215 F.3d 32 (D.C. 2000)
National Labor Relations Board, Respondentv.Harris Teeter Supermarkets,  Movant
No. 79-1792
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2000Decided June 13, 2000

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, National Labor Relations Board, argued the cause for respondent.  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:


1
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

2
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, warehouse facility.  In 1976, the union was certified as the collective bargaining representative of a large bargaining unit of  warehouse employees.


3
The warehouse organizing campaign resulted in various  unfair labor practice charges being lodged against the company.  During the campaign, the company promised an employee 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 adherents, 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).


4
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.  Specifically, the company unlawfully interrogated employees  about the union election, created the impression that the  employees' union activities were under surveillance, threatened employees with discharge for engaging in union activities, 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).


5
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 prospective non-compliance fine of $10,000 for each future violation of the decree and the 1981 judgment.  The decree  applied to all of Harris Teeter's facilities.


6
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 progression 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 company 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.


7
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.


8
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 entry, has taken other various organizational measures to ensure compliance with the decree, and should be freed from  the "stigma" of the decree.  The NLRB opposes vacating the  consent decree.

II. Discussion

9
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:


10
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....


11
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, Supreme Court precedent provides us with guidance.


12
In Rufo, the Suffolk County Sheriff moved to modify a  consent decree which provided remedial relief for unconstitutional 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.  During 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 modification is suitably tailored to the changed circumstances."Rufo, 502 U.S. at 377, 393.  According to the Court, modification "may be warranted when changed factual conditions  make compliance with the decree substantially more onerous";  "when a decree proves to be unworkable because of  unforeseen obstacles";  "or when enforcement would be detrimental to the public interest."  Id. at 384.


13
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 modification '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."


14
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."  Internal 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 compliance 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 decree'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.


15
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.  Specifically, the company has complied with the affirmative portions 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 consent 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 previous court orders is obviously relevant."  Id. at 249.  However, 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 modification have also established events or changed circumstances  which "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."  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.


16
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 post1986 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 reduction in violation frequency might be a reflection of the effectiveness 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 unexplained charges filed against the company, and several unexplained 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

17
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 suitably 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



Notes:


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.


