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Secretary DUNLOP. I think you will find only in general terms but let Mr. Davis--you see, I intervened to make the point that this information is essentially in the hands of the procurement agencies rather than in ours.
Mr. Davis. Mr. Secretary, that is the point. This kind of information would be in the records of the respective 17 compliance agencies.
Mrs. MINK. It is not in the record of your office?
Mr. Davis. We would certainly have to make that request to the compliance agency to secure that kind of information.
Mrs. MINK. Why has it not in the past been considered important in terms of evaluating the agencies' performance?
Mr. Davis. It is certainly important in the entire evaluation of the compliance agencies performance. Again we will be able to secure that information from the compliance agency.
Mrs. MINK. Thank you, Mr. Chairman.
Mr. HAWKINS. Mr. Secretary, the General Accounting Office reported with respect to compliance that since 1972 the Department has completely evaluated the nonconstruction program of only one of the 13 compliance agencies. This seems to be in sharp disagreement with Mr. Davis' assurances that the compliance agencies are being totally reviewed annually and we would assume that all of the reports must be favorable because no one is being debarred, no one is being penalized, sanctions are not being imposed except in very, very rare
How do you explain that so few of the compliance agencies are really being evaluated on an annual basis and therefore doing the job that they are supposed to be doing?
Mr. DAVIS. Mr. Chairman, that indeed was the case 2 vears ago when the only evaluation conducted by my office was NASA. Since that time, as I indicated before, all of the compliance agencies have received an evaluation. We are now, as a matter of fact this week and next week, discussing those evaluations on an individual basis with all of the compliance agencies. There are continuous evaluations on all compliance agencies.
Mr. HAWKINS. The committee will certainly request of the General Accounting Office that they extend their study of the Department of Labor as to what has happened since this report was completed. As of the time of the GAO report, dated April, 1975, it appeared that in the Department of Defense, for example, 12 of the 60 contractors reviewed had affirmative action programs that did not conform to the guidelines: and in the General Services Administration, 42 of the 60 reviewed did not meet those guidelines and certainly were deficient in their affirmative action programs.
It would seem strange that the General Accounting Office, which is not charged with the responsibility of enforcing Executive Order 11246 or any of the other orders, can on its own go out and locate those violating the law and the Department of Labor which is charged with this responsibility somehow can't find them.
What is wrong with the compliance machinery and what is wrong with the monitoring of compliance agencies that it is so difficult to locate that apparent discrimination which is pervasive and continuing to exist and no progress is being made certainly in the goal envisioned by the President who enunciated these orders?
Why is it so difficult then to attain compliance? We would like to assist you in trying to get it.
Mr. Davis. We appreciate that, Mr. Chairman, very much. Last year the compliance program conducted over 25,000 compliance reviews on the Federal contracts they have responsibility for. On a number of those compliance reviews it was necessary, for example, to sign conciliation agreements which provide employment opportunity for minority groups, men and women.
We have done that and expect the compliance review process to continue next year.
Mr. HAWKINS. Are you referring to the coding sheet review; the review in which the coding sheet was initiated and on which a report was made by you dated January 20, 1975?
Mr. Davis. Not exactly, Mr. Chairman. Of course the regulations provide, order 14 provides that in each case after the completion of a compliance review that that compliance agency submit to the OFCC within a 60-day time period a coding sheet which would indicate what progress has been made in the promotion and employment opportunities for minority groups of men and women.
The coding sheet is only one part of the conclusion of the entire compliance review process.
Mr. Hawkins. I wish you would give us the other part because the coding sheet does not seem to indicate, for example, specifically whether or not racial discrimination was found by those who compiled the coding sheet. You ask for conclusions on sex discrimination which I am certain Mrs. Mink and the rest of the committee will appreciate, religious and national origin discrimination, but there is no question, as I see it, on the table of deficiencies found that relates to race discrimination.
Mr. Davis. Race discrimination, of course, would be located as a result of the compliance review process by the compliance agency.
Mr. HAWKINS. I would assume it should go on the table of deficiencies found.
Mr. Davis. I would, too.
Mr. HAWKINS. In the compliance review summary which is supposed to indicate progress, as I read it, the officials and administration classification, for example, showed the percent of total minority employment was 4.1 percent in 1972-73.
At the beginning of the current affirmative action program for the year of 1973–74, 1 year later, that percentage had been decreased to 3.7 percent. How do we account for that decrease in the number of officials and administration in the companies that were reviewed in this compliance report? What is the explanation ?
Mr. Davis. Mr. Chairman, I have with me my associate director, Dr. George Travers, who was the person who worked on that report. Perhaps he could respond to that question.
Mr. TRAVERS. There are a few cases, Mr. Chairman, where the percentages do decrease although in most cases it does show progress from that first year to the second year. Remember that these are reports from compliance reviews that were conducted after those changes had actually taken place.
The commitments in terms of goals and timetables to correct utilization are reflected in the next year's figures which show they are higher numbers.
Mr. HAWKINS. Are you anticipating an increase?
Mr. TRAVERS. The tables in that report show the promised commitments from the contractors. The actual achievement of those commitments are not yet reported.
Mr. Hawkins. I don't see anything in the director's regulations which say that they must reach that goal. You are anticipating something which you don't even require. Isn't that so?
Mr. TRAVERS. These are the commitments that the contractors have made in their affirmative action programs. The regulations would require that they make a good faith effort to meet that goal; that is correct.
Mr. HAWKINS. From the statement of the Secretary that is nonenforceable. You have not even a regulation or guideline which says when good-faith efforts are being made to reach that goal that you now say will be reached.
But how do you explain the reduction in a year of operation at a time when you also report that total minority hiring was 10.9 in that classification; in other words, the hiring rate was up, but you ended the year with fewer officials and administrators than you did at the very beginning of the year.
Nr. TRAVERS. That is partly based on the fact there are only 655 firms included in that report, so that severe contractions in one firm and differences in turnover in some of those firms can have a large effect on the numbers you see.
Later reports we are now preparing have a much larger number of employers and a larger number of firms so that the activities of one employer would not have that effect.
Mír. Hawkins. What you are saying is that there are so few in that category that a shift of only three or four or five would completely change those percentages?
Mr. TRAVERS. I say that 655 firms was a small sample on which to base the report. It was all the firms we had at that point. We do have later data on a larger number of firms.
Mr. HAWKINS. I am only referring to the report which you issued which you must be very proud of because you issued it. If you issued it on inadequate data, it seems to me it is misleading to say that progress is being made in certain areas when it really isn't.
Mr. Davis. Mr. Chairman, before the end of the summer we will have an additional report which will certainly cover a wider range of coding sheets. We have presently evaluated approximately 7,000 coding sheets which have been submitted to the Department of Labor. The yearend report will certainly change those figures considerably.
Mir. HAWKINS. Could you give us the rejection rate on the coding sheet that you have?
Mr. Davis. The rejection rate averages 34 or 36 percent.
Mr. HAWKINS. Do you consider that a reasonably low or high or extraordinarily high rate of rejection?
Mr. Davis. That rejection rate is down. Mr. Chairman, from 80 percent over a year ago. That certainly is progress
Mr. HAWKINS. From 80 percent is some improvement. I still say that is a very poor record if you have that many rejections.
Mr. Davis. Nr. Chairman, again it is a matter of the entire screening process with the compliance agencies, to instruct them in more detail how to complete the coding sheet which we are discussing and that is indeed being done.
Mr. HAWKINS. Can you tell us how many of the coding sheets which are required are actually being filed ?
Mr. Davis. We receive the coding sheets from about 90 percent of the compliance reviews that are conducted.
Mr. HAWKINS. What are you doing about the other 10 percent?
Mr. Davis. We are seeking them out through the respective compliance agencies.
Mr. HAWKINS. Is there any reason why 10 percent should not be filed ?
Mr. Davis. No reason at all, Mr. Chairman.
Mr. HAWKINS. Mr. Secretary, let me interrupt the line of questioning for a minute.
Mr. Secretary, I understand that you have an appointment at 11:45. I would suggest that any further questions will not relate to overall policy decisions at this time but that we will take up those questions Which I think the others will be familiar with. I understand Mr. Quie, ranking member of the Education and Labor Committee, does have a letter he wanted to submit to you, Mr. Secretary.
Mr. Mosse. Thank you, Nr. Chairman. Mr. Secretary, on March 26, 1975, the OFCC issued a set of proposed guidelines concerning "affected class and backpay.” Several minority members of the full committee have taken strong issue with these guidelines. I have been asked by Congressmen Quie, Erlenborn, Esch, and Ashbrook to enter into the record if I may, Mr. Chairman, a copy of a letter stating their position with regard to the backpay guidelines and to deliver the original to you today, Mr. Secretary:
Mr. HAWKINS. Without objection it is so ordered. [The material referred to follows:]
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES,
Washington, D.C., June 18, 1975.
DEAR MR. SECRETARY: On March 26, 1975, the Office of Federal Contract Compliance published proposed "Affected Class and Back Pay Guidelines" (41 CFR Part 60–60). Since that date interested parties from all sectors of private industry have been highly critical of the position which the Labor Depart. ment has taken in this matter. We have reviewed the aforesaid guidelines and wish to apprise you of our feelings regarding the back pay aspect.
We take strong issue with the Department's interpretation that Executive Order 11246, as amended, contemplates the imposition of back pay settlements. Section 202 (6) provides that Federal contracts may be "cancelled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further government contracts." There exists no dispute as to whether the Federal government has the power to cease doing business with Federal contractors who refuse to provide equal employment oppotunity to all without regard to race, creed, color, national origin, o sex. However, we feel that debarment is, and should be, the ultimate sanction of the Department of Labor and that any further remedies should be sought through the judicial system.
Title VII of the Civil Rights Act of 1964 clearly permits the imposition of back pay as a remedy for its violation. Congress specifically provided that the Attorney General or the Equal Employment Opportunity Commission may seek such a remedy on behalf of aggrieved parties. Section 209(a) (2) and (3) of Executive Order 11246 provides that, when appropriate, the Secretary may
recommend to the Department of Justice or the Equal Employment Opportunity Commission that proceedings be brought to enforce the provisions of the Esecutive Order under Title VII of the Civil Rights Act of 1964. Clearly, the necessity for such a referral would substantiate our contention that the Department of Labor should not be in the business of extracting back pay, but rather should leave such procedures to the courts where the expertise for such determinations lies.
Further, the guidelines state that court decrees will be followed under Title VII "to the extent that such decisions are not inconsistent with the guidelines." We respectfully suggest that the courts take precedence in all such matters. Sincerely,
ALBERT H. QUIE, M.C. Ranking Jinority Member.
JOIN N. ERLENBORN, M.C. Subcommittee on Lahor Standards.
MARVIN L. Esch, M.C. Subcommittee on Manpower, Compensation, and Health and Safety.
JOHN M. ASHBROOK, V.C.
Subcommittee on Labor-Management Relations. Secretary Dunlop. Mr. Chairman, I appreciate your willingness to allow me to go as per the original understanding. I am wondering, having listened to these questions, Mr. Chairman, whether it would be inappropriate for me to make a suggestion which I don't ask you or members of the committee to respond to now but which in the course of the next few days and weeks we might talk further about.
Coming into this business with the Department with some understanding of this program over the years for reasons I indicated in my testimony I am at times also somewhat perplexed by the division of responsibility, including the reporting arrangements, between the Department of Labor, the procurement agencies, all 17 of them, and the individual firms and enterprises which are required because of their Government contracts to meet certain standards and fill out such reports.
I am wondering whether the committee wonld look kindly on the notion, and all this discussion about forms and data base and matters which we are, ourselves, I gather evolving. I am wondering whether it would be helpful at some point to invite the staff of the committee or such other persons as you might designate to come and meet with our group and to really go over this matter so that we mutually have a somewhat better understanding than perhaps can be achieved simply by this process. That might give the committee a deeper understanding of what we have been doing and are trying to do and you would be in a better position to say to us that you think we ought to do something different.
I don't expect you at this point, Mr. Chairman, to respond to that. You may want to think about it and consult your associates. I felt that in listening to a number of the questions and perhaps our own answers that some advance could be made in the situation if that opportunity was at least offered today and the details of which, of course, could be worked out at your pleasure. With that remark I would like to be excused.
Mr. ILAWKINS. Thank you, Mr. Secretary. I think for sure we are on different ware lengths. If we can get closer together, it is certainly the desire of this committee to do so because we are only looking for results as I have told you personally.
Obviously members of this committee feel that we are not getting results, that there is a breakdown some place in the compliance with