National Labor Relations Board v. Harris Teeter Supermarkets

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2000 Decided June 13, 2000

No. 79-1792

National Labor Relations Board,
Respondent

v.

Harris Teeter Supermarkets,
Movant

On Motion to Vacate Consent Decree

D. Christopher Lauderdale argued the cause for Movant.
With him on the briefs was J. Howard Daniel.

Stanley R. Zirkin, Deputy Assistant General Counsel, Na-
tional Labor Relations Board, argued the cause for respon-
dent. With him on the brief were Leonard R. Page, General
Counsel, Linda Sher, Associate General Counsel, and Gary
Shinners, Assistant General Counsel. Aileen A. Armstrong,
Deputy Associate General Counsel, entered an appearance.

 Before: Sentelle, Tatel and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

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 (1977).

 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
misconduct occurred in 1990 or earlier.

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 decree.

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, the rule provides:

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 guidance.

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 interest." Id. at 384.

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. Id. at 384, 379 (emphasis
added). Therefore, we hold that Harris Teeter has failed to

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 caused by the proffered
changed circumstances.

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 on any count.

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

__________
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

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