B-169219, MAY 21, 1970

B-169219, MAY 21, 1970

CONTRACTS--LABOR STIPULATIONS--NONDISCRIMINATION--"AFFIRMATIVE ACTION PROGRAMS" REGARDING ALLEGED DISCRIMINATORY AND EXCLUSIONARY EMPLOYMENT PRACTICES UNDER CONSTRUCTION AND RENOVATION CONTRACTS ADMINISTERED BY GENERAL SERVICES ADMINISTRATION IN WASHINGTON AREA, ALL CONTRACTS MENTIONED INCLUDE MODIFIED VERSIONS OF EQUAL OPPORTUNITY CLAUSE AND CONTRACTORS HAVE SUBMITTED AFFIRMATIVE ACTION PLANS OUTLINING METHODS PROPOSED TO ACCOMPLISH EQUAL EMPLOYMENT COMMITMENTS. HOWEVER, DUE TO SEVERE SHORTAGE OF MINORITY WORKERS IN CERTAIN SKILLS, BOTH AS JOURNEYMEN AND APPRENTICES, RATIO OF MINORITIES ARE SMALL ON SAME PROJECTS REQUIRING MECHANICAL AND ELECTRICAL SKILLS BUT GENERAL SERVICES ADMINISTRATION IS ACTIVELY MONITORING EMPLOYMENT PROGRAMS AND HAS NOT FOUND CONTRACTORS PRESENTLY ENGAGED IN DISCRIMINATORY OR EXCLUSIONARY PRACTICES.

TO MESSRS. JAMISON, SHELTON AND WRIGHT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1970, REGARDING ALLEGED DISCRIMINATORY AND EXCLUSIONARY EMPLOYMENT PRACTICES UNDER CONSTRUCTION AND RENOVATION CONTRACTS IN THE METROPOLITAN WASHINGTON, D. C; AREA WHICH WERE AWARDED AND ARE BEING ADMINISTERED BY THE GENERAL SERVICES ADMINISTRATION.

IN YOUR LETTER OF MARCH 3, YOU CITE VARIOUS GSA CONTRACTS AND INDICATE THAT AS OF THE WEEK OF FEBRUARY 2, 1970, ONLY RELATIVELY SMALL PERCENTAGES OF WORKERS FROM MINORITY GROUPS, PARTICULARLY IN THE AREAS OF SUPERVISORS AND SKILLED TRADES, WERE EMPLOYED ON SUCH PROJECTS. YOU CONCLUDED THAT THOSE STATISTICS ESTABLISH DISCRIMINATORY AND EXCLUSIONARY EMPLOYMENT POLICIES AGAINST BLACKS AND OTHER MINORITIES IN THE WASHINGTON AREA CONTRARY TO THE NATIONAL POLICY (AS DELINEATED BY THE CONSTITUTION, AS AMENDED, THE CIVIL RIGHTS ACTS OF 1964 AND 1968, AND EXECUTIVE ORDER 11246) OF EQUAL EMPLOYMENT OPPORTUNITIES FOR ALL AMERICAN CITIZENS. YOU STATE THAT THE FEDERAL GOVERNMENT, THROUGH THE GENERAL SERVICES ADMINISTRATION, HAS FAILED TO ENFORCE ITS DUTY TO INSURE THAT EQUAL EMPLOYMENT OPPORTUNITIES EXIST UNDER ITS CONTRACTS, AND BY REMAINING SILENT TO THE DISCRIMINATORY AND EXCLUSIONARY PRACTICES OF THESE CONTRACTORS IT IS CONTRIBUTING TO THE DENIAL OF THE EMPLOYMENT RIGHTS OF BLACKS AND OTHER MINORITY CITIZENS IN THE METROPOLITAN WASHINGTON AREA.

YOU ASK THAT, PURSUANT TO THE AUTHORITY VESTED BY CONGRESS IN THIS OFFICE TO DETERMINE THE LEGALITY OF EXPENDITURES OF APPROPRIATED FUNDS, WE DETERMINE WHETHER FEDERAL FUNDS ARE BEING IMPROPERLY PAID TO THESE CONTRACTORS WHO, YOU CONTEND, UTILIZE DISCRIMINATORY AND EXCLUSIONARY EMPLOYMENT PRACTICES IN PERFORMING THESE LOCAL GSA CONTRACTS.

IN RESPONSE TO OUR REQUEST FOR A REPORT ON THE CONTENTIONS SET OUT IN YOUR LETTER OF MARCH 3, THE GENERAL SERVICES ADMINISTRATION HAS ADVISED THIS OFFICE THAT ALL OF THE CONTRACTS MENTIONED IN YOUR LETTER CONTAINED MODIFIED VERSIONS OF THE EQUAL OPPORTUNITY CLAUSE SET OUT IN THE GENERAL PROVISIONS OF THE GOVERNMENT'S PRESCRIBED CONSTRUCTION CONTRACT, STANDARD FORM 23-A, JUNE 1964 EDITION. UNDER SUCH CLAUSES THE CONTRACTORS AGREED, AMONG OTHER THINGS, THAT THEY WOULD NOT DISCRIMINATE AGAINST ANY EMPLOYEE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE, COLOR, NATIONAL ORIGIN, ETC; AND THAT THEY WOULD TAKE AFFIRMATIVE ACTION TO ENSURE THAT APPLICANTS WERE EMPLOYED WITHOUT REGARD TO SUCH FACTORS, WHICH ACTION ALSO PERTAINS TO THE AREAS OF RECRUITMENT, SELECTION FOR TRAINING, AND APPRENTICESHIP. SUCH CONTRACT PROVISIONS, REQUIRING THAT RECRUITMENT, SELECTION FOR TRAINING, AND EMPLOYMENT OF WORKERS BE WITHOUT REGARD TO RACE, ARE MADE MANDATORY IN FEDERAL CONTRACTS BY EXECUTIVE ORDER 11246, SEPTEMBER 24, 1965, AND THOSE REQUIREMENTS WERE PROMULGATED BY THE PRESIDENT TO IMPLEMENT THE NATIONAL POLICY MENTIONED IN YOUR LETTER AGAINST USING RACE AS A BASIS TO DISCRIMINATE OR AFFORD PREFERENTIAL TREATMENT IN THE AREAS OF EMPLOYMENT AND TRAINING AS SET OUT IN THE CIVIL RIGHTS ACT OF 1964.

IN ADDITION TO AGREEING THAT THEY WOULD TAKE AFFIRMATIVE ACTION TO ENSURE THAT EMPLOYMENT, RECRUITMENT, TRAINING, AND APPRENTICESHIP WERE WITHOUT REGARD TO RACE, GSA HAS ADVISED THAT THE CONTRACTORS IDENTIFIED IN YOUR LETTER SUBMITTED AFFIRMATIVE ACTION PLANS OUTLINING THE METHODS THEY PROPOSED TO TAKE TO ACCOMPLISH THEIR EQUAL EMPLOYMENT COMMITMENTS. APPEARS THAT THE GENERAL SERVICES ADMINISTRATION MADE THESE PLANS AVAILABLE TO YOU BY LETTER OF MARCH 10, 1970.

AS YOU MAY KNOW, PRIMARY RESPONSIBILITY FOR ADMINISTERING GOVERNMENT CONTRACTS RESTS WITH THE CONTRACTING AGENCY, RATHER THAN WITH THIS OFFICE. THE GENERAL SERVICES ADMINISTRATION HAS REPORTED ITS ACTIONS IN THE AREA OF YOUR CONCERN AS FOLLOWS:

"AS PART OF THE MONITORING PROCESS FOR DETERMINING THAT A CONTRACTOR IS FULFILLING THE COMMITMENTS OF HIS AFFIRMATIVE ACTION PROGRAM, THE GSA CONTRACTING OFFICER MAINTAINS A DAILY COUNT OF THE WORK FORCE COMPOSITION BY TRADE AND CRAFT EMPLOYED, SINCE THE GSA OBJECTIVE IS NOT MERELY TO HAVE MINORITY MEMBERS ON THE JOB BUT ALSO REPRESENTED IN EVERY TRADE ON THE JOB. OUR REPORTS IN THIS REGARD DIFFER SOMEWHAT FROM THE EMPLOYMENT TOTALS AND PERCENTAGES REPORTED BY THE TASK FORCE FOR THE SAME PERIOD. THESE DIFFERENCES, HOWEVER, ARE NOT CONSIDERED TO BE OF PARTICULAR SIGNIFICANCE, FOR IT IS A FACT THAT THE GREAT MAJORITY OF THE WORK FORCES WERE NON-MINORITIES AND THE GREATER PERCENTAGES OF MINORITY WORKERS WERE IN THE UNSKILLED CATEGORY.

"WHERE THE NATURE OF THE PROJECT OR THE STATE OF CONSTRUCTION COMPLETION REQUIRES MECHANICAL AND ELECTRICAL SKILLS, THE RATIO OF MINORITIES ARE SMALL, AND WHERE THE TASK INVOLVES CARPENTRY, PAINTING OR UNSKILLED LABOR, THE RATIO WILL BE HIGH. FOR EXAMPLE, THE FEDERAL OFFICE BUILDING NO. 3 AND THE COMMERCE BUILDING PROJECTS ARE MAJOR AIR CONDITIONING JOBS WITH NEGLIGIBLE MINORITY REPRESENTATION IN THE TRADES INVOLVED. ON THE OTHER HAND, THE PROJECT FOR THE LABOR DEPARTMENT BUILDING SUBSTRUCTURE, A PROJECT NOT MENTIONED IN THE TASK FORCE LETTER BUT THE SUBJECT OF A TASK FORCE PRESS RELEASE ALLEGING DISCRIMINATION, INVOLVING LESSER TRADES AND SKILLS, HAD A WORK FORCE WITH 55 PERCENT TO 60 PERCENT MINORITY REPRESENTATION.

"THE SAME PROBLEMS PLAGUE THE WASHINGTON AREA THAT PLAGUE ALL OTHER MAJOR CITIES IN THE NATION; NAMELY, THERE IS A SEVERE SHORTAGE OF MINORITY WORKERS IN CERTAIN SKILLS BOTH AS JOURNEYMEN AND APPRENTICES. THIS IS ILLUSTRATED BY THE FOLLOWING EXAMPLES OF THE RESULTS OF OUR REVIEW OF THE CONSTRUCTION UNION SITUATION IN THE WASHINGTON AREA:

ELECTRICAL WORKERS LOCAL #26

1400 JOURNEYMEN 40-45 NEGRO

68 APPRENTICES 33 NEGRO

IRONWORKERS LOCAL #5

620 JOURNEYMEN 22 NEGRO

64 APPRENTICES 17 NEGRO

STEAMFITTERS LOCAL #602

1448 JOURNEYMEN 12 NEGRO

205 APPRENTICES 8 NEGRO

CARPENTERS & JOINERS DISTRICT COUNCIL

1200 JOURNEYMEN 500 NEGRO

100 APPRENTICES 50 NEGRO

"THERE ARE VARYING DEGREES OF EFFECTIVE ADMINISTRATION OF THE EQUAL OPPORTUNITY PROVISION OF THE CONTRACTS AND THE AFFIRMATIVE ACTION PROGRAMS. HOWEVER, IN ALL INSTANCES OUR RECORDS INDICATE THAT THE GSA CONTRACTING OFFICERS HAVE BEEN SPENDING TIME WITH THE CONTRACTORS IN THIS REGARD. MOST OF THE CONTRACTORS ARE AGGRESSIVE IN TRYING TO EMPLOY MINORITY WORKERS, BUT ARE CONSTANTLY FACED WITH THE SHORTAGE OF SUCH WORKERS IN CERTAIN SKILLS.

"THE COMPARISON MADE HEREIN OF THE WORK FORCE COMPOSITION OF THE TWO MAJOR AIR CONDITIONING PROJECTS AND THE SUBSTRUCTURE WORK ON THE LABOR DEPARTMENT BUILDING INDICATES THAT WHERE THE SKILLS ARE AVAILABLE, THE GSA CONTRACTORS ARE EMPLOYING A HIGH LEVEL OF MINORITIES. CONVERSELY, WHERE SKILLED MINORITY WORKERS ARE IN SHORT SUPPLY, THE RECORD BASED ON PERCENTAGES IS NOT SO GOOD.

"ONE OF THE PROBLEMS RELATING TO THE SMALL REPRESENTATION OF MINORITIES IN THE SKILLED CONSTRUCTION TRADES IS THE EQUALLY SMALL REPRESENTATION IN APPRENTICESHIP PROGRAMS. INDICATIONS ARE THAT THIS IS DUE, AT LEAST IN PART, TO EDUCATIONAL AND TESTING REQUIREMENTS AND APPRENTICESHIP PAY WHICH FREQUENTLY IS CONSIDERABLY LESS THAN THAT OF WAGES FOR LABORERS.

"COMPLIANCE REVIEWS HAVE BEEN MADE BY THE GSA OFFICE OF AUDITS AND COMPLIANCE FOR FOUR OF THE CONTRACTS IN QUESTION. THESE REVIEWS SUBSTANTIATE THE INFORMATION CONTAINED HEREIN. REVIEWS OF THE THREE REMAINING CONTRACTS ARE BEING MADE, AND SHOULD THEY REVEAL DEFICIENCIES ON THE PART OF THE CONTRACTORS, SUCH ACTION AS MAY BE INDICATED WILL BE TAKEN."

AS INDICATED BY THE GSA REPORT, IT WOULD APPEAR THAT AGENCY IS ACTIVELY MONITORING THE EMPLOYMENT PROGRAMS OF THE SUBJECT CONTRACTORS AND, THAT AGENCY HAS NOT FOUND THAT THE CONTRACTORS HAVE BEEN OR ARE PRESENTLY ENGAGING IN DISCRIMINATORY OR EXCLUSIONARY PRACTICES AGAINST MINORITIES ON THE PROJECTS CITED IN YOUR LETTER. IN ADDITION, THE GENERAL SERVICES ADMINISTRATION HAS PRESENTED AN EXPLANATION OF THE FACTS AND CIRCUMSTANCES WHICH INDICATES THAT THE STATISTICS YOU PRESENTED ARE OCCASIONED BY FACTORS OTHER THAN THE FAILURE OF THE CONTRACTORS TO ABIDE BY THEIR CONTRACTUAL COMMITMENTS FOR EMPLOYING, RECRUITING AND TRAINING THEIR WORKERS WITHOUT REGARD TO RACE, COLOR, OR NATIONAL ORIGIN.

WE BELIEVE THAT THE ADMINISTRATIVE REPORT FURNISHED BY THE GENERAL SERVICES ADMINISTRATION, EXPLAINS THE LACK OF GREATER NUMBERS OF MINORITY WORKERS ON THE CONSTRUCTION PROJECTS CITED IN YOUR LETTER.

ON THE BASIS OF THE PRESENT RECORD WE DO NOT FIND ANY LEGAL BASIS FOR OBJECTING TO THE USE OF FUNDS APPROPRIATED FOR PAYMENTS UNDER THE CONTRACTS INVOLVED.