Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A.

MANSFIELD, Circuit Judge:

Once again we are confronted with questions arising out of the imposition of a specific racial membership goal upon a union as a means of dissipating the effects of its past discrimination against minority applicants for membership. See, e. g., United States v. Wood, Wire & Metal Lathers International Union, Local Union No. 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). The present appeal is by Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning and General Pipefitters (the “Union”) from certain provisions of an Order and Judgment entered on June 21, 1973, after the consolidated trial of two actions in the Southern District of New York before Judge Dudley B. Bonsai, sitting without a jury. The portions of the Order appealed from relate to the admission of “non-whites” into Union membership and into a joint employer-union apprenticeship program. The term “non-white” as so used is defined to mean black and Spanish sur-named workers. We remand the case for the purpose of reestablishing the percentage goals upon the basis of relevant statistical data. Subject to such modification the Order and Judgment are affirmed.

Two actions were consolidated for trial purposes by the district court. One is a suit filed by the government in 1971 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the Union and others to enjoin a pattern and practice of discrimination against non-whites in the construction industry. Joined as defendants were (1) several local construction unions, including Local 638, each of which represents a different branch of workers in the industry, (2) joint apprenticeship committees for the different branches, and (3) various associations of employers in the industry. Separate trials were ordered of the claims against each Union. On January 3, 1972, after a three-day hearing on the government’s application for preliminary injunctive relief, Judge Bonsai found that the Union had unlawfully discriminated in the past against non-whites, failing among other things to admit some 169 qualified non-white workers to membership. 337 F.Supp. 217 (S.D.N.Y.1972). He ordered the Union to admit them and temporarily enjoined a strike protesting an employer’s non-discriminatory action in laying off white and non-white workers when the work force was reduced upon the completion of a construction job. No appeal was taken from his findings, conclusions or order.

The government’s suit against the Union was consolidated for trial purposes with a class action against the Union and others by four non-white workers (known as the “Rios” action) claiming that the Union, the Mechanical Contractors Association of New York, Inc. (“MCA”) and the Joint Steamfitters Apprenticeship Committee of the Steamfitters Industry (“JAC”) had failed to admit non-whites to membership, had refused non-whites access to the steamfitters’ apprenticeship program on the same basis as whites, and had failed to provide non-whites with equal job opportunities, all in violation not only of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., but also of 42 U. S.C. §§ 1981 and 1983, and of the Fifth and Fourteenth Amendments. Prior to the consolidation of the Rios and government suits Judge Frankel, after hearing the application of the Rios plaintiffs for preliminary injunctive relief in their action, found, in an opinion filed on March 24, 1971, 326 F.Supp. 198, that the Union “ha[d] followed a course of racial discrimination over the years,” which had had the effect, among others, of wrongfully excluding three of the plaintiffs from membership in the Union. By way of preliminary relief the Union was ordered to admit the three to membership. No appeal was taken by the Union from this preliminary injunction.

Following the consolidated trial Judge Bonsai, in detailed findings and conclusions issued on June 21, 1973, 360 F.Supp. 979, found that, although the Union had taken some affirmative action since the entry of the preliminary injunction to increase non-white participation in the construction industry (principally by joining in a joint industry program called the “New York Plan,” which sought to recruit and find jobs for minority employees), it had continued its pattern and practice of discrimination against non-whites by failing to admit them to full journeyman status, by discriminating against them in work referral, and by participating in an apprenticeship program which discriminated against them.

In an Order and Judgment filed with his opinion the district judge enjoined the defendants from discriminating against individuals on the basis of race, color or national origin and directed the Union to receive and process applications for membership and references for employment and to administer its affairs in a nondiscriminatory manner. The Order appointed an Administrator, Vincent McDonnell, Esq., to implement its provisions and to supervise performance by the parties. The defendants were directed, within three months of the date of the Order, to submit to the Administrator an “affirmative action program” designed to secure the admission of a sufficient number of nonwhites to membership as journeymen in the Union’s A Branch “to achieve a minimum goal of 30% non-white membership by July 1, 1977.” (Members of the Union’s “A Branch” perform construction steamfitting work and generally receive higher hourly earnings than do members of the “B Branch,” who perform shop or repair work.) With a view to achieving the prescribed 30% goal, guidelines were established for direct admission to the A Branch membership and for the administration of the apprenticeship program, subject to such changes as might later be approved by the Administrator and the court.

The Order further directed that, during the three-month period following its issuance, certain “Transitory Provisions” were to be observed by the Union. Dur-ing this period the Union was directed to admit only (1) graduates of the Apprenticeship Program and (2) non-whites who had met certain experience or certification requirements or who had successfully completed a practical examination to be administered by a Board of Examiners. The Board, which was authorized to act by majority rule, consisted of the Administrator or his representative, a representative of the Union, and one chosen by the Administrator from a “minority referral” source. The Order required the defendants, within five days after its effective date, to submit a form of such practical examination for approval by the court and to administer the examination once a month, after such approval, giving advance notice to each applicant.

The Order further established temporary procedures for an apprenticeship training program during the period prior to adoption by the court of the “affirmative action program.” It specified that during 1973 there should be a minimum of 400 apprentices, of whom 175 should be non-white, indentured into a program not to exceed four years. Any additional apprentices must be indentured on the basis of one non-white for every white.

The parties submitted to the Administrator their proposals for and comments with respect to an “affirmative action program” that would incorporate permanent relief with respect to admissions to membership and administration of the apprenticeship program. On March 29, 1974, the district court adopted an “Affirmative Action Plan” (the “Plan”), which generally implements the terms of the court’s Order. The Plan continues Mr. McDonnell in office as Administrator until July 31, 1977, and directs that the minimum goal of 30% non-white membership in the A Branch shall be achieved in stages, 15%' by July 15, 1974, 20% by July 15, 1975, 25% by July 15, 1976 and 30% by July 1, 1977. The categories of A Branch members to be used as the measure for determining these goals are defined, with the direction that the goals are to be met through (1) a four-year apprenticeship program, (2) direct admission to the A Branch, and (3) other trainee programs. Detailed standards and conditions are fixed for admission of non-whites to the first two of these categories, the Plan directing that a minimum of 100 nonwhites shall be indentured into the apprenticeship program each year through 1977 and that a practical examination for admission to the A Branch shall be given weekly or at such other intervals as are approved by the Administrator, upon at least two weeks notice to applicants. The three-person Board of Examiners, which is authorized to act by majority vote and to determine the results of each examination, is to consist of the Administrator or his representative, a Union representative and a representative of the “non-white community” chosen by the Administrator. The Union and employers are also encouraged to develop and participate in non-white trainee programs. Aside from the foregoing, perhaps the most significant term of the Plan is its provision that if the Administrator determines that the minimum goals may not be met by the foregoing methods he may require direct admission to the A Branch on terms approved by himself and the court.

No appeal has been taken from the district court’s findings and conclusions or from most of the provisions of the Order' and Judgment, including the broad equitable relief granted, the appointment of the Administrator, the definition of his powers, and the general provisions with respect to work referral, back pay, attorneys’ fees, costs and continuing jurisdiction. The Union, however, appeals from six specific provisions of the Order:

(1) its provision for an affirmative action program (since adopted) to achieve a minimum goal of at least 30% non-white membership by July 1, 1977 (Par. 8);

(2) its grant of authority to the Administrator to determine the size and frequency of apprenticeship classes and requirement that at least 30% of those indentured for each year for the year 1974 through 1977 shall be non-white, subject to a determination by the Administrator that a greater percentage of non-white apprentices may be necessary to achieve the minimum 30% goal (Par. 9(b) (ii));

(3) its provision that during the three-month transitory period following entry of the Order non-white applicants for membership might satisfy the four years experience requirement by including their experience in specified work of a related nature (Par. 11(a));

(4) its establishment of a board of three examiners who are authorized, by a majority vote, to administer the practical examination to be given to applicants;

(5) its provision that from the expiration of the three-month transitory period until the adoption of the affirmative action plan applicants for full journeyman membership in the A Branch must be accepted on a “one-for-one” basis, i. e., one non-white for each white (Par. 12) ;

(6) the requirement that the practical examination be administered “at least once every month” (Par. 13).

Since the facts are set forth in detail in Judge Bonsai’s opinion, 360 F.Supp. 979, we limit ourselves to a summary of those aspects essential to consideration of the Union’s challenge of the foregoing provisions.

The Union is a labor organization representing its members as their collective bargaining agent in arriving at terms and conditions of employment with steamfitting contractors and contractor-associations in the five boroughs of New York City and in Nassau and Suffolk Counties. It has two branches: (1) the A Branch, whose members are journeymen engaged in construction work on building sites and (2) the B Branch, a metal trades division, whose members work in shops or perform repair work. Membership in the Union is of substantial aid to a worker in obtaining a job as a construction steamfitter and in gaining advancement and overtime pay. Although the Union does not operate a hiring hall, it does refer workers to jobs upon learning of openings. Contractors in the steamfitting industry maintain steady crews which are shifted from site to site as construction needs change. Workers and the Union learn of job openings through those employed on different sites or through employers’ foremen or superintendents.

All past and present officers and business agents of the Union have been white. Prior to 1967 there were no non-white journeymen in the A Branch. By the end of 1971, there were 3,850 A Branch members, of whom only 31 were non-white, and by the end of 1972 approximately 4.5% of the membership, or 191 out of 4,198 A Branch members, were non-white. For the most part even this small non-white membership was achieved as a result of the preliminary relief granted by the court. Until that time the Union’s use of irregular and informal admissions procedures had resulted in almost complete and systematic exclusion of non-white applicants for journeyman membership, while whites were admitted, with some preference apparently given to relatives of existing members. Approximately 25% of the A Branch have been admitted through a five-year apprenticeship program administered by the JAC, the members and employees of which are all white. As a result of the JAC’s use of discriminatory requirements for admission into the program, no non-white applicants were admitted prior to 1964 and, since that time, of 492 apprentices indentured 94.3% have been white. At the time of trial only 16 of the 376 participants in the apprenticeship program were non-white.

The district court concluded that it was unnecessary to determine whether the Union had engaged in purposeful discrimination against admission of non-whites to the A Branch since the Union had a history "of de facto discrimination, with the results of past discrimination being perpetuated. In short, non-white access to membership, either directly or through the apprenticeship route, has been almost completely blocked until the last two years when a very small percentage of non-white membership has been achieved, but otherwise the effects of past discrimination have continued. As against the miniscule percentage of non-white members in the Union, reliable statistical sources revealed that blacks and Puerto Ricans constituted (1) 25.09% of the total population in the seven counties in which the Union has jurisdiction,1 and (2) 19.-79% of the work force in that area.2

In light of the foregoing background, described in detail in his opinion, Judge Bonsai concluded that affirmative relief was required to combat the continuing effects of past discriminatory practices, and entered the Order and Judgment forming the subject of the present appeal.

DISCUSSION

Appellants argue that the court’s imposition of a racial goal 3 violates § 703 (j) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(j), and the Due Process and Equal Protection Clauses of the Constitution. However, we have recently considered and rejected the same arguments in similar cases, see, e. g., United States v. Wood, Wire and Metal Lathers International Union, Local 46, 471 F.2d 408, 412-413 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); Vulcan Society of New York City Fire Department, Inc. v. Civil Service Commission, 490 F.2d 387, 398-399 (2d Cir. 1973); Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 482 F.2d 1333, 1340-1341 (2d Cir. 1973), and nothing has been advanced that would lead us to depart from the principles of those decisions, which directly apply here.4

Once a violation of Title VII is established, the district court possesses broad power as a court of equity to remedy the vestiges of past discriminatory practices. See United States v. Wood, Wire and Metal Lathers International Union, Local 46, supra, and cases cited therein 471 F.2d at p. 413. The Civil Rights Act of 1964 provides that upon finding that a respondent has engaged in an unlawful employment practice the court has the authority not only to enjoin continuation of the practice but also to order “affirmative action” which may include such “equitable relief as the court deems appropriate,” 42 U. S.C. § 2000e-5(g). The Act further empowers the Attorney General, in a civil suit (such as that instituted here against the Union) which charges a pattern or practice of discrimination, to seek such relief against the defendants “as he deems necessary to insure the full enjoyment of the rights herein described,” 42 U.S.C. § 2000e-6(a). “Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In addition to the powers expressly granted by the Civil Rights Act, the court possesses the equitable power, upon finding any unlawful discrimination, to “eliminate the discriminatory effects of the past as well as bar' like discrimination in the future,” Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965).

Eight circuits, including our own, have construed this delegation of broad equitable power as authorizing the district court to establish goals for the purpose of remedying the effects of past discriminatory conduct. See United States v. Wood, Wire and Metal Lathers International Union, Local 46, supra; Associated Gen. Contractors of Mass. Inc. v. Altshuler, 361 F.Supp. 1293 (D.Mass.), affd., 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974); Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc); Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Morrow v. Crisler, 491 F.2d 1053 at 1055 (5th Cir. Mar. 27, 1974); Local 53 Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969); United States v. Local 212, IBEW, 472 F.2d 634 (6th Cir. 1973); United States v. IBEW Local 38, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); United States v. Carpenters Local 169, 457 F.2d 210 (7th Cir.), cert. denied, 409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972); United States v. N. L. Industries, Inc., 47C F.2d 354 (8th Cir. 1973); United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971).5 Despite the existence of some tension between the constitutional mandate of non-discrimination, on the one hand, and the use of goals as a kind of “reverse discrimination,” on the other,6 the Supreme Court has recognized that “mathematical ratios,” although forbidden if specified as a permanent or “inflexible requirement,” may serve as a “useful starting point in shaping a remedy to correct past constitutional violations,” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971).

At first blush a court-ordered-racial goal might appear to violate the language of § 703(j) of the Civil Rights Act which provides that the Act shall not be interpreted to require an employer “to grant preferential treatment to any individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race ... in comparison with the total number or percentage of' persons of such race . in any community.”7 However, as we indicated in United States v. Wood, Wire and Metal Lathers International Union, Local 46, swpra, that language was intended to bar preferential quota hiring as a means of changing a racial imbalance attributable to causes other than unlawful discriminatory conduct. It does not prohibit the use of goals “to eradicate the effects of past discriminatory practices.” Our interpretation has been shared by others. See, e. g., United States v. Ironworkers, Local 86, 443 F.2d 544, 553-554 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed. 2d 95 (1971); United States v. IBEW, Local 38, 428 F.2d 144, 149-150 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970) (“ . . . that section [§ 703(j)] cannot be construed as a ban on affirmative relief against continuation of effects of past discrimination. . . . Any other interpretation would allow complete nullification of the stated purposes of the Civil Rights Act of 1964.”).

Where a racial imbalance is unrelated to discrimination, § 703(j) recognizes that no justification exists for ordering that preference be given to anyone on account of his race or for altering an existing hiring system or practice. But where the imbalance is directly caused by past discriminatory practices it is readily apparent that if the rights of minority members had not been violated, many more of them would enjoy those rights than presently do so and that the ratio of minority members enjoying such rights would be higher. No longer are we dealing with an “imbalance” attributable to non-discriminatory causes. The effects of such past violation of the minority’s rights cannot be eliminated merely by prohibiting future discrimination, since this would be illusory and inadequate as a remedy. Affirmative action is essential. Since the nature and extent of such action depends on the facts of each case, it must of necessity be left to the sound discretion of the trial judge, who may in one ease find that broad equitable relief will suffice to restore the balance but in another conclude that use of a more specific remedy is required.

Appellants further argue while such goals may be permissible in the field of public employment they should be barred as a means of curing past discrimination in private enterprise. No rational basis is offered for drawing such a distinction. That private violations of civil rights should be remediable has been recognized at least since the enactment of the Civil Rights Act of 1866, 42 U.S. C. § 1981. Since the harm caused by private violations can be at least as serious as that resulting from conduct of public bodies or officials, the relief must be commensurate with the injury to be remedied.

Nor are remedial goals limited to any specific or prescribed form. The precise method of remedying past misconduct is left largely to the broad discretion of the district judge. Goals have been expressed in terms of specific numbers or ratios, United States v. Wood, Wire and Metal Lathers International Union, Local 46, supra (minimum of 100 work permits to be issued to non-whites; 250 permits to be issued annually on a “one-to-one” basis, black to white, through 1975); Vulcan Society v. Civil Service Commission, supra (ratio of 3 whites to 1 minority candidate established for a specific period); Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) (1 minority fireman for every 2 whites hired); Pennsylvania v. O’Neill, 348 F.Supp. 1084 (E.D.Pa.1972), modified en banc, 473 F.2d 1029 (3d Cir. 1973) (1 black for every 2 whites hired), or percentages, Bridgeport Guardians v. Bridgeport Civil Service Commission, supra (specific numbers of minority patrolmen to be appointed in order to achieve 15% goal). Goals have also been mandated with respect to apprenticeship programs, United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971) (union ordered to recruit 30% black apprentices, with minimum number per year).

Applying these principles here, the undisputed facts justified the district court’s grant of more drastic relief than a mere prohibition against future discriminatory conduct on the Union’s part. The court’s findings, which are not controverted, disclose a pattern of long-continued and egregious racial discrimination which permeated the steamfitting industry, precluding qualified non-white applicants from gaining membership in the Union’s A Branch and maintaining it as a “white” union. The Union has failed completely to demonstrate that its discriminatory practices could be justified on legitimate grounds such as safety considerations or the high level of skill required of Union members. Nor has the Union, despite the opportunity afforded after the issuance of preliminary relief, voluntarily “cleaned house” or taken any meaningful steps to eradicate the effects of its past discrimination. Under the circumstances the imposition of remedial goals was not an abuse of discretion.

There remains the question whether the 30% goal fixed by the court exceeded the bounds of its discretion. In considering that issue we must be guided by the principle that the objective of a remedial quota is a limited one. It seeks to place eligible minority members in the position which the minority would have enjoyed if it had not been the victim of discrimination. Of course any attempt to reconstruct what would have happened in the absence of discrimination is fraught with considerable difficulty. But the court is called upon to do the best it can with the data available to it. Cf. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-265, 6 S.Ct. 574, 90 L.Ed. 652 (1946). In the present case it is undisputed that a certain percentage of the total labor force within the Union’s territorial jurisdiction would, in the absence of discriminatory practices, have been eligible for membership . in the Union’s A Branch, either directly or through the apprenticeship program. The district court apparently concluded that 30% of the membership would have been nonwhite, absent discriminatory practices. The record is unclear as to the source of the 30% figure. The trial judge’s comments at one point during the proceedings indicate that the figure was prompted by regulations recently proposed by the Deputy Mayor-City Administrator of the City of New York, which set a goal of 28% “minority” steamfitters to be reached by June 30, 1977.8 However, this proposed figure (which is not part of the record below) was based on a definition of the term “minority” which includes not only Negroes and Spanish sur-named Americans but Orientals, American Indians and, where appropriate, females and other classes of individuals which have been the subject of past discriminatory practices. The City’s proposal was also based on the minority composition of the five boroughs of New York City, whereas we are here dealing with a larger area which includes, in addition, Nassau and Suffolk where the non-white percentage of the population is smaller than in New York City. The district court’s opinion further indicates that the selection of the 30% goal may also have been influenced by statistics taken from the 1970 census, which “indicate that non-whites constitute approximately 25.09% to 30.-06% of the total population of New York City and Nassau and Suffolk Counties,” 360 F.Supp. at 992. The membership of the A Branch, however, is not drawn from the entire population. It has consisted of male workers over 18 years of age. Women have never sought to become steamfitters. See opinions of Judge Frankel in Rios, 326 F.Supp. at 202, and of Judge Gurfein in United States v. Local 638 Enterprise Association, 347 F.Supp. at 174 n. 4. Persons under 18 years of age, white or nonwhite, do not appear to have been admitted into the Union or into the apprenticeship program. Absent racial discrimination, therefore, the non-white members of the Union would have been drawn from the male work force over 18 years of age in the Union’s jurisdiction.

Statistics as to the population of this work force during the pertinent period should provide a more accurate base than total population statistics for determining what would have been the percentage of non-white membership, absent discrimination, in the Union. The record reveals that such figures were made available to the district court in May 1973 before its decision and were accepted by it. These figures appear in tables published by the United States Department of Commerce in a publication entitled General Social and Economic Characteristics, 1970 Census of Population — New York, which show that 19.-79% of the total labor work force over 16 years of age in the area over which the Union has jurisdiction consisted of black and Puerto Rican males. These figures are not perfect for present purposes, since they do not include all Spanish sur-named persons, they do include some persons under 18 years of age, and they do not give the percentages for other years during the period of the alleged discrimination. However we believe that reliable statistics with respect to the labor force provide a more accurate basis for arriving at an appropriate non-white-percentage goal than does the information relied upon by the district court, which included not only males forming the labor force, but females, children, retired persons and others who would not, absent discrimination, have been the source of Union members or apprentices.

Judge Bonsai did recognize that it might be necessary to change the 30% figure “if during the course of the next four years it turns out that the population figures don’t justify it” (Appendix 388). -However, we believe that from the outset the court should be guided by the most precise standards and statistics available in view of the delicate constitutional balance that must be struck in the use of such goals or quotas between the elimination of discriminatory effects, which is permissible, and the involvement of the court in unjustifiable “reverse racial discrimination,” which is not. See United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). These conflicting considerations make it essential that the percentage figure be reached with the utmost of care, since once the goal is reached the party will thereafter be bound by standards of non-discrimination applicable to all and not forced to continue in effect a percentage ratio that could become anachronistic. The district court’s role in prescribing non-white goals must at all times be limited to eradication of past discrimination. To prescribe a goal based on an anticipated future increase in the non-white percentage of the population or of the work force would be to cross the line from lawfully remedying the effects of past discrimination to an unlawful attempt to maintain a future non-white percentage.

In view of the district court’s apparent reliance upon figures of questionable relevance and its failure to define the basis for the 30% goal, we remand for reassessment of the percentage goal figure. Upon remand the district court may, for reasons articulated by it, satisfactorily explain the rationale for its 30% goal or it may conclude that a lower percentage is appropriate.

We find no merit in the other points raised by appellants. Their argument that the percentage goal fixed by the court will create unemployment is at best speculative and ignores the necessity of curing the effects of past discrimination by providing equal work opportunities to the non-white minority. Furthermore, should the 30% figure be reduced upon remand, any unemployment threat would, of course, be proportionately alleviated. Since the three-month period following the district court’s Order has expired and an affirmative action plan has been adopted by the court, appellants’ attack on interim measures prescribed by the Order (see Pars. 11(a) and 12) has been rendered moot, at least insofar as they form the basis for a challenge of the temporary relief granted by the court. Doremus v. Board of Education, 342 U.S. 429, 432-433, 72 S.Ct. 394, 96 L.Ed. 475 (1952). The Order’s provisions for a journeyman selection procedure, which require periodic administration of practical- examinations by a Board of Examiners, are reasonable and well within the district court’s discretion. Chance v. Board of Examiners, 458 F.2d 1167, 1178 (2d Cir. 1972). The criteria established by the district court for selecting A Branch members appear to be both reasonable and objective. In view of the Union’s history of discrimination the establishment of a Board of Examiners was appropriate.

The Order of the district court is remanded for reassessment and recalculation of the percentage goal for nonwhite membership in the Union. Subject to such modification of the Order as may be made consistently with this opinion, the Order and Judgment are affirmed.

1 The population statistics are taken from U. S. Department of Commerce, General Social and Economic Characteristics, 1070 Census of Population — New York (PC(1)-34N.Y.), Appendix 525, et seq.

2 Based on Tables from General Social and Economic Characteristics, 1970 Census of Population — New York (PC(1)-34N.Y.) and excerpts from Table 35, General Population characteristics, 1970 Census of Population — ■ New York (PC(L)-B34 Exch. U-AV).

3 We use “goal” rather than “quota” throughout this opinion for the reason that while to some the two words may be synonymous, the term “quota” implies a permanence not associated witli “goal.” For our purposes the significance of the distinction lies in the fact that once a prescribed goal is achieved the Union will not be obligated to maintain it, provided, of course, the Union does not engage in discriminatory conduct.

4 In his dissent Judge Hays disputes the force of the earlier decisions of this court. He maintains, for example, that our approval in the Wood, Wire tí Metal Lathers case of hiring goals turned solely upon the fact *629that the union had waived any objection under § 703(j) by agreeing to settle the action brought by the Government under Title VII. This court did indeed attach significance to the fact of the settlement, but nonetheless felt obliged to consider the settlement provisions in light of Title VII. We concluded that the goal did not “do violence to the intent of the Act,” precisely because it was designed to correct past discriminatory practices. 471 F.2d at 413.

My Brother, Judge Ilays, is correct in noting that Vulcan Society and Bridgeport Guardians are civil rights cases brought under § 1983. But their force is not as easily contained as he would have us believe. Indeed, in Bridgeport Guardians we accepted and relied upon the proposition that Title VII did not prohibit goals aimed at curing past discrimination as support for the use of such goals in a § 1983 case.

5 Judge Hays’ dissent argues that many of these cases do not in fact support the use of quotas against the prohibitions of Title VII. The dissent points, for example, to the fact that the Contractors Association case and the Associated General Contractors case involve quotas prescribed by an Executive Order, not by a Title VII action. But the court in Contractors Association concluded that “the Executive is bound by the express *630prohibitions of Title VII” and went on to rule that quotas did not violate the prohibition of § 703(a). 442 F.2d at 171-172. Consistent with this approach, the First Circuit in Associated Q-eneral Contractors cited as support for its holding endorsing the Executive Order those cases that had upheld quotas against challenges under § 703 (j). 490 F.2d at 16-17, 20-21.

The dissent maintains that the court in Carpenters Local 169 stopped short of ordering fixed racial quotas. Closer inspection reveals the opposite to be the case. In Carpenters Ijocal 169 the Seventh Circuit ordered the district court to fashion a decree directing the defendant unions to issue permits to blacks trained pursuant to the Ogil-vie Plan. Elsewhere the Seventh Circuit has upheld against § 703(a) and (j) challenge the training provision of the Ogilvie Plan which requires a minimum ratio of 1 trainee (blacks) to 4 journeymen (whites) in the union program. Southern Illinois Builders Ass’n v. Ogilvie, 471 F.2d 680, 684-686 (7 Cir. 1972).

6 DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), which involves the constitutionality of preferential law school admissions, is clearly distinguishable, since that case does not involve the use of quotas to eradicate past discrimination. Moreover, unlike the entering class in the law school which had a fixed number of places, the Union does not have a set or maximum number of members.

7 The full text of § 703(j) reads as follows:

“Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.”

8 In opening a hearing held on April 26, 1973, with respect to the proposed Order the court stated (Tr. pp. 3-4) :

“The second part of the decree, as I envision it, would be an affirmative action program. I was rather taken by the proposed ordinance in the City of New York and the proposed executive order of the Mayor on this general subject two weeks ago. I rather think that idea will probably be enacted and so that is going to mean, I take it, throughout this industry, whether we do it in this case or not, that the employers and the unions who are in the construction industry are sooner or later going to have to come out with some kind of an affirmative action program, at least if they are going to do city work, and I assume they want to do city work.”