Local 638... Local 28 of the Sheet Metal Workers' International Association, v. Equal Employment Opportunity Commission Respondents' Brief in Opposition to Petition for Writ of Certiorari

    No. 84-1656

I N  T H E

(Emtrt of % Inttri* §tatra
October Term, 1984

LO CAL 638 LO CAL 28 OF TH E  SHEET M E TAL
W O R K E R S’ IN TE R N A TIO N A L ASSO C IA TIO N , LO CAL 28 
JOIN T A PPRE N TIC E SH IP COM M ITTEE,

Petitioners,
against

EQ U AL E M PLO Y M E N T O PPO R TU N ITY  COM M ISSION, 
TH E  CITY OF N EW  Y O R K , and N EW  Y O R K  STA TE  
D IV ISIO N  OF H U M AN  RIGH TS,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO 
PETITION FOR W RIT OF CERTIORARI

F rederick A. O. Schwarz, Jr.*
Corporation Counsel of the 

City of New York 
Attorney for Respondent 

the City of New York 
100 Church Street 

New York, New York 10007
Lorna B. Goodman 

Laura J. Blankfein 
L in  B. Saberski 

Assistant Corporation Counsel

O. Peter Sherwood 
Deputy Solicitor General

R osemarie R hodes 
L awrence S. K ah n* 

A lan D. A viles 
Martha J. O lson 

Assistant Attorneys General
*Counsel of Record

R obert A brams 
Attorney General 

of the State of New York 
Attorney for Respondent 
New York State Division 

of Human Rights 
Suite 45-08

Two World Trade Center 
New York, New York 10047 

(212) 488-7510
R obert H ermann 

Solicitor General



T A B L E  O F  C O N T E N T S

P A G E

Table of Authorities .......................................................... 11
Preliminary Statement .................................................... 1

A. Litigation History Prior to the Contempt
Proceedings ........................................................ 2

B. The Contempt Proceedings ............................  5

C. The Fund Order ................................................  9
I). AAAPO ..............................................................  9
E. The Appeal to the Second Circuit.......................  10

Argument
I. The Petition Is Untimely As To Virtually All

Of The Questions Presented ...............................  12
II. The Contempt Remedy Affirmed Below Is 

Firmly Rooted In Well-Settled Principles Of 
Contempt L a w ......................................................... 16

III. The Petition Should Be Denied Because The
Court Below Correctly Concluded That This 
Court’s Holding In Firefighters v. Stotts Was 
Not Controlling And Because This Case 
Provides An Inappropriate Vehicle For Eval­
uating Race-Conscious Remedies Under Title 
V II ............................................................................  20

IV. The Remedial Orders At Issue, Narrowly
Tailored To Further The Compelling Interest 
In Eradicating Proven Systemic Discrimina­
tion, Fully Comport With The Governing 
Principles Of Equal Protection 26 •

• oqConclusion .................... ....................................................



TABLE O F A U T H O R IT IE S

Cases:
PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 25
Association Against Discrimination in Employment,

Inc. v. City of Bridgeport, 647 F.2d 256 (2d Cir. 
1981), cert, denied, 455 U.S. 988 (1982)..................  23

Boeing Co. v. Van G-emert, 444 U.S. 472 (1980) ..........  14
Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 

1017 (1st Cir. 1974), cert, denied, 421 U.S. 910
(1975) .........................................................................  23

Chisolm v. United States Postal Service, 665 F.2d 482
(4th Cir. 1981) ............................................................ 23

Deveraux v. Geary, 596 F. Supp. 1481 (D. Mass.
1984), aff’d ,------ F .2d -------- (1st Cir. 1985) (No.
84-2004) .......................................................................  21

Diaz v. American Telephone & Telegraph, 752 F.2d
1356 (9th Cir. 1985).................................................... 22

Firefighters Local Union No. 1784 v. Stotts, ------ U.S.
------ , 104 S. Ct. 2576 (1984) .................... 20, 21, 22, 23, 24

Florida Steel Corp. v. N.L.R.B., 648 F.2d 233 (5th
Cir. 1981) .................................................................... 15

Franks v. Bowman Transportation Co., 424 U.S. 747
(1976)   25

Fullilove v. Klutznick, 448 U.S. 448 (1980) .................. 26, 27

Gary W. v. State of Louisiana, 601 F.2d 240 (5th Cir.
1979) ...........................................................................  15

Gompers v. Buck’s Stove & Range Co., 221 U.S. 418
(19H) ..........................................................................16,19

Halderman v. Pennhurst State School & Hospital, 673 
F.2d 628 (3rd Cir. 1982) (en banc), cert, denied,
------ U .S .------- -, 104 S. Ct. 1315 (1984) 15



I l l

Hazelwood School District v. United States, 433 U.S.
299 (1977) ................................................................... 12,13

Hutto v. Finney, 437 U.S. 678 (1978) ............................ 16, 24

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) ......................................  25

James v. Stockliam Valves & Fittings Co., 559 F.2d 
310 (5th Cir. 1977), cert, denied, 434 U.S. 1034
(1978) .........................................................................  23

Johnson v. Transportation Agency, 748 F.2d 1308 (9th
Cir. 1984) ...................................................................  22

Kromnick v. School District, 739 F.2d 894 (3d Cir.
1984), cert, denied,------ U .S .------- , 105 S. Ct. 782
(1985) .........................................................................  23

Maggio v. Zeitz, 333 U.S. 56 (1948) ................................  15
McComb v. Jacksonville Paper Co., 336 U.S. 187

(1949) ....................................................................16,19,24
McDaniel v. Barresi, 402 U.S. 39 (1971) 27
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ...................................................................    25
Myers v. Gilman Paper Co., 544 F.2d 837 (5th Cir.),

cert, dismissed, 434 U.S. 801 (1977) ......................  14

National Collegiate Athletic Association v. Board of
Regents,------ U .S.------- , 104 S. Ct. 2948 (1984) .....12,19

PAGE

New York State Association for Retarded Children v. 
Carey, 706 F.2d 956 (2d Cir. 1982), cert, denied,
104 S. Ct. 277 (1983) ...............................................  14

Oriel v. Russell, 278 U.S. 358 (1929) 15

Palmer v. District Board of Trustees, 748 F.2d 595
(11th Cir. 1984) .........................................................  22



PAGE

Parker v. Illinois, 333 U.S. 571 (1948) ............................ 12,13
Pasadena City Board of Education v. Spangler, 427

U.S. 424 (1976) ................................................. ........  14
Penfield Co. v. Securities & Exchange Commission,

330 U.S. 585 (1947) .................................................... 18

Regents of the University of California v. Bakke, 438
U.S. 265 (1978) ......' .................................................. 25,26

Rogers v. Lodge, 458 U.S. 613 (1982) ............................ 12,19
Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982), cert.

denied, 460 U.S. 1042 (1983) .................................... 14,15

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ..... 27
State Commission For Human Rights v. Farrell, 52 

Mise. 2d 936 (Sup. Ct. N.Y. Co.), aff’d, 27 A.D.2d
327 (1st Dept.), aff’d, 19 N.Y.2d 974 (1967) ......... 2

State Commission For Human Rights v. Farrell, 47
Misc. 2d 799 (Sup. Ct. N.Y) Co. 1965) ....................  2

State Commission For Human Rights v. Farrell, 47
Misc. 2d 244 (Sup. Ct. N.Y. Co. 1965) ....................  2

State Commission For Human Rights v. Farrell, 43
Misc. 2d 958 (Sup. Ct. N .Y . Co. 1964) ....................  2

Swann v. Charlotte-Mecklenberg Board of Education,
402 U.S. 1 (1971) ....................................................... 26,27

Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982) .... 23
Turner v. Orr, 759 F.2d 817 (11th Cir. 1985) ..............  22

United Jewish Organizations v. Carey, 430 U.S. 144
(1977)  ' .......................... 26

United States v. City of Chicago, 663 F.2d 1354 (7th
Cir. 1981) ...................................................................  23

United States v. International Brotherhood of Elec­
trical Workers, Local 38, 428 F.2d 144 (6th Cir.),
cert, denied, 400 U.S. 943 (1970) ............................  23

United States v. International Union of Elevator Con­
structors, Local 5, 538 F.2d 1012 (3d Cir. 1976) 23



V

PAGE

United States v. Ironworkers Local 86, 443 F.2d 544
(9th Cir.), cert, denied, 404 U.S. 984 (1971) ........... 23

United States v. Lee Way Motor Freight, Inc., 625 F.
2d 918 (10th Cir. 1979) ............................................ 23

United States v. Montgomery County Board of Edu­
cation, 395 U.S. 225 (1969) ........................................ 27

United States v. N.L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973) ...........................................................  23

United States v. United Mine Workers of America,
330 U.S. 258 (1947) .................................................. 16

Van A ken v. Young, 750 F,2d 43 (6th Cir. 1984) ........  22
Vanguards of Cleveland v. City of Cleveland, 753 F.

2d 479 (6th Cir. 1985) ................................................ 22

Wirtz v. Local 153, Glass Bottle Blowers Association,
389 U.S. 463 (1968) ..................................................

Wygant v. Jackson Board of Education, 746 F.2d 
1152 (6th Cir. 1984), cert, granted, 105 S. Ct. 2015 
(1985) (No. 1340, 1984 Term) ................................

Statutes:

Title V II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000c ct seq........................................................... passim

Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) .....21, 24
Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) . .. 21
28 U.S.C. § 2101 ................................................................. 12,13

14

23

Rules:

Sup. Ct. R. 17.1 .............................................................  16
Sup. Ct. R. 20 .................................................................12,13



No. 844656

IN  T H E

Ĵ upmttP (£mu! ni tty Imtpft ^tatm
October Term, 1984

Local 638 . . . , Local 28 of the Sheet M etal W orkers’ I nter­
national A ssociation, L ocal 28 Joint A pprenticeship Com­
mittee,

Petitioners,
against

Equal E mployment O pportunity Commission, T he City of 
New Y ork, and New Y ork State D ivision of H uman R ights,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

Preliminary Statement

Petitioners are before this Court having been found 
guilty of a long and ignominious history of intentional 
racial discrimination and of repeated defiance of judicially 
supervised efforts to effect compliance with local, state and 
federal fair employment laws. For over twenty years, in 
more than twenty-five orders or opinions, the state and 
federal courts have sought to force these petitioners into



2

compliance with established law.* See, e.g., Pet. 2, n.2; 
A-i-ii.** The Second Circuit now has rejected, for the third 
time, petitioners’ efforts to evade compliance with federal 
court orders entered to redress their discriminatory prac­
tices, and has affirmed the lower court ’s judgments holding 
defendants in contempt of these remedial orders. Under 
the guise of appealing the contempt judgments, petitioners 
come to this Court principally to obtain review of the under­
lying remedial court orders, for which the time to seek 
review has long since expired. Because this petition is 
untimely as to virtually all of the rulings being challenged 
and because the rulings below are plainly correct, the 
petition should be denied.

A. Litigation History Prior to the Contempt Proceedings

In 1971, the United States Department of Justice, pur­
suant to Title VII of the Civil Bights Act o f 1964, 42 U.S.C. 
§ 2000e et seq., filed suit against petitioners to enjoin a 
pattern and practice of discrimination against black and 
Spanish surnamed individuals (“ non-whites” ) who sought

* Petitioners were first found to have intentionally discriminated 
against minorities in 1964, in a proceeding brought under the New 
York Human Rights Law. State Comm’n For Human Rights v. 
Farrell, 43 Misc. 2d 958 (Sup. Ct. N.Y. Co. 1964). A-411. There­
after, the trial judge repeatedly castigated Local 28 for foot-dragging 
in its integration efforts and found it necessary to issue several orders 
enforcing the original judgment. State Comm’n For Human Rights 
v. Farrell, 47 Misc. 2d 244 (Sup. Ct. N.Y. Co. 1965) ; State Comm’n 
For Human Rights v. Farrell, 47 Misc. 2d 799 (Sup. Ct. N.Y. Co. 
1965) ; State Comm’n For Human Rights v. Farrell, 52 Misc. 2d 936 
(Sup. Ct. N.Y. Co.), aff’d, 27 A.D.2d 327 (1st Dept.), aff’d, 19 
N.Y.2d 974 (1967). Local 28 continued to resist court orders follow­
ing commencement in 1971 of the federal action. See, e.g., A-220,

** References to the Petition for Writ of Certiorari are cited as
“ Pet. -------” . References to the Appendix to the Petition are cited
as “ A --------- ” . References to the Respondents’ Brief in Opposition
to the Petition for Writ of Certiorari are cited as “ Opp. -------” .



3

membership in Local 28 and training and job opportunities 
in the sheet metal trade in New York City. Following a 
trial in 1975, the district court found that petitioners had 
intentionally discriminated against non-whites by admin­
istering discriminatory entrance examinations; excluding 
persons who lacked a high school diploma; offering cram 
courses to the sons and nephews of union members but not 
to minority applicants; refusing to accept blowpipe sheet 
metal workers for membership because most such workers 
were non-white; consistently discriminating in favor of 
white applicants seeking to transfer into Local 28 from 
sister locals; refusing to administer journeyman examina­
tions out of a fear that minority candidates would do well, 
and instead issuing work permits to non-members on a 
discriminatory basis; and failing to organize non-union 
sheet metal shops owned by or employing non-whites. 
A-330-50.*

Based upon these findings, the court entered an Order 
and Judgment ( “ O&J” ) that enjoined petitioners from 
all future violations of Title V II and ordered petitioners to 
achieve, by July 1, 1981, a remedial end-goal of 29% non­
white membership in Local 28. A-305, 354. This goal was 
based on the relevant non-white labor pool in New York 
City. A-300, 305, 353-54. The court also ordered petitioners 
to eliminate the diploma requirement for the apprenticeship 
program, to offer non-discriminatory entrance exams for 
journeymen and apprentices, and to allow transfers and 
issue temporary work permits on a. non-discriminatory

* The court further noted that, during the pendency of both the 
state and federal proceedings, Local 28 and the JAC had repeatedly 
flouted the state court’s mandate to “ create ‘a truly non-discrimma- 
tory union,’ ”  and had obeyed the federal court’s interim orders only 
under threat of contempt citations. A-352.



4

basis. A-354-56, 308-10, 303. Petitioners were required 
to engage in extensive recruitment and publicity campaigns 
in minority neighborhoods in order to dispel Local 28’s 
reputation for discrimination and to ensure a broad appli­
cant pool for these tests and transfers, A-355, 312, and 
to maintain records regarding applications, requests for 
transfer, inquiries about permit slips and hiring. A-355, 
310-11. The court appointed an Administrator to super­
vise compliance with the court’s decree. A-355, 305-07.

On appeal, the Second Circuit affirmed, noting that there 
was ample evidence that petitioners “ consistently and egre- 
giously violated Title V II.”  A-212. Indeed, petitioners 
“  [did] not even make a serious effort to contest the finding 
of Title VII violations ”  in this initial appeal. A-215. The 
court upheld the 29% goal as a temporary remedy, dis­
tinguishing it from ‘ ‘ a quota used to bump incumbents or 
hinder promotion of present members of the work force.”  
A-221, 222. It also upheld the requirement that entrance 
examinations be validated and ruled that the testing sched­
ules and recruitment requirements imposed by the district 
court were appropriate exercises of the district court’s 
discretion. A-222. The court modified the relief by elimi­
nating any provision that “ might be interpreted to permit 
white-minority ratios for the apprenticeship program after 
the adoption of valid, job-related entrance tests.”  A-225. 
It concluded that the appointment of an administrator with 
broad powers was “ clearly appropriate,”  given petitioners’ 
failure to change their membership practices pursuant to 
the earlier New York court orders and the district court’s 
rulings in this case. A-220.



Petitioners did not seek review in this Court from the 
Second Circuit’s judgment, which finally determined all 
issues in the action.

On January 19, 1977, following the Second Circuit’s 
affirmance, the district court issued a revised affirmative 
action program and order (“ RAAPO” ). A-182. Among 
other things, RAAPO granted petitioners an additional 
year in which to meet the 29% membership goal. The court 
ordered petitioners to insure that regular and substantial 
progress was made every year in admitting non-whites. 
Additional modifications were made to insure that, during 
a time of widespread unemployment in the industry, ap­
prentices shared equitably in available employment oppor­
tunities in the industry. A-183-84. The court therefore 
ordered the JAC to take all reasonable steps to insure that 
apprentices receive adequate employment opportunities and 
to indenture two classes of apprentices each year, the size 
of each class to be determined by the JAC, subject to review 
by the Administrator. A-192-93.

Petitioners appealed six provisions of RAAPO, includ­
ing the apprenticeship indenture requirement and the 29% 
goal, but the Second Circuit affirmed. A-160, 165-66. Once 
again neither Local 28 nor the JAC sought certiorari from 
this Court.

B. The Contempt Proceedings

In 1982, it became clear to the respondents that Local 28 
would not achieve the 29% goal by the July 1, 1982 date 
required under the O&J. Because this result was a conse­
quence of Local 28’s failure to comply with several sub-



6

staixtive provisions of the O&J and RAAPO, respondents 
moved for an order holding petitioners in contempt. Peti­
tioners cross-moved for an order terminating the O&J and 
RAAPO.

Following a hearing, the district court found that peti­
tioners had “ impeded the entry of non-whites into Local 28 
in contravention of the prior orders of this court. ’ ’ A-149, 
150.# Judge Werker held petitioners in contempt for vio­
lating the O&J and RAAPO by a) underutilizing the ap­
prentice program to the detriment of non-whites; b) failing 
to undertake, as required by RAAPO, a general publicity 
campaign intended to dispel petitioners’ reputation for dis­
crimination ; c) failing to maintain and submit records and 
reports; d) issuing work permits without prior authoriza­
tion of the Administrator; and e) entering into an agree­
ment amending their collective bargaining contract by 
adding a provision that discriminates against Local 28’s 
non-white members by protecting members aged fifty-two 
or over during periods of unemployment (the “ older work­
ers’ provision” ). The cumulative effect of these contemp­
tuous acts, the district court ruled, was that petitioners 
failed even to approach the 29% goal.* ** A-155-56.

* Petitioners’ assertion, at Pet. 7, that they had achieved a non­
white membership in Local 28 of 14.9% by April 1977, was rejected 
by both the district court and the Second Circuit. A-9. Petitioners’ 
own April 1982 census showed its non-white membership to be only 
10.8%. Similarly, petitioners’ statement that 45% of their apprentice 
classes are made up of non-whites, Pet. 7, is misleading in that only 
since January 1981 have petitioners indentured apprenticeship classes 
consisting of 45% non-whites. A-37.

** Although Local 28’s total non-white journeymen and appren­
tice membership was then only 10.8%, more than 18 percentage points 
below the ultimate goal petitioners had been ordered to reach by July 
1, 1982, the district court did not base its finding of contempt upon 
petitioners’ failure to reach the goal. A-155.



7

The primary basis for the contempt holding was the dis­
trict court’s finding that petitioners had deliberately under­
utilized the apprenticeship program in order to limit non­
white membership and employment opportunities. This 
finding rested on evidence that petitioners trained substan­
tially fewer apprentices after entry of the O&J than prior 
to its issuance. The court found that the underutilization 
of the apprenticeship program was not the result of a down­
turn in the economy. To the contrary, the average number 
of hours and weeks worked per year by its journeymen 
members steadily increased from 1975 to 1981. A-16, 151. 
In fact, by 1981, employment opportunities so exceeded the 
available supply of Local 28 journeymen that Local 28 was 
compelled to issue an extraordinary number of work per­
mits to non-member sheet metal workers, most of whom 
were white. A-16. Thus, the court concluded that during 
the years after entry of the O&J, Local 28 deliberately 
shifted employment opportunities from apprentices to its 
predominantly white, incumbent journeymen.* The extent 
of that shift was demonstrated by the increase in the ratio 
of journeymen to apprentices from 7:1 before the O&J was 
entered to 18:1 by 1981, well above the industry standard 
of 4:1. A-16.

The court’s finding that petitioners were also in con­
tempt for issuing permits without the Administrator’s ap­
proval was based upon evidence that Local 28 issued thir­
teen unauthorized permits between March and June 1981. 
Of the thirteen unauthorized permit men, only one was non­
white. These contemptuous acts were particularly signifi­

* Petitioners erroneously assert, at Pet. 7, that the Administrator 
approved the size of each of more than 60 classes of apprentices. What 
petitioners mistakenly refer to are the reports ultimately submitted 
to the Administrator informing him of the number of apprentices in 
the JAC program. A-42 n.3.



8

cant given the district court’s earlier finding, after trial, 
that Local 28 had used the permit system to restrict the size 
of its membership with the illegal effect of denying non­
whites access to employment opportunities in the sheet 
metal industry. A-345-46.

Petitioners were also held in contempt for violating the 
provisions of the O&J and RAAPO requiring Local 28 and 
the JAC to devise and implement a written plan for an ef­
fective general publicity campaign designed to dispel their 
reputation for discrimination in non-white communities. A- 
152-53. It was undisputed that the general publicity plan 
required by the O&J and RAAPO was never formulated, 
much less implemented. Finally, petitioners were held in 
contempt for failing, since 1976, to comply with the report­
ing requirements of the O&J and RAAPO and with the Ad­
ministrator’s request for information relevant to the im­
plementation of RAAPO. A-154-55.

The district court denied petitioners’ cross-motion to 
terminate the O&J and RAAPO, finding that its purposes 
had not been achieved and that it had not caused petitioners 
unexpected or undue hardship. A-157.

On April 11,1983, the City brought a proceeding against 
Local 28 and the JAC for additional violations of the O&J 
and RAAPO. After a hearing, the Administrator found 
that Local 28 and the JAC had again acted contemptu­
ously by failing to provide data required by the O&J and 
RAAPO, failing to send copies of the O&J and RAAPO to 
all new contractors in the manner ordered by the Adminis­
trator, and failing to provide accurate reports of hours 
worked by apprentices. A-127, 128-38.

The district court adopted the Administrator’s findings 
and again held Local 28 and the JAC in contempt. A-125.



9

C. The Fund Order

To remedy petitioners ’ past noncompliance, the district 
court imposed a fine of $150,000 for the first series of con­
temptuous acts and additional fines of $.02 per hour for 
each journeyman and apprentice hour worked for the sec­
ond series of contemptuous acts. A-113, 114. These fines 
were to be placed in an interest-bearing Local 28 Employ­
ment, Training, Education and Recruitment Fund (the 
“ Fund” ) to be used, among other things, to : provide finan­
cial assistance to contractors otherwise unable to meet a 
4.T joumeyman-to-apprentice ratio, provide incentive or 
matching funds to attract additional funding from govern­
mental or private job training programs, establish a tu­
torial program for non-white first year apprentices, and 
create summer or part-time sheet metal jobs for minority 
youths who have had vocational training. A-116-18. The 
Fund will “ remain in existence until the [new non-white 
membership] goal set forth in the Amended Affirmative 
Action Program and Order (“ AAAPO ” ) . . .  is achieved 
and until the Court determines that it is no longer neces­
sary. ’ ’ A-114.

D. AAAPO

Because the remedial purposes of RAAPO had not been 
achieved, the district court, on November 4, 1983, entered 
AAAPO to replace RAAPO. A-53, 111. AAAPO modified 
RAAPO in a number of respects. It modified the non-white 
membership goal from 29% to 29.23% to reflect Local 28’s 
expanded jurisdiction (due to merger of several unions into 
Local 28) and a population change in the relevant labor 
pool. A-54, 122-23. It extended the deadline for meeting 
the goal until August 31, 1987. A-55. It also required that



10

one non-white applicant be indentured into the apprentice­
ship program for each white applicant indentured and that, 
unless waived by plaintiffs, the JACs assign each Local 28 
contractor one apprentice for every four journeymen. 
A-57.

E. The Appeal to the Second Circuit

Local 28 and the JAC appealed to the Second Circuit 
from the district court’s contempt orders, its Fund order 
and its order adopting AAAPO. They did not appeal from 
the denial of their cross motion to terminate the O&J and 
RAAPO.

The Second Circuit affirmed all of the district court’s 
findings of contempt against Local 28 and the JAC, except 
the finding based on the older workers’ provision. It also 
affirmed the contempt remedies and establishment of the 
Fund.

With respect to the first contempt proceeding, the Sec­
ond Circuit held that the evidence “ solidly supports Judge 
Werker’s conclusion that defendants underutilized the ap­
prenticeship program . . . .”  A-17. The court concluded, 
“  [p] articularly in light of the determined resistance by 
Local 28 to all efforts to integrate its membership, . . . the 
combination of violations found by Judge Werker . . . 
amply demonstrates the union’s foot-dragging egregious 
noncompliance . . . and adequately supports his findings of 
civil contempt against both Local 28 and the JAC.”  A-24.

With respect to the second contempt proceeding, the 
court held that the district court’s determination was sup­
ported by “ clear and convincing evidence which showed



11

that defendants had not been reasonably diligent in at­
tempting to comply with the orders of the court and the 
Administrator.”  A-22.

The court concluded that the establishment of the Fund 
was an appropriate contempt remedy. The district court 
had aimed the relief at the apprenticeship program, where 
it would be most effective, and the Fund would compensate 
those who had suffered the most from defendants’ contemp­
tuous conduct. A-26.

The court affirmed AAAPO with two modifications: it 
set aside the requirement that one non-white apprentice be 
indentured for every white, concluding that the ratio was 
unnecessary in order to assure progi’ess toward the goal, 
and it modified AAAPO to permit the use of validated se­
lection procedures before the 29.23% membership goal is 
reached.

Finally, the court reaffirmed the 29.23% membership 
goal, finding that it met the circuit’s two-pronged test for 
the validity of a temporary, race-conscious affirmative ac­
tion remedy. First, as the court had twice before recog­
nized, the remedy was designed to correct a long, contin­
uing and egregious pattern of race discrimination. Second, 
the remedy “ will not unnecessarily trammel the rights of 
any readily ascertainable group of non-minority individ­
uals.”  A-32.

It is from this judgment of the Second Circuit that peti­
tioners seek review.



12

A R G U M E N T

I .

The Petition Is Untimely As To Virtually All Of 
The Questions Presented.

Petitioners’ application for certiorari is untimely as to 
almost all of the rulings for which review is sought. First, 
petitioners seek to challenge the district court’s original 
findings of intentional race discrimination, which were 
made in 1975 and affirmed on appeal in 1976. A-211-15. 
Petitioners declined to seek certiorari after the Second Cir­
cuit’s affirmance. This Court’s rules, Sup. Ct. R. 20, and 
28 U.S.C. § 2101, require that certiorari be sought no later 
than ninety days after entry of the judgment to he re­
viewed. Petitioners’ challenge to these findings of inten­
tional race discrimination thus comes more than eight years 
too late. See Parker v. Illinois, 333 U.S. 571, 576 (1948).*

* Petitioners claim no new facts or changed circumstances that 
might make appropriate a belated review of the findings of liabil­
ity. Their argument that Hazelwood School Dist. v. United States, 
433 U.S. 299 (1977), requires a redetermination was made and right­
fully rejected by the Second Circuit in 1977 in an opinion from which 
the petitioners also did not seek review. Moreover, the findings of 
discrimination were consistent with Hazelwood. Petitioners’ liability 
was based not on statistics alone but primarily on a series of inten­
tionally discriminatory practices against minorities. Opp. 2. See 
also A-333 n.12.

Furthermore, certiorari is inappropriate because petitioners seek 
to relitigate factual findings concurred in by both the district and ap­
pellate courts. This Court has often stated that it is reluctant to dis­
turb findings of fact concurred in by two lower courts. E.g., Rogers 
v. Lodge, 458 U.S. 613, 623 (1982) ; see Nat’l Collegiate Athletic
Ass’n v. Bd. of Regents,-------U .S .--------, 104 S. Ct. 2948, 2959 n,15
(1984).



13

Petitioners’ challenges to the powers of the Administra­
tor and to the 29% goal are likewise untimely.* The 1975 
O&J created the office of Administrator, giving it super­
visory powers over petitioners’ implementation of the 
court’s order. The O&J also established the 29% goal. In 
1976, the Second Circuit affirmed both the appointment of 
the Administrator and the 29% goal. A-220. As noted 
above, petitioners did not seek certiorari from the Second 
Circuit’s judgment.

Following entry of RAAPQ in 1977, petitioners ap­
pealed a provision granting certain oversight powers to the 
Administrator, A-165, and again challenged the goal, claim­
ing that it constituted a quota forbidden by Title VII and 
the Constitution, and that it was improperly calculated 
under Hazelwood School District v. United States, 433 U.S. 
299 (1977). The Second Circuit upheld the Administra­
tor’s powers, A-165-66, and reaffirmed the goal. A-167-68. 
Again, petitioners did not seek certiorari. Because peti­
tioners’ challenge to the Administrator’s powers and to the 
29%> goal seeks review of the Second Circuit’s 1976 and 
1977 judgments, their challenge is untimely under 28 U.S.C. 
2101 and Sup. Ct. R. 20. See Parker v. Illinois, 333 U.S. 
at 576.

Petitioners renewed their twice failed challenges to the 
powers of the Administrator and the 29% goal in 1982 when 
they sought to terminate the O&J and RAAPO. A-loO-57. 
The district court denied this motion, stating that “ [t]he

* The adjustment made to the goal in August 1983 by the district 
court, A-119, and affirmed by the Second Circuit, A-33, was so minor 
that a challenge to the 29.23 %  goal is in reality a challenge to the 
underlying 29% goal itself. As the district court noted, “ [t]he new 
goal of 29.23% essentially is the same as the goal set in 1975.” A-123.



14

purposes of RAAPO have not been achieved and it has not 
caused the defendants any unexpected or undue hardship.”  
A-157. Petitioners did not, simply by moving to terminate 
the goal, revive their right to seek review of the court’s 
earlier judgments. Moreover, because no appeal was 
taken from the district court’s order denying their motion, 
A-12, the issues raised therein, such as the alleged imprac- 
ticality of the goal, cannot be brought before this Court. 
As this Court has stated, “ the judgment . . . was final and 
appealable. Since [it was not appealed] we cannot now 
consider whether the judgment was in error.”  Boeing Co. 
v. Van Gemert, 444 U.S. 472, 480 n.5 (1980); accord Pasa­
dena City Board of Education v. Spangler, 427 U.S. 424, 
432 (1976) (refusing’ to consider, on certiorari from denial 
of a motion to modify or terminate certain provisions of a 
1970 decree, the validity of the district court’s original 
judgment since it had not been appealed).*

* Petitioners’ argument that the appointment of an administrator 
interferes with Local 28’s right of self-government must likewise fail 
for the simple reason that the principle of union self-governance has 
never been allowed to override requirements imposed by the labor laws 
or any other law. See Wirts v. Local 153, Glass Bottle Blowers 
Ass’n, 389 U.S. 463, 471 (1968) (the freedom allowed unions to 
conduct their own elections is reserved for those elections which 
conform to the democratic principles written into 29 U.S.C. § 401) ; 
Myers v. Gilman Paper Co., 544 F.2d 837, 858 (5th Cir.), cert, dis­
missed, 434 U.S. 801 (1977) (collectively bargained agreements may 
be overridden if they violate Title V II ) . In any event, the powers 
granted the Administrator did not interfere in any way with Local 
28’s self-governance. Local 28 retains complete autonomy regarding 
its own elections and the collective bargaining process. To the extent 
the Administrator monitors admission to union membership or em­
ployment, such monitoring is fully justified by Local 28’s intransi­
gence in refusing to obey previous court orders. Courts have often 
upheld the appointments of administrators or special masters to over­
see the implementation of judgments in complex cases where the 
defendants have failed to comply with court orders requiring changes 
in existing practices and conditions. See New York State Ass’n for 
Retarded Children v. Carey, 706 F.2d 956, 962-63 (2d Cir. 1982), 
cert, denied, 104 S. Ct. 277 (1983) ; Ruiz v. Estelle, 679 F.2d 1115,

(footnote continued on next page)



15

Contrary to petitioners’ argument, at Pet. 12 n.7, “ a 
contempt proceeding does not open to reconsideration the 
legal or factual basis of the order alleged to have been dis­
obeyed and thus become a retrial of the original contro­
versy.”  Maggio v. Zeitz, 333 U.S. 56, 69 (1948); accord 
Oriel v. Bussell, 278 U.S. 358 (1929); Halderman v. Perm- 
hurst State School & Hospital, 673 F.2d 628, 637 (3d Cir. 
1982) (en banc), cert, denied, 104 S. Ct. 1315 (1984); Flor­
ida Steel Corp. v. N.L.R.B., 648 F.2d 233, 238 n.10 (5th Cir. 
1981).* As the Third Circuit stated,

There are strong policy reasons for limiting review, 
even in post-final judgment contempt proceedings, to 
matters which do not invalidate the underlying order. 
If a civil contemnor could raise on appeal any substan­
tive defense to the underlying order by disobeying it, 
the time limits specified in [the Federal rules] would 
easily be set to naught [ , ] . . .  presenting] the pros­
pect of perpetual relitigation, and thus destroy[ing] 
the finality of judgments of both appellate and trial 
courts.

Halderman v. Pennhurst State School & Hospital, 673 F.2d
at 637.
1160-63 (5th Cir. 1982), cert, denied, 460 U.S. 1042 (1983) ; Gary 
W. v. State of Louisiana, 601 F.2d 240, 244-45 ( 5th Cir. 1979). 
Here, Local 28’s record of foot-dragging and non-compliance dates 
back almost twenty years, see ante at 1-2. The powers granted the 
Administrator here do not exceed those granted administrators ap­
pointed in other complex civil rights cases. See, e.g., Ruiz v. Estelle, 
679 F.2d at 1160-63. The Administrator’s term has been extended 
simply because of Local 28’s refusal to comply with the lower courts’ 
orders in this case.

* The cases cited by petitioners at Pet. 12 n.7 are inapposite, as 
each of those cases dealt with contempt orders imposed for violation 
of a temporary restraining order, a preliminary injunction or a dis­
covery order, and not for contempt stemming from a violation of a 
final judgment imposed several years earlier.



16

In the present case, petitioners’ arguments were long 
ago rejected by two judgments of the Second Circuit. Pe­
titioners should not be allowed to relitigate these same 
claims before this Court at this late date under the guise 
of appealing the contempt judgment.

I I .

The Contempt Remedy Affirmed Below Is Firmly 
Rooted In Well-Settled Principles Of Contempt Law.

Petitioners urge that certiorari be granted “ to restate 
the principles of civil contempt.”  Pet. 17. They fail, how­
ever, to ground their petition on any of the traditional cri­
teria that govern review on certiorari. See Sup. Ct. R. 17.1. 
Petitioners’ claim is simply that in this case the lower 
courts misapplied established law. Yet, as the record dem­
onstrates, the decisions of the courts below were plainly 
correct. A-25-26.

This Court has long held that a finding of civil contempt 
allows the imposition of remedial sanctions “ for either or 
both of two purposes: to coerce the defendant into com­
pliance with the court’s order, and to compensate the com­
plainant for losses sustained.”  United States v. United 
Mine Workers of America, 330 U.S. 258, 303-4 (1947); see 
Hutto v. Finney, 437 U.S. 678, 691 (1978); McCornb v. Jack­
sonville Payer Co., 336 U.S. 187, 191 (1949); Gompers v. 
Bucks Stove & Range Co., 221 U.S. 418, 443-44 (1911).

The compensatory nexus between the injury inflicted by 
the defendants’ contumacious conduct and the remedies 
imposed is manifest. The district court concluded, and the



17

Court of Appeals agreed, that petitioners’ contumacious 
conduct “ impeded the entry of non-whites into Local 28 in 
contravention of the [district court’s] prior orders”  and 
‘ ‘ that the collective effect of these violations has been to 
thwart the achievement of the 29% goal of non-white mem­
bership in Local 28 established by the court in 1975.”  
A-26,150,155. Undeniably, this obstruction of the remedial 
relief previously ordered by the district court—particu­
larly the deliberate underutilization of the apprentice pro­
gram by Local 28 and the JAO—injured the class of non­
whites interested in becoming Local 28 sheet metal workers 
who are the intended beneficiaries of the O&J and RAAPO. 
By deliberately shifting employment opportunies to jour­
neymen, virtually all of whom were white, rather than train­
ing new apprentices on a non-discriminatory basis, peti­
tioners ensured that they would achieve only minimal 
progress in increasing the proportion of minorities in their 
membership. Although those thus denied the intended 
remedial benefit of the district court’s orders may not all 
have been individually identifiable, the injury inflicted is 
real and substantial: but for petitioners’ contemptuous 
conduct, there would have been more non-white apprentices 
and further progress toward attainment of the 29% re­
medial goal.

The Fund order directs that the compensatory contempt 
fines assessed against petitioners be used to attract addi­
tional qualified non-whites into the apprentice program and 
to assist them in completing the program by establishing 
counseling and tutorial services, by providing financial as­
sistance to any non-white apprentice unemployed or ex­
periencing financial hardship during the first apprentice 
term, and by funding part-time and summer jobs for non­



18

white youths in vocational programs in the sheet metal or 
allied trades. Further, to expand the training and employ­
ment opportunities for apprentices, especially minority ap­
prentices, part of the fines are to be used as incentive or 
matching funds to attract governmental or private job 
training programs, and to provide financial assistance to 
employers who otherwise cannot afford to hire an addi­
tional apprentice to meet the 4 :1 ratio required by A A APO. 
A-113-18. Thus, as the Court of Appeals correctly held, 
the Fund is ‘ ‘ specifically intended to compensate those who 
had suffered most from [petitioners’ ] contemptuous con­
duct,”  and it does so “ by improving the route [non-whites] 
most frequently travel in seeking union membership.”  
A-26.

Moreover, because the Fund order requires petitioners 
to make additional periodic payments into the Fund until 
they have fully complied with the O&J and A A APO by 
eradicating the effects of their persistent and intentional 
exclusion of non-whites, the Fund order serves a coercive 
function as well. Under the terms of RAAPO, full compli­
ance should have been achieved by July 1, 1982. Yet, in 
April 1982, after 7 years under remedial court orders, only 
10.8% of petitioners’ members were non-white. In a classic 
exercise of coercive contempt powers, the Fund order gives 
the petitioners an opportunity to purge themselves of con­
tempt and to recover excess monies from the Fund upon 
achieving, however belatedly, full compliance with the O&J 
and AAAPO. See Penfield Co. v. Securities & Exchange 
Commission, 330 U.S. 585, 590 (1947).

Petitioners insist that this Court conduct a highly indi­
vidualized factual analysis to determine whether, as they



19

assert, there is an imperfect match between petitioners’ 
contumacious acts and the Fund designed to compensate 
for those acts. Such fact-specific assertions, addressed to 
a voluminous factual record that was carefully considered 
by the Court of Appeals, do not warrant this Court’s re­
view. See National Collegiate Athletic Association v.
Board of Regents,------U .S.------- , 104 S. Ct. 2948, 2959 n.15
(1984); Rogers v. Lodge, 458 U.S. 613, 623 (1982). In any 
event, this Court recognized long ago that a perfect match 
between the injury inflicted and the compensatory contempt 
remedy fashioned is not always possible, and thus is not an 
essential ingredient of such a remedy. See Gompers v. 
Bucks Stove & Range Co., 221 IT.S. 418, 444 (1911) (noting 
that a compensatory civil contempt fine must be “ measured 
in some degree”  by the injury caused by the disobedient 
act). By assisting non-whites’ entry into and completion 
of the apprentice program and by expanding training and 
employment opportunities for non-white apprentices, the 
Fund order will accelerate the integration of Local 28, 
remedying to a large degree the injuries inflicted by peti­
tioners’ obstruction of the prior remedial orders.

Petitioners’ argument, that even narrowly fashioned 
remedial contempt sanctions are unavailable to redress 
clear injury solely because the injured victims are not in­
dividually identifiable, would, if accepted, as this Court has 
remarked in a different but related context, “ operate to 
prevent accountability for persistent contumacy. Mc- 
Cornb v. Jacksonville Paper Co., 336 TT.S. 187, 192 (1949). 
Such an inflexible bar would enable a union or employer to 
violate with impunity a judgment enjoining discriminatory 
practices, provided that in continuing to pursue discrim­
inatory practices, the defendant ensured that individual



2 0

victims could not be identified (i.e., by continuing a dis­
criminatory reputation, thereby deterring minority appli­
cations, or by failing to retain applications). Surely, as 
the Court of Appeals implicitly recognized, “ the force and 
vitality of judicial decrees derive from more robust sanc­
tions.”  Id. at 191.

H I .

The Petition Should Be Denied Because The Court 
Below Correctly Concluded That This Court’s Holding 
In Firefighters v. Stotts Was Not Controlling And Be­
cause This Case Provides An Inappropriate Vehicle For 
Evaluating Race-Conscious Remedies Under Title VII.

Petitioners argue that certiorari should be granted be­
cause the court below, and other lower courts, have failed 
to follow what petitioners characterize as this Court’s 
holding in Firefighters Local Union No. 1784 v. Stotts, —— 
U .S .------ , 104 S. Ct. 2576 (1984). In the alternative, peti­
tioners argue that, if  Stotts does not preclude race-con­
scious remedies under the facts presented, the Court should 
grant certiorari to determine whether race-conscious rem­
edies that benefit unidentifiable victims can ever be 
awarded in a Title V II case. Not only do petitioners mis- 
characterize Stotts, they ignore this Court’s previous hold­
ings and the unanimous conclusion of the courts of appeals 
that affirmative race-conscious remedies can be appropriate 
and necessary means of eliminating employment discrim­
ination. Moreover, petitioners overlook the unique facts of 
this case, their untimeliness in challenging the 29% hiring 
goal, and the complicating factor of the district court’s con­
tempt powers pursuant to which the Fund was established.



21

Petitioners contend that Stotts held that section 706(g) 
of Title Y II prohibits all race-conscious remedies except 
those designed to compensate identifiable victims of dis­
crimination. To the contrary, Stotts held only that “ the 
District Court exceeded its powers in entering an injunction 
requiring white employees to be laid off, when the otherwise 
applicable seniority system would have called for the layoff 
of black employees with less seniority.”  104 S. Ct. at 2585 
(footnotes omitted). The Court concluded that section 
703(h) of Title VII bars a court from overriding a borwi fide 
seniority plan by granting retroactive seniority to individ­
uals never identified as victims of discrimination. Id. at 
2589.

This Court did not hold in Stotts that affirmative, pros­
pective race-conscious remedies, imposed after a finding of 
past intentional race discrimination, are prohibited.* The 
discussion in Stotts was limited to the range of permissible 
make-whole remedies and did not address the propriety of 
prospective remedies which are not “ make-whole”  in na­
ture. Thus, in noting that its holding under section 703(h) 
was supported by section 706(g), the Court stated that the 
policy behind section 706(g) “ is to provide make-whole re­
lief only to those who have been actual victims of illegal dis­
crimination. ”  Id. at 2589 (emphasis supplied). In its de­
scription of the Congressional debates regarding section 
706(g), the Court again repeatedly refers to the issue of 
“ make-whole”  relief. Id, at 2589-90 and n.15. At no point 
did the Court hold that a district court was barred by that 
section from fashioning prospective, race-conscious relief,

* This Court did not even suggest that the interim hiring and pro­
motion goals in Stotts, which benefitted individuals not identified as 
victims of discrimination, were unlawful. See JJeveraux v. Geary, 596
F. Supp. 1481, 1486 (D. Mass. 1984), afi’d, ------  F .2 d -------(1st
Cir. 1985) (No. 84-2004).



2 2

which, does not override a seniority system, in order to 
remedy the effects of proven, past discrimination.

The Second Circuit therefore correctly distinguished the 
instant case from Stotts on three grounds. First, the relief 
awarded by the district court does not conflict with a senior­
ity plan.* A-30. Second, the 29% goal and the Fund order 
are prospective remedies designed to overcome past dis­
crimination, unlike an award of retroactive seniority, which 
by its nature is a “ make-whole”  remedy. A-30. Third, 
the district court’s remedies were based upon findings of 
past intentional discrimination. A-31.

The Second Circuit’s conclusion that Stotts does not bar 
prospective, race-conscious relief that does not override a 
bona fide seniority system comports with that of every 
other circuit court considering the appropriateness of race- 
conscious remedies subsequent to the Stotts decision.**

* As the Court of Appeals noted nearly eight years ago in this lit­
igation, seniority-based work allocation has never been a practice in 
the sheet metal industry. A -166.

** Turner v. Orr, 759 F.2d 817 (11th Cir. 1985) (affirming 
order that enforced consent decree provisions requiring good faith 
efforts toward attainment of minority hiring and promotion goals) ; 
Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (6th Cir. 
1985) (consent decree entered after a finding of race discrimination, 
providing that promotions in the city fire department be made from 
a list of qualified candidates on a one minority to one non-minority 
basis for a limited amount of time, is appropriate where existing 
seniority system was preserved) ; Diaz v. American Telephone & Tel­
egraph, 752 F.2d 1356, 1360 n.5 (9th Cir. 1985) (Stotts does not 
undermine the group-rights goals of Title V II ) ; Van Aken  v. Young, 
750 F.2d 43 (6th Cir. 1984) (upholding voluntary affirmative hiring 
plan for Detroit fire department) ; Johnson v. Transp. Agency, 748 
F.2d 1308 (9th Cir. 1984) (upholding a voluntary affirmative action 
plan containing goals for women, minorities and handicapped per­
sons) ; Palmer v. Dist. Bd. of Trustees, 748 F.2d 595 (11th Cir. 
1984) (rejecting reverse discrimination claim challenging hiring made 
pursuant to an affirmative action plan adopted after a finding of past

(footnote continued on next page)



23

Moreover, Justice White’s opinion in Stotts does not in­
dicate disapproval of the unanimous view of the Courts of 
Appeals that, in appropriate circumstances, interim goals, 
such as the 29% goal at issue here, may he ordered as an 
essential means to dismantle segregation in employment 
caused by past discrimination.*

Petitioners’ alternative argument, that if the validity of 
race-conscious remedies in cases not involving seniority 
plans was not decided in Stotts, certiorari should be 
granted to resolve that issue, is likewise flawed. Even if 
that issue were an unresolved one, we submit that this case 
is an inappropriate vehicle for deciding it. First, as dis­
cussed in Point I, ante, petitioners’ challenge to the 29% 
minority hiring goal is simply untimely. Second, the Fund 
was developed as a sanction for petitioners’ contumacious

discrimination) ; Wygant v. Jackson Bd. oj Educ., 746 F.2d 1152 
(6th Cir. 1984), cert, granted, 105 S. Ct. 2015 (1985) (No. 1340, 
1984 Term) (upholding collective bargaining agreement requiring 
that, in event of layoffs, percentage of minority teachers laid off would 
not be greater than current percentage of minority personnel em­
ployed) ; Kromnick v. School Dist., 739 F.2d 894 (3d Cir. 1984), 
cert, denied, 105 S.Ct. 782 (1985) (upholding teacher reassignment 
system that required each school to employ between 75% and 125% 
of the existing proportion of black teachers employed city-wide).

* See, e.g., Thompson v. Sawyer, 678 F.2d 257, 294 (D.C. Cir. 
1982) ; Boston Chapter, N AACP, Inc. v. Beecher, 504 F.2d 1017 
(1st Cir. 1974), cert, denied, 421 U.S. 910 (1975) ; Ass’n Against 
Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 
256 (2d Cir. 1981), cert, denied, 455 U.S. 988 (1982); United 
States v. Int’l Union of Elevator Constructors, Local 5, 538 F.2d 
1012 (3d Cir. 1976) ; Chisolm v. United States Postal Serv., 665 
F.2d 482 (4th Cir. 1981); James v. Stockham Valves & Fittings 
Co.. 559 F.2d 310 (5th Cir. 1977), cert, denied, 434 U.S. 1034 
(1978) ; United States v. Int’l Bhd. of Electrical Workers, Local 38, 
428 F.2d 144 (6th Cir.), cert, denied, 400 U.S. 943 (1970) ; United 
States v. City of Chicago, 663 F.2d 1354 (7th Cir. 1981) ; United- 
States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973) ; United 
States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert, de­
nied, 404 U.S. 984 (1971) ; United States v. Lee Way Motor Freight, 
Inc.’, 625 F.2d 918 (10th Cir. 1979).



24

conduct, and not as part of the relief granted pursuant to 
the judgment in the underlying Title VII case. Whatever 
questions remain open after Stotts should not be decided in 
the context of a trial court’s exercise of its contempt 
powers, as a district court’s power to impose contempt 
sanctions rests not on the underlying statute but, upon the 
court’s equitable power to enforce its own decrees. Mc- 
Comb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949) 
(“ the measure of the court’s power in civil contempt pro­
ceedings is determined by the requirements of full remedial 
relief” ). Belief that may not be available in an underlying 
action may thus be proper as a remedy for contempt of a 
judgment in that action. Hutto v. Finney, 437 U.S. at 690- 
92. Third, certiorari is inappropriate because, as is re­
flected by the absence of any split in the circuits, ante at 
23, the Second Circuit was correct in holding that prospec­
tive race-conscious remedies, designed to overcome the 
effects of past discrimination, are permissible under sec­
tion 706(g).

Section 706(g) recognizes the dual goals of Title VII by 
providing for both make-whole relief and affirmative relief. 
The last sentence of section 706(g) forbids courts from or­
dering the “ hiring, reinstatement, or promotion of an in­
dividual as an employee . . .  if such individual was . . .  re­
fused employment or advancement . .. for any reason other 
than discrimination.”  42 U.S.C. § 2000e-5(g) (emphasis 
added). It has no bearing on affirmative race-conscious 
remedies, which are governed by the first sentence of sec­
tion 706(g), authorizing a court to “ order such affirmative 
action as may be appropriate . . . . ”  Id. Bather, it merely 
precludes a court from ordering that a particular individ­
ual be hired, promoted or reinstated if an employer pre­



25

viously refused to do so for non-discriminatory reasons. 
Affirmative remedies, in contrast, do not require the hiring, 
promotion or reinstatement of any particular individual, 
and do not create a right to a particular job on behalf of a 
particular individual. Rather, they are designed to over­
come and eradicate systemic discrimination.*

Title VII remedies cannot be “ colorblind,”  Regents of 
the University of California v. Bakke, 438 U.S. 265, 353 
(1978) (Brennan, White, Marshall and Blackmun, J.J.), if 
they are “ to eliminate those discriminatory practices and 
devices which have fostered racially stratified job environ­
ments to the disadvantage of minority citizens.”  McDon­
nell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). 
Where, as here, a persistent pattern and practice of unlaw­
ful discrimination is proven, race-conscious relief must be 
available not only to make whole the identified victims of 
discrimination, but also to eradicate the continuing effects 
of past discrimination. See International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 364-65 (1977); 
Franks v. Bowman Transportation Co., 424 U.S. 747, 764, 
771 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 
421 (1975).

* This Court has recognized that such relief will often benefit un­
identified victims of an employer’s pattern and practice of discrimina­
tion. In f  l Blid. of Teamsters v. United States, 431 U.S. 324, 330 n.4, 
361 n.47 (1977) (partial consent decree required that vacancies be 
filled temporarily on a one-to-one minority/white ratio).



26

The Remedial Orders At Issue, Narrowly Tailored 
To Further The Compelling Interest In Eradicating 
Proven Systemic Discrimination, Fully Comport With 
The Governing Principles Of Equal Protection.

Echoing the same arguments offered in support of their 
erroneous Title VII analysis, petitioners assert that race- 
conscious elements of AAAPO and the Fund order deny 
equal protection of the law to whites because “ the non­
whites benefitting from the program are not identifiable 
victims of past discrimination, and the whites discriminated 
against by the program are not persons who practiced dis­
crimination.”  Pet. 14. Yet this Court long ago recog­
nized that judicial remedies must often be race-conscious to 
redress meaningfully proven systemic discrimination, and 
that such remedies, even if non-victim specific, pass consti­
tutional muster. See, e.g., Swann v. Charlotte-Mecklenberg 
Board of Education, 402 U.S. 1, 28 (1971).

Where, as here, long-standing and pervasive discrim­
ination has been established, race-conscious governmental 
action, if remedial and properly tailored, is constitution­
ally permissible even though it benefits unidentified mem­
bers of the group suffering the discrimination. Fullilove 
v. Klutsnick, 448 U.S. 448, 482-83 (1980) (Burger, C.J., 
White and Powell, J .J .) ; id. at 517-19 (Brennan, Marshall 
and Blackmun, J.J., concurring in the judgment); Regents 
of the University of California v. Bakke, 438 U.S. at 307 
(Powell, J . ) ; id. at 355-79 (Brennan, White, Marshall and 
Blackmun, J .J .) ; United Jewish Organizations v. Carey, 430 
U.S. 144, 159-62 (1977) (White, Brennan, Stevens and

IV.



27

Blackmun, J .J .) ; id. at 179-80 (Stewart and Powell, J.J., 
concurring); McDaniel v. Barresi, 402 U.S. 39, 41 (1971); 
Swann v. Charlotte-Mecklenberg Board of Education, 402 
U.S. at 18-21; United States v. Montgomery County Board 
of Education, 395 U.S. 225 (1969); South Carolina v. Katz- 
enbach, 383 U.S. 301, 308 (1966). Moreover, a narrowly 
tailored, race-conscious remedy is permissible even if it 
results in a “ sharing of the burden by innocent parties.”  
Fullilove v. Klutznick, 448 U.S. at 484 (Burger, C.J., White 
and Powell, J .J .) ; id. at 518 (Brennan, Marshall and Black­
mun, J.J., concurring in the judgment).

As modified by the Second Circuit, AAAPO does not 
require indenture of any specific ratio of non-white appren­
tices. Accordingly, the burden to be shared by whites is 
the m inimum required to redress the historic exclusion of 
minorities from Local 28’s ranks. No incumbent union 
member or readily identifiable applicant will be displaced 
by AAAPO. Similarly, the Fund order is properly fash­
ioned to provide compensatory services to the class of non­
whites injured by petitioners’ contemptuous conduct and 
does not impose any burden on white union members or ap­
plicants. Moreover, some provisions of the Fund order, 
particularly those which provide for financial assistance to 
employers that cannot otherwise meet the 1 :4 apprentice to 
journeymen requirement of AAAPO, and for incentive or 
matching funds to attract additional funding from govern­
mental or private job training programs, are race-neutral 
and operate to the benefit of whites and non-white appren­
tices alike.

The Second Circuit’s rejection of petitioners’ constitu­
tional challenge to AAAPO and the Fund is thus consistent



28

with the governing principles formulated by this Court. 
There is no conflict among the circuits. No review on these 
bases is warranted.

Conclusion

For the foregoing reasons, respondents respectfully 
pray that the petition for certiorari be denied.

Dated: July 19,1985
New York, New York

Respectfully submitted,

Frederick A. O. Schwarz, Jr. 
Corporation Counsel of the 

City of New York 
Attorney for Respondent 

the City of New York 
100 Church Street 

New York, New York 10007
Lorna B. Goodman 

L aura J. Blankfein 
L in  B. Saberski 

Assistant Corporation Counsel

Robert A brams 
Attorney General 

of the State of New York 
Attorney for Respondent 
New York State Division 

of Human Rights 
Suite 45-08

Two World Trade Center 
New York, New York 10047 

(212) 488-7510
Robert H ermann 

Solicitor General
O. Peter Sherwood 

Deputy Solicitor General
Rosemarie R hodes 

L awrence S. K a h n * 
A lan D. A viles

M artha J. O lson 
Assistant Attorneys General

*Counsel of Record



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