After the Studebaker plant shutdown, the National Council on Age in South Bend, Ind., found, among 4,500 workers aged 50 and over left unemployed, that two-thirds had dependents under the age of 19. Thus employment was essential for economic reasons to these workers. The concerted efforts of the South Bend Community Council, the U.S. Department of Labor, and the National Council on the Aging alleviated the problems of unemployment through intensive job counseling, development, and publicity. As reported by Norman Sprague, director of the employment and retirement program of the National Council on the Aging, the average age of the long-term employees of the Studebaker company was 55. Of the approximately 4,500 persons over 50 that were left unemployed by the shutdown, 4,000 were serviced by the combined programs and, as a result, 66 percent were soon reemployed or in the MDTA training program and only 8 percent were still looking for jobs.

My bill, H.R. 1094, amends the Civil Rights Act of 1964 to establish prohibitive measures in employment discrimination due to age. I proposed it to focus attention and to use it as a vehicle toward developing a solution to this problem. I certainly do not oppose any provisions in the pending legislation that encourage research and study activities of this situation. Our thinking about age as a factor in job performance can only be clarified by empirical studies of a variety of types of occupations. The correction of this problem will provide a valuable addition to our human resources and manpower development programs. I am not offering a panacea to these problems but an opening of roads to new hope for the "older" persons, and so I steadfastly support urgent passage of this legislation.

Mr. DENT. Thank you, Congressman Price, for appearing before this subcommittee.

At this time, I would like to have the testimony of a very valued Member of the Congress of the United States, one who has long been interested in the problems we have in this legislation, the Honorable James A. Burke, Representative of Congress from Massachusetts. We are happy to have you with us, Jim.

(Whereupon, at 12:55 p.m., the committee adjourned, subject to the call of the Chair.)

STATEMENT OF THE AIR TRANSPORT ASSOCIATION

This statement relating to legislative proposals to prohibit arbitrary discrimination in employment on account of age, to wit, H.R. 3651, H.R. 4221, and H.R. 3768, is submitted by the Air Transport Association of America on behalf of its membership which is composed of virtually all the U.S. certificated scheduled carriers by air.

The air transport industry herewith submits specific recommendations which, in its judgment, would improve the legislative proposals under consideration. The amendments recommended have a direct bearing on the operations of the air transport industry, but would not, in any way, alter the purpose of the bills being considered. Adoption of the recommendations would not mitigate elimination of unjustifiable arbitrary age discriminaiton which deprives older workers of opportunities for employment when they have the capacity to be productive participants in the national economy.

The basic recommendations of the air transport industry are as follows:

1. Any Federal age discrimination legislation enacted should preempt the jurisdiction of the States and be applicable to the air transport industry on a uniform nationwide basis, unencumbered by multiple and divergent State or local restrictions-at least as far as operating employees are concerned.

2. The age group to which any Federal age discrimination legislation would apply should be established by Congress. The Secretary of Labor should not be given discretion to adjust the age limits.

3. Enforcement of any Federal age discrimination legislation enacted should be under the same procedures now provided under the Fair Labor Standards Act.

The reasons for the above recommendations are as follows:

The practical necessity for Federal preemption and uniformity of regulation

If a Federal age discrimination statute is enacted, it should preempt the jurisdiction of the States. Any age legislation applicable to the air transport industry should provide for uniform national regulation as to operating employees such as flight crews of air carriers engaged in interstate and/or foreign air transportation. Preempiton is necessary because of the very nature of the air transportation business whose operating employees, in the performance of their duties, regularly and frequently cross State boundaries. It has long been recognized, ever since the celebrated case of Gibbons v. Ogden at the outset of our national history, that uniformity of treatment is peculiarly appropriate to the transportation industry. Conversely, subjection to a multiplicity of State or local restrictions relating to a subject susceptible to uniform rule is an inappropriate and undesirable burden upon interstate commerce not compatible with the public interest.

Whatever may be the merits of concurrent Federal and State age discrimination jurisdiction over employer and employees generally. multiple overlapping and divergent laws concerning conditions of employment create nothing but jurisdictional chaos and operating confusion when applied to interstate air transportation. It is therefore respect fully submitted that section 14 of H.R. 3651, and identical. measures under consideration, which otherwise specifically preserves multiple State jurisdiction over all employees in interstate air transportation, be amended by adding at the end thereof a proviso as follows:

Provided. That operating employees who in the normal performance of their duties are required regularly to cross state or national boundaries in the employ of a carrier subject to the Railway Labor Act, the Civil Aeronautics Board, the Interstate Commerce Commission, or other agency of the Government of the United States, with respect to the transportation of persons or products in interstate and/or foreign commerce shall not be subject to any state or local legal prohibition or restriction with respect to discriminatory employment practices on account of age if the said carrier is subject to this Act.

The scheduled airline industry is a totally interstate or international industry. The various air carriers maintain bases in different States, provide service to cities in many States, and fly over a variety of States. The flight personnel of the carriers are domiciled throughout the

country and are regularly transferred to bases in different States. Subject to the Federal Aviation Administration and the Civil Aeronautics Board, the air carriers must apply their rules and regulations on a uniform basis. Further, by virtue of the Railway Labor Act and rulings of the National Mediation Board, airlines must recognize and deal with duly designated representatives of their employees in appropriate classes or crafts on a systemwide basis in negotiating and maintaining agreements embodying rules, rates of pay, and working conditions covering their employees.

Almost without exception, certificated air carriers have systemwide labor agreements covering their flight crew employees. Pursuant to those agreements, flight crew members are initially assigned to bases in different States and to flights serving various States. Thereafter, employees are relocated at other bases and reassigned to other flights serving different States in accordance with flight crew preferences in order of seniority or the needs of the particular company. Thus, not only are these operational employees in constant movement across the State and national borders in the course of fulfilling their flight duties, but their places of residence, assignment, performance of duties, and even of eventual retirement, cannot be forecast at any given time and are by their nature subject to unforeseen change. In these circumstances, national uniformity of regulation is a practical necessity. Differing regulation by one or more States of the employees of an air carrier moving constantly as above described into, out of, and above a wide variety of States, is extremely impractical and undesirable.

Out of the 50 States and the District of Columbia, 27 presently have no laws prohibiting age discrimination in employment. Of the remaining 24 some apply to any age, but most apply to specific age brackets between 40 and 65. These groups constitute the category known as "the older worker" to whose employment problems the bills under consideration are addressed. Federal preemption in the area of age discrimination legislation is clearly justified when considered in light of the need that would otherwise occur for multiple proceedings occasioned by State laws, the inevitability of inconsistent rulings by State enforcement agencies, and the uncertainty of the effect of one State's rulings in other States, including those without age statutes, on employees such as airline flight crews.

The operations of one major airline provides a typical illustration of the problems encountered. The carrier has bases in the States of Illinois, Tennessee, Texas, and Virginia. It serves points within the District of Columbia and the States of Arizona, Arkansas, Illinois, Kentucky, Missouri, Oklahoma, Tennessee, Texas, Virginia, and West Virginia. It has pending applications to serve points in Alabama, Florida, Georgia, Mississippi, Nevada, and Utah. None of these States has

an age statute.

The same airline also has bases in California, Massachusetts, and New York. It is certificated to serve points within those States and also within the States of Connecticut, Delaware, Indiana, Maryland, Michigan, New Jersey, Ohio, Pennsylvania, and Rhode Island. It has pending applications to serve points in Alaska, Colorado, Hawaii, Louisiana, Nebraska, Oregon, and Washington. Each of those States has an age statute differing from the other in various ways.

Some of the statutes specifically provide that an employer may lawfully refuse to hire or may discharge an employee on the basis of age where age is a bona fide occupational qualification. The agencies administering the statutes in the different States may or may not determine, as to a particular position, that age is a bona fide occupational qualification. Thus, an airline might find an age regulation applicable to a given flight crew member valid in some states where it operates and invalid in other States for the same employee during occasional duty in the latter States, or while temporarily located there by virtue of bidding or company assignment.

Similarly, some States specifically provide exemptions for certain types of retirement plans which qualify under their age statutes. An airline could find a reassignment or retirement plan valid in one State where it operates but invalid in another as to similarly circumstanced employees. The employees' rights would thus be subject to change depending upon changes in base or route assignments.

Further problems arise from the different ages in State statutes and the uncertainty as to the territorial scope of their applicability. Does a State law apply only to persons hired, residing, working, or terminated within a State? Can they or do they constitutionally apply to nonresident employees flying in and out of the State? How much of a person's working time must be within a State to make its law and rulings applicable to that employee? Does the law of one State follow the traveling employee into another State, and if so, for what purposes and for how long? Is a carrier subject to liability for treating an employee one way in one State and like employees differently in a second or third or fourth State.

Suppose an airline has a rule for reasons of safety or economics that a flight engineer on jet aircraft will not be retrained to qualify as a pilot after age 42. Should that rule be valid in all the States that have no age statutes or whose statutes only apply to higher ages and possibly invalid in other States, depending on the bona fide ocupational qualification determination of the State involved?

Suppose an airline has a rule that stewardesses shall uniformly be reassigned to ground services at a specified age with no loss of pay. Should that rule be valid in all the States that have no age statutes or whose statutes only apply to higher ages? Should it possibly be invalid in various other States, depending on the bona fide occupational qualification or retirement plan determination of the State involved? Suppose an airline adopts a rule for reasons of safety or economics that a pilot will not, after a certain age, be trained for service on new equipment such as the coming supersonic transport. Should that rule be valid in all States that have no age statutes, or whose statutes apply only to higher ages? Should it be invalid in various other States depending on the bona fide occupational qualification determination of the State involved? Must an airline having such a rule secure a bona fide occupational determination in every State in which it operates? Would a Federal ruling be binding nationwide? Can a New York decision bind the airline in California or employees flying back and forth between them?

Would the law of the base State, or the residence State, or the assignment State, apply to the flight engineer or pilot? Or the law of the State where he might choose to put in his request? Or all? Or none?

Would the law of the State where a stewardess was originally hired apply? Or the law of her first base? Her present base? Or the law of the State to which she most recently requested transfer? If required to hire someone in Massachusetts, for example, would assignment or transfer to Pennsylvania permit termination of the employee because of the difference in laws or commission determination between those States?

These issues, it is submitted, strongly emphasize the problems encountered by an airline in seeking to apply uniformly its policies where different State rules applicable to an employee who works in two or perhaps as many as half a dozen States every day of the week. They serve to underscore the impracticality, undesirability, and added burden placed on interstate commerce of divergent State laws.

There is little likelihood of the need for multiple proceedings or of such conflicts and overlaps in the average business enterprise where employees are essentially static and work primarily in one place. However, in the air transport industry, flight crews have no single location of employment and mobility is an inescapable hallmark distinguishing interstate air transportation from most other industries.

The air transport industry hires flight crews from every State, not to work in the State where they are hired, but to work in many States. They may be interviewed in one State, hired in another, trained in a third, initially assigned in a fourth, and reassigned again and again. This may be either on the basis of seniority bidding rights or of the carrier's business needs. In either case, the mobility is pursuant to collective-bargaining agreements which under the law are systemwide both in negotiation and application.

Existing Federal legislation already recognizes the need for uniform systemwide application of regulations to the air transport industry which is inherently highly mobile and multistate. The Federal Aviation Administration and the Civil Aeronautics Board regulations follow this pattern. The Railway Labor Act clearly envisages uniform systemwide employment conditions. Age discrimination regulation should be no different. At least to the limited extent covered by the recommended proviso set forth above, uniform national treatment is the only practical procedure to be followed in applying an age discrimination statute to the air transport industry.

Congress Should Establish the Age Group in Any Federal Age Discrimination Legislation-The Secretary of Labor Should Not Be Given Discretion To Adjust the Age Limits

Section 13 of H.R. 3651, and its counterpart, entitled "Limitation," provides that the coverage of the proposed act shall be limited to "individuals" who are at least 45 years of age, but less than 65 years of age, thus covering the older worker who has been the subject of each report of the Secretary of Labor to the Congress on the question of age discrimination in employment.

If Federal age legislation is to be enacted to protect the employment opportunities of such older workers the proposed age brackets specified in the bills are clearly appropriate.

However, the bills also state:

Provided. That in order to effectuate the purposes of this Act, the Secretary may by rule or regulation issued under Section 10 of this Act, provide for appropriate adjustments, either upward or downward, in the maximum and minimum age limits provided in this Section.