Bring Jim Crow to an end by repealing the Davis-Bacon Act

The 1931 legislation designed to keep black construction workers from jobs on Depression-era public works projects continues to promote discrimination six decades later.

The U.S. can be proud of the strides made over the past several decades toward ensuring legal equality for black Americans. Especially since the passage of the Civil Rights Act of 1964, the Federal government has engaged in massive efforts to stamp out discrimination. Yet, since 1931, that same government has aided and abetted racial discrimination through enforcement of an expensive Jim Crow law known as the Davis-Bacon Act.

Passed at the beginning of the Depression at the instigation of the labor union movement, Davis-Bacon was designed explicitly to keep black construction workers from jobs on Depression-era public works projects. Today, the act continues to restrict the opportunities of blacks on Federal and Federally subsidized projects by favoring disproportionately white, unionized, and skilled workers over disproportionately black, non-unionized, and unskilled ones.

By the 1930s, most major unions that represented skilled construction workers completely excluded blacks from their ranks. A few others relegated them to segregated locals. Despite their general exclusion from craft unions and discrimination in vocational education and occupational licensure, construction in the South in 1930 provided blacks with more jobs than any industry except agriculture and domestic service. Because the effects of union and educational discrimination hardly were felt in unskilled construction jobs, blacks performed most of that work in the South. They also did much skilled construction work there, composing 17% of southern carpenters, for example.

At the same time, many black construction workers were migrating north. By 1930, they represented a proportion of the northern urban construction workforce that approximated the black proportion of that region's total population. As in the South, blacks held a disproportionate share of unskilled construction jobs, while discriminatory union and licensing policies resulted in a more limited presence for them in skilled construction work. As historian Mark W. Kruman points out: "By 1930, black workers had obtained a foothold in the northern construction workforce, but the low proportion of skilled construction workers who were black suggests that the foothold was a tenuous one." Davis-Bacon was soon to help destroy that foothold in both the North and South.

The story of Davis-Bacon begins in 1927 when a contractor from Alabama won a bid to build a Veterans' Bureau Hospital on Long Island, N.Y., and brought a crew of blacks from Alabama to work on the job. Appalled that blacks from the South were working on a Federal project in his district, Rep. Robert Bacon (R.-N.Y.) submitted H.R. 17069, "A Bill to Require Contractors and Subcontractors Engaged on Public Works of the United States to Comply with State Laws Relating to Hours of Labor and Wages of Employees on State Public Works," the antecedent of the Davis-Bacon Act.

The discriminatory implications of Bacon's bill were recognized immediately. On the floor of the House, Rep. William Upshaw (D.-Ga.) said: "You will not think that a southern man is more than human if he smiles over the fact of your reaction to that real problem you are confronted with in any community with a superabundance or large aggregation of Negro labor."

Over the next four years, Bacon introduced 13 more bills to establish regulation of labor on Federal public works projects. Finally, a bill submitted by Bacon and Sen. James J. Davis (R.-Pa.), with the support of the American Federation of Labor (AFL), passed in 1931. The law provided that all Federal construction contractors with contracts in excess of $5,000 must pay their employees the "prevailing wage," which, in practice, meant that of unionized labor.

The measure passed because Congressmen saw the bill as protection for local, unionized white workers' salaries in the fierce labor market of the Depression. In particular, whites were angry that blacks who were barred from unions were migrating to the North in search of jobs in the building trades and undercutting "white" wages.

The comments of various Congressmen reveal the racial animus that motivated the sponsors and supporters of the bill. In 1930, Rep. John J. Cochran (D.-Mo.) stated that he had "received numerous complaints in recent months about southern contractors employing low-paid colored mechanics getting work and bringing the employees from the South." Rep. Clayton Allgood (D.-Ala.), supporting Davis-Bacon on the floor of the House, complained of "cheap colored labor" that "is in competition with white labor throughout the country."

Others were more circumspect in their references. They railed against "cheap labor," "cheap imported labor," men "lured from distant places to work on this new hospital," "transient labor," and "unattached migratory workmen." While the Congressmen were not referring exclusively to black labor, it is quite clear that, despite their thinly veiled references, they had blacks primarily in mind. Similar sentiments were expressed in the Senate.

Discriminatory effects

Davis-Bacon became law on March 31, 1931, just as the Federal government was embarking on an ambitious public works program that soon would account for half of all money spent on construction in the country. Because of it, almost all Federal construction jobs flowing from this spending spree went to whites.

Soon after Davis-Bacon became law, unions began to complain that, as written, it was not successfully protecting their members' jobs. Congress responded in 1935 by amending the act, reducing the minimum contract amount covered to $2,000 and providing for predetermination of prevailing wage rates by the Department of Labor. With that, the Department of Labor promulgated regulations for Davis-Bacon that remained largely unchanged until 1983.

Under those rules, wages on Federal construction projects had to follow union scale in any area that was at least 30% unionized. Given the manner in which the Labor Department enforced them, the regulations guaranteed that almost all wages would be set according to union scale. In fact, contractors often limited their hiring to the more highly skilled union workers since there was no economic benefit to hiring non-union labor. Because they had to pay the same wages regardless of who they hired, contractors engaged in large-scale Federal construction found it most efficient simply to recruit construction workers directly through (whites-only) AFL union locals. Because the craft unions had few or no black members, Federal contractors rarely hired blacks for skilled positions.

Davis-Bacon's effects on unskilled blacks were devastating. As of 1940, according to Census Bureau statistics, blacks composed 19% of the 435,000 unskilled construction laborers in the U.S. and 45% of the 87,060 in the South. The Department of Labor's regulations failed to recognize categories of unskilled laborers other than union apprentices, even in the rare instances when such categories were sanctioned by local craft union rules. They required that, if a contractor wanted to hire an unskilled worker who was not a union apprentice, he had to be paid the same as someone who was skilled. Since unions rarely allowed blacks into their apprenticeship programs, the result was the almost complete exclusion of unskilled black workers from Davis-Bacon projects. Not only did this limit the employment opportunities of unskilled blacks, but it prevented them from acquiring skills as well, for, with discrimination in union and pubfic school vocational training programs, the only way they could become skilled workers was for them to accept unskilled employment and learn on the job. That employment was effectively foreclosed to them, however.

In 1941, the government extended Davis-Bacon to cover military construction contracts. At the start of World War II, Federal agencies began signing "stabilization agreements" preserving the status quo with unions. In the construction industry, that granted a closed shop to the affiliated unions of the Building Construction Trades' Department of the AFL. Because those unions were closed to blacks, the stabilization pacts often resulted in the disqualification of black skilled and semi-skilled construction workers from Federal projects.

The Federal government sometimes was able to pressure unions to relent and allow blacks into their ranks, or at least to form new segregated locals. Far more often, however, blacks were excluded from major construction projects and, in some cities, were banned from defense construction work altogether by the unions.

In response to complaints of discrimination in public works projects during World War II, the government established the Fair Employment Practices Committee (FEPC). At its worst, the FEPC was completely ineffective. At its best, it froze an unfavorable status quo. In any event, it was not renewed in the post-war period.

By the late 1950s, exclusionary construction unions dominated the market in skilled construction labor, particularly for large-scale projects. As a result, the percentage of skilled black construction workers declined precipitously. The remnant almost entirely was excluded from Federal projects because of Davis-Bacon's bias for unionized labor. As for unskilled black workers, they generally were unable to get jobs on Davis-Bacon projects since they were barred from union apprenticeship programs approved by the Department of Labor.

Presidents Dwight D. Eisenhower and John F. Kennedy attempted to alleviate discrimination on public works projects through executive action, but their efforts mostly were unavailing because of union intransigence, strengthened by Davis-Bacon. As late as the Kennedy Administration, blacks still were barred from the unions of the electrical workers, operating engineers, plumbers, plasterers, and sheet metal workers, among others.

Even efforts by the Johnson Administration to ensure compliance with the 1964 Civil Rights Act did not shield blacks from the discriminatory effects of Davis-Bacon. Craft unions held work stoppages to prevent the employment of blacks on such publicly funded construction projects as the building site of the New York City Terminal Market (1964), the Cleveland Municipal Mall (1966), and the US. Mint in Philadelphia (1968). A 1968 Equal Employment Opportunity Commission study showed that "the pattern of minority employment is better for each minority group among employers who do not contract work for the government [and are therefore not subject to Davis-Bacon] than it is among prime contractors who have agreed to nondiscrimination clauses in their contracts with the federal government [who are subject to Davis-Bacon]."

To encourage the use of skilled minority workers in Federal construction projects, the Nixon Administration's Department of Labor launched its "Philadelphia Plan," followed by other city affirmative action efforts. Despite its resort to quotas, the Department of Labor otherwise continued to stifle black employment on Federal projects by recognizing unskilled laborers as appropriate Davis-Bacon workers only when they participated in a bona fide apprenticeship program registered with a certified state apprenticeship agency or with the Federal Bureau of Apprenticeship and Training. This harmed blacks because unions continued to discriminate in their apprenticeship programs. Meanwhile, the number of registered apprenticeships available was dwarfed by the number of blacks who could have acquired gainful employment as unskilled helpers on Federal projects.

Nevertheless, a 1978 Congressional Research Service (CRS) report alleged that "repealing or weakening ... Davis-Bacon would adversely affect apprenticeship programs in the construction industry and hurt minority groups." According to it, unionized employers would be forced to cut costs by reducing training outlays, and 20.7% of trainees in union-sponsored programs in 1976 were members of minority groups, compared to less than 10% in non-union-sponsored programs.

The CRS research, based on statistics provided by unions, has been refuted by various later studies. A report issued by the Comptroller General in 1979, for instance, stated that "Davis-Bacon wage requirements discourage nonunion contractors from bidding on federal construction work, thus harming minority and young workers who are more likely to work in the nonunionized sector of the construction industry."

A 1980 report of the American Enterprise Institute agreed that the act was harmful to minority labor because so few positions were available on Davis-Bacon-covered work under the categories of helper, learner, or trainee. The report pointed out that very few union journeymen were minority-group members, and it was in non-journeyman categories that most would begin their construction careers. The report added that union apprenticeship programs, even if they did not discriminate, severely limited the number of people who might enroll, and imposed arbitrary educational requirements, thus freezing out the most disadvantaged individuals. Abolishing Davis-Bacon, it concluded, would allow more participation by non-union firms in construction, thus advancing the employment opportunities of minority workers.

Ralph C. Thomas III, former executive director of the National Association of Minority Contractors (which represents over 60,000 contractors, more than 90% non-union), believes that the key to solving the under-representation of minorities in the building trades is on-the-job training in non-union, minority-owned construction firms. According to Thomas, though, Davis-Bacon prevents minority contractors from successfully training workers. One who successfully bids for a Davis-Bacon covered contract has "no choice but to hire skilled tradesmen, the majority of which are of the majority. This defeats a major purpose in the encouragement of minority enterprise development - the creating of jobs for minorities.... Davis-Bacon ... closes the door on such activity in an industry most capable of employing the largest numbers of minorities."

In 1982, the Department of Labor changed certain Davis-Bacon regulations, making it somewhat easier for open shop firms to compete for contracts covered by the act. It redefined "prevailing wages" from the old 30% rule to a new 50% regulation. That change, combined with the fact that far fewer construction workers are unionized today than was the case several decades ago, means that Davis-Bacon wage rates will be set according to union rates only in highly unionized cities. Since those often are the ones with large minority populations, however, non-unionized minority workers and contractors there will continue to be frozen out of Davis-Bacon projects. Moreover, the 1982 reform fails to reduce the burdensome paperwork that keeps many small, often minority-owned, companies from bidding on Davis-Bacon projects.

That year, the Department of Labor also changed its regulations to allow the use of unskilled helpers on Davis-Bacon projects in any area where they were utilized at all, partly in an effort to help minorities and women gain more opportunities in Federal construction projects. The construction unions challenged this on the grounds that it violated the Labor Department's mandate to establish prevailing wages. The courts agreed, and the Labor Department was forced to rewrite the regulation.

The new rule, which went into effect on Feb. 4, 1991, defines a helper as "a semiskilled worker who works under the direction of, and assists, journeymen." When fully implemented, this rule, while not removing all of the discriminatory effects of Davis-Bacon, will be a boon to blacks, who still are best represented in the construction industry in the unskilled categories. (As of 1987, blacks were only three-quarters as likely as whites to be skilled construction workers, but almost one-and-one-half times as likely to be unskilled.) Thus far, however, Congress has prohibited the Secretary of Labor from using any funds to implement the rule. The construction unions, moreover, almost certainly will try to persuade the Clinton Administration's Labor Department to repeal the helper regulation.

Unconstitutionality

No legal challenge to Davis-Bacon itself ever has been brought. Yet, under current Supreme Court precedent and a fair reading of the Constitution, the law clearly is unconstitutional, having both discriminatory intent and lingering discriminatory effects. As the Supreme Court noted in 1985 in an analogous situation involving a discriminatory provision of the Alabama Constitution, "without deciding whether [the provision] could be enacted today without any impermissible motivation, we simply observe that its original enactment was motived by a desire to discriminate against blacks on account of race and the section continues to have that effect. As such, it violates equal protection [and is therefore unconstitutional]."

As members of the executive branch, Pres. Clinton and Secretary of Labor Robert Reich will be charged with executing Davis-Bacon. At the same time, they both have sworn an oath to uphold the Constitution, the highest law in the land. A statute that conflicts with it does not have the force of law. Members of the executive branch have both the power and the duty to engage in executive review and refuse to enforce unconstitutional legislation. Given the clear unconstitutionality of Davis-Bacon, neither Clinton nor Reich should wait for a court challenge to nullify the act.

Moreover, the exercise of executive review in the case of Davis-Bacon actually might achieve some important political goals for the President. It would be a tangible demonstration of his concern for struggling black workers, would show his independence from special-interest pleading, would allow him to achieve infrastructure improvement without busting the budget (Davis-Bacon costs the Federal government billions every year), and, perhaps most importantly, would establish Clinton as a strong leader, willing to do the right thing. Much as Pres. Ronald Reagan stood down the air traffic controllers union early in his administration, setting a tone of strength thereafter, so could Clinton set a similar tone by eliminating this vestige of Jim Crow.

An estimated $60,000,000,000 in annual construction and maintenance work is covered by Davis-Bacon, and even more by state and municipal prevailing wage legislation. Yet, despite the pernicious effects of Davis-Bacon on blacks and its blatantly discriminatory origins, civil rights activists generally have ignored or quietly supported the law. No lawsuits have been filed by civil rights groups against the legislation. In fact, the NAACP, among other mainstream civil rights organizations, actually supports it because of the group's close political alliance with organized labor. Grass-roots community activists, in contrast, tend to oppose Davis-Bacon and its state and local equivalents because they reduce employment opportunities and make government efforts to help the poor far more expensive.

Given the incentives that have enabled Davis-Bacon to endure, it will be negated most easily only by strong leadership from the top. Failing that, Davis-Bacon can be repealed legislatively or, more likely, successfully challenged in court. When that occurs, minority contractors will find it easier to get Federal contracts without divisive quotas; black workers will find it easier to get construction jobs; and the Federal government will be able to accomplish more with a smaller burden on the taxpayer. Most important, one of the remaining racist stains on American law will be removed.

COPYRIGHT 1993 Society for the Advancement of Education
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