CHAPTER FOUR: Prevailing Wage Laws

The Davis-Bacon Act1 harmed African-American construction workers for decades. Initially enacted in 1931, the Act requires contractors with federal building contracts in excess of $2,000 to pay their workers the "prevailing wage" as determined by the Secretary of Labor. Davis-Bacon was passed in part to limit the employment of African-Americans on federal construction projects, and it accomplished that purpose. Indeed, Davis-Bacon represented the culmination of a decades-long effort by construction unions to exclude outsiders from public works projects.

I. Early Public Works Labor Legislation

In the immediate post-Civil War period, building trade unions had several major goals, including an eight-hour work day and a reduction in competition from members of minority groups, aliens, and others who were generally excluded from the unions. Indeed, these goals were often intertwined.2 Given the prevailing anti-interventionist "free labor" ideology of the time, labor leaders expected to achieve these goals through legislation only in the realm of government public works. Union leaders argued that because the government itself was acting as the contractor for such projects, the government could determine who was to be employed on such projects, and on what terms.

Relying on this theory, construction unions had some success in promoting eight-hour day laws for public works projects. A few states passed such laws,3 and the federal government’s eight-hour law for federal employees also covered workers on federal public works projects.

Unions also occasionally succeeded in promoting statutes that excluded competitors from public works projects. A Louisiana statute limited employment on public works to those who had paid their poll tax. Early Oregon and California statutes banned the use of Chinese laborers on public works projects,and an 1894 New York statute banned the use of aliens generally. Even after the New York law went into effect, the state government continued to receive complaints from labor unions that contractors were employing (non-union) aliens, especially Italians, on public works projects.4

The statutes described above met with a chilly reception when challenged in the courts. Courts invalidated each of the laws as violations of liberty of contract and/or equal protection guarantees.5

By the early 20th century, the construction craft unions had affiliated with the burgeoning American Federation of Labor, and were among the most strongest unions in the United States. They were especially powerful in the in the North and Midwest. The unions used their political muscle to seek laws regulating employment on public works for the benefit of their members. Illinois, for example, joined New York in banning aliens from working on public works projects.6

Other public works laws did not explicitly discriminate based on race or alienage, but had discriminatory effects. The most restrictive statutes required that public works contractors use only union labor. More common were statutes requiring contractors to pay workers the "prevailing wage," which generally meant the union wage. Other statutes were more modest, simply requiring public contractors to adhere to an eight hour work day.

A challenge to Kansas’ eight hour law reached the United States Supreme Court in 1903. The defendant, a contractor charged with violating the law, argued that the law unconstitutionally limited freedom of contract. The Court rejected this argument, as well as contrary New York and Ohio precedents, and held that the law did not violate the Constitution.7

Dicta in the Court’s opinion implied that it would reject any challenge by a contractor to a public works labor statute. The Court adopted the unions’ argument that the state was like any other employer, and thus had the right to dictate the terms of its employment of contractors. Any contractor not satisfied with these terms need not bid on public works projects. The three sitting justices most sympathetic to Lochnerian jurisprudence–Fuller, Brewer, and Peckham–dissented without opinion. The Court extended the Atkin holding to a federal eight hour law in Ellis v. United States in 1907.8

Though Atkin dealt with a constitutional challenge by a contractor, state courts interpreted the opinion as foreclosing any successful federal constitutional challenge to public works labor statutes, including challenges by workers. Before Atkin, however, several state courts had held that such statutes violated state constitutional provisions. Courts held that the statutes unconstitutionally wasted taxpayer money, constituted class legislation benefitting union members and other highly-paid and highly-skilled workers at the expense of other workers, and/or improperly delegated legislative authority to labor unions. After Atkin, courts continued to invalidate public works labor statutes on state grounds.9

The issue of regulation of labor on public works once again reached the United States Supreme Court in 1915. This time, the issue was the constitutionality of a state ban on the employment of aliens on public works. The Court ignored state court precedents holding that such bans violated the aliens’ constitutional rights to liberty and to equal protection of the laws, and held, on the authority of Atkin, that the law in question passed constitutional muster.10

II. Conflict Between African-American Workers and Construction Unions

Aliens and other outsiders, including the relatively small number of African-Americans then living outside the South, suffered because of Northern and Midwestern public works laws. Such laws, however, generally did not exist where the vast majority of African-Americans lived, in the South. Southern locales did not need legislation to restrict African-Americans from public works projects, because exclusion was accomplished through informal pressure by government officials.11

Meanwhile, beginning in the 1910s thousands of African-American construction workers moved to cities in both the North and South. They quickly came into conflict with the building trades unions. African-American workers had never been treated well by construction unions. Many of the unions excluded African-Americans completely. Others, especially southern unions faced with large numbers of potential African-American competitors, admitted African-Americans but relegated them to second-class segregated locals. Because of grass roots resistance among white workers, however, the American Federation of Labor rarely expended energy in trying to organize African-American locals.12

Some northern and midwestern construction unions formally admitted African-Americans on equal terms, but even those unions rarely treated African-Americans fairly. For example, in 1903 white brickmasons working on a federal government construction project in Indianapolis walked off the job rather than work with an African-American member of their union, Robert Rhodes. The contractor fired Rhodes at the insistence of the strikers. Rhodes’ appealed for relief from his union local. Not only did the local deny Rhode’s appeal, it also fined him $25 for working on a non-union project before he joined the union!13

By the 1920s, most African-American building trades workers, including former union members, had given up on organized labor. They instead chose to compete with union members by taking jobs at sub-union wages.14 This decision had a salutary effect on African-Americans’ employment prospects. By 1926, a survey could locate but fourteen local unions of African-American carpenters as compared with an estimated thirty-nine in 1912, and the figure dropped again by 1929. By the late 1920s, the 340,000 member carpenters’ union had only about 600 or so African-American members. Yet despite continuous large scale migration to the North by African-Americans in general and by craft workers in particular, by 1930 the percentage of carpenters in the South who were African-American had edged up from 15% in 1910 to 17%.15

African-Americans also retained their antebellum strength in the trowel trades— bricklaying, plastering, and cement finishing—composing, for example, 61 percent of the South's plasterers and 44 percent of the plasterers and cement finishers. African-Americans were numerous enough in those fields to create their own informal training programs and to allow their employers to withstand labor boycotts by white unionists. African-Americans so dominated these fields that white unionists in unions such as the Hod Carriers and Common Building Laborers Union sometimes felt compelled to offer them equal status.16

Skilled construction unions, however, continued to exclude African-Americans nationwide; In 1928, a survey of construction unions revealed the following:

-- "Practically none" of the members of the electricians' union were African-American

-- the sheet metal workers’ union had no African-Americans among its 25,000 members

-- the plasterers’ union had only 100 African-American members among its 30,000 members, despite the presence of 6,000 African-Americans in the trade

-- the plumbers and steam fitters had "a long history of successfully maneuvering to avoid Negro membership17

The Plumbers’ and Electricians’ unions not only excluded African-Americans from membership, but, as discussed in Chapter 2, also used their control of state licensing board to try to exclude African-Americans from their fields.18

Despite the exclusion of African-Americans from craft unions, in 1930 the construction industry provided southern African-Americans with more jobs than any industry except agriculture and domestic service. Because the effects of union and educational discrimination were hardly felt in unskilled construction work, African-Americans performed most of that work. In at least six southern cities African-Americans composed more than eighty percent of the unskilled construction force. Overall, approximately 150,000 African-Americans worked in the construction industry in the late 1920s, mostly in the South. In order to protect white workers’ jobs, several southern cities passed ordinances prohibiting African-American contractors from working in white neighborhoods.19

Meanwhile, in the 1920s the demographics of northern union discrimination changed. During and after World War I, foreign immigration to the United States slowed. Aliens ceased to pose a serious treat to union dominance of the construction industry, particularly after the Immigration Act of 1924 substantially limited the influx of Southern and Eastern European immigrants. A new "threat" to northern unions, however, soon arose in the form of African-American migrants from the South.20

As in the South, African-Americans who migrated North managed to acquire a disproportionate share of unskilled construction jobs, while a relative lack of skills and discriminatory union practices forced African-Americans to accept lower-paying non-union employment in order to maintain a smaller presence in skilled construction work. By 1930, African-Americans composed an overall proportion of the northern urban construction worker force that approximated the their proportion of the total northern urban population.21

The steady increase in African-American competitors unnerved union leadership, particularly because the construction industry went into depression several years before the rest of the economy. A contemporary source noted that

Negroes outside the South are a small factor in the building trades, yet they have been able to depress the market here and there, in Chicago, Pittsburgh, Cleveland, and elsewhere, to an extent sufficient to cause bitter complaint from the white unions which commonly bar them from membership. . . . [T]heir numbers, though small, were sufficient to create and oversupply of certain types of building labor and to depress established standards, even though no attempt was made to undercut prevailing rates."22

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."23 The resentment white union members felt toward African-Americans who were taking "their" jobs made African-Americans’ foothold even more tenuous.

III. The Origins of the Davis-Bacon Act

Competition between African-American workers and exclusionary unions in New York led to the introduction of the bill that ultimately became the Davis-Bacon Act. By the late 1920s, African-Americans, who made up about 4.8 percent of New York City's total population, constituted about 2.5 percent of the city's skilled construction workers and 7.3 percent of the unskilled.24 Not only was the number of African-American construction workers residing in New York growing rapidly, but construction contractors hired African-Americans from the South to work in New York on federal public-works projects. As one scholar notes, "The migration of Negro workers to the North created great resentment among Northern whites, especially when Negroes were transported North by employers to be used as . . . cheap labor."25

New York’s building trades unions were virtually impenetrable to African-Americans. Powerful Local 3 of the electrical workers’ union, like other electrical union locals nationwide, simply refused to admit African-Americans. The Plumbers’ union resorted to a different tack, enforcing racial exclusiveness through control of the licensing process. The Carpenters’ union, meanwhile, relegated African-Americans to a Jim Crow local. All African-American union members were a assigned to Local 1888, initially a mixed local based in Harlem. The white members gradually transferred membership to other locals. Once Local 1888 became segregated, the district council made Harlem the sole jurisdiction in which the local’s members could work.26

New York overcame state constitutional barriers to prevailing wage legislation with a constitutional amendment specifically permitting such legislation, and was one of the few states to have a prevailing wage law in the 1920s. In 1926, the United States Supreme Court found that an Oklahoma prevailing wage law unconstitutionally violated due process because its ill-defined terms were too vague for the employer to know what exactly he was or was not allowed to pay his employees. A year later, however, the New York Court of Appeals rejected a claim—brought by taxpayers seeking to prevent "wasteful" spending—that New York’s similar law was unconstitutional because it was "unintelligible."27

New York’s law provided that "[t]he wages to be paid for a legal day’s work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works . . . shall be not less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which such labor is performed."28 Though on its face the New York law might have appeared "unintelligible," common knowledge suggested that its prevailing wage language was intended to establish the union wage on public works projects, and it was implemented in such a way as to practically guarantee this result. The law could not explicitly establish the union wage, because that would have left it constitutionally vulnerable to charges that it improperly delegated legislative power to the unions.

In his opinion for the Court of Appeals, Justice Benjamin Cardozo not only upheld New York’s prevailing wage law against constitutional challenge but defended the substance the law’s substance. Two decades earlier, the Court of Appeals had observed that prevailing wage laws decreed that any worker who could not command the prevailing wage "must be deprived of all opportunity to secure employment on all public works in their respective callings, and so the tendency of such legislation is to check individual exertion and to suppress industrial freedom."29 By contrast, Cardozo argued that the law prevented the "merciless exploitation of the indigent or the idle."30 In Cardozo’s view, then, the indigent or idle were apparently better off staying that way than accepting a job at less than the union wage.

Regardless of how one perceives its effects on the "indigent or idle," New York’s prevailing wage law had the intent and effect of protecting union construction workers from wage competition on state public works projects. Federal projects, however, were not subject to the law’s requirements.

A. The Bacon Bill

In 1927, Algernon Blair, a contractor from Alabama, received a federal contract to build a Veteran’s Bureau hospital in Representative Robert Bacon’s Long Island, N.Y., congressional district. The firm imported a crew of African-American construction workers from Alabama to work on the project. Because this was a federal project, it was not covered by New York’s prevailing wage law. Besieged with constituent complaints, Bacon submitted a bill that would require contractors working on federal public works projects to comply with state prevailing wage laws. 31

According to Bacon’s statement to the House Committee on Labor, the workers brought into his district "were herded onto this job, there were housed in shacks, they were paid a very low wage, and the work proceeded. Of course, that meant that the labor conditions in that part of New York State where this hospital was to be built were entirely upset. It meant that the neighboring community was very upset."32

Congressmen William Upshaw of Georgia teased Representative Bacon about Bacon’s apparent anti-Negro sentiment: "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." At least publicly, Bacon denied any specific animus against African-Americans. He responded: "I just merely mention that fact because that was true in this particular case, but the same thing would be true if you should bring in a lot of Mexican laborers or if you brought in any nonunion laborer from any other state."33 But Upshaw’s comment is revealing, because he clearly understood the racist subtext of Bacon’s complaint.

Indeed, Bacon provided evidence of his own racism later in the same hearing when he praised "caucasian" immigrants and argued that Asian immigrants were "unassimilable." His remarks also suggest that he thought that African-Americans were "unassimilable," but could not be completely excluded from the polity because, unlike Asians, African-Americans "came earlier and under different circumstances."34

Nor was those the only racist comments Bacon made while opposing non-white immigration. For example, he inserted into the Congressional Record the following statement by some "distinguished and learned Americans" opposing non-white immigration into the United States:

We urge the extension of the quota system to all countries of North and South America from which we have substantial immigration and in which the population is not predominately of the white race. . . . [W]e have been admitting upwards of 75,000 immigrants from Mexico, the West Indies, Brazil, and elsewhere, who are for the most part not of the white race, and who, because of their lower standards of living, are able to compete at an advantage with American workers. . . . [O]nly by such a system of proportional representation in our future immigration could the racial status quo of the country be maintained or a reasonable degree of homogeneity secured. Without such basic homogeneity, we firmly believe, no civilization can have its best development.35

B. The1928 Hearings

In 1928, Bacon proposed H.R. 11141, "A Bill to Require Contractors and Subcontractors Engaged on Public Works of the United States to Give Certain Preferences in the Employment of Labor."36 The committee hearings on this bill give further insight into the racial bias that propelled the issue of the regulation of labor on public works forward. Bacon submitted a supportive letter to the Committee on Labor from Secretary of Labor James J. Davis.

In the letter, Davis endorsed a memorandum written by Ethelbert Stewart, Commissioner of Labor Statistics. The memorandum recounted that a contractor from the South brought an "entire outfit of negro laborers from the South" into Bacon’s district, treated them poorly and "employed no local labor." Stewart observed that the practice of bringing workers from the South "adds confusion to the question of workmen’s compensation." "In addition to this," Steward continued, "there is nothing to prevent the contractor having this class of labor from throwing an injured worker out of his gang upon the charity of the city of State of New York, since he is under no obligation to take care of or return the negro workmen to his home."37

Davis later became a Senator from Pennsylvania and a Davis-Bacon co-sponsor. Like Bacon, Davis was an avowed racist, which was clear when he expressed his strong support of racist immigration restrictions. In 1925, for example, Davis argued that United States immigration policy should take "the hereditary qualities which the individual brings to America" into account because "[t]he blood of a nation determines its history." He argued that Congress should do what it could to "purify the national stream of life, to dry up the sources of hereditary poisoning, and to keep America sound at the core." Davis was the Republicans’ leading spokesmen for immigration restrictions throughout the 1920s.38

Testimony by union representatives reveals a definite racial element to their support of the 1928 bill. William J. Spencer, Secretary of the buildings trades department of the American Federation of Labor told the committee:

There are complaints from all hospitals of the Veteran’s Bureau against the condition of employment on these jobs. That is true whether the job is in the States of Washington, Oregon, Oklahoma, or Florida. The same complaints come in. They are due to the fact that a contractor from Alabama may go to North Port and take a crew of negro workers and house them on the site of construction within a stockade and feed them and keep his organization intact thereby and work that job contrary to the existing practices in the city of New York.39

Emil Preiss, Business Manager of Local No. 3, International Brotherhood of Electrical Workers, New York City, who was from Bacon’s district, stated that "[t]here are thousands of skilled mechanics in [Long Island] today who are unable to obtain employment on [the Veteran’s hospital], owing to the fact that poorly-paid labor is imported and being housed somewhat like cattle on the job and that labor is living under conditions that an American [apparently, as opposed to Negro] workman could not countenance." Preiss added that "the class of mechanics they are using out there today is an undesirable element of people. They are mixing with that community, but the community is refusing to house these people who can not be housed on the jobs."40

C. The 1930 Hearings

In March 1930, the House Committee on Labor held hearings on H.R. 7995, "A Bill to Require Contractors and Subcontractors Engaged on Public Works of the United States to Give Certain Preferences in the Employment of Labor," and H.R. 9232, "A Bill to Regulate the Rates of Wages to Be Paid to Laborers and Mechanics employed by Contractors and Subcontractors on Public Works of the United States and of the District of Columbia." Rep. Bacon submitted the former bill, and Rep. Sproul of Illinois the latter. The Sproul bill was the first to require that federal contractors and subcontractors pay the prevailing wage.

Representative Bacon stated during the hearings on his bill that he was in favor of requiring contractors to pay the prevailing wage, but believed that such a provision would be unconstitutional because it was too vague. He once again invoked Algernon Blair’s presence in his district to explain why the federal public works legislation was necessary. Bacon complained that "[t]his contractor picked up Government work all over the United States simply because they [sic] could make a low bid by bringing in cheap labor from Alabama. . ."41

Another interesting aspect of Bacon’s testimony is that it refutes the oft-heard claim that Davis-Bacon legislation was promulgated to ensure good quality work by favoring skilled union workers. Rep. Charles Easterly of Pennsylvania asked Bacon whether Algernon Blair is "a good concern?" Bacon responded, "Yes, they do good work; at least I am so informed."42

Later in his testimony, Rep. Bacon submitted a letter he sent to a fellow Congressman. In this letter, Bacon argued that his bill was "aimed, and the purpose of the bill is directed against, a monopoly of the benefits of labor by a special few, namely, those gangs of imported workmen, under the strict control of a contractor, who moves them from one part of the country to the other in chasing Federal construction work."43

Later in the March 1930 hearing, Rep. Sproul discussed his reasons for a prevailing wage bill. He stated that "[i]t is manifestly unfair that a contractor who pays the prevailing rate of wages in the locality in which the Government’s work is done, and who bases his bid for the work upon the prevailing wage scales, should be underbid by a contractor whose intent is, if he is awarded the contract, to import labor at a much lower scale of wages. . . What follows? He imports labor to which he pays less than the prevailing wage."44

Sproul mentioned several such instances, at least one of which involved African-American workers. Sproul complained that at St. Elizabeth’s Hospital the contractor paid bricklayers only $8 a day, compared to a prevailing wage of $13 a day.45 Later in the hearing, Rep. John J. Cochran reported that he had "received numerous complaints in recent months about southern contractors employing low-paid colored mechanics getting the work and bringing the employees from the South. Just recently there was trouble at St. Elizabeth’s Hospital."46

D. The 1931 Hearings

In January 1931, the House Committee on Labor held hearings on H.R. 16619, a prevailing wage bill that was submitted by Rep. Bacon and was destined to become the Davis-Bacon Act. Rep. Bacon argued that the bill would prevent federal contractors from importing "cheap, bootleg labor" into a federal construction site and remove the temptation to import "cheap, bootleg, itinerant labor."47

The Senate hearings on Davis-Bacon in February 1931 were rather short. American Federation of Labor president William Green testified at the hearings, and noted that "[c]olored labor is being brought in to demoralize wage rates" in a federal post office job in Kingsport, Tennessee.48 T. A. Lane, of the Bricklayers Union, also alluded to the Kingsport case, noting that "wage reduction is taking place in Tennessee right to-day." Lane added that "cheap labor" was being imported from North Carolina to work on a post office in Alexandria, and that the Blair company (which, as we have seen, used itinerant African-American workers) had within the last six weeks acquired the contracts for the office in Spartanburg, S.C., the post office at Kosciusko, the Memphis veterans’ building, and the post office at Streator, Ill.49

E. The 1931 Congressional Record Debate

The debate in the Senate over the Davis-Bacon bill, as recorded in the Congressional Record, was only a page long, and contained no direct or indirect references to African-Americans. The House, however, was a different matter. Several representatives made direct or implicit negative references to African-American construction workers, including the following:

Mr. LaGuardia –"A contractor from Alabama was awarded the contract for the Northport Hospital, a Veterans’ Bureau hospital. I saw with my own eyes the labor that he imported there from the South and the conditions under which they were working. These unfortunate men were huddled in shacks living under most wretched conditions and being paid wages far below the standard. These unfortunate men were being exploited by the contract. Local skilled and unskilled labor were not employed. The workmanship of the cheap imported labor was of course very inferior."

Mr. Bacon -- "The unscrupulous contractor who hitherto came in with cheap, bootleg labor must now come in and pay the prevailing rate of wages in the community where the building is to be built. . ."

Mr. Bacon -- "Members of Congress have been flooded with protests from all over the country that certain Federal contractors on current jobs are bringing into local communities outside labor, cheap labor, bootleg labor. . ."

Mr. Cochran –"What would be the result if cheap labor was brought into my city? It would be resented, and trouble would result."

Mr. Allgood -- "Reference has been made to a contractor from Alabama who went to New York with bootleg labor. That is a fact. That contractor has cheap colored labor that he transports, and he puts them in cabins, and it is labor of that sort that is in competition with white labor throughout the country. This bill has merit, and with the extensive building program now being entered into, it is very important that we enact this measure."50

Congress overwhelmingly passed Davis-Bacon, and President Hoover signed it into law on March 3, 1931.51 The mood of the times was quite favorable for the passage of this legislation. Davis-Bacon was not the only action taken by the federal government at the beginning of the Depression to help whites received priority in employment. Just a month before Davis-Bacon passed, the Department of Labor began to deport thousands of Mexican aliens, many of whom had been living legally in the United States for years, even decades.52

In addition to playing to racist sentiment at a time of economic hardship, the legislative history of Davis-Bacon reveals that the law appealed to pro-union legislators, to Congressmen who shared the popular (but foolish) view that unemployment could be lowered by the imposition of high wages in a deflationary environment,53 and to Congressmen who sought to ensure that pork barrel projects brought to their district in a time of mass unemployment benefitted local constituents, not itinerant workers.

III. The Discriminatory Effects of Davis-Bacon

When Davis-Bacon passed early in the Depression era, the federal government was about to embark on an ambitious public works program that would soon account for half of all money spent on construction work.54 As intended, Davis-Bacon severely limited the ability of African-Americans to compete for jobs on federal projects.

A. Immediate Discriminatory Effects

Davis-Bacon’s discriminatory effects were subtle, but nevertheless real. The only recourse African-Americans had in a labor market dominated by exclusionary unions who demanded above-market wages was their willingness to work for less money than the unionists. The Act prohibited African-American workers from exercising that advantage by establishing mandatory above-market wages based on the prevailing union wage.

The original Davis-Bacon Act had a significant drafting flaw, in that it did not provide for predetermination of the prevailing wage by the government. Instead, the law provided that all contracts for public construction must contain a clause requiring contractors to pay the prevailing wage. Any dispute between workers and contractors regarding the prevailing wage was to be settled by mandatory arbitration mediated by the Secretary of Labor. Contractors were extremely unhappy with this situation, because they could not be certain of what the prevailing wage would be when they started construction, and therefore could not accurately estimate the profitability of their bids. Labor unions were also unhappy, because contrary to the clear intent of the statute, some contractors claimed that the prevailing wage was lower than the union wage.55 The unions might also have been concerned that the vagueness and indeterminacy of the statute would lead to a successful due process challenge.

To resolve these difficulties, in 1935 Congress amended Davis-Bacon to provide for predetermination of wages by the Department of Labor.56 The Department of Labor, in turn, promulgated regulations for Davis-Bacon that required that wages be paid at union scale in any area in which construction labor was at least thirty percent unionized. This rule guaranteed that almost all Davis-Bacon wages would be set according to union wages.57

Because the union-wage rule meant that there was no economic benefit to hiring nonunion labor, contractors had every incentive to hire unionized workers for skilled positions. Union members were generally the best-trained workers, and they could be hired quickly and efficiently through union hiring halls.58

Contractors also faced political pressure to hire only union labor: if a contractor did not hire union labor, well-organized union locals could pressure the Department of Labor to investigate that contractor’s labor practices, a costly diversion even for a law-abiding contractor. Local governments also exerted pressure on contractors to hire union labor.59

Faced with these incentives, the vast majority of Davis-Bacon contractors opted for union labor when hiring skilled workers. Because most construction craft unions had few or no African-American members, federal contractors rarely hired skilled African-Americans. Skilled African-American workers in the South suffered to some degree because of Davis-Bacon,60 and Northern African-Americans fared even worse. Of all northern skilled African-American workers, construction workers were least likely to have found work in their field during the Depression.61 Ironically, considering that the Davis-Bacon was purportedly passed to protect local workers, unions insisted that employers bring in union labor from distant cities rather than hire local nonunion African-Americans.

Not all of skilled African-American workers’ troubles are attributable to Davis-Bacon; the virtual collapse of non-government construction would have harmed them in any event. But, as Robert Weaver concludes, "much of the government-financed construction involved use of union labor, and certain trades in almost every community did not include Negroes among union members, while many unions actually barred Negroes from participation. These factors were quickly reflected in the employment status of Negro skilled workers."62 By giving significant extra power to exclusionary labor unions, Davis-Bacon made the situation far worse than it would have been otherwise.

Unskilled African-American construction workers also fared poorly under Davis-Bacon during the Depression. Faced with less union competition and discrimination, African-Americans received a reasonable percentage of available unskilled work on Davis-Bacon projects. In order to stem competition from laborers, however, skilled construction unions demanded that such jobs pay very high wages. As a result, laborers were severely underutilized on Davis-Bacon projects. African-Americans were overrepresented as laborers in the general construction pool, so they suffered disproportionately from the relative underuse of laborers.

When African-Americans did receive jobs as laborers, they found these to be dead-end positions. Because of discrimination in union and public vocational school training programs, the only way unskilled African-Americans could become skilled workers was to accept unskilled employment on non-union projects and learn on the job.63 Under union rules, however, and therefore on Davis-Bacon projects, laborers received no training, and were forbidden to use tools in any way.

Following general union practice, "apprentice" was the only category of unskilled workers in training for skilled positions recognized under Davis-Bacon. Unions rarely allowed African-Americans into their apprenticeship programs, and African-Americans faced discrimination in government-sponsored programs. Davis-Bacon regulations thus not only limited the employment opportunities of unskilled African-Americans, but prevented those that did get jobs from acquiring skills.

B. Long-Term Discriminatory Effects

World War II brought further hardship to African-American construction workers. Discrimination in government contract work continued in the war industries, particularly in the South. To make matters worse, at the start of World War II Federal agencies began signing "stabilization agreements," preserving the status quo with unions. These agreements were first promulgated in the construction industry and gave a closed shop to the Building Construction Trades Department of the AFL. The stabilization pacts often resulted in the disqualification of African-American skilled and semi-skilled workers from defense construction.64

Fortunately for African-Americans, necessity dictated that they were not excluded completely from defense construction. Many army camps were built in the South, and there simply were not enough white workers to fill the available jobs, particularly since the residential type of construction involved was a specialty of African-American carpenters. The federal government was therefore sometimes able to pressure unions to allow African-Americans into their carpentry unions, or at least to form new segregated locals. In many other cases, however, African-Americans were excluded from major construction projects, and in some cities were barred altogether from defense construction work altogether by union policies.65

The standardization of wages and further unionization brought about by Davis-Bacon during the War threatened the future of southern African-American carpenters, who dominated small-scale construction jobs. The Carpenters’ Union had previously not been well-organized in this relatively non-lucrative area. The bonanza brought on by federal wartime construction of military housing and other small-scale projects, combined and high Davis-Bacon wages, however, attracted the union’s attention. Labor shortages protected the jobs of African-American carpenters in the short-run, but after the war they were forced for the first time to compete with white unionized carpenters.66

In response to complaints of discrimination in public works and other federal projects during World War II, the federal government set up the Fair Employment Practices Committee (FEPC). At its worst, the FEPC was completely ineffective. At its best, it froze an unfavorable status quo. It was not nevertheless unpopular among right-wing legislators, particularly in the South, and was not renewed after the War.67

Because of union discrimination, abetted by the monopoly power Davis-Bacon and state law equivalents granted unions, and union control of apprenticeship programs, by 1950 African-Americans constituted only a small percentage of skilled building trades workers. By the late 1950s, African-Americans in the construction industry were limited almost entirely to unskilled jobs because of union discrimination. For example, only 3.24 percent of the carpenters in the United States were African-American in 1950.68 The figures on African-American participation in apprenticeship programs were even bleaker; African-American apprentices ranged from .6 to 4.1 percent of apprentices in various skilled trades.69

President Eisenhower tried to alleviate discrimination against African-American workers in federal public works by establishing the President’s Committee on Government Contracts (PCGC). However, the PCGC did not have jurisdiction over labor unions. This rendered it almost totally ineffective, because unions, not employers, were the primary source of discrimination against African-American construction workers.70 As one expert notes, "No one doubts that employers discriminate. Nevertheless, it is no less true that in innumerable cases it is the unions that, in effect, do the hiring and the discriminating while individual employers are often prepared to hire Negroes. That is the way it works in many of the building craft unions."71

As of January 1, 1959, complaints of discrimination were pending with the (helpless) PCGC against many of America's leading international unions. As of 1961, African-Americans were still barred from the unions of the electrical workers, operating engineers, plumbers, plasterers, and sheet metal workers, among others. In one notorious incident, because the local union refused membership to non-whites, African-Americans were prevented from working on the construction of the Rayburn House of Representatives office building.72

President Kennedy’s Committee on Equal Opportunity (PCEO), appointed in March 1961, took a more direct approach to union discrimination. An Executive Order gave the PCEO power to require contractors to submit compliance reports discussing the racial practices of unions dealt with by these contractors.73 The effects on discrimination were minimal, however, because intransigent unions used their political power to protect themselves.

Throughout this period, craft unions pleaded innocent to charges of discrimination. Their lack of African-American members, they claimed, was due to the face that there was a shortage of skilled African-American labor. They neglected to mention that this shortage was largely created by union exclusion of African-Americans from government-funded apprenticeship programs. Meanwhile, in the mid-to-late 1960s, craft unions held work stoppages to prevent the employment of African-Americans on such publicly funded construction projects such 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).74

Even federal efforts to insure compliance with the 1964 Civil Rights Act did not completely shield African-Americans from the discriminatory effects of Davis-Bacon. A 1968 Equal Employment Opportunity Commission study found 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 were subject to Davis-Bacon.75

According to the Department of Labor Statistics, as late as 1970 almost all African-Americans in construction were still in low-paying unskilled jobs. Yet, because of Davis-Bacon, federal contractors were still only allowed to train workers if those workers were in bona fide apprenticeship programs.76

Top officials in the Nixon Administration’s Department of Labor believed that abolishing Davis-Bacon would be the most effective means of increasing minority employment on public works projects.77 In order to avoid offending the union voters Nixon was wooing, however, the Department instead decided to launch affirmative-action "city plans," which in effect amounted to quotas, in order to encourage the use of skilled minority workers in federal construction projects. Indeed, the earliest decisions of the Second, Fifth, Sixth, Seventh and Ninth Circuits upholding quotas all involved discriminatory craft unions that benefitted from Davis-Bacon.78

A series of studies conducted in the 1970s and ‘80s concluded that Davis-Bacon continued to have discriminatory effects on African-Americans.79 Despite decreased discrimination in the construction industry, and more lenient Davis-Bacon rules promulgated by the Reagan Administration, many students of Davis-Bacon believe that it continues to substantially reduce African-American participation in the construction industry, largely because it continues to favor skilled workers, who are disproportionately white, at the expense of the unskilled, who are disproportionately African-American.80