I agree that the District Court erred in granting summary judgment. Material facts, as well as the inferences to be drawn therefrom, were in dispute. In such a situation the granting of summary judgment was unauthorized. Rule 56 Fed.R.Civ.P.; S. J. Groves & Sons Co. v. Ohio Turnpike Comm’n, 315 F.2d 235 (6th Cir. 1963), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963).
Title VII of the Civil Rights Act of 1964 withheld power from EEOC to institute action to compel compliance with the Act or even to intervene in an action brought by an aggrieved party. The only power to institute such an action or to intervene in an action by an aggrieved party was vested by Congress in the Attorney General. 42 U.S.C. § 2000e-6(a); 42 U.S.C. § 2000e-4(f).
EEOC was authorized only to institute proceedings to compel compliance with judicial orders. 42 U.S.C. § 2000e-5(i) provides:
“In any case in which an employer, employment agency, or labor organization fails to comply with an order issued in a civil action brought under subsection (e) of this section, the Commission may commence proceedings to compel compliance with such order.” The legislative history of Title VII
reveals that as originally passed by the House of Representatives, the bill not only authorized but obligated EEOC to institute actions to enforce the Act. These enforcement provisions were stricken by compromises worked out in the Senate by Senators Mansfield, Dirk-sen and Humphrey which effected a “transfer of litigating responsibilities from the Commission to the Attorney General.” Legislative History of Titles VII and XI of Civil Rights Act of 1964, U. S. Equal Employment Opportunity Commission, pp. 2057, 3005. H.R. 7152 §' 707.
In Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969), the Court said:
“Unlike so many Governmental structures in administrative law, EE OC is an administrative agency without power of enforcement. While it can subpoena witnesses, hold hearings, and attempt conciliation, it has no authority to issue orders or compel enforcement.”
In American Newspaper Publishers Ass’n v. Alexander, 294 F.Supp. 1100 (D.D.C.1968), it was held that EEOC does not have enforcement powers.
It is not the function of the Courts to supply to administrative agencies powers denied to them by Congress, which created such agencies.
There were essentially two parts to the petition to show cause filed by EEOC and docketed as an independent action in the District Court. The first part cited the union for contempt for violating the consent judgment entered on May 29, 1968 in the Locke case which enjoined the union from “interfering with the right of the plaintiff and others similarly situated to enjoy equal employment opportunity as secured by Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e.” The second part of the petition asked the Court to “amend” its order of September 30, 1968 in the Locke case, which had approved new Articles XV and XVI of the Collective Bargaining Agreement, articles which the union had renegotiated with the Contractors’ Association in compliance with the judgment entered on May 29, 1968. The pe*416tition asked the Court to substitute a new order requiring the union “to take certain specific steps to comply with Title VII.”
Only the first part of the petition, citing the union for contempt, related to enforcement of the Court’s order. The second part was an attack on the Court’s order of September 30, 1968 approving the two renegotiated clauses in the Collective Bargaining Agreement. An attack on the Court’s order of September 30, 1968, eight months after it had been entered and while the parties had been operating under it, could hardly be construed as a proceeding to enforce compliance with an order. It was in reality a new action to compel compliance, not with an order of the Court, but with the Civil Rights Act, in which EEOC attempted to exercise powers granted only to the Attorney General.
Insofar as the contempt citation was concerned, EEOC apparently abandoned it. The District Court did not even consider it. No reference to the contempt charge is made in the Court's opinion.
There was a good reason for abandonment of the contempt charge in the District Court, namely because it was groundless. The union was cited for violation of an injunction restraining it from interfering with the right of the plaintiff and others similarly situated to enjoy equal employment opportunity as secured by Title VII of the Civil Rights Act of 1964.
That no one can be held in contempt of court for violating the provisions of a statute, was held by the Supreme Court in New York, N. H. & H. R. R. v. ICC, 200 U.S. 361, 404, 26 S.Ct. 272, 50 L.Ed. 515 (1906). Furthermore, the injunction lacked specificity and therefore did not comply with Rule 65(d) of the Federal Rules of Civil Procedure. The injunction was therefore void.
The order of September 30, 1968 was a final order from which no appeal was taken. It approved the two renegotiated clauses of the Collective Bargaining Agreement as being in apparent compliance with the Civil Rights Act of 1964. The statement therein that the clauses were in apparent compliance with the Act did not negate the fact that the clauses were nevertheless approved by the Court. The union and the Manufacturers’ Association have been operating under them ever since September 30, 1968. EEOC apparently did not discover that the clauses did not comply with the Act until about eight months later. Instead of reporting the matter to the Attorney General for appropriate action, it undertook to take action itself.
The union had complied with the order of May 29,1968 by negotiating a new collective bargaining agreement. That agreement was approved by the order of September 30, 1968. The reservation of jurisdiction by the Court in the order of May 29, 1968, was only for the purpose of enforcing that order. It did not need enforcement because the union complied with it by entering into the new agreement.
The majority treats the petition of EEOC for an order to show cause as a compliance proceeding in the Locke case. The trouble with this treatment is that EEOC in said petition sought, not to enforce, but to amend and modify the order entered in the Locke case which approved the renegotiated agreement, and to substitute in the place thereof a new order. If such petition is treated as having been filed in the Locke case, which it was not, then such filing would at least constitute an intervention in that case. In my opinion EEOC had neither the authority to file an independent action to enforce compliance with the Act, nor authority to intervene in the Locke case. The power to file an independent action to enforce compliance with the Act or to intervene in an action instituted by an aggrieved party was vested by Congress solely in the Attorney General. 42 U.S. C. § 2000e-6(a); 42U.S.C. § 2000e-4(f).
EEOC claimed that the renegotiated collective bargaining agreement approved by the Court, “although nondiscrim*417inatory on its face,” and perfectly legal if there had been no past discrimination, did not go far enough to eradicate the effects of the past discriminatory practices. It was not contended, however, that the District Judge, in approving the agreement, acted without knowledge of material facts, or that he made a mistake, or that the parties imposed on him.
In its summary judgment the Court abolished the longstanding seniority and hiring hall provisions of the collective bargaining agreement. These abolished provisions provided for training of apprentice plumbers for five years, and for a test before an apprentice could become a journeyman plumber. The summary judgment required only one year’s experience and a license from the City of Columbus to become a journeyman. This operated to discriminate against the many union members who had been required over the years to obtain five years’ apprentice experience and to pass a test before becoming journeymen.
It would seem that if there had been previous discrimination in the admittance of Negroes to the union, in the administration of the apprenticeship program, testing, or in the hiring hall procedures, all of which was denied, appropriate orders could have been addressed to these discriminatory practices without entirely abolishing the system and discriminating against other members of the union who have complied with the program. There was substantial evidence that such training and testing was necessary to obtain qualified plumbers, particularly in the field of commercial or industrial buildings. In my opinion the order abolishing the seniority provisions, apprenticeship, testing and hiring hall procedures was punitive in nature rather than remedial. It ought not to have been entered.
I would remand with instructions to dismiss the petition filed by EEOC and leave the redress of any alleged wrong to appropriate action by the Attorney General.