Building & Contstruct v. NLRB

• Court: Court of Appeals for the Third Circuit
• Decided: September 11, 1995
• Docket: 95-3330
• Status: Unknown

Opinion

Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit

9-11-1995

Building & Contstruct v NLRB Precedential or Non-Precedential:

Docket 95-3330

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Recommended Citation "Building & Contstruct v NLRB" (1995). 1995 Decisions. Paper 250. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/250

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No. 95-3330

BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO; PATRICK GILLESPIE,

Petitioners

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent

Sur Motion To Dissolve Permanent Injunctions and Vacate Contempt Adjudications

Argued July 31, 1995

Before: SLOVITER, Chief Judge, BECKER and SAROKIN, Circuit Judges

(Opinion filed September 11, l995)

Bernard N. Katz (Argued) Steven David Masters Meranze and Katz Philadelphia, PA 19102

Attorneys for Petitioners

Stanley R. Zirkin (Argued) Deputy Assistant General Counsel Contempt Litigation Branch William Wachter Assistant General Counsel Washington, D.C. 20570 Attorneys for Respondent OPINION OF THE COURT

SLOVITER, Chief Judge.

The Building and Construction Trades Council (BCTC or

"unions"), an unincorporated association composed of affiliated

labor organizations, and Patrick Gillespie, its business manager,

have moved to dissolve three consent judgments enforcing orders

of the National Labor Relations Board and to vacate four consent

contempt adjudications for violating the consent judgments. The

NLRB vigorously opposes the motion. After giving the parties the

opportunity to file written memoranda in support of their

respective positions, we heard oral argument. We will deny the

motion for the reasons that follow.

I.

The history of this case goes back more than twenty

years. On March 4, 1974 this court entered a consent judgment

pursuant to stipulation by the parties enforcing an order issued

by the NLRB against BCTC and J. Yorck, the business agent for the

local union. Some indication of the background of the order can

be gleaned from the Board's Findings of Fact that the Firestone

Tire and Rubber Company was engaged in the manufacture and sale

of tires at Pottstown, Pennsylvania, and that it engaged the M.A.

Matlock Construction Company as a subcontractor to perform

certain work at its plant. The agreed-upon order directed BCTC

to cease and desist from picketing at the Pottstown plant and

inducing or encouraging any of Firestone's employees to refuse to

work or handle goods with the object of getting Firestone to

cease doing business with Matlock. The language of the order tracked section 8(b)(4)(B) of

the Labor Management Relations Act, 29 U.S.C. § 158(b)(4)(B),

which prohibits secondary boycotts by labor organizations, and

directed BCTC to cease and desist from: In any manner or by any means . . . engaging in, or inducing or encouraging any individual employed by . . . any . . . person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment . . . to perform any service, or in any manner or by any means, threatening, coercing, or restraining . . . any . . . person engaged in commerce or in an industry affecting commerce where, in either case, an object thereof is forcing or requiring . . . any . . . person . . . to cease doing business with . . . any other person.

Exhibit A to Affidavit of Patrick Gillespie at 3.

In 1980, this court was again presented with a Decision

and Order of the NLRB reflecting a settlement stipulation and a

consent judgment, which we entered on November 28, 1980, that

provided that the unions would cease and desist from engaging in

a secondary boycott, this time of Atlantic Richfield Company

(Arco) and Gulf Oil Company. Specifically prohibited was any

action encouraging employees of Gulf, Arco or others to refuse to

work or handle any goods with the object of requiring Gulf, Arco

or others to cease doing business with Refinery and Industrial

Maintenance, Inc., a company engaged in the business of providing

maintenance and repair work for refineries and industrial plants

from its Eddystone, Pennsylvania facility. The order enforced by

this consent judgment contained the same language quoted above.

Exhibit B to Gillespie affidavit. On May 24, 1982, following proceedings brought by the

NLRB to hold BCTC in civil contempt, BCTC stipulated that it was

in civil contempt of the judgments entered March 4, 1974 and

November 28, 1980 and consented to the entry of a Contempt

Adjudication. The adjudication ordered BCTC to purge the

contempt by, inter alia, complying with the consent judgments and

imposed a fine of $6500 for each future violation and $500 per

day that each such violation continued. Exhibit D to Gillespie

affidavit.

Almost contemporaneously, the NLRB once again found

itself faced with charges that BCTC was responsible for secondary

boycotts, and once again it entered a Decision and Order, this

time on February 22, 1983, approving a Settlement Stipulation

that BCTC would cease and desist from such activity designed to

coerce anyone from dealing with a long list of companies. Once

again, this court entered a consent judgment, on June 10, 1983,

which enforced the order containing language requiring BCTC to

cease and desist from the secondary boycott activity. Exhibit C

to Gillespie affidavit. Significantly, one of the charging

parties in the 1983 matter, Schnabel Associates, Inc., a company

engaged in the construction business as a general contractor from

its Harleysville, Pennsylvania facility, objected to the

inclusion in the Settlement Stipulation of the "nonadmission

clause" traditional in such settlements. Schnabel argued that

the stipulation should contain an admission of liability, and

cited "the Respondent's proclivity to violate the Act" in support

of its objection. Id. at 2. The General Counsel took the position before the Board "that a nonadmission clause is not

inappropriate under the circumstances of this case," and that he

was satisfied that "the Settlement Stipulation fully remedies the

unfair labor practices alleged." Id. The Board upheld the

General Counsel's position.

Nonetheless, on January 31, 1984 BCTC once again agreed

to a consent contempt adjudication for violating the March 4,

1974 and November 28, 1980 judgments and the May 24, 1982

contempt adjudication. This adjudication required payment of a

compliance fine of $3,000 to purge BCTC of the contempt, imposed

a compliance fine of $13,000 for each future violation, and set a

further compliance fine of $1,000 a day for each continuing

violation. See Exhibit E to Gillespie affidavit.

The activity prohibited by the three consent decrees

and the two earlier consent contempt adjudications continued. On

August 4, 1986 and again on August 4, 1989 BCTC agreed to consent

contempt adjudications which increased the stipulated violation

and per diem fines. See Exhibits F and H of the Gillespie

affidavit. The proceeding culminating in the 1986 consent

adjudication had also been brought against the individual members

of BCTC's Executive Board. Under the 1989 consent adjudication

Gillespie himself, the BCTC business manager, was deemed

personally in contempt. The 1989 contempt adjudication required

BCTC and Gillespie to purge the contempt by, inter alia, complying with the prior judgments and contempt adjudications,

notifying officers, agents, members and employees of BCTC and its

affiliated unions of the contempt adjudication, and refraining from authorizing and permitting picketing by any representatives

or agents of BCTC without taking prescribed steps to ensure that

the picketing will be lawful and permissible under the prior

judgments and contempt adjudications. BCTC was also assessed the

sum of $250,000 for past noncompliance, with $150,000 payable in

installments and $100,000 suspended on condition of future

compliance. The prospective fines against BCTC were increased to

$100,000 per violation and $10,000 per day that each such

violation continues. A prospective fine of $5000 per violation

and $500 per day was imposed against the business manager and any

other officer, employee, agent, or representative of BCTC who

knowingly violates the order. Finally, BCTC agreed that, upon

filing of any unfair labor practice charge alleging acts falling

within the scope of this court's prior orders and adjudications,

it would furnish the NLRB with all evidence in its possession

concerning the charge within 14 days of a request by the NLRB.

BCTC now moves to dissolve the consent judgments and

vacate the contempt adjudications on the grounds that (1) BCTC

has completely purged itself of contempt; (2) BCTC has completely

complied for a significant length of time; (3) BCTC is suffering

"undue hardships and vexatious harassment" because of the

judgments and contempt adjudications; and (4) continued

enforcement is no longer equitable.

The NLRB opposes the motion because (1) BCTC has not

demonstrated that it has complied with and will comply with the

judgments and contempt adjudications; (2) the purpose of the

judgments and adjudications -- permanently restraining BCTC from violating section 8(b)(4)(B) -- has not been accomplished; (3)

BCTC has failed to show any substantial injury or hardship; and

(4) BCTC has failed to demonstrate any other change of

circumstances justifying exceptional relief.

II.

The parties dispute the correct legal standard to be

applied to BCTC's motion to dissolve the injunctions. The NLRB

would have us apply a standard culled from language used by the

Supreme Court more than sixty years ago in United States v. Swift

& Co., 286 U.S. 106 (1932). In Swift, the government had sued

the five leading meat packers to dissolve a monopoly that they

had acquired in meat products and which they were taking steps to

extend into other foods. In 1920, defendants entered into a

consent decree consenting to some dismemberment and, inter alia,

prohibiting them from manufacturing, selling or transporting any

of 114 grocery products. Although defendants managed to avoid

the full impact of the decree through legal proceedings for a

while, when they could no longer do so they moved to modify the

decree, citing changed conditions in the industry. The district

court granted a modification to permit defendants to deal at

wholesale in groceries.

The Supreme Court reversed, finding no "grievous wrong"

arising from continued operation of the decree. The Court stated

that when a party seeks to modify or dissolve an injunction,

entered by consent or otherwise, because of changed

circumstances, the inquiry differs from the framing of a decree: The inquiry . . . is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.

Id. at 119 (emphasis added).

BCTC argues that labor injunctions "enjoy a greater

presumption of limited duration" than other injunctions. BCTC

Reply Memorandum of Law at 3. Surprisingly, it relies for this

proposition on Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287 (1941), in which the Court upheld an

injunction imposed by the state supreme court prohibiting

peaceful picketing as well as acts of violence by a union which

had interfered with the distribution of the products of a dairy.

Because of the heavy reliance BCTC places on the Milk Wagon

Drivers Union case, we examine it closely.

The Supreme Court had previously held that state statutes prohibiting all picketing near an employer's place of

business violated the constitutional protection of free speech.

See Thornhill v. Alabama, 310 U.S. 88 (1940); Carlson v.

California, 310 U.S. 106 (1940). The Milk Wagon Drivers Union

case gave the Court the opportunity to consider again the

constitutional issue of the right of a state to prohibit peaceful

picketing. In upholding the injunction, the Supreme Court

explained that this case was different than the preceding cases because of the coercive effect of the violence. The following

language repeatedly stressed by BCTC was written in the context

of injunctions limiting the free speech right to picket, not in

connection with any motion for modification of a consent decree

or a litigated injunction applicable to labor injunctions in

general: The injunction which we sustain is "permanent" only for the temporary period for which it may last. It is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation. Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted.

Milk Wagon Drivers Union, 312 U.S. at 298. The Court continued

this paragraph by noting that there was no argument by the union

that the coercive effect of the violence had disappeared.

Thus, the facts are not "closely parallel" as BCTC

contends, nor does this language support BCTC's argument that the

Supreme Court has "held" that labor injunctions are to be viewed

in a different light. To be sure, a "permanent" injunction does

not automatically operate in perpetuity and a labor injunction,

like any other injunction, may be modified or vacated according

to "familiar equity procedure." However, nothing in the Milk

Wagon Drivers Union case suggests that labor injunctions enjoy

any presumption of limited duration greater than any other

injunction.

Nor does it suggest that Swift was not to be applied in

labor cases. This court has regularly applied Swift in

evaluating a defendant's request for relief from an injunction, both in labor cases and otherwise. In International Bhd. of

Teamsters v. Western Pa. Motor Carriers Ass'n, 660 F.2d 76 (3d

Cir. 1981), an employers' association which had entered into a

consent decree with the union that it would not engage in

"spotting" (the practice of instructing a driver not to remain

with the trailer during loading and unloading and assigning the

driver to other duties) moved to modify the injunction so that it

would apply only to the Allegheny County members. We affirmed

the district court's denial of the motion to modify, stating that

the association had not made the necessary "showing of

exceptional circumstances." Id. at 85; see also United States v.

Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1088 (3d Cir.

1987).

Similarly, in Mayberry v. Maroney, 558 F.2d 1159 (3d

Cir. 1977), we denied modification of a consent decree entered in

1973 that enjoined prison officials from confining any inmate at

the State Correctional Institute at Pittsburgh in a basement

facility known as the Behavior Adjustment Unit (BAU). The

district court had granted the motion of prison officials to

vacate the decree so that unruly prisoners could be confined

there on an emergency basis for a maximum of 48 hours. We

reversed, holding that where the parties agreed to and the court

sanctioned the closing of an allegedly offensive facility, "the

Commonwealth may not now artificially create its own 'changed

circumstance,' and thus relieve itself from a free, calculated

and deliberate choice, by offering a substitute remedy which

provides a lesser safeguard against the injuries complained of on behalf of the class." Id. at 1163. We recognized that the

alternative remedy would have been more convenient for the

defendants and might have been "neither unjust nor unreasonable,"

but we confined our inquiry to whether anything had happened to

justify changing the decree, not how the decree might best have

been framed. Id. at 1163-64. Inasmuch as the need to use the

BAU in event of emergency was not found to be greater than that

which existed at the time of the decree, the "changed

circumstances" asserted by the defendants were insufficient to

warrant vacating the decree.

Different considerations apply when the party seeking

to modify the consent decree wishes to strengthen its prohibition

because the purpose for which the decree had been framed has not

been fully achieved. In United States v. United Shoe Machinery

Corp., 391 U.S. 244 (1968), the government sought a modification

of a consent decree adopted to settle an antitrust case. When

the government sought further relief than that originally

provided, defendant relied on Swift for its claim of the

immutability of the original consent decree. The Supreme Court

reversed, explaining that nothing in Swift precludes such a modification "upon an appropriate showing." Id. at 248.

The principal issue before us is to analyze the effect

of the Supreme Court's recent decision in Rufo v. Inmates of

Suffolk County Jail, 502 U.S. 367 (1992), on the standard

previously applied to requests to modify an injunction. In Rufo,

four years after the modification of a consent decree which

prohibited double bunking of pretrial detainees in a new jail to be constructed, the county sheriff moved to modify the decree to

allow double bunking, citing an increase in the pretrial detainee

population. Federal Rule of Civil Procedure 60(b)(5), which was

promulgated more than a decade after the Swift decision,

authorizes a court to grant relief from a final judgment if "it

is no longer equitable that the judgment should have prospective

application." The district court denied the sheriff's motion,

holding that Rule 60(b)(5) codified the "grievous wrong" standard

of Swift. The Court of Appeals affirmed. The Supreme Court

disagreed.

In Rufo, the Court engaged in an extensive discussion

of the considerations relevant to the issue before us. It

disagreed with the lower court's construction of Rule 60(b),

explaining that Swift did not represent a hardening of the

traditional flexible standard for modification of consent

decrees. Id. at 379. It noted that the Court in Swift itself

distinguished the facts before it from the case in which genuine

changes required modification of a consent decree. The "grievous

wrong" standard was not intended to take on a "talismanic

quality, warding off virtually all efforts to modify consent

decrees." Id. at 380. Instead, the language of Rule 60(b)

"permits a less stringent, more flexible standard" for relief

from a final judgment and allows a court to decide when "it is no

longer equitable that the judgment have prospective application."

Id.

The Rufo Court then turned to the case before it, noting that the upsurge in institutional reform litigation since Brown v. Board of Education, 347 U.S. 483 (1954), has made a

district court's ability to modify a decree in response to

changed circumstances all the more important. A flexible

approach "is often essential to achieving the goals of reform

litigation." Rufo, 502 U.S. at 381. The rigidity displayed by

the district court was thus "neither required by Swift nor

appropriate in the context of institutional reform litigation."

Id. at 382.

Nonetheless, the Court inserted a note of caution,

stating that modification is not warranted in all circumstances.

It stated that even when seeking modification of an institutional

reform consent decree, the party seeking modification must

establish "that a significant change in circumstances warrants

revision of the decree." Id. at 383. Rule 60(b)(5) does not

authorize relief merely "when it is no longer convenient to live

with the terms of a consent decree." Id. Modification may be

appropriate when changed factual conditions make compliance with

the decree substantially more onerous, when a decree becomes

unworkable because of unforeseen obstacles, or when enforcement

of the unmodified decree would be detrimental to the public

interest. Id. at 384. However, modification should not

ordinarily be granted "where a party relies on events that

actually were anticipated at the time it entered into a decree."

Id. at 385.

The Court stated in conclusion, "[W]e hold that the

Swift 'grievous wrong' standard does not apply to requests to modify consent decrees stemming from institutional reform litigation. Under the flexible standard we adopt today, 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 modification is suitably tailored to

the changed circumstance." Id. at 393.

This court has not yet decided whether it should read

the Supreme Court's decision in Rufo as generally applicable to

modifications of consent decrees. In Favia v. Indiana Univ. of

Pa., 7 F.3d 332, 341 n.15 (3d Cir. 1993), we noted that "the

Court in Rufo specifically limited its holding to the

institutional reform setting," but we expressly reserved the

question "whether Rufo entirely displaces the more rigid Swift

standard."

The NLRB would have us limit Rufo to the specific

problem of "the ability to alter the affirmative provisions of

institutional reform consent decrees," a context in which there

is a likelihood of significant changes occurring during the life

of the decree. Board's Opposition Memorandum at 12 (citing Rufo,

502 U.S. at 380). It urges us to adopt the rationale of the

courts of appeals of the Sixth and Federal Circuits which it

reads as treating the Rufo standard as limited to institutional reform litigation. See W.L. Gore & Assoc. v. C.R. Bard, Inc.,

977 F.2d 558 (Fed. Cir. 1992) (affirming a district court

decision refusing to modify a consent decree that enjoined the

defendant from infringing plaintiff's patent, but noting that

less stringent Rufo modification standard applies to institutional consent decrees); Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1149 (6th Cir. 1992) (less stringent

modification standard applies to institutional consent decrees

because they are "fundamentally different" from private consent

decrees, affect more than the rights of the immediate litigants,

and present higher likelihood of significant changes due to their

long life), cert. denied, 113 S. Ct. 2998 (1993).

Two other courts of appeals have stated that Rufo gave

the "coup de grace" to Swift and that the Rufo standard applies

to all types of injunctive relief. See United States v. Western

Electric Co., 46 F.3d 1198, 1203 (D.C. Cir. 1995) (affirming

modification of AT & T antitrust consent decree); In re Hendrix,

986 F.2d 195, 198 (7th Cir. 1993) (affirming modification of

bankruptcy discharge). Another court has held that Rufo is not

limited to litigation against a governmental entity, although it

left open the question whether Rufo displaces Swift in all cases.

Patterson v. Newspaper & Mail Deliverers' Union, 13 F.3d 33 (2d

Cir. 1993), cert. denied, 115 S. Ct. 58 (1994).

We do not dwell upon the facts of the cases arising in

the various circuits because we have now concluded, after

considerable reflection, that it would be a mistake to limit the

Supreme Court's decision in Rufo as the NLRB argues. Although

there is language in the opinion that speaks in terms of the

issues that arise in connection with institutional reform cases,

those references are attributable to the fact that the Rufo case

arose in that context. We deem more significant that much of the

opinion represents an interpretation of the generally applicable

Rule 60(b)(5) and a discussion of the equitable considerations that courts must take into account in ruling on requests to

modify injunctions. In this respect, we agree with the court's

statement in Western Electric that although the Rufo Court

"interspersed its . . . discussion with references to

institutional reform litigation," it did so in the context of

interpreting Rule 60(b)(5), which does not draw distinctions

based on the nature of the litigation. 46 F.3d at 1203. But we

reject Western Electric's more sweeping claim that there is no

longer any place for Swift, particularly since the Supreme Court

was careful in Rufo not to overrule Swift but to explain it.1 We

deem it cautious to leave to the Supreme Court the province of

overruling its own decisions, particularly since we conclude that

petitioners are not entitled to relief under either standard.

In many respects, we agree with the approach enunciated

by the Court of Appeals for the First Circuit in Alexis Lichine &

Cie. v. Sacha A. Lichine Estate Selections, Ltd., 45 F.3d 582

(1st Cir. 1995), where the court declined to modify a consent

decree entered following a commercial dispute between competing

members of the same family which barred one party from using the

trademarked name of the other in connection with its business.

The court did not read Rufo as being confined in principle to institutional reform cases. It stated instead that "Rule

60(b)(5) sets forth the umbrella concept of 'equitable' that both

1 While Judge Becker concurs in the judgment he would follow the holdings of United States v. Western Electric Co. and In re Hendrix, Op. at 15, that Rufo governs with respect to requested modification of all types of injunctive relief. Swift and Rufo apply to particular, widely disparate fact

situations." Id. at 586.

The court noted Swift's distinction between permanent

decrees and provisional or tentative decrees involving the

supervision of changing conduct or conditions and stated, "Swift

illustrates the former and Rufo the latter." Id. The court saw

this difference "not as a limited dualism but as polar

opposites of a continuum" in which each case must be located. Id.

In the case before it, where the decree was based on a negotiated

bargain in a commercial case between private parties who had been

represented by counsel, the court refused to modify the

injunction and emphasized the importance of finality. The court

noted that a different approach might be appropriate when

commercial cases "involve issues more laden with a public

interest, such as antitrust." Id. at 586 n.2.

We believe that the generally applicable rule for

modifying a previously issued judgment is that set forth in Rule

60(b)(5), i.e., "that it is no longer equitable that the judgment

should have prospective application." It would be a mistake to

view either Rufo or Swift as encapsulating a universal formula for deciding when that point has been reached. Instead, each of

those cases represents a response to a particular set of

circumstances. A court of equity cannot rely on a simple formula

but must evaluate a number of potentially competing

considerations to determine whether to modify or vacate an

injunction entered by consent or otherwise. Accordingly, the standard for modifying an injunction

cannot depend on whether the case is characterized as an

institutional reform case, a commercial dispute, or private or

public litigation. Different considerations may have greater or

lesser prominence in different cases, not because the cases are

characterized one way rather than another but because equity

demands a flexible response to the unique conditions of each

case.

We abjure establishing a rigid, pervasively applicable

rule, although it may be helpful to set forth the factors that

generally should be considered in deciding whether to modify an

injunction. These include the circumstances leading to entry of

the injunction and the nature of the conduct sought to be

prevented; the length of time since entry of the injunction;

whether the party subject to its terms has complied or attempted

to comply in good faith with the injunction; and the likelihood

that the conduct or conditions sought to be prevented will recur

absent the injunction. Central to the court's consideration will

be whether the modification is sought because changed conditions

unforeseen by the parties have made compliance substantially more

onerous or have made the decree unworkable. Courts which have

faced similar issues also have identified as a relevant factor

whether the conduct previously enjoined has become legal due to a

change in the law, see, e.g., System Federation No. 91 v. Wright,

364 U.S. 642, 649-50 (1961); Gore, 977 F.2d at 561-63. On the

other hand, the fact that the party is now subject to a contempt

sanction for violation of the decree in addition to the statutory punishment is not generally a factor to be considered. NLRB v.

General Motors, 179 F.2d 221, 222 (2d Cir. 1950). Nor is the

mere fact that the injunction is in prohibitory language rather

than "mandatory" language in itself a factor that makes it

resistant to modification, as the NLRB urges. See Western

Electric, 46 F.3d at 1206.

Inasmuch as it is unlikely that all of the factors will

tilt in one direction, the court must balance the hardship to the

party subject to the injunction against the benefits to be

obtained from maintaining the injunction. Cf. 7 James W. Moore,

Moore's Federal Practice ¶ 60.26[4], at 60-258 to 60-260 (2d ed.

1995) ("A continuing injunction may be modified when the

modification would work no harm to the one for whom the

injunction ran and would serve a beneficial purpose for the

movant. A subsequent change in the controlling facts on which

the injunction rested . . . may warrant a modification or

vacation of the continuing restraint."). Finally, the court

should determine whether the objective of the decree has been

achieved and whether continued enforcement would be detrimental

to the public interest. In this connection, cases such as Rufo which deal with institutional reform, particularly in the context

of federal courts' supervision over state institutions, require

that the federal courts be sensitive to the unique federalism

issues presented. See, e.g., Harris v. City of Philadelphia, 47

F.3d 1311, 1331 (3d Cir. 1995). It follows that the interest in

finality of judgments may assume greater or lesser prominence

according to the nature of the case and the private and public interests implicated, but should not be either deprecated or

ignored.

III.

Having sketched the general principles, we conclude

that application of them to this case leads us ineluctably to

resolution of the issue before us. BCTC bases its contention

that it is no longer equitable for the judgments to have

prospective application on the allegations in the Gillespie

affidavit that it has fully complied with the decrees for the

last six years and is suffering vexatious harassment and undue

hardship due to the continuing existence of the decrees. We

examine each contention in turn.

A.

We will assume arguendo, as Gillespie states in his

affidavit, that from August 4, 1989 to the present "BCTC has not

committed any acts nor engaged in any conduct in violation of the

outstanding consent contempt adjudications and consent decree

injunctions." Affidavit of Patrick Gillespie ¶ 31. However, we

are unwilling to hold, and BCTC cites no persuasive authority,

that the mere passage of time and temporary compliance are

themselves sufficient to constitute the type of changed

circumstances that warrant lifting of an injunction, and

certainly not an injunction under the circumstances of this case.

BCTC relies principally on this court's affirmance of

the dissolution of a permanent injunction that restrained the

defendant from violating certain securities laws and regulations

four years after its entry. See SEC v. Warren, 583 F.2d 115 (3d Cir. 1978). In 1973, Warren, the defendant, had consented to the

entry of a decree that enjoined him from violating the margin

requirements of the Securities and Exchange Act and Regulation U.

In 1977 Warren moved to dissolve the injunction. Following an

evidentiary hearing, the district court made findings that

approximately ten years had passed since the violation and four

years since entry of the injunction, during which time the

violation did not recur; the violation itself was of limited

duration; and Warren suffered "personal humiliation and business

embarrassment" as a result of the injunction. Id. at 122.

Moreover, an intervening change in regulations diminished the

need for administrative enforcement by contempt. On appeal, we

rejected the SEC's argument that Warren had not satisfied the

Swift standard, then considered the prevailing approach. Instead,

we stated that Warren's "technical violation of the margin

requirements . . . in no way approaches the outrageous conduct

enjoined in Swift." Warren, 583 F.2d at 121. Unlike Swift, no

great public interest was implicated, and the purpose of the

injunction appeared to have been fully achieved. In light of

these circumstances, we concluded that the district court did not

abuse its discretion in dissolving the injunction.

BCTC emphasizes the paragraph in Warren where we stated that in weighing the convenience of "enforcing a future violation

by contempt proceedings," we must determine whether in the

present circumstances "the decree works extreme and unnecessary

hardship upon the defendants." Id. The facts before us in this

case are far different than those in Warren where the defendant committed a "single isolated offense in an esoteric area of the

law," which was voluntarily corrected within six months and never

repeated, and did not resist the injunction once it was entered.

Id. Here, by contrast, BCTC consented to the entry of three

different consent decrees over a period of nine years that

reflected charges based on substantially similar conduct at

different sites affecting different employers. The statutory

secondary boycott provisions that BCTC was restrained from

violating are neither technical nor complex. The entry of four

consent contempt adjudications against BCTC in a period of seven

years reflects, at the very least, repeated violations by BCTC,

and in later years by its officials, of the prohibitions which it

had previously voluntarily agreed to observe. BCTC's history of

compliance for the last six years does not erase its history of

noncompliance, as evidenced by the contempt adjudications.

BCTC also refers us to the Supreme Court's decision in

Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 249-50

(1991), where the Court held that a school desegregation decree

could be dissolved if the defendant had complied in good faith

with the decree since it was entered and if the vestiges of past

discrimination had been eliminated to the extent practicable.

BCTC argues that Dowell permits dissolution of the decrees in this case on a showing that it has fully complied with the

decrees. Otherwise, BCTC claims that it will be subject to the

type of "judicial tutelage for the indefinite future" referred to

in Dowell. Id. at 249. The situation before us is hardly analogous to the

school desegregation case at issue in Dowell, which presented

"[c]onsiderations based on the allocation of powers within our

federal system." Id. at 248. Federal supervision of local

school systems was intended as a temporary measure to remedy past

discrimination, and was "not intended to operate in perpetuity"

or to displace local control over education beyond the extent

necessary to correct a constitutional violation. Id.

Even assuming that the principles announced in Dowell

extend to this case notwithstanding the unique context of school

desegregation, BCTC has not shown, as the Board of Education

showed in Dowell, that it has complied with the decrees since

they were entered. Indeed, although it is not set forth in

Gillespie's affidavit, BCTC's counsel stated at oral argument,

and we fully accept his statement, that the unions have not

engaged in any picketing for a large portion of the six years.

There is therefore no background upon which any findings could be

made that would show that BCTC has in fact learned how to picket

without treading on the prohibitions against secondary boycott

contained both in the law and the various negotiated consent

decrees. BCTC's statement that it "has fully transformed its

conduct into a model of lawful compliance," BCTC Memorandum at 5,

must be evaluated in light of that decision not to picket at all.

We can no more assume "lawful compliance" for six years with the

secondary boycott prohibitions than we could assume a design

trademark infringer had learned to produce a non-infringing

product from its decision not to produce a comparable product at all. Under these circumstances, the mere passage of a six-year

period of alleged compliance with the decrees cannot be the basis

for a modification of the decrees.

B.

As a separate basis in support of its motion, BCTC

contends that it has met its burden to show that there has been a

change in facts sufficiently significant to warrant dissolution

of the injunctions and that dissolution is suitably tailored to

the changed circumstances. In support of this argument, it

argues that employers and the NLRB have used the injunctions and

adjudications as a "sword of Damocles" over it, "repeatedly

bringing baseless charges" of unfair labor practices, which were

then withdrawn, "with the aim of harassing the Council and

threatening the imposition of further fines and sanctions."

Affidavit of Patrick Gillespie ¶ 32. In a somewhat related vein,

it also contends that the compliance and recordkeeping

requirements of the most recent contempt adjudication result in

extreme hardship to its members because they inhibit the members'

rights.

We do not take lightly a contention that the rights of

labor union members to freedom of association and expression

protected by both the Constitution and federal law have been and

are being repressed by decrees which this court has approved.

However, it was BCTC's repeated failure to observe the decrees to

which it had agreed that led to the provisions which it now

claims inhibit picketing. The Supreme Court has stated that

modification of a decree is not ordinarily warranted when a party relies on events actually anticipated at the time it entered into

the decree. Rufo, 502 U.S. at 385. BCTC has not identified any

significant hardship to which it and its members are subject that

was unforeseen at the time it agreed to the 1989 contempt

adjudication, the decree that imposes the procedure for

establishing a picket line and the consequent recordkeeping that

it now contends are burdensome. Nor did BCTC make any effort to

propose to the NLRB even a modest modification of the particular

requirements of picket line procedure which it claims in

conclusory fashion are so burdensome that they warrant wholesale

dissolution of the injunction. BCTC itself explains that the

detailed procedure of the 1989 decree was inserted "to guard

against violations of the Court's judgments." BCTC Memorandum at

4. It does not contend, as we deemed relevant in Warren, "that

the decree is not properly adapted to accomplishing its

purposes." 583 F.2d at 120 (quotation omitted).

While the potential for contempt fines, particularly

the high fines to which it is now subject, certainly heightens

the stakes for BCTC, those progressively increasing fines -- to

which it agreed -- were raised to their present level only after

the earlier less severe sanctions proved ineffective. Therefore,

we need not decide the equity vel non of including a prospective noncompliance fine at the outset, see Blankenship & Assoc. v.

NLRB, 54 F.3d 447, 449 (7th Cir. 1995), particularly because

these fines accrue with each day of continuing violations. See

id. at 450. Moreover, any attempt at a contempt adjudication,

even on the basis of a stipulated fine, would entitle BCTC and those subject to the order to judicial overview. See, e.g.,

Harris, 47 F.3d at 1321-25. We have no question that the courts

will be able to distinguish between intentional violations of the

decrees and unjustified harassment by what BCTC denominates as

"vicious anti-labor law firms and employers." BCTC Memorandum at

10. The few instances referred to in the Gillespie affidavit do

not support a claim of unfair or unwarranted wholesale

harassment.

Nothing shown by BCTC approaches the type of changed

circumstances which we held justified a modification in

Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114 (3d Cir.

1979), cert. denied, 444 U.S. 1026 (1980). In that case, after

Pennsylvania agreed in a consent decree to provide certain

medical services to a specified number of welfare recipients by a

date certain, it moved to vacate or modify the decree, contending

that it had attempted good faith compliance with the numerical

requirements but fell short because eligible recipients refused

services or failed to show for appointments and because of a

shortage of participating physicians and dentists. It introduced

evidence that it had committed substantial resources to complying

with the decree and that the total population eligible for

services was significantly lower than that expected at the time

of the decree due to declining welfare rolls.

We affirmed the district court's order eliminating the

numerical requirement, noting that this requirement had proven

impossible of performance due to circumstances beyond the

defendants' control and not contemplated by the court or the parties at the time of the decree. We held that where an

affirmative obligation is imposed on the assumption that it is

realistically achievable and defendants have made a good faith

effort to comply, but compliance has not been achieved, "a court

of equity has power to modify the injunction in light of

experience." Id. at 1120-21.

In this case, BCTC has made no showing that changed

circumstances have made adherence to the compliance procedure

substantially more onerous or have made the compliance procedure

unworkable.

IV.

For the foregoing reasons, we will deny BCTC's motion

to dissolve the consent judgments and vacate the consent contempt

adjudications.