Briefing Paper No. 17 January 18, 1993

Briefing Paper

The Davis-Bacon Act:
Let's Bring Jim Crow to an End

by David Bernstein

David Bernstein, a recent graduate of the Yale Law School, and clerk on the U.S. Court of Appeals for the Sixth Circuit, practices law with the Washington, D.C., law firm of Crowell and Moring.


Executive Summary

The Davis-Bacon Act, which requires that federal construction contractors pay their workers "prevailing wages," was passed by Congress in 1931 with the intent of favoring white workers who belonged to white-only unions over non-unionized black workers. The act continues to have discriminatory effects today by favoring disproportionately white, skilled and unionized construction workers over disproportionately black, unskilled and non-unionized construction workers. Because Davis-Bacon was passed with discriminatory intent and continues to have discriminatory effects, its enforcement violates the Constitution's guarantee of equal protection of the law. President-elect Clinton and Labor Secretary-designate Reich should therefore exercise their power of "executive review" and refuse to enforce Davis-Bacon.

Introduction

On the 64th anniversary of Martin Luther King's birth, we can be proud of the strides we have made over the past several decades toward ensuring legal equality for black Americans. Especially since the passage of the Civil Rights Act of 1964, whatever its infirmities,[1] the federal government has engaged in massive efforts to stamp out discrimination in America. Yet that same government, since 1931, has itself aided and abetted racial discrimination in this country through its 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 working on Depression-era public works projects. The act continues today to restrict the opportunities of black workers on federal and federally subsidized projects by favoring disproportionately white, unionized and skilled workers over disproportionately black, non-unionized and unskilled workers. Since President-elect Clinton has promised to significantly increase federal spending on America's infrastructure, it is a particularly appropriate time to challenge the act. If the Clinton administration continues to enforce the act, it will make a mockery of the president-elect's promise to expand job opportunities for the disadvantaged--to say nothing of his promise to bring economic efficiencies to government.

Davis-Bacon has survived the civil rights revolution, every attempt to repeal it, and most attempts to reform it, because it is a legislative jewel in organized labor's crown. Civil rights groups--with the political clout to challenge the act--should be natural enemies of Davis-Bacon. But over the years they have agreed to swallow their principles and support the law in exchange for political and economic support from the AFL-CIO.

The irony of Davis-Bacon's survival is that the act so clearly violates the constitutional principle of equal protection of the law that the president would be well within his authority in refusing to enforce it. Indeed, President-elect Clinton and his Secretary of Labor-designate, Robert Reich, will be under an affirmative constitutional duty to refuse to execute the act.

To support these conclusions, this paper discusses the discriminatory origins of Davis-Bacon, the discriminatory effects of the act from the 1930s until today, and recent attempts to make Davis-Bacon less onerous. Finally, the paper outlines the affirmative constitutional duty that President-elect Clinton and Secretary-designate Reich will be under to refuse to enforce the act.

Discriminatory Intent

By the 1930s, most major unions in America that represented skilled construction workers completely excluded blacks from their ranks. A few others relegated blacks to segregated locals. Despite the general exclusion of blacks from craft unions and discrimination in vocational education and occupational licensure, in the South in 1930 the construction industry provided blacks with more jobs than any industry except agriculture and domestic service.[2] Because the effects of union and educational discrimination were hardly felt in unskilled construction work,[3] blacks performed most of that work in the South.[4] Blacks also did much skilled construction work there, composing 17 percent of southern carpenters, for example.

At the same time, many black construction workers were migrating north. By 1930 they composed a proportion of the northern urban construction work force that approximated the black proportion of the total northern urban population.[5] 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 blacks in skilled construction work. As one historian points out: "By 1930 Black workers had obtained a foothold in the northern construction work force, but the low proportion of skilled construction workers who were Black suggests that the foothold was a tenuous one."[6] Davis-Bacon was soon to help destroy that foothold in both the South and North.

The story of Davis-Bacon begins, one might say, in 1927 when a contractor from Alabama won a bid to build a Veterans' Bureau hospital in Long Island, New York.[7] He brought a crew of black construction workers from Alabama to work on the project. Appalled that blacks from the South were working on a federal project in his district, Representative Robert Bacon of Long Island 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,"[8] the antecedent of the Davis- Bacon Act.

The discriminatory implications of Bacon's bill were recognized immediately. On the floor of the House of Representatives, Congressman Upshaw 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."[9]

Over the next four years Bacon introduced thirteen more bills to establish regulation of labor on federal public works projects.[10] Finally, a bill submitted by Bacon and Senator James J. Davis, with the support of the American Federation of Labor,[11] passed in 1931. The law provided that all federal construction contractors with contracts in excess of $5,000 or more must pay their workers the "prevailing wage," which in practice meant the wages of unionized labor.

The measure passed because Congressmen saw the bill as protection for local, unionized[12] white workers' salaries in the fierce labor market of the Depression.[13] In particular, white union workers were angry that black workers who were barred from unions were migrating to the North in search of jobs in the building trades and undercutting "white" wages.[14]

The comments of various congressmen reveal the racial animus that motivated the sponsors and supporters of the bill. In 1930, Representative John J. Cochran of Missouri 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."[15] Representative Clayton Allgood, supporting Davis-Bacon on the floor of the House, complained of "cheap colored labor" that "is in competition with white labor throughout the country."[16]

Other congressmen were more circumspect in their references to black labor. They railed against "cheap labor,"[17] "cheap, imported labor,"[18] men "lured from distant places to work on this new hospital,"[19] "transient labor,"[20] and "unattached migratory workmen."[21] While the congressmen were not referring exclusively to black labor,[22] it is quite clear that despite their "thinly veiled"[23] references, they had black workers primarily in mind. Similar sentiments were expressed in the Senate.[24]

Discriminatory Effects Depression Era

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

Soon after Davis-Bacon became law, unions began to complain that the law as written 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.[25] With that, the Department of Labor promulgated regulations for Davis-Bacon that remained largely unchanged until 1983.[26]

Under those regulations, wages on federal construction projects had to follow union scale in any area that was at least 30 percent unionized. Given the manner in which the Labor Department enforced them, the regulations guaranteed that almost all wages would be set according to union wages.[27] 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. Indeed, because they had to pay the same wages regardless of who they hired, contractors working on large-scale federal construction found it most efficient simply to recruit construction workers directly through (whites-only) AFL union locals.[28] Because the craft unions had few or no black members, federal contractors rarely hired blacks for skilled positions.

But if Davis-Bacon's effects on skilled blacks were substantial, its effects on unskilled blacks were devastating. According to Census Bureau statistics, as of 1940 blacks composed 19 percent of the 435,000 unskilled "construction laborers" in the United States and 45 percent of the 87,060 in the South.[29] The Department of Labor's regulations failed to recognize categories of unskilled workers other than union apprentices, even in the rare instances when such categories were sanctioned by local craft union rules.[30] They required that if a contractor wanted to hire an unskilled worker who was not a union apprentice, the worker had to be paid the same as a skilled worker. 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 public school vocational training programs, the only way blacks could become skilled workers was for them to accept unskilled employment and learn on the job.[31] But that employment was now effectively foreclosed to them

World War II

In 1941 the federal government extended Davis-Bacon to cover military construction contracts.[32] At the start of World War II, federal agencies began signing "stabilization agreements"--that is, agreements preserving the status quo with unions.[33] In the construction industry, those agreements granted a closed shop to the affiliated unions of the Building Construction Trades' Department of the AFL.[34] 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.[35]

The federal government was sometimes able to pressure unions to relent and allow blacks into their unions, or at least to form new segregated locals.[36] 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.[37]

In response to complaints of discrimination in public works projects during World War II, the federal 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.[38]

Post World War II

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.[39] The remnant of skilled black construction workers was almost entirely excluded from federal projects because of Davis-Bacon's bias for unionized labor. As for unskilled black workers, they too were generally unable to get jobs on Davis-Bacon projects since they were barred from union apprenticeship programs approved by the Department of Labor for Davis-Bacon purposes.

Presidents Eisenhower and Kennedy attempted to alleviate discrimination on public works projects through executive action, but their efforts were generally unavailing because of union intransigence, strengthened by Davis-Bacon. As late as the Kennedy administration, blacks were still barred from the unions of the electrical workers, operating engineers, plumbers, plasterers, and sheet metal workers, among others.[40]

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 Cleveland Municipal Mall (1966), the U.S. Mint in Philadelphia (1968), and the building site of the New York City Terminal Market (1964).[41] 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]."[42]

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 "plans."[43] Despite its resort to quotas, however, the Department of Labor continued otherwise to stunt black employment on federal projects by recognizing unskilled workers 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.[44] 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 the CRS report, unionized employers would be forced to cut costs by reducing training outlays, and 20.7 percent of trainees in union-sponsored programs in 1976 were members of minority groups, compared to less than 10 percent in non-union-sponsored programs.[45]

The CRS report, which was based on statistics provided by unions, has been refuted by various later studies. A report issued by the Comptroller General of the United States in 1979, for example, 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."[46]

A 1980 report of the American Enterprise Institute agreed that Davis-Bacon was harmful to minority workers because so few positions were available on Davis-Bacon covered work under the categories of helper, learner, or trainee.[47] The report pointed out that very few union journeymen were minority-group members, and it was in nonjourneyman categories that most would begin their construction careers.[48] 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 workers.[49] Abolishing Davis-Bacon, the report concluded, would allow more participation by non-union firms in construction, thus advancing the employment opportunities of minority workers.[50]

Former NAACP general counsel Herbert Hill noted that even when the number of black union apprentices increased because of government pressure, many of those apprentices never graduated to journeyman status.[51] Hill concluded that as of 1982 "the pattern of racial exclusion in the building trades . . . remained intact."[52] As another economist observed, the low percentage of skilled black construction workers "is due primarily to Davis- Bacon."[53]

The most recent study of Davis-Bacon notes that "one would much more likely find minorities among the helpers and trainees of non-union firms than in the registered apprenticeship programs."[54] Recent statistics also show that minorities are a larger percentage of the non-union construction labor force than of the union labor force.[55] Open-shop firms not only hire more minorities but hire them for better positions. As the study concludes, "Open shop firms employ . . . a higher proportion of minority workers as craftsmen."[56]

Ralph C. Thomas III, executive director of the National Association of Minority Contractors (which represents over 60,000 minority contractors,[57] more than 90 percent of which are non- union), believes that the key to solving the problem of underrepresentation of minorities in the building trades is on-the-job training in non-union, minority-owned construction firms.[58] According to Thomas, however, Davis-Bacon prevents minority contractors from successfully training workers. A minority contractor 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."[59]

Recent Reforms

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 Davis-Bacon. The department redefined "prevailing wages" from the old 30 percent rule to a new 50 percent rule.[60] That change, combined with the fact that far fewer construction workers are unionized today than was the case several decades ago,[61] means that Davis-Bacon wage rates will be set according to union rates only in highly unionized cities.

Unfortunately, those are often cities with large minority populations. Thus non-unionized minority workers and contractors in those cities will continue to be frozen out of Davis-Bacon projects. Moreover, the 1982 reform also fails to reduce the burdensome paperwork requirements that keep many small, often minority-owned, companies from bidding on Davis-Bacon projects.

In 1982 the Department of Labor also changed its Davis-Bacon regulations to allow the use of unskilled "helpers" on Davis-Bacon projects in any area where helpers were used at all, partly in an effort to help minorities and women gain more opportunities in federal construction projects. The construction unions challenged the new regulation on the ground that it violated the department's mandate to establish prevailing wages. The courts agreed,[62] and the department was forced to rewrite the regulation.

The new rule, which went into effect only on February 4, 1991,[63] defines a helper as "a semiskilled worker who works under the direction of, and assists journeymen."[64] When fully implemented, this rule, while not removing all of the discriminatory effects of Davis-Bacon,[65] will be a boon to black construction workers,[66] who are still 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 as whites to be unskilled workers.[67] Thus far, however, Congress has prohibited the secretary of labor from using any funds to implement the rule. The construction unions, moreover, will almost certainly try to persuade the Clinton administration's Labor Department to repeal the helper regulation.

Executive Review of Davis-Bacon

No legal challenge to Davis-Bacon itself has ever been brought. Yet under current Supreme Court precedent, and a fair reading of the Constitution, the law is clearly unconstitutional as having both discriminatory intent and lingering discriminatory effects. As the Supreme Court noted in 1985 in an analogous situation involving a facially neutral but 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 motivated 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 unconstitutionall]."[68]

As members of the executive branch, President-elect Clinton and Labor Secretary-designate Reich will be charged with executing Davis-Bacon. At the same time, on taking office they will both have sworn an oath to uphold the Constitution of the United States. The Constitution is, of course, the highest law in the land, and 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 to refuse to enforce unconstitutional legislation.[69] Given the clear unconstitutionality of Davis-Bacon, neither Clinton nor Reich should wait for a court challenge to nullify the act. Indeed, they would be violating their oaths of office if they did not immediately refuse to execute it.[70]

Doing so would obviously entail political risk for Clinton and Reich. But one would hope that as Yale-trained lawyers they will put duty to the Constitution and fealty to their oaths of office ahead of narrow political concerns. Moreover, the exercise of executive review in the case of Davis-Bacon might actually achieve some important political goals for the new president: it would be a tangible demonstration of his concern for struggling black workers; it would show his independence from special-interest pleading; it would allow him to achieve infrastructure improvement without busting the budget (Davis-Bacon costs the federal government billions every year); and, perhaps most importantly, it would establish Clinton as a strong leader, willing to do the right thing. Much as President Reagan stood down the air traffic controllers union early in his administration, setting a tone of strength thereafter, so could Mr. Clinton set a similar tone by eliminating this vestige of Jim Crow.

Conclusion

An estimated $60 billion in annual construction and maintenance work is covered by Davis-Bacon, and even more is covered 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 have generally ignored or quietly supported the law. Only one of the many histories of black workers mentions the law, and then only once, and not by name.[71] No lawsuits have been filed by civil rights groups against the law; in fact, the NAACP, among other mainstream civil rights organizations,[72] actually supports the law because of the group's close political alliance with organized labor. Grass-roots community activists, in contrast, generally 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.[73]

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, however, one of the remaining racist stains on American law will be removed.

Notes

1. For recent criticisms see Richard A. Epstein, Forbidden Grounds: The Case Aqainst Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992); Roger Pilon, "Uncivil Rights," Regulation, Summer 1991, pp. 9-13.

2. Mark W. Kruman, "Quotas for Blacks: The Public Works Administration and the Black Construction Worker," Labor History 16, Winter 1975, p. 38.

3. Charles S. Johnson, "Negro Workers and the Unions," The Survey 60, April 15, 1928, p. 114.

4. In at least six southern cities blacks composed more than 80 percent of the unskilled construction force. Kruman, pp. 38-39.

5. Ibid., p. 39.

6. Ibid.

7. U.S. Congress. House. Committee on Labor. Hearings on H.R. 7995 & H.R. 9232, 71st Cong., 2d Sess., March 6, 1930, p. 17. (Letter of Ethelbert Stewart, commissioner of labor statistics: "A contractor from a Southern State secured a contract to build a Government marine hospital, as I remember it, on Long Island; that he brought with him an entire outfit of Negro laborers from the South. . . .") Ethelbert Stewart was Davis-Bacon co-author Senator Davis's commissioner of labor statistics when Davis was secretary of labor in 1928. Davis was a supporter of public works labor legislation as secretary of labor.

8. See generally U.S. Congress. House. Committee on Labor. Hearings on H.R. 17069, 69th Cong., 2d Sess. Feb. 28, 1927, pp. 2-4.

9. Ibid., p. 3.

10. Stuart Schulman, "The Case Against the Davis-Bacon Act," Government-Union Review, Winter 1983, p. 23.

11. "This type of legislation has been agitated and urged for many years and has the united support of all elements of organized labor, and particularly that great, progressive, and constructive labor organization, the American Federation of Labor." Congressional Record, February 28, 1931, p. 6,516 (remarks of Representative McCormack); Ibid., p. 6,520 (remarks of Representative Zihlman); See Armand J. Thieblot, Jr., The Davis-Bacon Act (Philadelphia: University of Pennsylvania Press, 1975), pp. 8-9.

12. Thieblot, The Davis-Bacon Act, p. 8.

13. See Richard C. Weaver, Neqro Labor: A National Problem (Port Washington, N.Y.: Kennikat Press, 1948), p. 10.

14. Sterling D. Spero & Abram L. Harris, The Black Worker (New York: Columbia University Press, 1931), p. 178.

15. U.S. Congress. House. Committee on Labor. Hearings on H.R. 7995 & H.R. 9232, 71st Cong., 2d Sess., Mar. 6, 1930, pp. 26-27.

16. Congressional Record, February 28, 1931, p. 6,513 (remarks of Representative Allgood).

17. Ibid., pp. 6,515, 6,519, 6,520 (remarks of Representatives Kopp, Condon, and Prall).

18. Ibid., p. 6,516 (remarks of Representative McCormack).

19. Ibid., p. 6,517 (remarks of Representative Fitzgerald).

20. Ibid., p. 6,518 (remarks of Representative Glover).

21. Ibid., p. 6,520 (remarks of Representative Zihlman).

22. See ibid., p. 6,520 (remarks of Representative Prall who was recounting an incident in which half the workers on a project at Fort Eadsworth Reservation in his district were aliens).

23. Thieblot, The Davis-Bacon Act, p. 9.

24. AFL President William Green, testifying before the Senate Committee on Manufacturers on the Davis-Bacon bill, complained: "Colored labor is being brought in to demoralize wage rates [in Tennessee]." Congress. Senate. Committee on Manufactures. Hearinqs on S. 5904, 71st Cong., 3d Sess., Feb. 3, 1931, p. 10.

25. Public Law No. 403, 74th Congress.

26. Armand Thieblot, "Prevailing Wage Laws of the States," Government-Union Review, Fall 1983, p. 23.

27. Thieblot, The Davis-Bacon Act, pp. 37-39.

28. Weaver, p. 12.

29. Herbert R. Northrup, Organized Labor and the Neqro (New York and London: Harper and Brothers Publishers, 1946), p. 46.

30. Armand J. Thieblot, Jr., Prevailing Wage Leqislation (Philadelphia: University of Pennsylvania Press, 1986), p. 59.

31. Northrup, p. 38.

32. Amendment, P.L. Nos. 22, 241 (H.R. 3325, 5312), 77th Congress (1941).

33. Weaver, p. 35.

34. Ibid.

35. Ibid., pp. 35-36.

36. Ibid., pp. 28-32.

37. Ibid., p. 35.

38. See generally Louis Ruchames, Race, Jobs & Politics: The Story of the FEPC (New York: Columbia University Press, 1953).

39. Herbert Bloch, "Craft Unions and the Negro in Historical Perspective," Journal of Neqro History 43, 1958, p. 24.

40. Herbert Hill, "Racism Within Organized Labor: A Report of Five Years of the AFL-CIO, 1955-1960," Journal of Neqro Education 30, 1961, p. 113.

41. Herbert Hill, "Black Labor and Affirmative Action: An Historical Perspective," in Steven Shulman & William Darity, Jr., eds., The Ouestion of Discrimination (Middletown, Conn.: Wesleyan University Press, 1989), pp. 190, 238, and 258 n. 181.

42. Quoted in Herbert Hill, Black Labor and the American Leqal System (Washington, D.C.: Bureau of National Affairs, 1977): p. 389.

43. Herbert Hill, "The AFL-CIO and the Black Worker: Twenty-Five Years After the Merger," Journal of Intergroup Relations 10, 1982, p. 20. The Philadelphia Plan was upheld by the Third Circuit in Contractors Ass'n of E. Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854 (1971).

44. According to the Department of Labor's 1969 Field Operations Handbook: "The use of helpers who use tools in assisting journeymen and who are paid below the minimum rates for journeymen is ordinarily not proper, since the apprentice is recognized as the individual who is to perform the less skilled craft work of his training period level." U.S. Department of Labor. Field Operations Handbook, entry no. 15611 (Nov. 26, 1969), quoted in Thieblot, The Davis-Bacon act, p. 23.

45. Congressional Research Service, The Davis-Bacon Act: History Administration. Pro and Con Arguments and Congressional Proposals, No. 78-161 E 33-34 (July 11, 1978).

46. The Comptroller General of the United States, Report to the Conqress HRD-79-18: The Davis-Bacon Act Should Be Repealed 32 (April 27, 1979).

47. John P. Gould and George Billingmayer, The Economics of the Davis-Bacon Act (Washington, D.C.: American Enterprise Institute, 1980), p. 62.

48. Ibid.

49. Ibid.

50. Ibid.

51. Hill, "The AFL-CIO and the Black Worker," p. 8.

52. Ibid.

53. William A. Keyes, "The Minimum Wage and the Davis-Bacon Act: Employment Effects on Minorities and Youth," Journal of Labor Research 3, 1982, p. 407.

54. Thieblot, Prevailing Waqe Laws, p. 128.

55. Ibid.

56. Ibid.

57. Testimony by National Association of Minority Contractors before House Subcommittee on Labor Standards of the Committee on Education and Labor, Sept. 30, 1986.

58. Ibid., pp. 2-3.

59. Ibid., p. 3.

60. 29 C.F.R. 21 1.2(a) (July 1, 1989 ed.). This rule was challenged but was upheld in Building and Construction Trades' Department. AFL-CIO v. Donovan, 712 F.2d 611 (D.C. Cir. 1983).

61. In 1970, only 30 percent of the United States's contracting firms were open shop. By 1987, that number had grown to 70 percent. Among the top 400 construction firms, 45 percent are now open shop, compared to just 8 percent in 1973. Barry, "Congress's Deconstruction Theory," Washinqton Monthly, January 1990, pp. 15-16.

62. Building and Construction Trades' Department AFL-CIO v. Donovan, 712 F.2d 611 (D.C. Cir. 1983).

63. 55 Federal Register 50148.

64. 29 C.F.R. 5.2(n)(4).

65. Even in the limited area of unskilled labor the rule does not go far enough. First, it restricts the use of helpers to areas where their use "prevails," a legally mandated but harmful qualification. Unionized cities where the use of helpers doesn't "prevail" are home to millions of unskilled minority youths who will continue to be frozen out of Davis-Bacon projects. Second, the rule limits the allowable ratio of helpers to journeymen employed by a contractor to two helpers for every three journeymen. In non-union construction, almost one-third of all workers are typically helpers. Obviously, the ratio varies depending on the project, and in small-scale construction, where highly skilled labor is not critical, the ratio must sometimes rise above the maximum 2:3. Thus, the new regulation (if upheld and implemented) will be a major improvement, but will still at times prove a barrier to the development of skills by minority laborers, particularly those in the most desperate straits. To take a specific example, public housing residents who are managing their own buildings will still find it difficult to affordably hire unskilled tenants to renovate their buildings.

66. But compare affidavit of John Dunlop, Buildinq and Construction Trades' Department, AFL-CIO v. Dole, No. 82-1631 (D.D.C. filed Jan. 4, 1991), reported in "Unions Sue to Block Implementation of New Davis-Bacon Helper Regulation," Federal Contracts Reporter (BNA) 55, 1991, p. 72 (arguing that the new helper rules will harm minorities).

67. Roger Waldinger and Thomas Bailey, "The Continuing Significance of Race: Racial Conflict and Racial Discrimination in the Construction Industry," Politics and Society 19, 1991, p. 297.

68. Hunter v. Underwood, 471 U.S. 222, 233 (1985).

69. For more on the power of executive review, see Frank H. Easterbrook, "Presidential Review," Case Western Reserve Law Review 40 (1990): 905.

70. For other examples of similar uses of executive power, see Easterbrook, "Presidential Review." See also Executive Order No 12630, "Government Action and Interference with Constitutionally Protected Property Rights" (March 1988), requiring the executive branch to ensure that its regulatory policies do not violate the Fifth Amendment's takings clause.

71. Weaver, "Negro Labor," p. 10.

72. According to Representative Ron Dellums, another Davis-Bacon supporter, the NAACP, the Mexican-American Unity Council, the National Women's Political Caucus, and the Navajo Tribal Council have all endorsed Davis-Bacon. Record 136 (1990): 2355. The latter group's support is especially ironic, given that Davis-Bacon has particularly harsh effects on Native Americans. See Keyes, "The Minimum Wage and The Davis-Bacon Act," p. 405.

73. See, for example, "The Bronx Gets a Flea Market," Issues & Views, Fall 1990, p. 2.

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