Now, I cannot conceive of the President appointing commissioners that would not have the good sense and the tact to allow for those regional differences and adjustment of the administration to the practical conditions presented to the commission, and I am sure if the President, sir, were to appoint commissioners who would not effect a wise, sensible administration gaged to regional differences, you would not confirm those men.

Now, there still remains the question whether, as applied to the individual plant, the enforcement of this act would not cause more friction than it would remove.

Now, clearly, if you took the manufacturing plant, for instance, where a certain minority had been excluded and suddenly forced that plant to take on a large number of the formerly excluded minority, you are going to have friction.

That is not the way the act has worked in New York, where it has been tried.

After all, the Commission acts on individual complaints. I think the experience in New York is a good experience, because there, as you know, minorities which elsewhere are small are large in that State, and I think you will agree with me they are vocal in that State, and yet, nothwithstanding that, there has been no friction.

The inclusion of formerly prohibited minorities is taking place largely in large establishments such as insurance companies, department stores; and such reports as I have seen-and I have looked for reports pro and con-have been that there has been a diminution, not an increase, in prejudice as a result of the enactment in New York of the Ives-Quinn bill.

Senator ELLENDER. When did you make that survey?

Mr. HERZBERG. I made that preparatory to coming here. I got the reports of the State Commission Against Discrimination. I spoke to members of the commission.

Senator ELLENDER. Do you not attribute that also to the fact that unemployment is at a low ebb at this period of our time?

As I pointed out on numerous occasions, I saw an article several days ago to the effect that unemployment was at a very low rate and that the employment figure has now reached a peak of over 58,000,000, something unprecedented in our history. Do you not think that has something to do with it?

Mr. HERZBERG. Not under the question to which I am addressing myself, sir.

Senator ELLENDER. How can you differentiate?

Mr. HERZBERG. I am saying here that at the time law was enacted in New York that the inclusion of minorities formerly prohibited by some establishments would cause friction. That friction has not developed.

It is because the law has been administered wisely, very gradually applied, large numbers have not been forced upon any employer. Instead of that, it has proceeded as you would in your practical affairs, trying small numbers, selected personalities, because, after all, this is a slow, educational process.

Senator ELLENDER. Well, along that line of reasoning, what do you think would occur in a State where the Negro population is equally divided with whites, if an attempt were made to impose that law and enforce it as it is overnight; what would you say to that?

Mr. HERZBERG. Before you came in, Senator, I was saying that while I believe there should be a national law, any commission would have to allow for just such conditions as you speak of.

There cannot be uniform application of this law any more than there was uniform application, for instance, of the wage-and-hour law. There were regional differences allowed for in that law. Here they will be allowed for in the administration.

Senator ELLENDER. Are you for the law as written?

Mr. HERZBERG. I am for the law as written.

Senator ELLENDER. Would not the administrators of it be violating the law if they failed to carry out what the law said?

Mr. HERZBERG. I think not. I think it would be understood that the President and you intended to give a broad measure of wise discretion to these Commissioners.

Senator ELLENDER. But the bill does not do that. It says it has got to be done.

Mr. HERZBERG. But you know in public office while you live up to the spirit of your obligation, you have a broad discretion in the timing of those activities. Let me tell you

Senator DONNELL. Let me state at this point that I thoroughly concur with the Senator from Louisiana that this law lays down a rule; and, personally, if this Congress passes this law, I expect it to be enforced. I am certainly not passing this law with a mental reservation that here and there it can be disregarded if the Commissioners deem it inadvisable to enforce it. I think this bill lays down a definite rule of action which must be followed.

Now, maybe that is wise or maybe that is unwise, but it does not say that the Commission has discretion. It says:

It shall be unlawful practice for an employer to refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions, or privileges of employment, because of such individual's race, religion, color, national origin, or ancestry.

And the Commission, as I understand it, is expected to enforce that law, and if the Commission issues an order on it and the order is not obeyed, the Commission is vested with authority to go before the court and petition a circuit court of appeals, or in some instances a district court, for enforcement of the order; and thereafter the court_itself may issue a decree requiring the enforcement of the order and may enforce that decree, as testimony has been had before this committee, by gentlemen who I think are competent to pass upon the construction of the bill, by contempt proceedings, which of course means possibly by fine or imprisonment.

I think that is a fair statement of the bill. I am not undertaking to say whether the bill ought or ought not to be passed. That is what we are considering here.

I could not agree with the view that you can take this bill as now written and then say that the Commission has power here or there to dispense with its enforcement.

Mr. HERZBERG. I am not suggesting that. But I am suggesting that any wise administrator gages his course of conduct by local conditions and has very much in mind the element of time; it is done by administrators appointed by the President and confirmed by you in all departments of the Government.

Let me tell you the experience in New York.

I know we have a reputation of being a vocal State.
Senator ELLENDER. New York?

Mr. HERZBERG. Yes, sir.

Senator ELLENDER. Conditions in New York, as was pointed out here sometime ago, are such as to make it more or less the guinea pig of the Nation. Many of its problems are traceable to the race situation, yet its lawmakers formulate a pattern for New York and try to make it apply all over the country.

Mr. HERZBERG. Let me tell you what the enforcement picture has been in New York, because I think it is more concerned about the friction it would cause than the record would support.

I suppose we have a population in the State of New York of about 15,000,000. In the 2 years in which the Ives-Quinn law has been on the statute books in New York, out of that vast population, only 654 complaints have been filed with the commission; and in each one of those, sir, there

Senator ELLENDER. I hope it never occurs that mass unemployment comes into being, but if it does you will see what is going to happen. The reason for no trouble at the present is because there is employment for everybody. But just wait until the time when from 10 to 15 percent of the employees over the country find themselves without employment, and then I want you to come and tell me about the administration of that law.

Mr. HERZBERG. There has been a considerable falling off since VJday, particularly among some minorities, and yet the complaints filed with the New York commission have not been accelerated.

I do not deny that you will get more complaints as employment declines. But what I do say is that if 2 years ago at the time of the enactment of the law in the guinea-pig State, I had predicted to you, sir, that there would be only 600 complaints filed in the State of New York, I am quite sure that we would all have felt that was a ridiculously low figure.

Senator ELLENDER, I would rather think that all this hullaballoo about discrimination has been more or less a state of mind in many instances and is overexaggerated; and I believe that that, together with full employment, accounts for this small number of 600 complaints that you speak of.

Mr. HERZBERG. Senator, I do not think that New York is free from discrimination by any means.

I think the small number is due to two things or perhaps three. One is the state of employment to which you refer; second, to the reJuctance of individuals to file complaints; and, third, to the knowledge that the commission is proceeding slowly.

They know that they cannot bludgeon out prejudice. They are going to do their job well, and that is what they were charged with doing. They have to proceed slowly and through methods of persuasion and negotiation. I think it is a most remarkable factor that out of these 654 complaints, in every case where there was found to be any merit, the matter was disposed of by negotiation, and there has not been a single case where there has been as much as a hearing before the commission in New York, much less a resort to the courts.

Senator ELLENDER. How many cases of these 600 were unfounded, do you know?

Mr. HERZBERG. I am sorry; I do not have those figures. My recollection is about 25 percent.

Senator ELLENDER. I wonder if you would be good enough to tell us as among what group, whether it be Jewish or colored or Italians, or what not, in New York, is there evidence of most discrimination? Mr. HERZBERG. I think unquestionably there is the greatest discrimination against Negroes.

Senator ELLENDER. Well, would you be able to classify them percentagewise?

Mr. HERZBERG. I could not do that, sir.

Senator ELLENDER. Well, would you be able to state the percentage as to Negroes?

Mr. HERZBERG. The only figures I have in mind are the figures you probably know, from the report made by the President's Committee on the FEPC. That report calls attention to the decline, percentagewise, in employment after VJ-day by groups, and that decline, of course, has been most marked against Negroes. There is a substantial decline among Jews and Italians.

To follow up your question, sir, I think the next two most discriminated against groups in New York are Jews and Italians. I could not tell you where the discrimination is greater. I think there is a difference in different parts of the State, and that is what I was urging before you came in, Senator, that without deviating from the long range, from the principles, in the administration of a measure of this sort, there must be adjustment for regional differences, even differences within the State itself.

Senator ELLENDER. Senator Donnell and I pointed out to you there is no such provision in the law, and if it is ever signed by the President, it will have to be administered as written, unless somebody is going to be violating his oath of office.

Senator DONNELL. I might add, in connection with that, Senator, on page 11 of the bill, line 6 and following:

If upon the record, including all the testimony taken, the Commission shall find that any person named in the written charge has engaged in any unlawful employment practice, the Commission shall state its findings of fact and shall issue and cause to be served on such person an order requiring him to cease and desist from such unlawful employment practice and to take such affirmative action, including reinstatement or hiring of employees, with or without back pay, as will effectuate the policies of the act.

It makes it mandatory.

Mr. HERZBERG. Take all your administrative offices. Take enforcement, if you will, of crime, your district attorney, or your United States attorney, is constantly called upon to exercise judgment; and in New York I know where we supported this bill we wanted the. Commission to proceed as they did.

There have been more than 654 cases of discrimination in New York in 2 years, many thousands more than that, but there is a general satisfaction that with this difficult problem, which can only be worked out slowly, that the Commission has established the tempo that in the long, long run, in the distant future to which we are all looking, conditions will be improved.

Let us not destroy a desirable bill so far as principles are concerned by envisaging an administration that would be impractical and destroy the objectives of the measure.

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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 investigation 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