclusion, first, as towhether a bill could be drafted to meet the situation and then as to whether it should become effective.

Senator ELLENDER. Mr. Chairman, I have no further questions toask Senator Ives, but I repeat, I would appreciate it very much if just as soon as Mr. Tuttle gets well, and I hope he gets well soon, he will come up here so that we can interrogate him. I recall the fact, as Senator Ives pointed out, that he is very closely connected with this: problem, and he may be regarded, from what Senator Ives has said, as a father to the present bill modeled after the New York statute.

Senator IVES. One of us is a father and the other is a mother. Either way you want to call it is all right with me. [Laughter.] What I want to point out is you are going to have two others at least from New York who will be appearing and who can give you more specificinformation than I can, Senator Ellender, on the questions you are raising. You are going to have the present chairman of the commission and the past chairman of the commission. There has just been a switch this spring, and the former chairman, Mr. Henry J. Turner, who was formerly head of the educational system in New York City and who fathered this operation during its first year and three-quarters of its activities, can give you a pretty good idea as to the way this thing works and can answer the questions, I know, very satisfactorily that you have raised with me.

Senator ELLENDER. I really think that what the committee ought to do before passing on this bill is to have presented for experimentation a few of these glaring cases already investigated in New York and call the employers here to find out the extent to which there is discrimination.

Senator DONNELL. Senator Smith, have you any questions to ask? Senator SMITH. Senator Ives, as one of the sponsors of this bill with you, as I mentioned heretofore to you, I have been troubled with what I think is the crux of legislation of this kind, namely, that it isn't possible to create happy human relationships by any laws that we can pass. Those are things that are definitely matters of the spirit, you might say, and yet in this bill and in the New York legislation and our legislation in New Jersey, we felt it necessary to have some sort of legal sanctions.

I notice in your testimony that you say there is no case that you know of so far as the New York experience is concerned that has ever had to be taken to court.

Senator IVES. Not that I am aware of.

Senator SMITH. Therefore, the stress has been on the educational features of this bill.

Senator IVES. The educational features plus the compulsory conciliation, conference, and persuasion.

Senator SMITH. When you say compulsory mediation, do you think you need legal sanctions to compel the people to get together and try to mediate?

Senator IVES. Oh, yes. You have to have that, otherwise many wouldn't. In most instances they would, but in some they wouldn't. Senator SMITH. That brings me to the next question, whether, in your judgment of the stage we have arrived at in dealing with this very delicate subject, it would be possible to have legislation of this kind without putting in the alleged bugbear of legal sanctions?

Senator IVES. No. I will tell you why you can't do it. It is a very simple answer. Those who don't want to observe it wouldn't pay any attention to it.

Senator SMITH. Well that, to my mind, is the big question involved in this whole business, because I think if we read through the purposes of this bill, which aim and state very clearly what we are dealing with here, as you said before, an equality of economic opportunity, we believe that is a fundamental basis of our institutions, but the big issue is how you can bring it about and whether you can legislate a situation that will bring about happy human relations. Even if you do apply the law and put the pressure of legal sanctions on people, that doesn't make happy relations necessarily.

Senator IVES. I want to tell you, Senator Smith, that that was the thing that had to be hurdled in the New York Legislature, because we didn't have any proof of that nature when that bill was before the New York Legislature. We have it today by the experience of New York and I think your State and Massachusetts, too.

Senator SMITH. I am very happy to say that we expect to have witnesses from my State of New Jersey who will tell us the experience in New Jersey, but I think in New York no case has been necessary to take to the court.

Senator IVES. They have handled it through mediation and conciliation.

Senator ELLENDER. That was on a voluntary basis, was it not, Senator?

Senator SMITH. No. We have legal sanctions there the same as they have in the New York law, to take people to court if they defy the cease-and-desist order, but we have never had to use it. It has been working out by mediation and conciliation.

Now, Senator Ives, as I read our bill, going over it again, sections 7 and 8 are the two sections that involve this very delicate question. Section 7 is under the general heading of "Prevention of unlawful employment practices," and gives certain procedures there, and section 8 provides for judicial review and where the courts come in.

I have had in mind the possibility of considering an amendment in this bill, and I just want to throw it out for the record and then get your judgment on the offering of an amendment which would permit any State, by legislative action taken within 90 days or so many months-so much time after the passage of this act, giving time for the States to act by legislative action before the impact of this bill becomes law, give them all full notice that by legislative action taken within a period of time-they may pass the necessary legislation to provide that sections 7 and 8, punitive and legislative sanctions section, of this act will not be applicable within that jurisdiction. What troubles me is there may be a question of where the Federal Government should say to any given jurisdiction in the United States, any given sovereign State, "Irrespective of your own feelings with

regard to imposing legal sanctions, nevertheless, we, the Federal Government, are going to impose those things and we are going to impose them by Federal law which will probably have to be enforced by Federal sanctions."

There is a very fundamental issue here, and I am just wondering whether in this stage of an evolution of this kind of legislation it wouldn't be wise and whether it wouldn't be the right approach to say, "Here is our Federal policy. Here is our plan for mediation and conciliation. Here is our plan that we expect to see applied Nationwide." But we are not going to say to a State, "If you are not prepared to enforce that by legal sanctions, we are going to put the arm of the Federal Government in your State to compel you to enforce it." That troubles me a lot with regard to this legislation.

Senator IVES. I know you spoke to me about it. Senator Smith, and I haven't yet reached the conclusion that you are pointing to. I don't think you have completely.

Senator SMITH. Not completely. I am exploring the possibilities. Senator IVES. I am inclined to think that we had better go a little slow in arriving at that conclusion. It certainly ought to be explored a great deal before we come to it.

Senator SMITH. I think we probably could get support for the legislation as an over-all principle as a national policy as an approach to trying to develop friendly human relations in employment situations by mediation and conciliation practically all through this country provided the attempt isn't made by Federal law to compel some State to put the legal screws on people who may feel reluctant about accepting that kind of legislation in their jurisdiction. That is the only reason I raise the question.

Senator IVES. In other words, I gather from what you say that you would not have the statute applicable in those States that didn't want it. Is that what you mean?

Senator SMITH. No; I would exempt sections 7 and 8 from applicability in those States which by affirmative legislative acts, duly considered by their own legislature, say "We feel in our jurisdiction these legal sanctions should not be applied in our State until we have tried the voluntary sanctions of mediation," but make the policy applicable all over the United States. That is the theory.

Senator IVES. Of course, the fact would be that the statute wouldn't be applicable in those particular States because unless you do have the sanctions that are provided in it, the chances of any attention being paid to it are rather remote.

Senator SMITH. Well, I am not sure that I am satisfied we have explored that possibility far enough.

Senator IVES. I said that I think that that is something where an opinion or a conclusion shouldn't be reached hurriedly. I think that is open to exploration.

Senator SMITH. I will be very specific. I am very sympathetic with the problems that are presented by the Senator from Louisiana, the States in the South, where they have a diflicult problem there and where it seems to me we might be inviting real unnecessary difficulty in applying a principle that I am sure even there it would be agreed to, that we shouldn't have discrimination in economic opportunity, but where an attempt to put the hand of the Federal law to enforce the

thing might bring about a condition that would be most undesirable and not necessary until we have at least tried the other program, that of permitting the States to work out their own salvation so far as legal sanctions are concerned.

Senator IVES. Of course, the proposition that you raise has one obvious advantage. It means that even those States might by negative action decline to go along on it. There probably would be a great many more States that would adopt this than would otherwise adopt it by independent State action, such as has been done by New Jersey, New York, Massachusetts, and some of the others. In other words, the procedure you indicate would expedite the general acceptance of this whole plan. I can see that, but I haven't yet reached the conclusion myself that that is the way to go at it. I can see the case you are making all right.

Senator SMITH. I want to raise the matter for the record, because I propose to ask other witnesses appearing who are from the New Jersey Commission and get their judgment as to whether we wouldn't be justified in saying to those States who are hesitant about coming along. "If you recognize and support us on the principle, we will leave it to you to determine by your own legislative action whether you are prepared to put Federal legal sanctions on its enforcement in your State."

Senator IVES. I think very definitely that angle to the thing ought to be explored very thoroughly. There are possibilities there, I grant. Senator ELLENDER. Well, Senator Smith, do I understand if the proposal made by you were put into effect, that it would take away from the law the compulsory feature?

Senator SMITH. Sections 7 and 8

Senator ELLENDER. I understand.

Senator SMITH. And paragraphs (a) and (h) of 7, which have nothing to do with sanctions but have to do with the setting up of the commissions. I think those should be left in.

Senator ELLENDER. Then it would leave the Federal statute so that the State could take a negative attitude on the statute books insofar as that State is concerned only to the extent that the problems could be solved on a voluntary basis.

Senator SMITH. Yes.

Senator IVES. That appeals to you, Senator, doesn't it?

Senator ELLENDER. More so than compulsion. I would say much more so than compulsion, but the matter is just a question, in my humble opinion, of education.

Senator IVES. It is fundamentally a question of education. That is what I have tried to emphasize and what I have said.

Senator SMITH. My amendment would leave the educational and conciliation features in the picture.

Senator ELLENDER. I understand that, and to my way of thinking, conditions are improving all over the country. Take the South, for instance. I was a legislator back in 1924. I was a member of the convention that drafted our present constitution. At that time, we had but a handful of colored high schools in our State. Today, we have quite a few. There are colored colleges all over, and if the South is given a chance, it is going to continue to progress along this line, but it won't do it by compulsion, I am saying that right now.