Sunday, February 7, 2016

Metropolitan Sewer District Inclusion Campaign

The Metropolitan Sewer District (MSD) is planning to spend $4.7 billion over 20 years to cut sewage overflows into area waterways per a 2012 Consent Decree with the Environmental Protection Agency.   In December 2013, following the completion of a disparity study, which identified historical discriminatory contracting and hiring practices by MSD, and negotiations with several community groups, MSD and those groups entered into a Community Benefits Agreement (CBA) that was to extend to 2033.  The eight (8) community groups that are signatories to the CBA are the National Association for the Advancement of Colored People (NAACP), the Coalition of Black Trade Unionists (CBTU), Metropolitan Congregations United (MCU), the Construction Prep Center (CPC), the National Society of Black Engineers (NSBE), MOKAN, the Metropolitan Clergy Coalition (MCC), and the Universal African Peoples Organization (UAPO).
In 2015, the Signatories began publicly questioning and criticizing MSD for, among other things, failing to meet the 30% minority and 7% women hiring goals that had MSD had committed to under the CBA.  In December, one of the Signatories asked me to attend a couple of meetings being held with MSD’s management and board to address the controversy, and the following is an email I sent to the Signatories. 

To: Community Benefits Agreement Signatories
    After attending the last two meetings of MSD concerning its minority and women inclusion program, including today's three hour meeting, I would like, while it is fresh in my mind, to share with you my thoughts and perhaps the benefit of my experience in this area.
    First, I commend you for forming such a coalition and obtaining an agreement with MSD for inclusion on this billion dollar construction initiative.  And I commend you for your thoroughness and professionalism in seeking to hold MSD accountable for inclusion through the Community Benefits Agreement ("CBA"). However, the meetings I have attended leave me with some concerns.
I.  Countering MSD Propaganda and Institutional Inertia
    It is in the nature of institutions like MSD to propagandize their inclusion efforts by presenting paperwork and power point presentations that shows them/data in a light most favorable to them, that negates or minimizes their shortfalls, and that creates an impression of steady progress.  MSD's staff maintained this posture throughout their presentations the past two meetings, notwithstanding the facts and figures, paperwork, and power point presentations provided by the CBA signatories demonstrating that MSD's efforts to date have been, as one signatory stated, "ineffective."
     I point this out because it is my experience that organizations advocating for inclusion cannot out paperwork or out power point institutions like MSD.  And I advise you to be wary of falling into this trap of playing by their institutional rules because it will compromise your greatest weapon - action.
     Institutions like MSD are by their nature comfortable with their inert action; they have no inborn sense of urgency unless confronted with a crisis that forces them to activate.  Consequently, whatever MSD will do for inclusion will depend on your actions causing them to act, and it would be a mistake to think that they will ever act - or act right - without pressure.
II.  Keep the Focus on the Three Essential Elements for Inclusion Success.
    1.  Commitment by the Owner of the Project.  Inclusion flows from the top down.  If the owner of a project demands inclusion, then the general contractors and unions will fall in line. I have not seen the leadership of MSD communicate in stern and unequivocal terms that MSD has virtually a zero tolerance for contractors who do not meet the inclusion goals. One of the best examples of this kind of commitment to inclusion by leadership that I ever witnessed was the manner in which Bob Baer directed the Sports Authority when it was building the dome stadium.  He was firm and hard nosed in making it clear to the contractors that he expected them to meet the minority goals.
     With MSD, I see almost the opposite from the leadership.  At the previous meeting the MSD Director publicly stated - and gave written handouts stating - that the CBA signatories were "dysfunctional."  He further stated that the criticisms of MSD's inclusion efforts that were stated in the CBA signatories' power point presentation were "absurd" and "not based on reality."  These words - and the tone and tenor with which he has attacked the CBA signatories - send a clear signal to the contracting community that MSD is tolerant of non-compliance and even resistant to inclusion. Contractors seeking to circumvent or evade the inclusion requirements will feel they have an ally in the Director.
     There is an ingrained historic resistance to inclusion built into the construction industry here, and though it has markedly improved from some years back, that legacy persists and pervades, and the owner of a project has to send a clear and unmistakable message that that will not be in any way tolerated.  I do not think that MSD is currently communicating this message, and the very fact that MSD is now involved in this strenuous fight with the CBA signatories over inclusion reinforces the notion there is a lack of strong commitment to inclusion by the MSD leadership.
2.  Good Faith Defined.  From a legal standpoint, the good faith requirement is the key to inclusion. Because quotas are unconstitutional, "goals" is the terminology used in the inclusion industry.  However, bear in mind that goals are mandatory requirements absent a contractor demonstrating that he cannot meet the goals, in which case they must obtain a waiver from having to comply with the goals.  For a contractor to obtain a waiver they have to show that they have made a "good faith" effort to meet the goals and been unable to do so.  
     However, good faith is not an abstract concept.  Under the federal regulations, for example, there are about 16 factors - like a checklist - that are used to determine whether a contractor has in fact made a good faith effort.  From what I observed, MSD has no real definition or criteria for determining whether a contractor has made a good faith effort in order to obtain a waiver.  What I heard at the meeting today was that MSD would determine whether a contractor has made a good faith effort to comply with the minority workforce goals by asking the unions and SLATE if they had available minority workers.  That is wholly insufficient to determine good faith.  Consequently, the CBA signatories need to have MSD tighten up and rigidly enforce the good faith element.
 3. Monitoring.  Frankly, I have been astounded that in neither of the meetings I attended was the third party monitor present.  Their role in this process is integral and indispensable.  I think the project should also be monitored by the CBA signatories, and I think they should be resourced to perform this function.  
III.  From Rhetoric to Action.  
The rhetoric of the CBA signatories about the importance of inclusion to the black community and the history of racism is vital to provide context, sensitivity, and energy.  However, without action the rhetoric is not only meaningless, it becomes counter-productive to bringing about the change sought.  The continuation of meetings criticizing MSD will become self-defeating.  MSD's objective with the CBA signatories is, as one trustee stated, to "continue the dialogue."  The signatories objective, on the other hand, should be closure on the points of contention and criticism.

     The mechanism for this lies with the CBA.  If MSD's efforts are as ineffective as the signatories have repeatedly stated in the meetings, then under the CBA, the signatories can and should notify MSD that, per Article XI of the agreement, MSD is in default.   Not only does that then demonstrate to MSD the seriousness of the situation, it sets a 60 day timetable for them to cure the default.  Or alternatively under Article XI, the signatories can waive the default notification and proceed immediately to court to enforce the agreement by showing that MSD's failure to abide by the agreement is causing irreparable injury.
     This provision of the CBA provides the signatories with a means to transform the dynamic of the discussions with MSD by taking action.  Too often during the meetings I heard the signatories say to MSD that  they were "asking" for or "requesting" changes, when I think the signatories have the power to demand that MSD comply with the CBA.

Just my thoughts.  Thank you.

Eric  

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