The opinion of the court was delivered by: FRANKEL
The United States, on May 22, 1968, instituted this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to correct an alleged "pattern and practice of discrimination in employment against Negroes on account of their race." Following the congressional mandate for speedy handling of such cases, 42 U.S.C.§ 2000e-6(b), the Government moved promptly for assignment of the case to a single judge for all purposes. While the plaintiff continued to proceed diligently, discovery efforts and occasional talks of settlement consumed many months. Finally, with a trial date set, the parties made an agreement dated February 24, 1970, which became the basis for, and part of, a consent decree dated February 24, 1970. The agreement has been described in some detail in a published opinion, see 328 F. Supp. at 433-434, and that description need not be repeated here. Suffice it to say that the agreement and decree were meant to bar exclusionary union practices, to require regular reports of compliance, and, very significantly, to create and fill an office of Administrator to exercise close, detailed supervisory and directory authority over the achievement of the decretal purposes. The Administrator was to have not mere policing functions, but the broadly creative role, in close contact with the parties and their work, of evolving "rules and procedures" to implement the goal of "equal employment opportunities."
The Administrator proceeded to function earnestly and energetically. Defendant union persisted, however, in a continued "pattern and practice of discrimination." Id. at 434. On November 5, 1970, the Government moved to have the union held in civil contempt. Discovery was ordered pursuant to this motion, and then an evidentiary hearing lasting for seven days or so. The claim of contempt was in large measure sustained. The union was found to have discriminated in job referrals of minority workers. The relief ordered included back pay awards to be determined in supplementary proceedings before a special master. The functions of the Administrator were continued and, in at least one respect, accelerated: the formulation of "rules and procedures" to promote equal treatment, originally intended for completion within some six months of the settlement agreement, was ordered to be accomplished under a prescribed timetable. See id. at 440-441.
The Administrator continued his detailed duties of study, supervision and attempted mediation. When the parties were unable to agree upon revised "rules and procedures," he submitted, in accordance with the opinion of June 2, 1971, on the contempt proceeding "a set proposed by him for adoption and enforcement." 328 F. Supp. at 441. The court, with minor modifications, confirmed and ordered the effectiveness of those rules and procedures, recording this action in a brief opinion of July 16, 1971.
The basic goal of expert and knowledgeable management by the Administrator has been achieved in substantial measure, largely avoiding an intolerable regime of daily and minute supervision by the court. Among the significant labors of the Administrator was that mandated by paragraph 10 of the settlement agreement, which required him to
"make an objective study of the issues relating to the issuance of work permits based upon the needs of the industry and taking into account the purpose of achieving equal employment opportunity, which study may include such factors as the total number of work permits to be issued, the number of permits to be issued from time to time, and the manner of issuance, and based upon such study shall recommend such changes, if any, as he deems advisable in the system for the issuance of permits."
It was further provided in the same paragraph that:
"Any change in the system for the issuance of permits shall require either the agreement of the parties hereto or the approval of the Court."
On December 10, 1971, the Administrator issued a "Study with Recommendations" pursuant to paragraph 10 of the agreement. He stated "three major goals" of the study:
"1. To redress the effects of past exclusionary practices;
"2. To provide equal opportunity of employment to all present and future applicants for work in the industry within the jurisdiction of the Union;
"3. To achieve these aforementioned goals without adversely affecting the present work force."
He proceeded then to outline the relevant percentage figures of employment, the objective of approximating minority group representation to its proportion in the population, the projected prospects of new employment in the ensuing four years, and proposed ranges for partially redressing the racial imbalance over the course of those years. He listed eight recommendations for the achievement of that limited goal. Among other things, he directed issuance of "one minority permit for each white permit" (with a minimum total of 250 to be issued each year), these to be in addition to 100 minority permits he had previously ordered.
The other provisions of his order, part of our record, need not be repeated here. It is noteworthy, however, that the Administrator wisely took account of the limits of foresight; he provided explicitly for new or modified "standards and procedures" as developing experience might dictate a need therefor.
Government counsel approved, and urged voluntary acceptance of, the Administrator's recommendations of December 30, 1971. The union responded with a substantial rejection. On February 4, 1972, the Government moved for an order enforcing the steps the Administrator had recommended. In opposition to the motion, an affidavit of counsel attacked the statistical premises of the Administrator's recommendations, argued vaguely (and in largely inapposite terms) that employment opportunities in the union's field are declining, predicted a future bleaker than that the Administrator had foreseen, and urged that "the Study and Recommendations be remanded to the Administrator to be reconciled in accordance with the [union's] comments and observations." The Chairman of the Joint Apprenticeship Committee repeated these general views and sought "a hearing where all these facts can be presented in fuller detail." Finally, counsel for the union, in a supplemental affidavit, adduced some data relating to the "actual experience in the hiring hall" for the autumn and winter of 1971-1972 (but without comparative ...