(2) Through such programs as MDTA, OIC, AIC, CEP, high school vocational education and others, approximately 6,000 minority persons annually receive preapprenticeship training. From testimony received at the hearing it appears that such organization as Project Build and Northern Systems Co. can train in excess of 2,000 minorities annually with additional financial assistance.

(b) Trainable persons. It is found and determined that approximately 8,000 minority persons can receive training annually in the SMSA through existing programs with additional funding. The Manpower Administration of the Department of Labor is committed to make available such funds as may be necessary to carry out reasonable and effective training programs in furtherance of the objectives of this order, and consistent with the policies and standards of the Manpower Administration as amplified in the President's statement of March 17, 1970, directing a 50 percent increase in construction skills training over the next 5 years.

§ 60-5.14 The impact of the plan upon the existing labor force.

(a) Contractors commitments. A contractor could commit himself in minority hiring up to the annual rate of job vacancies for each trade without adverse impact upon the existing labor force.

(1) Specific information presented at the hearings plus national statistics from a Bureau of Labor Statistics Report of 1967 indicating an annual 4 percent outmigration from the construction trades revealed the following projections of annual new job opportunities based upon projected trade growth and replacement in each of the following trades. These projections are not inconsistent with conservative national statistics which reveal that approximately 7.5 percent of construction trade workers are replaced each year due to death, retirement, disability, and outmigration.

lathers, boilermakers, tile and terrazzo workers and glaziers. However, based upon the fact that these trades will operate in the same industry and in the same area as the five trades for which statistics exist, it is estimated that they will grow and require employee replacements at approximately the same annual rate as the average for the above five trades. That average annual rate is approximately 12.4 percent.

(b) Timetable. In an effort to provide an affirmative action program and practical ranges for utilization of minority manpower which can be met by employers in hiring productive, trained minority craftsmen, these rules should be developed to cover an extended period of time. Testimony at the hearing indicated that construction of the Metro Subway System would have the major impact on construction manpower requirements in the 1970's; and that a 4-year duration for the "Plan" is proper as the greatest need for additional manpower in the industry will take place during the first part of the decade. Therefore, it is found and determined that in order for these rules to effect equal employment to the fullest extent, the standards of minority manpower utilization should be determined for the next 4 years.

§ 60-5.15 Conclusions of findings.

(a) Current minority participation. It is found that in the SMSA work force of over a million persons, nearly 26 percent are minority workers. Even though minority workers constitute nearly 50 percent of the wage and salary employees in the SMSA construction industry, data submitted at the public hearings reveals that minority representation is found primarily in the less-skilled trades, while in the skilled trades the minority representation is extremely low and is far below that which should have reasonably resulted from participation in the past without regard to race, color, or national origin. Therefore, it is determined that these rules are necessary to provide full minority participation in the following trades:

Asbestos Workers.
Boiler Makers.

Electricians.

Elevator Constructors. Glaziers.

Iron Workers.

Lathers.

Painters and Paperhangers.

Pipefitters-Plumbers-Steamfitters.

Sheet Metal Workers.
Tile and Terrazzo Workers.

(b) Effect of plan. A construction contractor working within the Washington SMSA could increase the minority participation in his trade significantly by hiring only minorities to fill the new job openings (attrition plus growth). However, to do so would inevitably result in the exclusion of qualified nonminorities from such job opportunities. Based upon the fact that the minority population in Washington (a major source of construction manpower) is three times that of the nonminority population, upon the fact that minority unemployment rate in the Washington area is twice that of nonminority unemployment, upon the fact there exists substantial minority underemployment in the area and upon the fact that significant and effective training programs now exist, it may be reasonably expected that in the filling of new and vacant jobs effective affirmative action efforts should produce at least one minority applicant for each nonminority applicant for effective construction employment.

(c) Increased minority participation. If new and vacated positions in only the trades covered by these rules were filled by one minority worker for each nonminority worker, the resultant increased minority participation in those trades alone through May 1974 would be approximately 3,500 workers. It has earlier been determined that between 45,000 and 60,000 minority persons are presently available to fill such jobs, some with and some without training. With the anticipated increase in those who should be available over the next 5 years there appears to be more than sufficient numbers of minority workers available to effectively fill new and vacated construction trade positions.

(d) Purpose of ranges. By establishing ranges which anticipate good faith efforts by construction contractors to fill new and vacated jobs on at least a 1-to-1 minority-to-nonminority basis through May 1974, contractors should be able to meet their commitments through effective affirmative recruitment efforts from available minority manpower without displacing any existing craftsmen and without discriminating against any nonminority applicant for employment. Therefore, the ranges hereinafter established are based upon the foregoing assumptions.

(e) Contractors and unions. The Department recognizes that the contractors, unions, and minority community, who must operate on a day-to-day basis under the requirements of this order, are in the best positions to evaluate the effectiveness of this order. Therefore, the Department shall make every effort to encourage and develop a voluntary committee representing these three groups, which committee shall periodically review the effectiveness of this order and make advisory recommendations to the Department regarding this order. Subpart C-Nondiscriminatory Purpose of the Plan; the Order; Exemptions From the Order; Authority; Effective Date

After full consideration and in view of the foregoing it is: (a) Ordered:

(1) That no contracts or subcontracts shall be awarded for Federal and federally assisted construction in the Washington, D.C., Standard Metropolitan Statistical Area on projects whose estimated cost exceeds $500,000 unless the bidder completes and submits, prior to bid opening, the document identified as Appendix A, Notice of Requirement for Submission of Affirmative Action Plan to Ensure Equal Employment Opportunity or a substantially similar document, which shall include specific goals of minority manpower utilization for each trade designated below which will be used by the contractor on all of his work within the Washington, D.C. Standard Metropolitan Statistical Area during the term of his performance of the contract, such goals to be established by the contractor at least within the ranges established by these rules. Minority manpower means, for the purposes of these rules, Negroes, Spanish surname Americans, Orientals, and American Indians. The trades utilizing the following classifications of employees are covered by these rules:

(2) The contractor's or subcontractor's goals established within the above ranges shall express the contractor's or subcontractor's commitment of the percentage of minority personnel who will be working in each specified craft on each of his projects (whether federally involved or otherwise) within the Washington SMSA during the term of the covered contract. The man hours for minority workers must be substantially uniform throughout the entire length of the contract for each of the designated trades, to the effect that the percentage of minority workers in the designated trades must be working throughout the length of work on each project in each trade. The contractor or subcontractor shall be deemed to have met his commitment to specific goals for minority manpower utilization:

(i) If the minority manpower utilization rate of the contractor or subcontractor itself meets the goals on the total of all of the contractor's or subcontractor's facilities within the Washington SMSA, provided, however, that if the contractor has denied equal employment opportunity, he shall not be in compliance with these rules or

(ii) If the contractor or subcontractor can establish that it is a member of a contractor association or other employer organization or association, which has as one of its purposes the expanded utilization of minority manpower and that the total utilization rate of minority craftsman by all member contractors and subcontractors of such an association or organization on all projects in which they are involved within the Washington SMSA meets the contractor's or subcontractor's commitments: Provided, however, That if the contractor has denied equal employment opportunity, he shall not be in compliance with these rules, or

(iii) If the contractor or subcontractor can establish that it has a collective bargaining agreement with a union or other employee organization, that it utilizes that union or organization as its source for over 80 percent of its manpower needs and that the total minority utilization rate in the craft or crafts for which the union or organization has referred manpower on all projects within the Washington SMSA to which such union or organization has referred manpower meets the contractor's or subcontractor's commitments: Provided, however, That if the contractor has denied

equal employment opportunity he shall not be in compliance with these rules.

(d) The contractor's and subcontractor's commitment to specific goals is to meet affirmative action obligations and is not intended and shall not be used to discriminate against any qualified applicant or employee. Whenever it comes to the bidder's or contractor's attention that the goals are being used in a discriminatory manner, he shall immediately report that fact to the Office of Federal Contract Compliance of the U.S. Department of Labor in order that appropriate proceedings may be instituted.

(e) The contractor's or subcontractor's (collectively hereinafter referred to as "contractor") commitment to specific goals for minority manpower utilization as required by these rules shall constitute a commitment to make every good faith effort to meet such goals. If the contractor has failed to meet his goals, a determination of “good faith" will be based upon his efforts to broaden his recruitment base which efforts shall include but not be limited to the following:

(1) The contractor shall notify community organizations that the contractor has employment opportunities available and shall maintain records of the organizations' response.

(2) The contractor shall maintain a file of the names and addresses of each minority worker referred to him and what action was taken with respect to each such referred worker. If such worker was not sent to the union hiring hall for referral or if such worker was not employed by the contractor, the contractor's file should document this and the reasons therefor.

(3) The contractor shall notify the OFCC Area Coordinator when the union or unions with whom the contractor has a collective bargaining agreement has not referred to the contractor a minority worker sent by the contractor or the contractor has other information that the union referral process has impeded him in his effort to meet his goal.

(4) The contractor shall participate in training programs in the area, especially those funded by the Department of Labor.

(5) The contractor shall disseminate his EEO policy within his own organization by including it in any policy manual; by publicizing it in company newspapers, annual report, etc.; by conducting staff, employee and union representatives"

meetings to explain and discuss the policy; by posting the policy; and by specific review of the policy with minority employees;

(6) The contractor shall disseminate his EEO policy externally by informing and discussing it with all recruitment sources; by advertising in news media, specifically including minority news media; by notifying and discussing it with all known minority organizations; and by notifying and discussing it with all subcontractors and suppliers.

(7) The contractor shall make specific and constant personal (both written and oral) recruitment efforts directed at all minority organizations, schools with minority students, minority recruitment organizations and minority training organizations, within the contractor's recruitment area.

(8) The contractor shall make specific efforts to encourage present minority employees to recruit their friends and relatives.

(9) The contractor shall validate all man specifications, selection requirements, tests, etc.

(10) The contractor shall make every effort to provide afterschool, summer and vacation employment to minority youths.

(11) Where reasonable the contractor shall develop on-the-job training opportunities and participate and assist in any association or employer-group training programs relevant to the contractor's employee needs.

(12) The contractor shall continually inventory and evaluate all minority personnel for promotion opportunities and encourage minority employees to seek such opportunities.

(13) The contractor shall make sure that seniority practices, job classifications, etc., do not have a discriminatory effect.

(14) The contractor shall make certain that all facilities and company activities are nonsegregated.

(15) The contractor shall continually monitor all personnel activities to insure that his EEO policy is being carried out. (16) The contractor shall solicitate bids for subcontractors from available minority subcontractors with the trades covered by these rules, including circulation of minority contractor associations.

(f) Each agency shall review contractors' and subcontractors' employment practices during the performance of the contract. If the contractor or

subcontractor meets its goals or if the contractor or subcontractor can demonstrate that it has made every good faith effort to meet those goals, the contractor shall be presumed to be in compliance with Executive Order 11246, the implementing regulations and its obligations under this order and no formal sanctions shall be instituted unless the agency otherwise determines that the contractor or subcontractor is not providing equal employment opportunities. Where the agency finds that the contractor or subcontractor has failed to comply with the requirements of Executive Order 11246, the implementing regulations and its obligations under its order, the agency shall take such action and impose such sanctions as may be appropriate under the Executive order and the regulations. When the agency proceeds with such formal action it has the burden of proving that the contractor has not met the requirements of this order, but the contractor's failure to meet his goals shall shift to him the requirement to come forward with evidence to show that he has met the "good faith" requirements of these rules. Such noncompliance by the contractor or subcontractor shall be taken into consideration by Federal agencies in determining whether such contractor or subcontractor can comply within the meaning of the Federal procurement regulations.

(g) It shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees. Discrimination in referral for employment, even if pursuant to provisions of a collective bargaining agreement, is prohibited by the National Labor Relations Act and title VII of the Civil Rights Act of 1964. It is the long-standing uniform policy of OFCC that contractors and subcontractors have a responsibility to provide equal employment opportunity if they want to participate in federally involved contracts. To the extent they have delegated the responsibility for some of their employment practices to some other organization or agency which prevents them from meeting their obligations pursuant to Executive Order 11246, amended, such contractors cannot be considered to be in compliance with Executive Order 11246, as amended or the implementing rules, regulations, and orders.

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