dissenting:
This case, which raises sensitive constitutional issues regarding the judicial imposition of racial quotas, controversial questions of statutory interpretation concerning so-called reverse discrimination as a remedy under Title VII, and more mundane yet important legal issues as to use of the contempt power, divides this court for a third time. EEOC v. Local 638, 565 F.2d 31, 37 (2d Cir.1977) (Meskill, J., dissenting); EEOC v. Local 638, 532 F.2d 821, 833 (2d Cir.1976) (Feinberg, C.J., concurring). On previous occasions, we approved entry of an Order and Judgment (“0 & J”) and “Revised Affirmative Action Program and Order” (“RAAPO”). These constitute a complex code of conduct encompassing forty-five pages of substantive and procedural detail with regard to admission to the apprenticeship program, membership in Local 28 and job referral in the sheet metal industry. The 0 & J and RAAPO vest direct control over these matters in the administrator, who is in effect a receiver with power, inter alia, to govern Local 28 so far as the recruitment and admission of minorities to the union and the referral of apprentices to jobs are concerned. We also established, over Judge Meskill’s dissent, a 29% goal for minority membership in Local 28 to be achieved through the 0 & J and RAAPO.
My disagreement with the majority stems largely from its failure to address the fact that Local 28 had the approval of the administrator for every act it took that affected the number of minority workers entering the sheet metal industry. The majority’s tacit premise thus is that full compliance with the specific terms of the 0 & J and RAAPO is legally insufficient to avoid sanctions for contempt if the 29% goal is not met. This holding transforms the 29% figure from a goal guiding the administrator’s decisions into an inflexible racial quota.
Consider, for example, the alleged unde-rutilization of the apprenticeship program by Local 28. • This charge is by far the most important since that program provides 90% of the union’s new members and underutilization is the only allegedly contumacious conduct of Local 28 which could have seriously diminished the number of minority workers entering the sheet metal industry. It is thus the only allegation even remotely justifying the extra-ordinary sanctions imposed.
In my view, Local 28’s actions cannot constitute contempt under the 0 & J and *1190RAAPO because the final authority with regard to the utilization of the apprenticeship program lay with the administrator, and he approved the number of apprentices indentured throughout the period in question. Paragraph 14 of the 0 & J, set out in the margin,1 gives the administrator full power over the apprenticeship program, including the number of persons to be admitted. The RAAPO, promulgated pursuant to the 0 & J, specified that no less than 36 apprentices be indentured by February, 1977, and provided that the size of future classes be determined by the following procedure:
Upon consideration of the goals of this Revised Program, and the availability of employment opportunities in the industry, the JAC shall forward its recommendation of the number of apprentices to be indentured in each class ... to counsel for the parties and the Administrator ____ The Administrator shall review the recommendations ____ Upon a finding that the JAC’s recommendation does not meet the goals and objectives of the Revised Program the Administrator shall render his determination as to the appropriate number of apprentices to be indentured.
The history of the RAAPO indicates that the administrator was to determine the number of apprentices to be indentured periodically after taking prevailing economic conditions into account. The RAAPO replaced the first affirmative action plan and order (“AAPO”), which dictated fixed numbers of apprentices to be indentured periodically, but which the administrator found to be unrealistic in view of the sheet metal industry’s depressed economic conditions.2 After the district court approved *1191the 0 & J and RAAPO, Local 28 appealed and challenged the provisions relating to the apprenticeship program as unduly intrusive on the union’s self-government. This court rejected that argument and Judge Smith’s opinion expressly stated that the “[ijndenture of apprentices ... is appropriately subject to administrator oversight. The balancing of the need for training workers against existing economic conditions is appropriately left to his informed discretion.” 565 F.2d at 35 (emphasis added).
The union’s obligation under RAAPO, therefore, is to report on the number of apprentices indentured and to obey any decision by the administrator altering that number on his own initiative or upon objection by the plaintiffs. After final entry of the O & J and RAAPO, the union informed the administrator and the plaintiffs virtually every month of the number of apprentices in the program.3 Those reports are in the record. On no occasion did the administrator order the union to increase the number of apprentices indentured. Nor did the plaintiffs object to the numbers submitted, as the provision for notice to them contemplated and as they had the clear power to do under Paragraph 15 of the O & J.4
For all that appears in the record, the level of utilization of the apprenticeship program, the centerpiece of Judge Werker’s contempt finding, was never a serious issue between the parties before the district judge’s decision. The claim of underu-tilization was not even raised by the plaintiffs in their motion for contempt. The issue literally crept into the case only when Local 28 attempted to show its good faith by relying in its brief in response to the contempt motion on its efforts to recruit minorities into the apprenticeship program and on the fact that every apprenticeship class after entry of the 0 & J began with 45% minority members. The plaintiffs addressed the apprenticeship issue for the first time in their reply brief and only then asserted underutilization as a ground for contempt. In the hearing before the district judge, the size of the apprenticeship program was mentioned only by the union, again to demonstrate its good faith efforts.
With the issue thus in the posture of an afterthought, the district judge seized upon certain statistics relating to total apprenticeship enrollment and found as a fact that the union deliberately reduced enrollment in the program after final entry of the 0 & J following our decision in October, 1977. Everyone, including the plaintiffs and the majority, concedes that these statistics were misunderstood by the district court and do not support the conclusion reached. Moreover, in drawing that conclusion, the district judge made no reference whatsoever to the elaborate procedures established in the 0 & J and RAAPO to determine the size of the apprenticeship program, to the administrator’s plenary authority in that regard, to the fact that Local 28 was never ordered by the administrator to increase *1192the number indentured, or to the plaintiffs’ opportunity to object as contemplated by the RAAPO.
The majority now affirms the district court on the grounds that its finding is not clearly erroneous. However, it treats the finding not as one of a deliberate evasion of the 0 & J and RAAPO by reducing the number of apprentices enrolled after their entry but rather as a more general finding of underutilization not involving an actual reduction of apprentice enrollment. This alteration of the district court’s finding is necessary because the number of apprentices enrolled after final entry of the 0 & J did not generally decline.5 The majority also does not discuss the relationship of the 0 & J and RAAPO to the union’s obligations with regard to the apprenticeship program. Since it also does not state what provision of the district court’s order has been violated by the operation of the apprenticeship program, one can infer only that the contempt in its view lies not in any failure to comply with the elaborate provisions of the 0 & J and RAAPO but solely in the failure to reach the 29% racial goal.
Respectfully, I believe the majority is in error in so concluding because the union’s obligation with regard to the apprenticeship program is clearly limited to compliance with the specific provisions of the 0 & J and RAAPO. Indeed, rigid enforcement of the 29% goal without regard to economic or other circumstances is not consistent with the 0 & J and RAAPO, with our prior decisions in this very case, with Title VII, or probably with the Constitution.
Since the 0 & J and RAAPO became effective, Local 28 has essentially been in a receivership so far as admissions to membership or job referral are concerned. In the words of Judge Smith, the administrator has the power “to exercise day-to-day oversight of the union’s affairs.” 532 F.2d at 829. The practical function of the 29% goal is not to impose some overweening obligation on the union but to guide the administrator in determining what Local 28 is to do under the 0 & J and RAAPO. There is simply no reason whatsoever for a court to deprive a union of its self-governance and impose on it the costs of judicial administration of its affairs only to deny that compliance with the decisions of the court-appointed administrator fulfills the union’s obligations. The majority’s use of rhetorical assaults and punitive sanctions against Local 28 simply cannot be reconciled with its failure to utter even muted criticism of the administrator who repeatedly authorized the supposedly contumacious acts and continues in office to this day.
Judge Smith’s second opinion also explicitly recognized that the number of apprentices indentured must be determined by the administrator in light of “existing economic conditions,” 565 F.2d at 35. The majority “rejects” the so-called “tacit premise” of this dissent that difficult economic circumstances may justify reducing the number of new apprentices and thus the number of new minority members. In doing so, of course, it is rejecting Judge Smith’s prior ruling in this very case.
As the record amply demonstrates, Local 28 faced an excruciating reduction in demand for its services in the years in question. In fact, the reason for the administrator’s revision of the fixed enrollment requirements of the AAPO, see note 2, supra, was “the present changed working and employment conditions in the sheetme-tal industry in New York City, including the present severe and widespread unemployment in the industry.” Because of shifting economic circumstances, the RAA-PO, as proposed by the administrator and approved by us, therefore left the number of the apprentices to be determined in the administrator’s discretion exercised in light *1193of prevailing economic conditions. The contempt finding simply disregards this most pertinent history.
The record also demonstrates that the level of utilization of the apprenticeship program was consistent with existing economic circumstances. Although the majority notes a “dramatic” increase in average hours worked annually by a journeyman from 1975 to 1981, the number of journeymen in fact fell from 3,670 to 2,163 in roughly the same period. Even with this enormous decline in journeymen, the average number of forty-hour weeks worked by a journeyman in a calendar year was as follows:
1970— 52
1971— 51
1972— 35
1973— 31
1974— 28
1975— 26
1976— 25
1977— 26
1978— 31
1979— 37
1980— 42
Emphasis has also been placed upon the fact that the unemployment rate among apprentices has declined. However, during 1974 and 1975, when that unemployment rate was 20% and 40% respectively, large numbers of apprentices left the program when relatively full employment was not offered. As a consequence of that experience the administrator reduced the size of the 1977 apprenticeship class.6 Had he not reduced the number of apprentices and thereby reduced apprentice unemployment, the high dropout rate would have made it impossible to increase significantly the percentage of minority journeymen.
Moreover, calculating the hours worked by apprentices as a percentage of total hours worked by both journeymen and apprentices indicates that the apprentices’ share of total hours worked actually doubled from 1977 to 1981. Since every apprenticeship class after entry of the O & J and RAAPO began with at least 45% minority workers and since the share of work allocated to apprentices has dramatically increased, there is absolutely no basis for the claim of apprenticeship underutilization once prevailing economic circumstances are taken into account.
The majority opinion at two points implies that the differences between us stem from “uncertainties” regarding the utilization of the apprenticeship program resulting from the union’s failure to file required reports. I do not share any such uncertainties. In fact, the record contains voluminous data with regard to the admission of apprentices. See notes 3 and 5, supra, and accompanying text.
Finally, the so-called standard 4:1 ratio of journeymen to apprentices is little more than a nationwide desideratum repeated every fifteen years or so by Department of Labor periodicals. Even simple mathematics, however, reveals that such a ratio can be maintained only in a growing industry. Its use is thus also subject to prevailing economic conditions.
For these reasons, there has not been a “clear and unambiguous” order of which there is “clear and convincing” evidence of non-compliance, prerequisites to a contempt judgment. Powell v. Ward, 643 F.2d 924, 931 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981). The frustration of the plaintiffs, the district court, and the majority at the union’s failure to reach the judicially mandated racial balance even while complying with the O & J and RAAPO is perhaps understandable. However, in light of the facts that large numbers of journeymen did not work during the period in question or worked only meager hours, reactive finger pointing at Local 28 is a faintly camouflaged holding that journeymen should have been replaced by minority apprentices on a strictly racial basis. This is at odds *1194with Firefighters Local Union No. 1784 v. Stotts, — U.S. —, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), which rejected such a use of racial preference as a remedy under Title VII. Resort by a federal court to such a strict racial quota in circumstances such as this seems to me also to be of questionable constitutional validity. See Regents of the University of California v. Bakke, 438 U.S. 265, 287-320, 98 S.Ct. 2733, 2746-2763, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.).
I also disagree with the majority’s af-firmance of the establishment of the “education fund.” The district court ordered the union to finance the fund as part of the contempt sanction without making factual findings as to the need for the fund. As stated by the court, the fund will be used to provide tutorials and counseling for first year minority apprentices, to finance various methods of reducing dropouts among minority apprentices, and to improve the curriculum at vocational and technical schools.7 I do not quarrel with the potential usefulness of such a fund as social policy. However, its central factual premise seems to be the lack of qualified minority applicants able to enroll in and complete the apprenticeship program, an implicit finding by the district court that Local 28 has done all it reasonably could with *1195regard to the training of minority apprentices. If a lack of qualified applicants exists — and if it does not, it is difficult to understand the purpose of the fund — the remedy is not to hold a private organization such as Local 28 responsible for improving the quality of public education in New York.
Many of the other claims of contempt also rest on a shaky foundation. For example, with regard to many of the alleged failures to comply with reporting requirements, Local 28 argued that the administrator had determined that it was not required or able to make such reports. The district judge rejected this argument on the grounds that the administrator had no power to grant such relief, a questionable ruling in light of RAAPO § 15. Other claims of contempt are based on firmer grounds but do not warrant the extraordinary remedies invoked here. Only so much can be made, for example, of a use of first class rather than certified mail or an isolated issuance of work permits. (The majority surely makes the most of it in implying that 200 unauthorized permits were issued. The district court’s finding was that 13 such permits violated the RAAPO.) The failure to undertake the publicity campaign followed the administrator’s failure to respond to Local 28’s request for advice on the content of the campaign in light of the limited apprenticeship spaces available. Since the administrator was to supervise the campaign under the terms of the RAA-PO, the union’s failure to go forward is rather less blameworthy than it seems to the majority. In any event, since each apprentice class had 45% minority membership, the lack of a publicity campaign seems inconsequential.
I would remand the case to the district court for a full reexamination of the contempt charges as well as of the newly revised affirmative action program. Regrettably the district judge failed to give careful scrutiny to the record or to the prior history of this case before reaching his conclusions. His legal and factual determinations with regard to the apprenticeship program were taken literally from the air and showed little understanding of what the 0 & J and RAAPO actually provide. This is evident in his disregard of the administrator’s final authority as to the size of the apprenticeship program, and also in his failure to examine the administrator’s rulings with regard to reporting requirements. The newly revised program approved by the majority imposes the same kind of hard and fixed .numerical requirements as were found unrealistic in the AAPO, without any serious explanation of why they did not work before. Affirmance requires us to enforce the 29% goal as a fixed quota requiring the replacement of journeymen by apprentices on a strictly racial basis. Believing this to be inconsistent with our prior decisions in this matter and with Title VII itself, I dissent.
. That paragraph reads:
14. In addition to the powers and duties specified in this Order and the Program, the Administrator shall be empowered to take all actions, including but not limited to the following, as he deems necessary and proper to implement and insure the performance of the provisions of this Order and the Program:
(a) establish additional record-keeping requirements;
(b) increase the frequency with which the apprentice entrance test and/or the hands-on journeyman’s test described more fully infra are administered;
(c) devise and implement additional methods and procedures for entry by non-whites into Local 28 or the Apprentice Program;
(d) establish ratios of non-whites to whites by which individuals will be admitted to Local 28 or the Apprentice Program;
(e) establish through the Program or otherwise such interim percentage goals of nonwhite membership in Local 28 and/or the Apprentice Program in order to insure that the 29% goal set forth in paragraph 11 supra is achieved by July 1, 1981;
(f) establish procedures and practices for work referral and employment, including but not limited to work referral and employment procedures and practices based on ratios of non-whites to whites, furloughs and/or rotation;
(g) conduct an investigation into, and/or require Local 28, and/or JAC to submit reports, concerning any aspect of the operation of Local 28 and the Apprentice Program;
(h) review and approve or object to the disposition of all applications for entry into Local 28 or the Apprentice Program. At such time, if ever, that the Administrator shall adopt and implement any of the procedures and requirements authorized in this paragraph, he shall do so in writing and such procedures and requirements shall thereafter be deemed included in and part of the Program described infra and subject to review by the Court.
. The AAPO, which was superseded by the RAA-PO, called for: (1) the indenture of 100 apprentices in February, 1976, 200 in July, 1976, and 200 each year thereafter; (2) the rotation of apprentices through jobsites in order to equalize employment among apprentices; and (3) a ratio of one apprentice for every four journeymen.
None of these requirements were met because of an egregiously unfavorable economic climate described infra in the text. The JAC indentured only 53 apprentices in February, 1976, none in July, 1976, and 36 in all of 1977. In addition, the JAC stopped the rotation system on the grounds that too many apprentices were quitting the program. Nor was the ratio of one apprentice for every four journeymen observed. The Administrator was informed of these development by the JAC in a series of letters during the summer of 1976 and held a hearing on December 21, 1976. The EEOC later filed a motion to revise the AAPO. The result of the hearing and the motion papers was a report by the Administrator on the AAPO and promulgation of the RAAPO.
In view of the unfavorable economic circumstances, no sanctions were imposed for a failure to comply with the AAPO. To the contrary, the *1191February, 1977 apprentice class size was reduced from 100 to 36 and the size of future classes was to be determined in accord with the discretion of administrator pursuant to the procedure quoted in the text, supra. The verb preceding the rotation plan was changed from "shall” to "may” and the 4:1 ratio was dropped altogether as not workable.
. Apprentice class sizes were reported by the JAC to the Administrator and the plaintiffs on April 6, June 2, June 18, 1976; March 4, April 4, May 9, June 8, July 13, August 3, September 7, November 7, December 7, 1977; January 6, February 27, April 11, May 15, June 6, July 6, August 4, September 12, October 6, November 3, December 4, 1978; January 10, February 13, March 14, April 4, May 9, June 14, August 16, September 18, October 19, November 21, December 14, 1979; January 21, February 22, March 17, April 23, May 23, June 17, July 23, August 7, September 10, October 9, November 12, December 16, 1980; January 21, February 18, March 10, May 5, June 9, August 3, August 6, September 17, October 13, November 13, December 9, 1981; January 11, February 8, March 22, April 7, May 10, 1982.
. That paragraph provides that the administrator shall hear and determine all complaints concerning the operation of this Order and the Program and shall decide any questions of interpretation and claims of violations of this Order and the Program, acting either on his own initiative or at the request of any party herein or any interested person.
. Enrollment after entry of the orders was as follows:
1977 36
1978 49
1979 30
1980 77
1981 143
Our decision affirming the RAAPO was ren*1193dered on October 18, 1977. The enrollment of 36 apprentices in 1977 was specified in the RAA-PO itself.
. See note 2 supra.
. The district judge’s order reads in part:
6. The Fund shall be used for the following purposes:
a. Establishing a tutorial program of up to 20 weeks duration for nonwhite first-year apprentices.
b. Creating part-time and summer sheet metal jobs for nonwhite youths between the ages of 16 through 19 who are currently enrolled in or have successfully completed, within the past year, a sheet metal vocational or technical education program or a program in an allied trade requiring the use of tools, math or drafting, such as carpentry.
c. Paying the expenses, including any lost wages, of nonwhite members and apprentices of Local 28 for their services as liaisons to vocational and technical schools having sheet metal programs. The duties of the liaisons shall include, but not be limited to the following: working with the schools to upgrade the sheet metal program, arranging trips to sheet metal shops and field sites, counseling the students on methods of entry into Local 28 and working with participants in the program set forth in paragraph 6(b) above. The JAC training coordinators and union officials shall cooperate fully with the liaisons in the effort to carry out this program.
d. Appointing a counselor or counselors, whose duties shall include, but not be limited to, the following: monitoring the progress of nonwhite apprentices at each JAC school and on the job, providing nonwhite apprentices with personal and job-related counseling and assisting nonwhite apprentices .in adjusting to their school and work environments to help ensure their successful completion of the Apprenticeship Program. The counselor(s) shall be selected and supervised by the Administrator subject to approval by plaintiffs and the Court. Defendants and all Local 28 contractors shall cooperate fully with the counselors). Every two months, and at the end of each apprenticeship term, the counselor(s) shall submit to the parties, the Administrator and the Court a report detailing the progress of nonwhite apprentices and setting forth recommendations to resolve any problems nonwhite apprentices may be encountering.
e. Providing stipends to unemployed nonwhite apprentices while they attend their regular apprentice class and any additional classes that will be offered to such apprentices pursuant to the AAAPO.
f. Establishing a low-interest loan fund for nonwhite first-term apprentices who demonstrate financial need.
g. Providing stipends to unemployed nonwhite journeymen while they take advanced courses to upgrade their skills.
h. Providing financial reimbursement to any employer who has demonstrated to plaintiffs' satisfaction that it cannot afford to hire an additional apprentice to meet the one-apprentice-to-every-four journeymen requirement of the AAAPO.
i. Providing incentive or matching funds to attract additional funding from governmental or private job training programs, such as the Dislocated Worker Program established pursuant to Title III of the Job Training Partnership Act. 29 U.S.C. §§ 1651-1658.
j. Additional expenditures may be made from the Fund upon a showing by any party that such an expenditure would serve to increase the nonwhite membership of the union and the Apprentice Program, or to provide support services to nonwhites. The party submitting authorization for withdrawal of monies from the Fund must first circulate a written proposal to all other parties and the Administrator detailing the amount requested and how the money would be expended. If all parties agree to such a proposal or, if the parties cannot agree, and the Administrator determines that the proposal should be funded, the Administrator shall authorize the withdrawal of an appropriate amount from the Fund.