1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-11-1995

Building & Contstruct v NLRB

Precedential or Non-Precedential:

Docket 95-3330

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Building & Contstruct v NLRB" (1995). 1995 Decisions. Paper 250.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/250
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

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.