UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NLRB

v.

HARRIS TEETER


79-1792a

D.C. Cir. 2000


*	*	*


Sentelle, Circuit Judge: This matter comes before us on  Harris Teeter
Supermarkets' motion to vacate a consent  decree we approved in 1986
pertaining to conduct by the  company which gave rise to allegations
of labor law violations.  In seeking this relief, the company fails to
demonstrate any  harm resulting from the decree's continuing effect
distinct  from the harms inherent in any injunctive restraint, fails
to  establish the imposition of unforeseen obstacles which make  its
compliance with the decree unworkable, and fails to prove  the
existence of an extended "clean" compliance record.  Therefore, we
deny the company's motion.


I. Background


Harris Teeter is a retail grocery chain currently operating  150 stores
and related facilities. In the 1970s, the United  Food & Commercial
Workers Union launched an organizing  campaign at Harris Teeter's
Charlotte, North Carolina, ware- house facility. In 1976, the union
was certified as the collec- tive bargaining representative of a large
bargaining unit of  warehouse employees.


The warehouse organizing campaign resulted in various  unfair labor
practice charges being lodged against the compa- ny. During the
campaign, the company promised an employ- ee future raises if he would
refrain from supporting union  organizing activity, granted employees
a raise to discourage  union activity, engaged in coercive
interrogation and unlawful  solicitation of employees, interrogated
employees regarding  their participation in National Labor Relations
Board  ("NLRB") proceedings, discharged three leading union adher-
ents, and discharged an employee for appearing as a witness  for the
NLRB's general counsel. In 1977, the NLRB found  that Harris Teeter's
conduct violated the National Labor  Relations Act ("NLRA" or "Act").
See Harris-Teeter Super  Markets, Inc., 231 N.L.R.B. 1058, 1068-69


Two years after the first NLRB order, the Board found  that the company
had committed additional violations of the  Act at the Charlotte
warehouse during 1976 and 1977. Spe- cifically, the company unlawfully
interrogated employees  about the union election, created the
impression that the  employees' union activities were under
surveillance, threat- ened employees with discharge for engaging in
union activi- ties, and continued to intimidate and threaten employees
with  job-related retaliation after the election of the union. See 
Harris-Teeter Super Markets, Inc., 242 N.L.R.B. 132, 167  (1979). In
1981, this court entered a judgment enforcing the  NLRB's 1979 order.
See Local 525, Meat, Food and Allied  Workers Union v. NLRB, 644 F.2d
39 (D.C. Cir. 1981) (table).


In 1984, the NLRB sought to have Harris Teeter held in  contempt for
violating the court's 1981 enforcement order.  The Board alleged that
the company had made threats to  relocate the Charlotte warehouse if
employees would not  disavow the union, supported a card-signing
campaign to oust  the union, disparately enforced rules regarding
access to  company facilities, restricted the break time activity of
union  supporters, and stated that it did not hire blacks or other 
minorities because they would favor the union. In 1986, this  court
approved a stipulation providing for the entry of a  consent order, or
consent decree, against the company. The  consent decree required
Harris Teeter to (1) fully comply  with the court's 1981 judgment, and
not engage in, induce,  encourage, permit, or condone any violation of
the judgment;  (2) refrain from engaging in specified anti-union
conduct and  from otherwise interfering with, restraining, or coercing
the  employees' exercise of their rights under the NLRA; (3) post  a
remedial notice for 60 days; (4) mail copies of the notice  and the
consent decree to all current and former warehouse  employees; (5)
file a sworn statement listing the steps taken  to comply with the
court's directives; (6) pay the NLRB's  costs of $8,000; and (7)
require supervisor Mike Weaver to  read the consent decree and signify
in writing that he had  read and understood the consent decree and the
court's 1981  judgment and that he would comply with the 1981
judgment.  The consent decree also subjected Harris Teeter to a pro-


spective non-compliance fine of $10,000 for each future viola- tion of
the decree and the 1981 judgment. The decree  applied to all of Harris
Teeter's facilities.


Harris Teeter promptly complied with requirements (3)  through (7) of
the consent decree. With regard to the  remaining requirements, Harris
Teeter has never been found  in contempt of the decree. However, the
NLRB has issued  decisions finding that Harris Teeter has engaged in
post-1986  unfair labor practices. Specifically, in 1989, the Board
found  that the company had violated the NLRA when, at the  Charlotte
warehouse, it unilaterally promulgated a sexual  harassment policy,
unilaterally changed a break policy and  issued an unlawful warning
pursuant to the changed policy,  unilaterally implemented a change
regarding a job progres- sion policy, and bypassed the union and
engaged in direct  dealing with employees by asking them their
opinions of a  four-day work week. See Harris-Teeter Super Markets,
Inc.,  293 N.L.R.B. 743, 747 (1989). In 1990, the Fourth Circuit 
enforced the NLRB's 1989 order. See NLRB v. Harris- Teeter
Supermarket, 905 F.2d 1530 (4th Cir. 1990) (table).  Likewise, in 1992
and 1993, the NLRB found that the compa- ny had violated various
provisions of the Act by prohibiting  employees from receiving gifts
from vendors based on an  employee's union sympathies, issuing a
series of warnings to  employees because of their discussion of
protected activity,  and acting unilaterally on certain matters and
directly dealing  with employees. See Harris-Teeter Super Markets,
Inc., 307  N.L.R.B. 1075, 1088 (1992); Harris-Teeter Super Markets, 
Inc., 310 N.L.R.B. 216, 217 (1993). All of the aforementioned 


In addition, several unfair labor practice charges filed  against the
company have been settled between 1986 and  1995. Most of the
settlements resulted in the withdrawal of  charges. The most recent
settlement cited occurred in 1995  and involved an allegation of the
unlawful implementation of a  leave early policy.


Harris Teeter now seeks to have this court vacate the 1986  consent
decree. The company contends that the consent 


decree should be vacated because it has "never been held in  contempt
of any provision of [the] order since its entry in  1986," "has not
been found to have violated the NLRA in  approximately ten years"
while at the same time experiencing  substantial growth as a company,
has made significant  changes in its management personnel since the
decree's en- try, has taken other various organizational measures to
en- sure compliance with the decree, and should be freed from  the
"stigma" of the decree. The NLRB opposes vacating the  consent


II. Discussion


Rule 60(b)(5) of the Federal Rules of Civil Procedure  provides the
basis for this motion to vacate the consent  decree. See Rufo v.
Inmates of Suffolk County Jail, 502 U.S.  367, 378-79 (1992) (applying
Rule 60(b) to modification of  consent decrees); United States v.
Western Elec. Co., 46 F.3d  1198, 1203 n.5 (D.C. Cir. 1995)
(associating Rufo analysis  specifically with Rule 60(b)(5)). In part,


On motion and upon such terms as are just, the court  may relieve a
party or a party's legal representative from  a final judgment, order,
or proceeding for the following  reasons ... (5) the judgment has been
satisfied, released,  or discharged, ... or it is no longer equitable
that the  judgment should have prospective application....


Fed. R. Civ. P. 60(b)(5). As we have previously stated, the 
"[m]odification [of a judgment] is an extraordinary remedy, as  would
be any device which allows a party ... to escape  commitments
voluntarily made and solemnized by a court  decree." Twelve John Does
v. District of Columbia, 861 F.2d  295, 298 (D.C. Cir. 1988).
Therefore, we approach Harris  Teeter's modification request with
caution. Fortunately, Su- preme Court precedent provides us with


In Rufo, the Suffolk County Sheriff moved to modify a  consent decree
which provided remedial relief for unconstitu- tional jail conditions.
See Rufo, 502 U.S. at 374-75. The  relief included the construction of
a new jail containing single  occupancy cells for pretrial detainees.
See id. at 375. Dur-


ing a delay in construction, the inmate population increased 
considerably and rendered the original plans inadequate to  handle the
increase. See id. at 375-76. The sheriff moved to  modify the decree
to allow at least some double bunking but  both the district court and
First Circuit Court of Appeals  refused to order the modification. See
id. at 376-78. In  vacating and remanding the case for
reconsideration, the  Supreme Court rejected the modification standard
adopted by  the lower courts which required a "clear showing of
grievous  wrong evoked by new and unforeseen conditions," United 
States v. Swift & Co., 286 U.S. 106, 119 (1932). It held  instead that
"a party seeking modification of a consent decree  must establish that
a significant change in facts or law  warrants revision of the decree
and that the proposed modifi- cation is suitably tailored to the
changed circumstances."  Rufo, 502 U.S. at 377, 393. According to the
Court, modifica- tion "may be warranted when changed factual
conditions  make compliance with the decree substantially more oner-
ous"; "when a decree proves to be unworkable because of  unforeseen
obstacles"; "or when enforcement would be detri- mental to the public


Although Rufo concerned the institutional reform of an  instrumentality
of government, we have applied the Rufo  Rule 60(b)(5) equity analysis
to other types of cases involving  requests for consent decree
modification. See Western Elec.  Co., 46 F.3d at 1203. In doing so, we
reasoned that "the  Supreme Court's summary of what might render a
modifica- tion 'equitable' relates to all types of injunctive relief."
Id.  However, we also noted, as a general proposition, "it should 
generally be easier to modify an injunction in an institutional 
reform case than in other kinds of cases." Id. Keeping in  mind both
the flexibility and limitations contained in a Rule  60(b)(5)
modification analysis, we will evaluate a request for  consent decree
modification concerning the in-house reform of  a private entity under
the Rufo standard. Thus, we proceed  to address Harris Teeter's
request to vacate the consent  decree based on its allegation of "a
significant change in  facts."


Applying that standard to the facts before us, we hold that  Harris
Teeter has not met its burden of demonstrating events  or changed
facts that "make compliance with the decree  substantially more
onerous," make the decree "unworkable  because of unforeseen
obstacles," or make "enforcement [of  the decree] detrimental to the
public interest." First, Harris  Teeter completely fails to
demonstrate how any personnel  changes, internal reorganization,
increase in facility size, or  alleged "stigma" attached to being
subject to a consent order  has made its compliance with the decree
"substantially more  onerous." Harris Teeter does no more than
complain about  harms inherent in all injunctive restraints. Second,
Harris  Teeter does not cite to any "unforeseen obstacles" which  make
compliance with the consent decree "unworkable." In- ternal compliance
mechanisms instituted to effectuate the  decree, company growth not
affected by or affecting the  consent decree, and any "stigma"
attaching to a consent  decree do not rise to the level of "obstacles"
envisioned by the  Supreme Court as justifying relief nor hardly make
compli- ance with the decree "unworkable." Cf. Rufo, 502 U.S. at 391 
(referring to modification as a means "to resolve the problems 
created by the change in circumstances") (emphasis added). 
Self-imposed hurdles and hurdles inherent in a consent de- cree's
entry do not count as "obstacles." Cf. id. at 380-81,  384 (describing
with approval the Third Circuit's reference in  Philadelphia Welfare
Rights Organization v. Shapp, 602 F.2d  1114, 1121 (3d Cir. 1979), to
"circumstances largely beyond  the defendants' control and not
contemplated by the court or  parties"). Moreover, the company does
not even claim that  the change in circumstances makes the decree
"unworkable."  Third, any argument that the continued enforcement of
the  decree would be "detrimental to the public interest" would  seem
most unlikely given Harris Teeter's purely private  interest in
wanting to be free of the decree. Accordingly, we  heed the Supreme
Court's warning to order modification in  light of "significant
change" and where "genuine changes  requir[ing] modification" exist.


meet its burden of establishing changes which give rise to an 
entitlement to modification.


Apart from citing to in-house changes and an alleged  stigma as grounds
to vacate the decree, Harris Teeter points  out that there has been no
finding of a failure by the company  to comply with the decree since
the decree's inception. Spe- cifically, the company has complied with
the affirmative por- tions of the order, has never been found to
violate the  negative portions of the order, and has not engaged in
any  conduct since 1990 found to violate the NLRA. While we  agree
that good faith compliance certainly matters, extended  compliance
alone does not compel the modification of a con- sent decree. As the
Supreme Court explained in Board of  Education v. Dowell, 498 U.S. 237
(1991), a case involving the  modification of a desegregation decree,
"compliance with pre- vious court orders is obviously relevant." Id.
at 249. Howev- er, Dowell and Rufo must be read together and the
precedent  leads us to conclude that compliance over an extended
period  of time is not in and of itself sufficient to warrant relief.
As  we noted above, parties who have successfully sought modifi-
cation have also established events or changed circumstances  which
"make compliance with the decree substantially more  onerous," make
the decree "unworkable because of unfore- seen obstacles," or make
"enforcement [of the decree] detri- mental to the public interest." We
do not rule out the  possibility that an extended period of good faith
compliance  will convince us to modify a consent decree. However, we 
find it unnecessary to erect a bright line test regarding the 
definition of extended good faith compliance or determine  how a
compliance showing interrelates with a Rufo burden or  detriment
showing in order to deny relief to Harris Teeter  because the company
fails to establish any significant or  genuine burden or detriment


Regardless of what the standard would be for an adequate  period of
compliance, Harris Teeter has failed to establish a  "clean" time
frame of compliance given the company's post- 1986 violations of the
NLRA, its failure to adequately explain  the numerous charges filed
against it, and its failure to  adequately explain the settlements it
reached between 1986 


and 1995. The sparse record provided by the company does  not clarify
matters. True, the company toned down its  tendency to commit unfair
labor practices after the entry of  the consent decree. However, we
are mindful that the reduc- tion in violation frequency might be a
reflection of the effec- tiveness of the prospective fine schedule
contained in the  consent order rather than a result of good
intentions on the  company's part. Nonetheless, Harris Teeter's
post-1986  track record shows two litigated decisions, numerous unex-
plained charges filed against the company, and several unex- plained
settlements. In short, the company does not carry its  burden of
showing a clean record of compliance over a  substantial period of
time. Thus, Harris Teeter does not  establish a case for modification


III. Conclusion


Harris Teeter fails to establish "a significant change in  facts" which
would prompt this court to vacate the consent  decree. We do not need
to delve into the company's failure  to address the portion of Rufo
requiring a party seeking  modification to show that "the proposed
modification is suit- ably tailored to the changed circumstance," 502
U.S. at 393,  because the company did not prove changed circumstances 
warranting relief. Therefore, we deny the company's motion  to vacate
the consent decree.1




__________

n 1 In its brief, Harris Teeter stated that it "further s[ought] to 
dissolve this order based on the suggestion ... of the Ninth Circuit 
that a failure to request vacation based on good-faith compliance 
with a consent decree will preclude a party from raising such 
compliance as a defense to a contempt petition. See, e.g., NLRB v. 
Ironworkers Local 433, 169 F.3d 1217[, 1222] (9th Cir. 1999)." Br.  of
Harris Teeter at 11. Assuming without deciding that the Ninth  Circuit
intended such a rule, we have never held that a party is  required to
move for modification or vacation prior to raising a  defense of good
faith compliance in a contempt proceeding. As a  matter of judicial
economy, we do not want to encourage parties  subject to consent
decrees to come to court challenging a decree 





__________

n merely in order to preserve a defense which may or may not  become
relevant in some future proceeding.