PRIVACY AND THE RIGHTS OF FEDERAL EMPLOYEES

WEDNESDAY, OCTOBER 5, 1966

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr., presiding. Present: Senator Ervin (presiding).

Also present: George B. Autry, chief counsel and staff director, Marcia MacNaughton, professional staff member; and Lewis Evans, counsel.

Senator ERVIN. The subcommittee will come to order.

Counsel will call the first witness.

Mr. AUTRY. Mr. Chairman, the first witness today is Nathan Wolkomir, national president of the National Federation of Federal Employees.

Senator ERVIN. Mr. Wolkomir, on behalf of the subcommittee, I wish to welcome you and your associates to the committee and express our deep appreciation for your willingness to appear and give us the benefit of your observations and the position of your organization on the pending bill.

STATEMENT OF NATHAN T. WOLKOMIR, NATIONAL PRESIDENT, NATIONAL FEDERATION OF FEDERAL EMPLOYEES; ACCOMPANIED BY IRVING GELLER, CHIEF, LEGAL STAFF; AND HAROLD E. FINNEGAN, LEGISLATIVE ASSISTANT

Mr. WOLKOMIR. Thank you very much, Mr. Chairman. I would like to introduce the chief of our legal staff, Irving Geller, on my right, and on my left, my legislative assistant, Dr. Harold Finnegan. Senator ERVIN. We are glad to have you.

Mr. WOLKOMIR. Mr. Chairman, I feel genuinely privileged to be here to give testimony on S. 3779. This is one of the most significant bills upon which I or any other union official has ever had the privilege of testifying. This is not to downgrade the many splendid pieces of legislation the Congress has enacted for the benefit of the public service. Rather I said what I did because I think the protection proposed in S. 3779 must be afforded the employees in the executive branch.

The subcommittee already has on record many instances of efforts by managers to substitute their judgment for that of the employees own conscience. The subcommittee also has evidence of the inability on matters on which each employee should be accountable only to his or unwillingness of the executive branch to curb this rapacious in

vasion of the rights of the employees as individuals. This "divine right of management" to do what it wants with the employees when it wants and how it wants, cannot be allowed to continue. Once the right of the Federal employee to be a first-class citizen is eroded away, I fear it will not be long until the rights of all citizens will be under attack. S. 3779 is designed to identify the areas most in need of protection and provides a vehicle for arresting the tendency to ignore the rights of Federal employees. It is for that reason I am happy to appear here today. With this preface I would like to move on to an analysis of each subsection in section 1.

Subsection (a) is designed to prevent a repetition of the recent illadvised attempt by the executive branch to have employees complete a questionnaire identifying themselves as to race. While the instructions to the agency heads said the employee was to be free to complete or not to complete the questionnaire as he preferred, some of the agencies failed to pass this on to the employees. And in other instances, while the instructions to the employees said the employees were free to exercise freedom of choice, the heavy handed and persistent followup efforts made clear that management was more interested in obtaining 100 percent participation than it was in keeping its word to employees.

Now let us take a look at the

tionnaire was to further the equal opportunity program, the quesprogram. If the purpose of the questionnaire was addressed to the wrong people. The supervisor is the one who makes recommendations for promotions so his opinion as to which race an employee belonged is the significant opinion. Thus the questionnaire should have been addressed to the supervisors and not to the employees. A second fact to be noted is that the U.S. Civil Service Commission either did not try, or was unsuccessful in monitoring the program to verify that employees were allowed freedom of choice with respect to completing the questionnaire. Whatever the alibis or excuses advanced, the fact remains the Commission did not prevent agency heads from substituting their judgment for that of the employees on a matter that was solely up to the employee and his own conscience. In view of the established inability of the executive branch to exercise sound judgment on this matter, it is recommended that Congress exercise that judgment for the executive branch.

Senator ERVIN. If I may interrupt you-I regret that, unfortunately, whenever we mention racial matters we tend to give too much consideration to them and ignore that, in this bill, there are a number of other equally important provisions, or some more important, I think.

But I will have to say after hearing the Chairman of the Civil Service Commission testify, for whom I entertain a high respect, I am at a total loss to understand from his testimony why they have the questionnaire at all.

In the first place, the only information they are getting is from those already in service as Federal employees.

I ask him the question whether, assuming they found some of those already in service of the Federal Government were the beneficiaries of discrimination, there was any proposal on the part of Civil Service Commission or the Federal Government to discharge them from the Federal service. He said, "No."

So, this question has no relation to those in the Federal service beyond the mere question of promotion.

As you say, promotions are made and should be made on the basis of individual merit and the opinion and recommendations of the immediate supervisors. There is no necessity for using the questionnaire for that purpose.

Then I asked Mr. Macy: "Since you do not contemplate using this questionnaire to do anything to sever from Federal service the beneficiaries of any proven discrimination, then this can only relate to something outside the promotion question-to those who hereafter enter the Federal service, and it only can be used in that case to establish quotas for new employees on the basis of race, which would be a negation of the merit system entirely."

And he said, "Oh, no, we don't propose to establish any racial quotas for new employees. We just want to emphasize that everybody, all segments of our country, should participate in the examinations, to qualify themselves for the Federal service." I agree that this principle is a laudable thing.

But it would seem to me that the way to achieve that aim would be to emphasize the invitation to the public, instead of making all these inquiries of people already in the employment.

So, frankly, I don't find very much substance to the reasons given by the Chairman of the Civil Service Commission for this questionnaire none that satisfy me.

I think the questionnaire is unnecessary, even for his purposes, or for purposes of government.

Mr. WOLKOMIR. We must concur wholeheartedly with you, Mr. Chairman.

In fact, it is an established fact that the Civil Service Commission, since 1960, has been gathering these statistics and through their supervisors. This is nothing new. Why reemphasize a glaring error by making the individuals complete such a questionnaire giving such information. We must agree with you wholeheartedly.

Senator ERVIN. To me, Federal employment should be open to all persons solely upon the basis of merit. Any system that takes into consideration anything about a man's race or his religion or his national origin or his political beliefs, or anything else, is wholly incompatible with the merit system.

I beg your pardon for interrupting you.

Mr. WOLKOMIR. This is directly in consonance, Mr. Chairman, with the appendix that we have added to our testimony, which we have no intention of reading, because of the time element. But if I may take the liberty of merely quoting from our appendix, to reemphasize your statement, I would like to state this. And I am quoting from the appendix A:

In order to provide a responsive public service, the merit principle, and thus any questionnaires or tests used, should augment the following precepts:

(1) Do they help isolate with validity and reliability the best qualified people to perform the work of the Government?

(2) Do they provide stability to a career work force, considering the complexity of the assignment and regardless of changes in political administration?

(3) Do they augment the equality of opportunity facet, open to all citizens of our country, regardless of religious beliefs, race, creed, color, or politics?

We believe that the questionnaires being used certainly do not follow these precepts.

I believe this is in consonance with your statement.

May I continue?

Senator ERVIN. Yes.

Mr. WOLKOMIR. Thank you.

As an aside, Mr. Chairman, I wonder how many agencies complied with EO 10988 and consulted with the employee unions prior to embarking on the ill-conceived program. I am not aware of any consultation meaningful or otherwise with our union on this matter. And we have been in business 50 years.

Getting down to the wording of the subsections, although I believe existing legislation prohibits securing information relative to race from applicants for positions in the executive branch, we concur with subsection (a) as written.

We have grave reservations, however, about subsections (b), (c). (d), and (e) being the solution to the problem of "thought control" because we consider them excessively restrictive. As written, we believe an anomaly exists. We are aware of the intimations involved but fear that basic rights and liberties of Government employees could also become involved. We suggest subsections (b), (c), (d), and (e) be stricken and in their place a new subsection (b) to read as follows: "All employees of the United States serving in the department or agency shall be free of direction, intimation or suggestion that he listen to, attend, participate in, or report on information or action unless same is reasonably related to the performance of the principal tasks to which he is or may be assigned in the department or agency. Any violation or attempt to violate these prohibitions renders the offender subject to the penalties in section 2."

Also as another aside at this point, Mr. Chairman, perhaps the committee should also consider the unlimited authority to transfer or reassign an employee anywhere at management's subjective will. They also have the authority to arbitrarily change duties of the position. A gross example of this is in a case that we presently have, a hearing on unfair labor charges against the Comptroller of the Currency, James Saxon, where he is doing exactly this. And we have conclusively proven this at the hearing, and frankly we are getting nowhere because we have no recourse and we have nowhere to go.

I believe this wording as we propose will provide the protection included in subsections (b), (c), (d), and (e) but avoids some of the hurtful restrictions that could be read into the existing language.

Senator ERVIN. I appreciate your suggestion about the amendment. I would like to emphasize this point, which I have emphasized on several occasions.

What I am concerned about is securing for Federal employees protection against what I consider some bureaucratic tyranny. I drew this bill with the view that it would be a blueprint for discussion, rather than a final formulation of the bill itself. I am conscious of the fact that those who have had an intimate contact with these problems at which the bill is directed can make very valuable suggestions in phraseology which will accomplish the ultimate purpose without having bad side effects. And I appreciate very much your suggestion about this amendment, and I welcome any other suggestions or amend ments that may hereafter occur to you.

Mr. WOLKOMIR. Thank you very much, sir. We sort of secondguessed this mood on your part, and figured you would accept this in a constructive mood in which we are attempting to present it.

Now, we can testify as to the need for subsection (f). In addition to the subcommittee's evidence of agency heads attempting to tell employees where not to spend their money, we too have such evidence. NFFE quite agrees an agency head has no business substituting his judgment for that of an employee of where or how the latter spends his money and endorses subsection (f) as written.

Subsection (g) contains a number of facets which in my opinion should be treated separately. For instance, I think the religious beliefs and practices and an employee's attitude toward sexual matters are strictly matters of his own conscience and no attempt should ordinarily be made to obtain from the employee or prospective employee his thoughts on these subjects. Similarly, I think the use of polygraph tests have no place in the preemployment or work relationship and their use in these areas should be prohibited. We are categorically opposed to the use of polygraph tests.

It is my understanding that many of the psychological tests currently in use have not been validated through scientific followup of the results of their use. So at best, we have a range of probability that something will or will not happen. With so many unknowns and uncertainties where mistakes can mean so much to an employee or prospective employee, I strongly recommend the use of these instruments in these areas be restricted. In lieu of these instruments, the agency can probably ascertain more reliable information on prospective employees through skillful interrogation and investigation. With respect to the person already employed, the only concern of the agency is the employee's performance and conduct. Actions, adverse or otherwise, should be taken on what has happened, not what might happen. On the other hand, I think an agency should have the right to interrogate either a prospective employee or an employee when there may be a question of the candidate or employee being suitable for Federal employment. In view of the foregoing, NFFE recommends subsection (g) be rewritten as follows:

To require or request, or attempt to require or request, any employee of the Tnited States serving in the department or agency, or any person seeking employment in the Executive Branch of the United States Government to submit to any psychological examination or test relative either to the pre-employment or the employment relationship unless a showing has been made through qualified and competent sources that such a test is warranted.

We refer for the committee's consideration my testimony to the Committee on Government Operations on the use of testing given December 1, 1965. Although limited in nature, we consider it an indepth analysis. We offer same as appendix A to this testimony. NFFE endorses subsection (h) as written.

Subsection (i) is designed to prevent a repetition of the appalling spectacle of managers harassing subordinates to buy bonds and contribute to charity drives, so that the managers can get credit for a high rate of participation. Even with the record so thoroughly documented, I find it difficult to believe that managers could have the effrontery to force their judgment on their subordinates as they did. The record of the lengths to which management has gone in its “divine right" of management is terrifying and must be corrected. We endorse subsection (i) as written.