Appendix — Carpenters v. Scott

8 2 -4 86 - Supreme Court, U.S.

FILED

SEP 20 1962

MAEXANDER L. STEVAS.

In THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1951

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS

or AMERICA, LOCAL 610 (AFL-CIO) ET AL.,

Petitioners,

v.

PAUL E. SCOTT, ET AL.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 687-5390

MARTIN W. Dies

P.O. Box 490

Orange, Texas 77360

Attorneys for Petitioners

GEorGE KAUFMANN

2101 L Street, N.W.

Washington, D.C. 20087

Of Counsel

o—>-~-

TABLE OF CONTENTS

(Opinion of the United States Court of

Appeals for the Fifth Circuit en banc)

) 0 eS eee

(Opinion of t » United States Court of

Appeals for the Fifth Circuit panel)

(March 26, 1981) ..........ccccccccccccceesceseeeee

(Opinion of the United States District

Court for the Eastern District of Texas,

Beaumont Division) (November 16,

ERTS ae ne ee

(Judgment United States District Court

for the Eastern District of Texas, Bea-

mont Division) (December 19, 1978) ....

(Judgment of the United States Court

of Appeals for the Fifth Circuit) (July

is EE antencnneilibiatinesieeteneinmsieens

Al

APPENDIX A

FORMER FIFTH

SCOTT v. MOORE

Paul E. SCOTT, et al.

Plaintiffe-Appellees,

Bill MOORE, et al, Defendants,

Laborers International Union of North

America, Local No. 870, et al,

Defendants-Appeliants,

International Union of Opera.ing

Engineers, etc., AFL-CIO, Local

450, Defendant-Appeliant.

No. 79-1196.

United States Court of Appeals,

Fifth Circuit.*

July 1, 1982.

Construction company and two of its

employees brought action against trades

council, its unions, and individual union

members, alleging that defendants con-

spired for purpose of depriving plaintiffs of

the equal protection of the laws and equal

privileges and immunities under the law

when they planned and executed an attack

on construction site. The United States

District Court for the Eastern District of

Texas, 461 F.Supp. 224, Joe J. Fisher, J.,

entered judgment in favor of plaintiff, and

certain defendants appealed. The Court of

Appeals, 640 F.2d 708, affirmed in part and

reversed in part. After rehearing en banc,

the Court of Appeals, Charles Clark, Circuit

Judge, held that: (1) civil rights conspiracy

statute encompassed conspiracy designed to

deprive nonunion workers and their employ-

er of First Amendment right of free associ-

ation where conspiracy, which was motivat-

ed by defendants’ hostility toward nonunion

* Former Fifth Circuit case, section &1) of Public

A-l

workers and employers w: > hired them,

was furthered by physical assaults and

beatings and destruction of property, and

(2) findings that certain unions authorized

or participated in conspiracy aimed at in-

timidating and coercing nonunion workers

from working or being employed within 4

“union area” were not clearly erroneous;

however, evidence of participation in the

conspiracy was insufficient to warrant

judgment against the remaining eight un-

ions.

Affirmed in part and reversed in part.

Alvin B. Rubin and Jerre S. Williams,

Cireuit Judges, filed dissenting opinion in

which Brown, Vance, Kravitch, Randall,

Tate, and Sam D. Johnson, Circuit Judges,

‘oined

R. Lanier Anderson, III, Circuit Judge,

Garwood, Circuit Judge, filed dissent-

ing opinion.

1. Labor Relations ¢=870

Norris-LaGuardia Act did not deprive

district court of jurisdiction to enjoin labor

organizations not to combine, conspire,

threaten, intimidate, assault or commit any

act of violence toward or upon any person,

property or possession of any person or his

family who worked upon, traveled to, or

delivered materials, goods, or services to

construction company or to construction

site. Norris-LaGuardia Act § 5, 29 U.S.

C.A. § 105.

2. Labor Relations #855

Norris-LaGuardia Act's prohibition

against federal injunctive relief merely re-

Law 96-452—October 14, 1980.

Synopecs, Syllabi and Key Number Classification

COPYRIGHT @ 1982, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

A-2

stricts court's power to enjoin concerted or

conspiratorial activity where the conduct to

be enjoined is legitimate activity of a labor

union. Norris-LaGuardia Act, §§ 4, 5, 29

U.S.C.A. §§ 104, 106.

3. Conspiracy 7.6

Civil rights conspiracy statute encom-

passed conspiracy designed to deprive non-

union workers and their employer of First

Amendment right of free association where

conspiracy, which was motivated by defend-

ants’ hostility toward nonunion workers and

employers who hired them, was furthered

by physical assaults and beatings and de-

struction of property. U.S.C.A-Const.

Amends. 1, 14; 42 U.S.C.A. § 19853).

4. Constitutional Law @274.1(1)

Guaranties afforded by First Amend-

ment are protected by due process clause of

Fourteenth Amendment. U.S.C.A.Const.

Amends. 1, 14.

5. Constitutional Law 91

Right of free association is closely

aligned with right of free speech and is

protected by First Amendment. U.S.C.A.

Const.Amend. 1.

6. Conspiracy 7.6

Civil rights conspiracy statute protects

against private infringement on First

Amendment freedoms. U.S.C.A.Const.

Amend. 1; 42 U.S.C.A. § 19853).

7. Conspiracy @7.6

Civil rights conspiracy statute reaches

all deprivations of equal protection, whatev-

er their source. 42 U.S.C.A. § 19853);

U.S.C.A.Const.Amend. 14.

SCOTT v.

8. Conspiracy 7.5

Not every conceivable class of persons

is covered by civil rig a conspiracy statute;

members of piainti: class must share some

common characteristic beyond simply being

victims of defendant's conspiratorial con-

duct and class can not be so large and

amorphous that its members are virtually

indistinguishable from vast majority of the

populace. 42 U.S.C.A. § 19853).

9. Conspiracy 7.5

Plaintiffs, nonunion employer and its

nonunion employees who alleged injury re-

sulting from conspiracy motivated by de-

fendants’ hostility toward nonunion work-

ers and employers who hired them, consti-

tuted a class for purposes of civil rights

conspiracy statute. 42 U.S.C.A. § 19853);

National Labor Relations Act, §§ 7, 8,

&b\1) as amended 29 U.S.C.A. §§ 157, 158,

158(b) 1).

10. Conspiracy 7.5

Civil rights conspiracy statute cannot

be invoked to disrupt operation of a careful-

ly integrated statutory scheme. 42 US.

C.A. § 1985(3).

11. Conspiracy 7.5

Cause of action under civil rights con-

spiracy statute cannot be predicated upon

an unfair labor practice, without more. 42

U.S.C.A. § 1985(3).

12. Conspiracy 7.5

Neither unionism nor nonunionism suf-

fices to create a covered class for purposes

of civil rights conspiracy statute; however,

where there is no campaign to organize

employees and force or violence is used to

stake out one group’s territorial claim and

to deprive other workers and their employer

to freely associate with one another, an

SCOTT v. MOORE

action under civil rights conspiracy statute

will lie. 42 U.S.C.A. § 1985(3).

13. Commerce @74.65

Commerce clause justified application

of civil rights conspiracy statute w defend-

ants’ wholly private conspiracy, which was

motivated by hostility against nonunion em-

ployces and their employer which employer

was general contractor which, during year

preceding violent attack on its construction

site had perform! work outside of Texas

valued in excess of $300,000, where employ-

er had purchased over $50,000 worth of

goods, and materials which originated out-

side of Texas and where construction con-

tract was with United States Army Corps

of Engineers, even though volume of busi-

ness done outside Texas was small com-

pared to total amount of services and goods

in interstate commerce. 42 U.S.C.A.

§ 1983); U.S.C.A.Const.Art. 1, § 8, cl. 3.

14. Commerce @7(2)

Grant of power under commerce clause

extends to those activities intrastate which

so affect interstate commerce, or exertion

of the power over it, as to make regulation

of them appropriate means to attainment of

a legitimate end, the effective execution of

the granted power to regulate interstate

commerce. U.S.C.A.Const.Art. 1, § 8, cl. 3.

15. Labor Relations #766

While Norris-LaGuardia Act requires

clear and convincing evidence as to union

authorization, participation in, or ratifica-

tion of the act allegedly performed by its

members in order to pose liability for it, it

does not prescribe a different standard of

proof for other issues in actions aguinst a

union or its officers or members involved in

a labor dispute. Norris-LaGuardia Act,

§ 6,29 USCA. § 106.

A-3

16. Labor Relations 766

Where a labor organization purposeful-

ly adopts violence as its course and where

that violence is not associated with or hap-

pening to result from any ongoing legiti-

mate union conduct, union is not participat-

ing in a labor dispute within meaning of

Norris-LaGuardia Act. Norris-LaGuardia

Act, § 13(c), 29 U.S.C.A. § 113%(c).

17. Labor Relations #766

Violence at construction site, which

was conceived in reprisal for refusal of em-

ployer and his workers to accede to demands

that construction project be conducted as a

union job, did not occur in conjunction with

the labor dispute within meaning of Norris-

LaGuardia Act; thus, section of Act requir-

ing clear, unequivocal and convincing proof

of union involvement in unlawful conduct

in order to impose liability for it was not

applicable suit brought by employer and his

workers against trades council, its unions,

and individual union members. Norris-La-

Guardia Act, §§ 6, 1%c), 2 US.CA.

§§ 106, 113(c).

18. Labor Relations e766

A labor dispute exists for purposes of

Norris-LaGuardia Act where unlawful con-

duct occurs in conjunction with some legiti-

mate union activity and a labor dispute may

also exist even though the otherwise legiti-

mate union conduct is unlawful under some

Other statutory scheme. Norris-LaGuardia

Act, § 13(c), 29 U.S.C.A. § 113%c).

19. Federal Courts 853

A finding is “clearly erroneous” when

although there is evidence to support it,

reviewing court on entire evidence is left

with definite and firm conviction that a

mistake has been committed. Fed.Rules

Civ.Proc. Rule 52(a), 28 U.S.C.A.

A-4

20. Federal Courts e848

Appellate court must be especially re-

luctant to disregard a factual finding based

upon evaluation of testimony that draws

credibility into question and it may not

consider the evidence anew and merely be-

cause it might have reached a different

result on same evidence will not justify its

setting the district court's findings aside.

Fed.Rules Civ.Proc. Rule 52(a), 28 U.S.C.A.

21. Conspiracy 19

Federal Courts #865

Findings that certain unions authorized

or participated in conspiracy aimed at in-

timidating and coercing nonunion workers

from working or being employed within a

“union area” were not clearly erroneous;

however, evidence of participation in the

conspiracy was insufficient to warrant

judgment against the remaining eight un-

ions. 42 U.S.C.A. § 1985(3).

Appeals from the United States District

Court for the Eastern District of Texas.

Before GODBOLD, Chief Judge,

BROWN, CHARLES CLARK, RONEY,

GEE, TJOFLAT, HILL, FAY, RUBIN,

VANCE, KRAVITCH, FRANK M. JOHN-

SON, Jr., GARZA, HENDERSON, REAV-

LEY, POLITZ, HATCHETT, ANDERSON,

RANDALL, TATE, SAM D. JOHNSON,

THOMAS A. CLARK, WILLIAMS and

GARWOOD, Circuit Judges.

CHARLES CLARK, Circuit Judge:

This appeal presents important questions

concerning the scope of relief available un-

der 42 U.S.C. § 1985(3), the extent of con-

gressional power to enact a civil remedy for

wholly private infringement of cunstitution-

SCOTT v. MOORE

al rights, and the relationship between sec-

tion 1985(3) and the labor relations liws.

The district court, 461 F.Supp. 224, issued a

permanent injunction against the def¢ 1d-

ants, including numerous labor organiza-

tions. It also awarded money damages for

violations of section 1985(3), concluding tnat

the statute afforded a remedy for the kind

of private conspiracy involved here and ‘at

Congress was constitutionally empowered

to provide such a remedy. A panel of ‘his

court affirmed in part and reversed in part.

5th Cir., 640 F.2d 708. After rehearing, the

court en banc affirms the district court in

part and reverses in part.

I. THE FACTUAL BACKGROUND

This case arises out of an episode of inob

violence that occurred in the early morning

hours of January 17, 1975. The plairt'ffs

are A.A. Cross Construction Company, Inc.,

and two of its employees, Paul Scott «nd

James Matthews. The defendants include

the Sabine Area Building and Construction

Trades Council, a loose confederation of

craft and construction unions located in the

Port Arthur, Texas, area. Also name as

defendants are twenty-five of the Council's

member unions and several individual 11 -m-

bers of some of these labor unions. ‘The

individual defendants are not parties to this

appeal. The plaintiffs contend that th. de-

fendants conspired for the purpose of de-

priving them of the equal protection of the

laws and equal privileges and immunities

under the law when they planned and -xe-

cuted an attack on the Cross construction

site, assaulting workers and destroving

property.

A.A. Cross Construction Company is a

Texas corporation engaged in the builuing

and construction industry as a general con-

tractor. In May, 1974, Cross contra: ted

SCOTT v.

with the Department of the Army, United

States Corps of Engineers to erect the Alli-

gator Bayou Pumping Station and Gravity

Drainage Structure on the hurricane levee

along Taylor's Bayou near Port Arthur.

The agreement hail a contract price in ex-

cess of $8 million and called for the con-

struction of the pump station with four

pumps and a gravity drain for flood control.

In accordance with its customary practice,

the Cross Construction Company hired its

workers for the Alligator Bayou project

without regard to union affiliation, employ-

ing persons solely on the basis of its own

need for the applicant’s occupational skills.

Cross did not have a collective bargaining

agreement with any !abor union, and when

this incident occurred no union was seeking

to organize the company’s employees. In

addition, Cross often hired workers from

outside the Port Arthur community.

Cross Construction Company's hiring

practices provoked an antipathetic response

from some segments of the Port Arthur

community. In fact, on several occasions

prior to the eruption of violence on January

17, popular enmity had risen to the level of

warnings and threats directed against Cross

and its employees. Local residents had con-

fronted Cross employees at a local tavern

and pool hall frequented by them, threaten-

ing to place pickets at the construction site,

promising to make Cross “go union,” and

occasionally warning of trouble if Cross did

not cease hiring nonunion laborers. About

three months before the January 17 attack,

one of the individual defendants, Bill

Moore, approached Mr. Cross and threat-

ened that he would “hurt you bad,” saying,

“What is going to happen when that big rig

of yours down there burns up?” On anoth-

er occasion, John Wallace, financial secre-

tary and business representative for the

Carpenters Local # 610, had told Cross

MOORE A-5

that “this is union country” and that if he

persisted in using nonunion labor it was

“going to cost you a million dollars.”

. Meanwhile, during the months preceding

the January 17 violence, rumors began to

develop concerning a “citizens protest” to

be staged at the Alligator Bayou construc-

tion site. These rumors contemplated a

public demonstration to call attention to the

fact that Cross hired nonunion labor and

did not have a labor contract with any

union as well as to protest the company’s

policy of hiring employees from outside the

Port Arthur community.

There is no direct evidence to show the

organizing force behind this protest demon-

stration, but on Wednesday, January 15,

two days before the assault on the Cross

jobsite, the Sabine Area Building Trades

Council held its regular weekly meeting.

Cross Construction Company's indifference.

to prospective employees’ union status and

its lack of a union contract had long been

topics of concern at the Council’s meetings,

and they were once again discussed during

the January 15 session. In addition, the

group discussed the rumored citizens pro-

test, and some of the union representatives

in attendance informed the Council that the

demonstration had apparently been sched-

uled for the following Friday.

On Thursday, the sixteenth, Cross Con-

struction Company learned of the scheduled

protest from two union employees associat-

ed with the Alligator Bayou project. Fred

Dukes, a member of Cement Masons Local

884, worked for Cross as a cemeat finisher

on a two-day job. Earl Stevens, a member

of Plumbers Local 504, worked as a fore-

man for Cross Construction Company's me-

chanical subcontractor. Both men received

warnings from their respective union busi-

ness agents about a possible picket or dem-

A-6

onstration to be held at the Cross construc-

tion site, and both men passed that infor-

mation along to Cross. Neither Dukes nor

Stevens had heard anything about violent

or destructive conduct. Nevertheless, Cross

directed its employees to report for work at

6:00 a m. on Friday, an hour earlier than

usual, in order to avoid any confrontation

between them and the demonstrators.

On the morning of January 17, after most

of the Cross employees had arrived at work,

a crowd of nearly three hundred people

assembled at the main access road leading

to the Cross construction site. Several ve-

hicles made brief forays up the access road,

and their occupants confirmed with Cross

and Scott that they were at the Cross Con-

struction Company jobsite. The crowd be-

gan to get unruly, pushing and shoving the

remaining Cross workers as they arrived.

Nevertheless (‘ross's employees began work

as usual. Then, shortly after 7:00 that

morning, a group of four pickup trucks,

each carrying between twelve and eighteen

persons, emerged from the crowd gathered

at the access road and drove onto the job-

site. Plaintiff Scott went out to meet the

intruders ad to request them to leave the

area, but one of them approached Scott and

said, “Man, you all have got to be crazy .. .

this is a union town.” Scott told his interlo-

cutor that they did not want any trouble,

and he attempted to gather together the

other employees and to leave the jobsite.

However, before he could complete his mis-

sion, someone stepped out of the group and

struck him on the head. Suddenly, the mob

swarmed over the construction site, brutally

beating Cross and his employees with iron

rods and wooden boards, overturning and

setting fire to the trailer that served as the

tional Union of North America, Local 870; Op-

SCOTT v.

MOORE

construction site office, smashing automo-

bile and truck windshields, and vandalizing

company tools and equipment. The entire

episode lasted only a few minutes, but the

destruction was devastating. Cross and his

employees were treated for their injuries at

a local hospital, and work at the construc-

tion site did not resume for nearly three

weeks. Some of Cross’s employees, [riht-

ened by the possibility of repeated attacks

at the jobsite, refused to return to work.

In addition, the violence and vandalism de-

layed the completion of the project by

about six months, ultimately causing the

Cross Construction Company to default in

its contractual obligation to the U.S. Army

Corps of Engineers.

On January 31, 1975, plaintiffs Scott and

Matthews initiated this lawsuit against the

individual defendants. They sought and

obtained a temporary injunction restraining

the then-named defendants and “all per-

sons, firms, and associations combining or

conspiring with defendants” from further

violent, intimidating, or destructive acts

against employees at the Alligator Bayou

Pump Station project. Nearly two years

later, the plaintiffs amended their com-

plaint, adding A.A. Cross Construction

Company, Inc., as plaintiff and the Sabine

Area Building and Construction Trades

Council along with twenty-five local unions

as defendants. The district court found

that the plaintiffs had proved a conspiracy

to deprive them of the equal protection of

the laws, permanently enjoined the building

trades council and twenty-four of the un-

ions from future misconduct, and assessed

damages against eleven of the union de-

fendants.'

erative Plasters and Cement Masons Interna-

tional Association, Local 884; United Associa-

tion of Journeymen and Apprentices of the

SCOTT v.

Il. THE JURISDICTIONAL QUESTION:

INJUNCTIVE RELIEF AND THE

NORRIS-LAGUARDIA ACT

{1} The district court issued a perma-

nent injunction against the Sabine Area

Building and Construction Trades Council,

twenty-four of its member unions, and all

persons conspiring with them. The court's

injunction ordered that those parties sub-

ject to its terms

... Shall not hereafter combine, conspire,

threaten, intimidate, assault, or commit

any act of violence toward or upon any

person, property or possession of any per-

son or his family who may work upon,

travel to, deliver materials, goods, or

services to A.A. Cross Construction Ce.,

Inc., or to the site of the Alligator Bayou

Pump Station on Taylor’s Bayou near

Port Arthur, Jefferson County, Texas.

The defendants contest the district court's

power to issue such an injunction, arguing

that the Norris-LaGuardia Act deprives the

district court of jurisdiction to enjoin labor

organizations from engaging in conspirato-

rial conduct. They maintain that the un-

embellished language of the Act is suffi-

cient to show the court's usurpation of au-

thority.

We disagree. The Norris-LaGuardia Act

was passed for the purpose of limiting the

circumstances and conditions under which

injunctive action could be taken against

labor organizations in the context of a labor

dispute. The labor injunction had been an

important device used by employers to

Plumbing and Pipefitting Industry of the United

States and Canada, Local 195; United Brother-

hood of Carpenters and Joiners of America,

Local 610, United Brotherhood of Carpenters

and Joiners of America, Local 753; Internatio”.

al Brotherhood of Boilermakers, iron Shipbu..u-

ers, Blacksmiths, Forgers, and Helpers, AFL-

ClO, Local 587; International Assoviation of

MOORE A-7

counter organized labor's most effective

economic weapons, strikes, boycotts, and

picket lines. However, the Act was predi-

cated on the conviction that labor disputes

turned on issues of social and economic

policy that could not appropriately be re-

solved by the courts. The legislative solu-

tion to the problems confronting workers in

a complex industrial economy was union

organization and collective bargaining.

Since the ready issuance of labor injunc-

tions presented a serious obstacle to the

concerted activities of organized workers,

Congress decided to remove the federal ju-

diciary from laber disputes. Thus, section 5

of the Act, 29 U.S.C. § 105, limits the equi-

table power of the federal courts in the

following way:

No court of the United States shall

have jurisdiction to issue a restraining

order or temporary or permanent injunc-

tion upon the ground that any of the

persons participating or interested in a

labor dispute constitute or are engaged in

an unlawful combination or conspiracy

because of the doing in concert of the

acts enumerated in section 104 of this

title.

29 U.S.C. § 105.

{2} But the Act does not impose an un-

qualified prohibition against federal injunc-

tive relief. Section 105 merely restricts the

court’s power to enjoin concerted or conspi-

ratorial activity where the conduct to be

enjoined is an act enumerated in section

A-8 SCOTT v. MOORE

104.2 The enumerated acts include refusing mission of violent acts as a condition under

to work, joining a labor organization, pay- which an injunction may issue: Section 107

ing or withholding strike benefits from a states that no court of the United States

labor disputant, lawfully giving aid to a has jurisdiction to grant an injunction, un-

labor disputant who is prosecuting or de- jess, after a hearing, the court finds “[t}hat

fending 4 court action, truthfully and unlawful acts have been threatened and

peacefully publicizing a labor dispute, will be committed unless restrained...”

peaceably assembling to promote one's in- 29 U.S.C. § 107%(a). Thus, violence, intimi-

Lerests in a labor dispute, and agreeing with dation, threats, vandalism and combinations

or inducing other persons to do any of those or conspiracies to commit such acts may be

acts. In short, section 104 interdicts injune- restrained and enjoined even though they

however, denies lo federal courts the power Dukakis, 412 F.Supp. 580 (D.Mass.1976);

to enjoin violence, breaches of the peace, OF Potomac Electric Power Co. v. Congress of

Racial Equality, 209 F.Supp. 559 (D.D.C.

committed by persons seeking to forward or 1962) The Norris-LaGuardia Act does not

interested in sume labor-related objective. divest the district court of jurisdiction to

In fact, the Norris-LaGuardia Act itself enjoin the kind of violent conduct present

recognizes by negation the threatened com- in this case.’

2. Section 104 provides as follows: whether by advertising, speaking, patrolling.

No court of the United States shail have or by any other method not involving fraud

jurisdiction to issue any restraining order or or violence,

temporary or permanent injunction in any () Assembling peaceably to act or to or

case involving or growing out of any labor ganize to act in promotion of their interests

dispute to prohibit any person or persons in a labor dispute,

participating or interested in such dispute (as (g) Advising or notifying any person of an

these terms are herein defined) from doing, intention to do any of the acts heretofore

whether singly or in concert, any of the fol- specified;

lowing acts. (h) Agreeing with other persons to do or

(a) Ceasing or refusing to perform any not to do any of the acts heretofore specified,

work or to remain in any relation of employ- and

ment, (i) Advising, urging. or otherwise causing

(>) Becoming or remaining a member of of inducing without fraud or violence the acts

any labor organizat.on or of any employer heretofore specified, regardiess of any such

Orgamization, rega: 53 of any such under- undertaking or promise as is described in

taking or promise as is described in section section 103 of this title.

“ie - 29 U.S.C. § 104.

Paying or giving or withholding

from, any person participating or interested 3. Even where jurisdiction to grant injunctive

in such labor dispute, any strike or unem- rehef is authonzed, the Norris-LaGuardia Act

ployment benefits or insurance, or other imposes sinct procedural requirements upon

moncys or things of value, the court. See 29 U.S.C. §§ 107-108, New

(d) By all lawful means aiding any person Negro Alliance v. Sanitary Grocery Co., 303

participaung or interested in any labor dis- U.S. 552, 561-62, 58 S.Ct. 703, 707, 62 L.Ed.

pute who is being proceeded against in, or 1s 1012, 1016 (1938). Section 107 provides that

prosecuting. any action or suit in any court no federal court shall have jumsdiction to issue

of the Unsed States or of any State, a “permanent injunction in any case involving

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the statute, recent judicial interpretations

given to related civil mghts provisions, the

complementary relationship of the various

civil rights statutes, and che legislative his-

tory surrounding section 1985(3) all “point

unwaveringly to § 1985(3)'s coverage of

private conspiracies.” 403 U.S. at 101, 91

S.Ct. at 1798, 29 L.Ed. 2d at 347.

While eliminating the state action re-

quirement, the Griffin court recognized

that the statute, if applied too broadly,

could displace many areas of tort law that

have traditionally been reserved to the

States and thereby violate constitutionally

based principles of federalism. “That the

statute was meant to reach private action

does not ... mean that it was intended to

apply to all tortious, conspiratorial interfer-

ences with the rights of others.” 403 US.

at 101, 91 S.Ct. at 1798, 29 L.Ed.2d at 347.

The Court delineated the reach of the stat-

application to deprivations of equal protec-

tion or equal privileges and immunities, to

require the ere be some “ciass-based, in-

vidiously discriminatory animus behind the

conspirators’ action.” 403 US. at 102, 91

S.Ct. at 1798. Griffin thus made clear that

the limiting principle adopted by Congress

is satisfied by a showing of class-based ani-

mus. The Court then noted four elements

necessary for a plaintiff to establish a

1985(3) cause of action:

(1) the defendants must conspire or go in

disguise on the highway or premises of

another;

(2) for the purpuse of depriving, either

directly or indirectly, any person or class

of persons of the equal protection of the

laws, or of equal privileges and immuni-

ues under the laws, and

SCOTT v. MOORE

(3) one or more of the conspirators must

commit some act in furtherance of the

conspiracy; whereby

(4) another is either (a) injured in his

person or property or (b) deprived of hav-

ing and exercising any right or privilege

of a citizen of the United States.

See id. at 102-08, 91 S.Ct. at 1790, @

L.Ed.2d at 348. Subsequently, this court

(5) that the conspirators’ conduct must be

unlawful independent of the section

19853) violation.

See McLellan v. Mississippi Power & Light

Co., 545 F.2d 919 (5th Cir. 1977) (en bane).

Amendment and the constitutional mght to

1799-1800, 29 LEd2d at 349-50. The

SCOTT v. MOORE

establish a conspiracy among some of the

Council's constituent unions and individual

defendants. Secund, proof that plaintiffs

were assaulted, beaten, and threatened and

that property was destroyed establishes the

requisite “act in furtherance” of the con-

spiracy. Third, these acts are indisputably

illegai apart from § 1983(3) as required by

McLellan. Fourth, there is evidence of per-

sonal injuries, property damage, and eco-

nomic loss. The only element requiring

analysis is the requirement that the conspir-

acy be for the purpose of depriving « person

of the equal protection of the laws or equal

privileges and immunities under the laws.

This requiren-ent, in turn, has two compo-

nents: (1) the violation of some protected

right and (2) a class-based, invidiwusly dis-

criminatory animus motivating the viola-

tion.

1. Violation of a Protected Right

In Griffin, the Supreme Court stated that

a 1985(3) conspiracy “must aim at a depri-

vation of the equal enjoyment of rights

secured by the law to all.” 403 U.S. at 102,

91 S.Ct. at 1798, 29 L.Ed.2d at 348. The

plaintiffs in the case at bar contend that

the object of the defendants’ conspiracy

was to deprive them of their First Amend-

ment right to associate with their fellow

nonunion employees. They argue that cur-

tailment of their interests secured by the

First Amendment is a deprivation of equal

protection of the laws within the meaning

of section 19853) as interpreted by Griffin.

{4,5} The Ku Klux Klan Act was origi-

nally entitled, “An Act to Enforce the Pro-

visions of the Fourteenth Amendment to

the Constitution of the United States, and

for Other Purposes.” 17 Stat. 13 (1871).

Te guaranties afforded by the First

Amendment are protected by the due proc-

A-il

ess clause of the Fourteenth Amendment.

Ey Williams v. Rhodes, 393 U.S. 23, 30-31,

89 S.Ct. 5, 10, 21 L.Ed.2d 24, 31 (1968); New

York Times v. Sullivan, 376 U.S. 254, 276-

TT, 84 S.Ct. 710, 724, 11 L.Ed.2d 686, 709

(1964); Cantwell v. Connecticut, 310 US.

296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213,

1217 (1940); De Jonge v. Oregon, 299 US.

353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278, 283

(1937). Moreover, the right of free associa-

tion is closely aligned with the right of free

Bar

sy 1, 6, 91 S.Ct. 702, 705, 27 L.Bd.2d 639,

646 (1971); . .

Patterson, 357 U.S. 449,

1171-72, 2 L.Ed.2d 1488, 1499 (1958).

3

2

“2

=

B

remedy does exist, the plaintiff's activities

did not rise to the level of a constitutionally

(6] In arguing that section 1985(3) does

not protect against private infringement on

First Amendment freedoms, the defendants

Fourteenth Amendment “erects no shield

against merely private conduct, however

discriminatory or wrongful.” Shelley v.

Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842,

92 L.Ed. 1161, 1180 (1948). To support their

construction of section 1985(3) the defend-

ants rely upon several decisions of the Sev-

enth Circuit. In Dombrowski v. Dowling,

459 F.2d 190 (7th Cw. 1972), the court held

A-12

that section 1985(3) does not afford protec-

tion against private deprivations of rights

protected under the Fourteenth Amend-

ment absent some kind of state involve-

ment. Emphasizing the historical connec-

tion between sections 1983 and 1985(3),

Dowling decided that it is necessary to iden-

tify the interests which Congress intended

to protect from unequal treatment as well

as the kinds of conduct which it meant to

proscribe.

The breadth of the statute's coverage is

yet to be determined, but three categories

of protected rights have been plainly

identified. Griffin gives express recogni-

tion to a biack citizen's Thirteenth

Amendment rights and to his federal

right to travel interstate; the title of the

statute expressly identifies the third cate-

gory, namely, rights protected by the

Fourteenth Amendment. We think the

§ 1983 cases make it clear that in this

third category a “state involvement” re-

‘quirement must survive Griffin.

459 F.2d at 195 (footnotes omitted)* The

Seventh Circuit subsequently extended the

Dowling rationale in Murphy v. Mount Car-

mel High School, 543 F.2d 1189 (7th Cir.

1976), expressly holding that section 1985(3)

provides no remedy for purely private im-

pairment of First Amendment speech and

associational freedoms. Accord Bellamy v.

Mason's Stores, Inc., 08 F.2d 504 (4th Cir.

1974).

Te explain how private conspirators could

deprive a person of rights which are only

protected against state interference, Justice

Stevens, the author of Dowling, later sug-

gested that “if private persons take conspi-

S$. Dowling recognizes that there is no statutory

requirement of state participation of support

for the conduct of the conspirators, ie, that

there 1s no requirement that the defendants act

under color of state law. However, where one

suffers a deprivauon of a federally created

SCOTT v. MOORE

ratorial action that prevents or hinders the

constituted authorities of any State from

giving or securing equal treatment, the pri-

vate persons would cause those authurities

to violate the Fourteenth Amendment.”

See Great American Federal Savings &

Loan Association v. Novotny, 442 U.S. 366,

384, 99 S.Ct. 2345, 2355, 60 L.Ed.2d 957

(1979) (Stevens, J. concurring).

Our problem with this line of analysis

arises from the Supreme Court's express

reasoning in Griffin. Because most basic

constituuional provisions impose limitations

on the power of government to regulate

private conduct, the rights these limitations

confer on individuals are typically rights

against the state. The Griffin Court ac-

knowledged the conceptual difficulties asso-

ciated with private deprivations of constitu-

tional rights. The Court, however, con-

strued section 1985(3) to reach both public

and private constitutional wrongs.

A century of Fourteenth Amendment

adjudication has _.. made it understand-

ably difficult to conceive of what might

constitute a deprivation of the equal pro-

tection of the laws by private persons.

Yet there is nothing inherent in the

phrase that requires the action working

the deprivation to come from the State.

Indeed, the failure to mention any such

requisite can be viewed as an important

indication of congressional intent to

speak in § 19853) of al/ deprivations of

“equal protection of the laws” and “equal

privileges and immunities under the

laws,” whatever their source.

4u3 U.S. at 97, 91 S.Ct. at 1796, 29 L.Ed 2d

at 345 (citation omitted and some emphasis

SCOTT v. MOORE

supplied). The Court also said: “It is thus

evident that all indicators—text, companion

provisions, and legislative history—point

unwaveringly to § 1985(3)'s coverage of

private conspiracies.” Id. at 101, 91 S.Ct. at

1798, 29 L.bal2d at 347° These clear, deci-

sional words in Griffin simply will not per-

mit us tw speculate that section 1985(3)

might not afford a remedy for private con-

spiracies.

Griffin even considered and rejected the

very explanation of section 19853) which

wus later suggested in the Novotny concur-

rence. In concluding that the first part of

section 19453) reached all deprivations of

the equal protection of the law, “whatever

their source,” Griffin considered the various

forms which a state action limitation might

take but rejected the idea that Congress

had intended to impose any state action

limitation on section 1983). Specifically,

the Court rejected the notion that a private

conspiracy had w hinder state officials in

their obligation to give equal protection be-

cause it found that this type of conduct was

explicitly dealt with elsewhere in the Act.

See Griffin v. Breckenridge, 403 US. at

98-99, 91 S.Ct. at 1796-97.

[7] We are not unmindful of the Su-

preme Court's statement in Novotny, that

section 1985(3) “provides no substantive

rights itself; it merely provides a remedy

for vivlation of the rights it designates.”

442 US. at 372, 99 S.Ct. at 2349. We also

acknowledge that some commentators have

read this statement as an implicit endorse-

ment of the Seventh Circuit's position in

Dowling. See Note, Private Conspiracies to

Violate Civil Rights, 61 B.U.L.Rev. 1007

6. Technically, of course, this language is dicta.

Griffin grounded its decison on the rights se-

cured to blah cuizens under the Thirteenth

Amendment and the nght to interstate travel,

both of which operate as limits on individual

A-13

(1981). However, so long as Griffin re-

mains viable, we are bound by its determi-

nation that section 1945(3) reaches all depri-

vations of equal protection, whatever their

source.

The second prung of defendants’ argu-

ment on this point asserts that even if

section 19853) protects first amendment

rights from private infringement, the plain-

tiffs’ actions in this case—merely working

for a nonunion emplever—do not qualify

for constitutional protection. We disagree.

The Supreme Court has long recognized

that association for the purpose of advanc-

ing economic, as well as political or reli-

gious, interests falls within the protection

of the First Amendment. See Brotherhood

of Railroad Trainmen v. Virginia, 377 U.S.

1, 8, 84 S.Ct. 1113, 1117-18, 12 L.Ed.2d 89

(1964); Thomas v. Collins, U.S. 516, 531,

65 S.Ct. 315, 323, 89 L.Ed. 430 (1945). In

Abood v. Detroit Board of Education, 431

US. 208, 97 S.Ct. 1782, 52 L.Ed.2d 261

A-14

cause “such interference [with that right]

as exists is constitutionally justified by the

leyislative assessment of the important con-

tribution of the union shop to the system of

labor relations established by Congress.”

Id. Though it found guch infringement jus-

tified, Aboud thus recognized that requiring

financial support could infringe first

amendment rights.

The conspiracy in the case at bar sought

to deny completely the plaintiff employees’

right not to associate. The district court

found that several truckloads of men as-

saulted the plaintiffs and “threatened to

continue violent actions if the nonunion

workers did not leave the area or concede to

union policies and principles.” The conspir-

acy was intended to deny the nonunion

employees their right not Wo associate either

by driving them out of the county or by

coercing them to unionism through violence.

The defendants sought not merely w foree

plaintiffs Wo yive financial support to a un-

ion (an act which Abood recognized could

interfere with «a person's freedom not to

associate), but also to force Cross's employ-

ees to become union members or leave an

area which had been staked out as “union

country.” The purpose of the conspiracy

was to deprive the plaintiffs of a protecte|

right.”

2. Discriminatory, Class-Based Animus

While Griffin taade clear that Congress

intended to reach « denial of equal protec-

Lion because of reve, it left open the issue of

whether section 19853) prohibited other

7. Because of our disposition of the case, it is

SCOTT v.

MOORE

class-based discrimination. See 403 U.S. at

102 n.9, 91 S.Ct. 1798 n.9. We find it does

and that plaintiffs come within its protec-

tion.

In Kimble v. D. J. MeDuffy, tne, 648

F.2d 340 (5th Cir. 1981) (en banc), we

recently considered what other types of

class-based animus section 19853) might

reach. We found that two types of clases

come within the statute's protection.

we recognized that section 19853) cow»

classes “having common characteristics «,

an inherent nature”—ie., those kinds of

classes offered special protection under the

equal protection clause. id. at 347. We

also recognized that:

{t]he class-based animus required by the

Supreme Court in Griffin and now reas-

serted by this court is not identical with

the class-based distinctions required to

support an action under the equal protec-

tion clause .... For example, section

1985 was certainly intended to cover con-

tions based on affiliation with a major

political party are not among those tradi-

tionally subject to special serutiny under

the Fourteenth Amendment. What Grif-

fin stands for, and what we now hold, is

that Section 1985 was intended lo encom-

pass only those conspiracies motivated by

animus against the kinds of classes Con-

(cress was trying lo protect when it enact-

ed the Ku Kiux Klan Act.

Id. at 347 n9.

Kimble is consistent with the decisions of

the other circuits. Decisions which have

cide whether federal statutory nghts are pro-

tected by § 19653). See Novotny v. Great

American Federal Savings & Loan Ass'n, 564

F.2d 1235 (3d Cir. 1978), rev'd, 442 U.S. 366, 99

S.Ct. 2345, 60 L.Ed.2d 957 (1979) (violations of

Title VII). Cf McLellan, 545 F.2¢ 919 (Sth Cir.

1977) (ght to file bankruptcy petition not pro-

tected.)

cers

SCOTT v. MOORE

accorded protection to nonracial classes

have generally fallen into the two catego-

ries identified by Kimble. The first catego-

ry consists of those classes afforded special

protection under the equal protection

clause. See, eg., Ward v. Connor, 657 F.2d

45 (4th Cir. 1981), cert. denied, —— US.

——, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982)

(members of Unification Church); Life In-

surance Company of North America v. Rei-

chardt, 591 F.2d 499 (9th Cir. 1979) (wom-

en); Marlowe v. Fisher Body, 489 F.2d 1057

(6th Cir. 1973) (Jews); Baer v. Baer, 450

F.Supp. 481 (N.D.Cal.1978) (members of the

Unification Church); Mandelkorn v. Pat-

rick, 359 F.Supp. 692 (D.D.C.1973) (Children

of God). The second is made up of classes

whose members are discriminated against

because of their political beliefs or associa-

tions. See, eg., Means v. Wilson, 522 F.2d

833 (8th Cir. 1975), cert. denied, 424 U.S.

958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976)

(supporters of a particular political candi-

date); Glasson v. City of Louisville, 518

F.2d 899 (6th Cir.), cert. denied, 423 U.S.

930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975)

(political demonstrators); Smith v. Cherry,

489 F.2d 1098 (7th Cir. 1973), cert. denied,

417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214

(1974) (voters for a sham political candi-

date); Cameron v. Brock, 473 F.2d 608 (6th

Cir. 1973) (supporters of incumbent sheriff);

Action v. Gannon, 450 F.2d 1227 (8th Cir.

1971) (worshippers at a predominantly

white Catholic church disrupted by black

civil right. protesters).

Plaintiffs are not a class normally afford-

ed special protection under the equal pro-

tection clause merely because they wish to

work nonunion. They are entitled to sec-

tion 1985(3) protection only if they are per-

sons within the second category of protect-

ed classes noted by Kimble, “the kind[ } of

class Congress was trying to protect when

A-15

it enacted the Ku Klux Klan Act.” 648

F.2d at 347 n9. In considering whether

plaintiffs qualify, we must from the outset

be mindful that the conspiracy in this case

was motivated by a prounion animus so

strong that it staked its claim not merely

ideologically, but geographically. The non-

union plaintiffs were repeatedly told that

they were in union country and would be

punished for choosing to work there non-

union.

[8] Not every conceivable class of per-

sons is covered by section 19853). Mem-

bers of the plaintiff class must share some

common characteristic beyond simply being

victims of the defendant's conspiratorial

conduct. See, eg., Askew v. Bloemker, 548

F.2d 673 (7th Cir. 1976) (homeowners raided

by drug enforcement agents); Harrison v.

Brooks, 519 F.2d 1358 (ist Cir. 1975) (prop-

erty owners allegedly injured by city coun-

cil rezoning efforts). The class cannot be so

large and amorphous that its members are

virtually indistinguishable from the vast

majority of the populace. See, e.g., Blevins

v. Ford, 572 F.2d 1336 (9th Cir. 1978) (non-

lawyers). Even some clearly defined and

easily identifiable groups have been denied

protected status under the statute. See,

e.g., DeSantis v. Pacific Tel. & Tel. Co., 60°.

F.2d 327 (9th Cir. 1979) (homosexuals);

Carchman v. Korman Corp., 594 F.2d 354

(3d Cir. 1979), cert. denied, 444 U.S. 898, 100

S.Ct. 205, 62 L.Ed.2d 133 (1979) (tenant

organizers); Lessman v. McCormick, 591

F.2d 605 (10th Cir. 1979) (debtors); McLel-

lan v. Mississippi Power & Light Co., 545

F.2d 919 (Sth Cir. 1977) (en banc) (persons

who file voluntary bankruptcy petitions);

Bricker v. Crane, 468 F.2d 1228 (lst Cir.

1972), cert. denied, 410 U.S. 930, 93 S.Ct.

1368, 35 L.Ed.2d 592 (1973) (physicians who

testify in malpractice suits).

A-16

In the alsence of Supreme Court guid-

ance as Ww the kinds of classes protected by

section 19853) or a method by which pro-

tected classes should be identified, we turn

to our own en bane decision in McLellan to

provide our gauge. In McLellan, we held

that the statute dues not cover persons who

file voluntary petitions in bankrupicy. The

decision was based on three factors. First,

the legislative history of the Ku Klux Klan

Act contains no evidence of congressional

concern about discrimination against per-

sons who become insolvent. Second, while

the protection afforded by the civil rights

acts is not static, it would be inappropriate

to enlarge the group of protected classes to

include bankrupts when Congress had spe-

cifically declined to prohibit discrimination

against them. Third, including bankrupts

within the ambit of section 19853) would

be unwarranted in light of the Supreme

Court's refusal to characterize the right to

file a bankruptcy petition as a fundamental

right. 545 F.2d at 932-33. While the pres-

ence of the first factor indicates that a

particular class should come under the aegis

of section 1985(3), the last two factors act

more as checks on unwarranted expansion

of section 1985(3). Their presence does not

suggest so much that a particular class

should be protected as their absence indi-

cates that coverage would be inappropriate.

{9} Applying the McLellan factors to

our case today, we find that the plaintiffs

constitute a class for 1985(3) purposes.*

8. Our reliance upon the factors deemed rele-

vant in McLellan does not necessarily imply

that they are the only relevant considerations.

Conceivably, other factors may be regarded as

sufficsent to include or to exclude other classes

from § 1985(3) coverage.

9. See, eg. Cong. Globe, 42d Cong., ist Sess.

252 (remarks of Sen. Morton) (“{t}he purpose

{of the Kian] is by these innumerable and

nameless crimes to drive those who are sup-

SCOTT v. MOORE

The labor union movement in America was

yet to be born when the 42d Congress was

in session, so it could not have been specifi-

cally concerned with discrimination perpe-

trated against nonunion laborers. How-

ever, the congressional debates evince a

hearty regard for persons who are victimiz-

ed because of their political beliefs and as-

sociations. Today's Ku Kiux Klan pro-

claims itself to be a racist organization.

But in 1871 it was regarded primarily as a

political one. The motives and ambitions of

the Klan disturbed the Republicans in the

42d Congress because they feared that its

activities would defeat the policies of Re-

construction and deprive the newly emanci-

pated blacks of rights secured to them un-

der the recent amendments to the Constitu-

tion. Senator John Sherman of Ohio voiced

this concern after he read aloud from a

copy of the Kian’s secret oath,

showing that here is a political organiza-

tion, with political ends, political aims; it

shows that the object and intent of that

political organization is to prevent large

masses of the people of the southern

States from enjoying a right which has

been guaranteed to them by the Constitu-

tion of our country.

Cong. Globe, 42d Cong., Ist Sess. 153 (1971).

The Klan’s political objective formed a re-

current theme in the Senate debates.®

The apprehension of Republican senators

over the Klan’s scheme of terrorizing citi-

porting the Republican party to abandon their

political faith or to flee the State.”), id. at 504

(remarks of Sen. Pratt) (the primary purpose of

|

|

|

|

SCOTT v. MOORE

zens for their political views and of pre-

venting voters from cacrcising their fran-

chise also echoed throughout the debates

conducted in the House. Representative

Ellis Roberts of New York expressed this

concern in the following terms:

But one rule never fails: the victims

whose property is destroyed, whose per-

sons are mutilated, whose lives are sacri-

ficed, are always Republicans. They may

be black or white; they include those who

wore the blue and those who wore the

gray; newcomers and life-long residents,

but only Republicans. Stain the door lin-

tels with the mark of opposition to recon-

struction and of hostility to the national

Administration and the destroying angel

passes by. Omit that sign and the torch

may kindle the roof that covers women

and children. . Such uniformity of re-

sult can come only from design. Republi-

cans only are beaten and mutilated and

murdered, because the blows are aimed at

Republicans only.

Cong. Globe, 42d Cong., Ist Sess. 412-13

(1871). Other Republican congressmen ex-

10. See, e.g. Cong. Globe, 42d Cong., Ist Sess.

72 (remarks of Rep. Blair) (the Kilansmen

“murder for a difference in political opinions”);

id. at 333 (remarks of Rep. Hoar) (the Kian is a

“secret political conspiracy”), id at 391 (re-

marks of Rep. Elliott) (“the design of the Ku

Kijux is politicai™), id. at 488 (remarks of Rep.

Lansing) (“the Ku Klux in their comes are

inspired by political zeal’’).

Il. The plainuffs argue that Congress also in-

tended to extend protection to workers. They

note particularly Senator Freylinghausen’s con-

corn for the rights of northern laborers migrat-

A-17

pressed similar views.” See generally

Comment, A Construction of Section 1985(c)

in Light of its Original Purpose, 46 U.Chi.L.

Rev. 402, 407-420 (1979).

These attacks on Republicans prompted

congressional concern because they were

viewed as more than isolated or chance

occurrences. Congress saw them as part of

&@ pervasive campaign to prevent Republi-

cans from establishing the policies of Re-

construction in an area of the nation—the

South. See Avins, The Ku Klux Klan Act

of 1871, 11 St. Louis U.L.J. 331, 376 (1967).

The Congressmen consistently noted the

pervasive regional hostility toward the Re-

publicans as a reason for extending federal

protection in section 19853). See, eg.

Cong. Globe, 42d Cong., Ist Sess. 333-34

(1871) (remarks of Rep. Hoar); id. at 412-

13 (remarks of Rep. Roberts.) ™

Although Congress did nut express a spe-

cific intent to protect nonunion employees

in enacting the Ku Klux Klan Act, the

legislative history demonstrates that the

nonunion employees in this case comprised

New Jersey may put his chisels or his trowels

in his carpet-bag, and go to any part of this

land and say, “Here | will stay in despite of

the holy horror of those who cry out,” “Ad-

venturer!” “Scalawag!” “Carpet-bagger!”

Cong. Globe, 42d Cong., Ist Sess. 500 (1871).

Although this, and other remarks noted by the

plaintiffs, do express Congress’ intent to pro-

tect northern laborers, we discount their impor-

tance to the case at bar for two reasons. First,

because these remarks occur only sporadically

throughout the legislative history, they do not

appear to reflect a major concern of the 42d

Congress. Second, the hostility directed to-

ward the carpetbaggers appears to have ansen

because of the carpetbaggers’ association with

the policies of Reconstruction, not because of

any economic association. Their status as

workers appears to have been merely inciden-

tal to the hostility they experienced and to

Congress’ concern.

A-18

the kind of class Congress intended to pro-

tect. The debates over the need for pro-

tecting the Republicans in the South reveal

two class characteristics which prompted

Congress to extend protection in section

1983). First, the legislative history re-

flects a pervasive concern for people discri-

minated against because of their polit al

associations. Second, Congress’ concern

was prompted by the tenuous status of Re-

publicans in this geographic region. The

Republicans’ attempt wo establish an ex-

tended new order had met with pervasive

regional hostility. It was this ryional hos-

tility which Congress sought to counterbal-

ance by extending federal protection in sec-

tion 1983). Although regional hostility is

net an intrinsic class characteristic, those

who would exercise a false territorial sover-

eignty by fomenting hostility against per-

sons antagonistic to their aims create a

class in need of federal protection of pre-

cisely the sort Congress intended W protect.

In this case, the plaintiffs were attacked

because of their economic, rather than their

political, association. However, an animus

directed against nonunion association is

closely akin to animus directed against po-

litical association. Second, the position of

these nonunion employees in Jefferson

County, Texas, is markedly similar to that

of the Republicans in the South. The pres-

ence of these nonunion employees in “union

country,” no less than the presence of the

Republicans in the previously Democratic

stronghold, ignited a pervasive regional hos-

tility. It was this regional hostility which

classified Republicans as protected. In this

case, the same hostility toward nonunion

employees classifies them as the kind of

persons Congress intended the Ku Klux

Klan Act to protect.

Similarly, acknowledging that the scope

of the statute includes nonunion workers

SCOTT v.

MOORE

who are attacked for their choice to associ-

ate with other nonunion workers, thereby

enabling an employer to offer significant

work to the class, is appropriate in light of

subsequently enacted federa! legislation.

While Congress specifically refused to pro-

hibit discrimination against bankrupts by

legislation, it expressed a desire to protect

laborers who opt not to affiliate themselves

with a labor organization. Section 7 of the

original Wagner Act provided

{e)mployees shall have the right of self-

organization, to form, join, or assist labor

organizations, to bargain collectively

through representatives of their own

choosing, and to engage in concerted ac-

tivities, for the purpose of collective bar-

gaining or other mutual aid or protection.

Wagner Act, § 7, 49 Stat. 452 (1935).

At the time Congress passed the original

Act, it rejected the argument that parity

required granting protection against cver-

cive tactics of labor organizations as well as

against those committed by employers. See

S.Rep. 573, 74th Cong., Ist Sess. 16 (1935).

However, significant change was not long

in coming. The 1947 Taft-Hartley amend-

ments to the National Labor Relations Act

put unfair labor practices by labor organi-

zations in the list of condemned actions.

Under the Taft-Hartley Act employees re-

tained the right to form, join, or assist labor

organizations. However, section 7 of the

original Act was revised to also protect “the

right to refrain from any or all such activi-

ties.” Taft-Hartley Act, § 101, 61 Stat. 140

(1947), currently codified at 29 USC.

§ 157. Section &(b\1) now declares it to be

an unfair labor practice for a labor organi-

zation or its agents to restrain or coerce

employees in the exercise of the rights

guaranteed by section 7. 2 USC.

§ 15&(bX1). By these actions Congress has

SCOTT v. MOORE

underscored the importance of the right of

free association in the labor relations con-

text and guaranteed the right to free and

untrammeled choice to associate or not to

associate with a labor organization. This

manifestation of congressional concern for

those in plaintiffs’ class makes their protec-

tion by section 1945(3) particularly appro-

priate.

Finally, McLellan regarded the Supreme

Court's refusal to call the right to file a

bankruptcy petition a fundamental right as

relevant to its own determination that

bankrupts are not protected by section

1985(3). By contrast, the Supreme Court

has characterized the right of free associa-

tion as “a right which, like free speech, lies

at the foundation of a free society.” Shel-

ton v. Tucker, 364 U.S. 479, 486, 81 S.Ct.

247, 251, 5 L.Ed.2d 231, 236 (1960). Our

legal system honors the freedom of the

individual to associate as he chooses because

that freedom “tends to produce the diversi-

ty of opinion that oils the machinery of

democratic government and insures peace-

ful, orderly change.” Gilmore v. City of

Montgomery, 417 U.S. 556, 577, 9. S.Ct.

2416, 2427, 41 L.Ed.2d 304, 321 (1974). The

importance of the freedom of association

has led the court w call it one of the

“indispensable liberties,” NAACP v. Ala-

bama ex rel. Patterson, 357 U.S. 449, 461, 78

S.Ct. 1163, 1171, 2 L.Ed.2d 1488, 1499 (1958),

which ranks “among our most precious

freedoms.” Williams v. Rhodes, 393 U.S.

23, 30, 89 S.Ct. 5, 10, 21 L.Ed2d 24, 31

(1968). The right of association is funda-

mental in our constitutional scheme of val-

ues. Thus, the difference in importance

assigned to the right to file a bankruptcy

petition and the right of the individual to

freely associate with others of his own

choosing favors protecting these plaintiffs.

A-19

Although we find that Congress intended

to classify these nonunion employees as en-

titled to use section 19853) that finding

does not resolve the question of whether

their employer, which is not a member of

the class, can assert a claim under this

section. Section 1985(3) provides that “in

any case of conspiracy set forth in this

section, if one or more persons engaged

therein do, or cause to be done, any act in

furtherance of the object of such conspiracy

whereby another is injured in his person or

property, ... the party so injured ... may

have an action for the recovery of such

damages, occasioned by such injury...”

The language of section 1985(3) specifically

provides a remedy for any person injured

by an act taken in furtherance of the con-

spiracy. See Great American Federal Sav-

ings & Loan Association v. Novotny, 442

U.S. 366, 390-91, 99 S.Ct. 2345, 2358, 60

L.Ed.2d 957 (1979) (White, J., dissenting)

(reaching an issue not addressed by the

majority). But see Canlis v. San Joaquin

Sheriff's Posse Comitatus, 641 F.2d 711, 712

(9th Cir. 1981).

The district court found that Cross Con-

struction had been injured by the attack on

its Alligator Bayou worksite. There is no

dispute as to the fact of the corporation's

injury or that it resulted from the defend-

ants’ acts in furtherance of the conspiracy.

The plain language of the statute grants

the employer a right to recover for these

injuries. Cf. Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24

L.Ed.2d 386 (1969).

The plaintiff, Cross Construction Compa-

ny, was denied the equal protection of law

because, in this “union country” area, it

attempted to construct a government

project without entering into a collective

bargaining agreement to hire nonunion

workers. The plaintiff class of Cross em-

A-20

ployees were denied equal protection be-

cause they dared wo try w work nonunion in

this place. Both employer and employee

plaintiffs were attacked and beaten and

their property was destroyed because union

adherents put themselves above the law

and used brute force to enforce their terri-

torial claim. The actions of plaintiffs and

the reaction of defendants joined tw define

the class and designate the persons who

could claim the protection of section

1983). The plaintiff employees form a

class of nonunion workers who have a right

not to belong to a union and the plaintiff

employer is a person who has been injured

by a class-based invidiously discriminatory

animus directed toward its workers and it.

[10-12] Our decision does not hold or

imply that every union-nonunion controver-

sy can create a section 1985(3) cause of

action. Neither does it hold or imply that

every instance of violence arising in the

context of a dispute about employment will

12. Novotny held that a mght created by Title

VIl could not be asserted under section 19853).

To do so would allow a litigant to bypass the

Statutory plan, particularly the admunistrative

process, created by Congress. See 442 U.S. at

375 70, 99 S.Ct. at 2350 51. Because the liti-

gants here have not attempted to assert a nght

created by the National Labor Relations Act,

the concerns expressed in Novotny are inappo-

site to this case.

13. it should be observed that the National La-

bor Relations Board has a long-established poli-

cy against awarding monetary damages for

physical inyury and property damage caused by

strike of picket line violence for which the

umon is held respon uble. See Union de Tron-

quistas Local YO! «lt .«k Joint Pupe & Co.), 202

N.L.R.B. 399 (1973), K. Gorman, Basic Text on

Labor Law 217 (1976); D. McDowell & K.

Huhn, NLRB Remedies for Unfair Labor Prac-

tices 99 100 (1976), The Board's refusal to

give damage awards 1s predicated in part upon

its view that such awards would unduly inter-

fere with the policy of the National Labor Rela-

twns Act to protect concerted acuvities and

SCOTT v.

MOORE

necessarily do so. Powerful limitations ex-

ist Lo restrict an overly broad applicatior. of

the statute. See generally McLellan, 545

F.2d at 940-41 (Godbold, J., dissentirz).

Section 19853) cannot be invoked to disrupt

the operation of a carefully integrated stut-

utory scheme. See Great American Federal

Savings & Loan Ass'n v. Novotny, 442 US.

366, 99 S.Ct. 2345, 60 L.Ed. 2d 957 (1974).@

Neither can a section 19853) cause of ac-

tion be predicated upon an unfair le wr

practice, without more. Cf. United States

v. DeLaurentis, 491 F.2d 208 (2d Cir. 1974)

(holding an unfair labor practice not coyni-

zable under 18 U.S.C. § 241, the criminal

analogue to section 1985(3)). Neither in-

ionism nor nonunionism suffices to create a

covered class. But where, as here, ther> is

no campaign to organize employees and

force or violence is used to stake out one

group's territorial claim and to deprive « .h-

er workers and their employer of the right

to freely associate with one another, a -ve-

tion 1985(3) action will lie.

that other remedies against union violenc: are

sufficient deterrent. Union de Tronquistas, 202

N.LR.B. at 400. Its practice is also growrded

in concern for the proper institutional role . be

played by the Board. See District 1199, Na-

tional Union of Hospital and Health Care -m-

ployees (Frances Scherver Home and Hos, :.al),

345 N.L.R.B. 105 (1979) (Board ts not equipped

to handle personal injury claims), Uniwr Na-

cional de Trabajadores, 219 N.L_R.B. 157 (75)

(awards are punitive and, therefore, not part of

the Board's statutory function).

Whatever the basis for the Board's refusal to

order compensation for injuries suffered during

strike or picket line violence, our decisior hat

section 1945(3) affords a remedy in this case

does not offend that policy. In this case, no

lawful concerted activity was taking | ace

when the Cross construction site was attacked.

There was no organizational campaign, no un-

ion demand for recognitiwn, no informa mal

picket, and no collective bargaining im

progress. in such circumstances, a civil reme-

dy for damages presents no danger of thy, art-

SCOTT v. MOORE

IV. THE CONSTITUTIONAL QUES-

TION: THE SOURCE OF CON-

GRESSIONAL POWER

[13] Having determined that section

1983) was intentled to provide a civil rem-

edy for the kind of conspiracy involved

here, we must respond to defendants’ argu-

ment that Congress lacks the constitutional

power to enact legislation of this breadth.

The plaintiffs maintain that section 5 of the

Fourteenth Amendment authorizes Con-

gress to provide a civil remedy for this

private conspiracy. On the particular facts

before us, we hold that the Commerce

Clause empowers Congress to reach defend-

ants’ conduct and do not reach the Four-

teenth Amendment issue.

Griffin emphasized that it was unneces-

sary Ww test the constitutionality of section

1985(3) in all conceivable applications in or-

der to sustain its facial constitutionality and

its application to the facts of any particular

case. 403 U.S. at 105, 91 S.Ct. at 1799, 29

L.Ed.2d at 350. Griffin also makes clear

that section 1985(3) is not unconstitutional

merely because it reaches wholly private

conspiracies. Griffin does, however, indi-

cate that a source of congressional power

must be identified to warrant application of

the statute in each case.

The Griffin court concluded that the

Thirteenth Amendment and the constitu-

tional right to interstate travel authorized

Congress to reach the private conspiracy

alleged there. But the court concluded its

opinion, stauing

In identifying these two constitutional

sources of congressional power, we do not

imply the absence of any other. More

specifically, the allegations of the com-

ing the Board's policy. However, whether sec-

tion 1965(3) should also extend to other con-

Spiracieés against nonumion workers and their

A-2l

plaint in this case have not required con-

sideration of the scope of the power of

Congress under § 5 of the Fourteenth

Amendment.

Id. at 107, 91 S.Ct. at 1801, 29 L.Ed.2d at

351.

The plaintiffs’ 1985(3) action cannot be

sustained under the Thirteenth Amend-

ment, for they are neither a racially op-

pressed group nor suffering in the bonds of

involuntary servitude. See, eg., Jones v.

Mayer, 392 US. 409, 88 S.Ct. 2186, 20

L.Ed.2d 1189 (1968); Clyatt v. United

States, 197 U.S. 207, 25 S.Ct. 429, 49 L.Ed.

726 (1905). Neither can it be supported by

the right to travel on the present record.

Although the plaintiffs alleged that the ob-

ject of the defendants’ conspiracy was to

deprive them of the right to interstate trav-

el, they have introduced no evidence to

show that either the purpose or the result

of the conspirators’ acts was to infringe

upon their right to such travel.

However, the alternative path suggested

by Griffin is itself fraught with uncertain-

ty. A major controversy still exists over

the extent to which section 5 of the Four-

teenth Amendment grants Congress the

power to reach wholly private conduct.

Particularly, whether section 1985(3) can be

constitutionally applied to private, nonra-

cially motivated conspiracies is a question

which has divided the circuits. Compare

Action v. Gannon, 450 F.2d 1227 (8th Cir.

1971) and Richardson v. Miller, 446 F.2d

1247 (3d Cir. 1971) (holding that the Four-

teenth Amendment authorizes Congress to

reach purely private conduct) with Murphy

v. Mount Carmel High School, 543 F.2d

1189 (7th Cir. 1976) (finding that it does

employers is a question which we expressly

pretermit.

A-22

not). Furthermore, no single interpretation

of the expanse of Congress's power under

section 5 has consistently commanded the

adherence of a majority of the Supreme

Court. United States v. Guest,

383 U.S. 745, 762, 86 S.Ct. 1170, 1180, 16

L.Ed.2d 239, 251 (1966) (Clark, J., concur-

ring, joined by Black and Fortas, J.J.) and

id. at 782, 86 S.Ct. at 1190, 16 L.Ed.2d at

263 (Brennan, J., concurring and dissenting,

joined by Warren, C. J. and Douglas, J.)

(suggesting that § 5 empowers (myress to

punish purely private conspiracies to de-

prive Fourteenth Amendment rights), with,

id. at 753-60, 86 S.Ct. at 1175-80, 16

L.Ed.2d at 246-50 (opinion of the Court by

Stewart, J., relying on right to interstate

travel) and id. at 762, 86 S.Ct. at 1180, 16

L.Ed.2d at 251 (Harlan, J., concurring and

dissenting). See Oregon v. Mitchell, 400

U.S. 112, 91 S.Ct. 260, 27 L.Ed 272

(1970); Katzenbach v. Morgan, 384 US.

641, 86 S.Ct 1717, 16 L.Ed.2d 828 (1966).

We need not depend on this uncertain

precedent for congressional power. Griffin

clearly contemplated that other sources of

congressional power might be available to

justify other applications of section 1985(3).

Indeed, the original proponents of the Ku

Klux Klan Act did not base their assertion

of congressional power exclusively on the

Fourteenth Amendment. See, eg, Cong.

Globe, 42d Cong., lst Sess. 81 (1871) (re-

_ marks of Rep. Bingham) (“It was always

competent for the Congress of the United

States by law to enforce every affirmative

grant of power ..."); id. at 477-78 (re-

marks of Rep. Shellabarger (referring to

the amendment to § 2 “so far as it is not

confined to infractions of rights which are

clearly independent of the Fourteenth

Amendment, referable to and sustained by

the old provisions of the Constitution”). On

the facts presented in this case, we hold

SCOTT v. MOORE

Congress has the authority to reach a whol-

ly private conspiracy under the commerce

power conferred by article |, section & of

the Constitution.

A.A. Cross Construction Company is a

general contractor in the building and con-

struction industry. The record indicates

that during the year preceding the violent

episode of January 17, 1975, Cross had per-

formed work outside of Texas valued in

excess of $300,000. During that same peri-

od, Cross purchased goods and materials

which originated outside of Texas, were

used in its operations within Texas, and

were valued at more than $50,000. In addi-

tion, at the time of the attack on the Alliga-

tor Bayou construction site, Cross was per-

forming its obligations under a contract

with the United States Army Corps of En-

gineers.

[14] Article I, section 8, clause 3 of the

Constitution confers upon Congress the

power “[t}o regulate Commerce ... among

the several states” and clause 18 of the

same article grants it the power “[tjo make

all laws which shall be necessary and proper

for carrying into execution the foregoing

powers...." As the Supreme Court has

pointed out, this grant of power “extends ww

those activities intrastate which so affect

interstate commerce, or the exertion of the

power over it, as to make regulation of

them appropriate means tw the attainment

of a legitimate end, the effective execution

of the granted power to regulate interstate

commerce.” United States v. Wrightwood

Dairy Co., 315 US. 110, 119, 62 S.Ct. 523,

526, 86 L.Ed. 726, 732 (1942). “If it is

interstate commerce that feels the pinch, it

does not matter how local the operation

which applies the squeeze.” United States

v. Women’s Sportswear Mfg. Ass'n, 336

U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805,

SCOTT v. MOORE

811 (1949). See United States v. Darby, 312

U.S. 100, 118, 61 S.Ct. 451, 459, 45 L.Ed. 609,

619 (1941); NLRB v. Jones & Laughlin

Steel Corp., 301 US. 1, 37, 57 S.Ct. 615, 624,

81 L.Ed. 493, 911 (1937). Moreover, that

the volume of goods and supplies purchased

by Cross or that the volume of business

done outside of Texas is comparatively

small in terms of the total amount of goods

moved or work performed in interstate

commerce is not significant. Katzenbach v.

McClung, 379 U.S. 294, 300-01, 85 S.Ct. 377,

382, 13 L.Ed. 2d 290, 291 (1964); Wickard v.

Filburn, 317 U.S. 111, 127-28, 68 S.Ct. 82,

90, 87 L.Ed. 122, 136 (1942). Jusdicial in-

quiry is limited to asking whether Congress

had “a rational basis for finding a chosen

regulatory scheme necessary to the protec-

tion of commerce...." Katzenbach v.

McClung, 379 U.S. at 304, 85 S.Ct. at 377, 13

L.Ed.2d at 298. And it is not constitution-

ally relevant that Congress was actually

“legislating against moral wrongs” when it

enacted the provisions in question. Heart

of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 257, 85 S.Ct. 348, 357, 13 L.Ed.2d

258, 268 (1946). Chief Justice Marshall's

classic formulation of the extent of congres-

sional power is still viable.

Let the end be legitimate, let 1 be within

the scope of the constitution, and all

means which are appropriate which are

plainly adapted to that end, which are not

prohibited, but consist with the letter and

spirit of the constitution, are constitution-

al.

McCulloch v. Maryland, 4 Wheat 316, 421, 4

L.Ed. 579, 605 (1819).

By these standards, Congress acted with-

in its constitutional power when it enacted

section 19853) to reach the private conspir-

acy involved here. It cannot be denied that

the aim of protecting interstale commerce

from undue burdens is a legitimate end.

A-23

Congress could reasonably have determined

that violent attacks and vandalism perpe-

trated on the workers of a construction

firm engaged in interstate commerce would

have a disruptive effect on the flow of

products and services among the states. It

is also beyond dispute that the aim of pro-

lecting interstate workers in the exercise of

their First Amendment associational free-

doms is a legitimate end. The means

adopted for the accomplishment of these

ends, a private civil remedy for damages, is

plainly reasonable and appropriate. Section

1985(3) as applied to the facts before us is

not prohibited by the Constitution and is

compatible with both its letter and its spir-

it. Whether section 19853) can constitu-

tionally be applied to other kinds of wholly

private conspiracies to deprive persons of

their civil rights is a question for another

day.

V. THE EVIDENTIARY QUESTION:

STANDARD OF PROUF AND SUF-

FICIENCY OF EVIDENCE

A. The Standard of Proof

{15} The unions contend that they can-

not be held liable for unlawful acts commit-

ted at the Cross construction site by some

individual members of their organizations

without “clear proof” that they actually

participated in the uniawful conduct, gave

prior authorization of it, or ratified the acts

after actual knowledge of their commission.

This more rigorous standard of proof de-

rives from section 6 of the Norris-LaGuar-

dia Act which provides:

No officer or member of any association

or organization, and no association or or-

ganization participating or interested in a

labor dispute, shall be held responsible or

liable in any court of the United States

A-24

for the unlawful acts of individual offi-

cers, members, or agents, except upon

clear proof of actual participation in, or

actual authorization of, such acts, or of

ratification of such acts after actual

knowledge thereof.

29 U.S.C. § 106. This statutory standard of

proof thus lies somewhere between the tra-

ditional burdens of reasonable doubt and

preponderance of the evidence. With it,

Congress intended to require “clear, un-

equivocal, and convincing proof” of union

involvement in unlawful conduct to impose

liability for it. United Mine Workers v.

Gibbs, 383 U.S. 715, 737, 86 S.Ct. 1130, 1145,

16 L.Ed.2d 218, 234 (1966). Yet, while sec-

tion 106 requires clear and convincing evi-

dence as to union authorization, participa-

tion in, or ratification of the acts allegedly

performed by its members, it does not pre-

seribe a different standard of proof for

other issues in actions against a union or its

officers or members involved in a labor

dispute. Ramsey v. United Mine Workers,

401 U.S. 302, 91 S.Ct. 658, 28 LEd2d 64

(1971).

[16,17] The unions also recognize that

section 106 is by its own terms limited to

cases in which the union is participating or

interested in a labor dispute. The Norris-

LaGuardia Act defines a “labor dispute” to

encompass

any controversy concerning terms and

conditions of employment, or concerning

the association or representation of per-

sons in negotiating, fixing, maintaining,

charging, or seeking lo arrange terms or

conditions of employment, regardless of

whether or not the disputants stand in

the proximate relation of employer and

employee.

29 USC. § 113(c). The unions insist that

the literal language of section 113%(c)

SCOTT v.

squarely covers the conduct at issue here.

The persons who planned and executed the

attack on the Alligator Bayou construction

site were motivated by # desire to punish

Cross for engaging in emp oyment practices

which violated their misperceived area of

exclusive control and to punish those who

would work for Cross without attorning to

them. Because the conspiracy that gener-

aled the case was formed around this non-

union animus, the defendants maintain that

the controversy out of which this case arose

cannot be anything other than a labor dis-

pute.

This approach has a certain superficial

appeal. The attack on the Cross construc-

lion site was certainly conceived in reprisal

for the refusal of Cross and his workers to

accede to demands that the Alligator Purip-

ing Station project be conducted as a union

job. Nevertheless, in construing any con-

gressional enactment it is necessary to in-

terpret the meaning of the words as they

are used in relation to the setting in which

they were written, with due regard to the

mischief which the legislation was designed

to remedy. In that light, these unions were

not participating in a “labor dispute” as

that language is employed in section 113(c)

because their activity does not fall within

the abuses that Congress intended to pre-

vent.

The Norris-LaGuardia Act was passed in

a particular social, economic, and legal mi-

lieu. During the early part of this century,

federal injunctive powers were often in-

voked to check the spread of union organi-

zation and collective bargaining. But Con-

gress conceived that the courts were being

made to play a partisan role in labor-man-

agement conflicts, in part because judicial

injunctive relief usually did nothing to re-

solve the underlying industrial dispute.

The Norris-LaGuardia Act was intended to

SCOTT v.

curb this unwarranted judicial interference

in the struggle between employers and em-

ployees. Instead, Congress decided to allow

such controversies to be settled through ne-

gotiation and through the free play of eco-

numuc forces.

The Norris-LaGuardia Act ... was de-

signed primarily to protect working men

in the exercise of organized, economic

power, which is vital to collective bar-

gaining.... Congress acted to prevent

the injunctions of the federal courts from

upsetting the natural interplay of the

competing economic forces of labor and

capital.

Brotherhood of Railroad Trainmen v. Chica-

go River and Indiana Rd., 353 U.S. 30, 39,

77 S.Ct. 635, 640, 1 L.Ed.2d 622, 628 (1957).

Thus, the policy section of the Act stresses

the worker's “freedom of association, self-

organization, and designation of representa-

tives of his own choosing” as indispensable

to the private settlement of these disputes.

29 US.C. § 102. Congress thereby made

the use of legitimate economic weapons—

the picket, the strike, the boycott—part of

the warp and woof of our national labor

relations policy. See generally Boys Mar-

kets, Inc. v. Retail Clerk's Union, Local 770,

398 U.S. 235, 250-51, 90 S.Ct. 1583, 1592, 26

L.Ex.2d 199, 210 (1970); Milkwagon Driv-

ers’ Union v. Lake Valley Farm Products,

Ine., 311 U.S. 91, 100-08, 61 $.Ct. 122, 127-

28, 85 L.Ed. 63, 68 70 (1940); A.Cox, D.Bok,

& RGorman, Labor Law 6 64 (8th ed.

1977).

One of the special abuses identified by

Congress was the use of vicarious liability

doctrines under which the misconduct of a

few_individuals could be attributed to the

labor organization that sponsored strike

or picket line. Courts had applied the com-

mon law of conspiracy to hold unions re-

sponsible not only for the conduct of their

MOORE A-25

authorized agents, but also “for every act

committed by any member of a union mere-

ly because he was a member, or because he

had some relation in the union although not

authorized by virtue of his position to act

for the union in what he did.” United

Brotherhood of Carpenters and Joiners v.

United States, 330 U.S. 395, 419, 67 S.Ct.

775, 788, 91 L.Ed. 973, 991 (1947) (Frank-

furter, J., dissenting).

Congress recognized that this dragnet

conspiracy approach to union responsibility

could frustrate its chosen labor relations

policy. Imposing liability on the union for

the unauthorized lawlessness of its more

improvident members would penalize the

union -awfully engaged in using the legiti-

mate economic weapons necessary for the

proper resolution of labor-management con-

flicts. Therefore, Congress enacted section

106, requiring clear proof of union partici-

pation in, authorization, or ratification of

unlawful conduct before liability could at-

tach.

However, there is no danger of frustrat-

ing the congressional policy favoring collec-

tive bargaining and no ris« of punishing

union engagement in protected activity in

the case before us. When the events giving

rise to this case occurred, no union had a

collective bargaining agreement with Cross,

and none was seeking recognition as the

collective bargaining representative for

Cross’s workers. No solicitation or other

organizational efforts were in progress to

attain representation of the Cross employ-

ees. No labor organization was engaged in

informational picketing to publicize Cruss's

employment practices. In short, the attack

on the Alligator Bayou construction project

did not grow out of any legitimate union

activity. The employer<employee relation-

ship was not the matrix of the controver-

A-26

sy.“ The district court found: “the acts of

violence ... are manifestations of the ill-

will and hatred these union members har-

bor toward non-union individuals, us well as

an attempt by the unions to intimidate and

coerce these non-union people from working

or being employed within a ‘union area.’”

This is not the kind of controversy contem-

plated by Congress when it required “clear

proof” of misconduct by a union “partici-

pating or interested in a labor dispute.”

{18} On the other hand, a labor dispute

does exist where unlawful conduct occurs in

conjunction with some legitimate union ac-

tivity. See, eg., Cedar Crest Hats, Ine. v.

United Hatters, Cap & Millinery Workers

Int'l Union, 362 F.2d 322, 327 28 (Sth Cir.

1966). A labor dispute may also exist even

though the otherwise legitimate union con-

duct is unlawful under some other statutory

scheme. See, eg: Marine Cooks & Stew-

ards v. Panama S: Co., 362 U.S. 365,

370-71, 80 S.Ct. 779, 783-84, 4 L.Ed.2d 797,

801-02 (1960); Order of R.R. Telegraphers

14. In Jacksonville Bulk Terminals, Inc. v. Inter-

Gutune? Congehesemnen® Assestation, — US.

——=, 102 S.Ct. —-—, 72 LEd.2d --—., 50 U.S.

Lw. 4789 (U.S. June 24, 1982), the Supreme

Court considered whether a politically mutivat-

ed strike was a “labor dispute” within the

meaning of the Norris-LaGuardia Act. Two

controversies were involved: a political strike

and a dispute over whether that strike was

barred by the nu strike pledge in the collective

burgaming contract. the dispute over the no-

strike clause was held to be sufficient to bring

the employees’ actions within the protections

of the Norns-LaGuardia Act. See di. at —.-,

102 S.Ct. at ——-. Im the case before us there

was no strike and no underlying collective bar-

gaming contract dispute. The holding of Jack-

sonville Bulk Terminals does not affect our

holding today.

The Court noted that even if the dispute over

the contract term were absent, this controversy

might still be a “labor dispute.” The Court

reasoned that the union's political “objections

were expressed in a work stoppage by employ-

SCOTT v. MOORE

v. Chicago & N.W. Ry., 362 U.S. 330, 339

n.15, 80 S.Ct. 761, 766 0.15, 4 L.Ed.2d 774,

781 n.15 (1960); Milkwagon Drivers’ Union

v. Lake Valley Farm Products, Inc., 311

U.S. at 103, 61 S.Ct. at 128, 85 L.Ed. at 70.

But neither situation is present here. Our

holding, therefore, is necessarily a very nar-

row one: where a labor organization pur-

posefully adopts violence as its course—vio-

lence not associated with or happening to

result from any ongoing legitimate union

conduct, the union is not participating in a

labor dispute within the meaning of 29

U.S.C. § 113(c). Since the violence at the

Alligator Bayou construction site did not

occur in conjunction with a labor dispute,

the clear-proof standard of section 106 is

not applicable.

B. Sufficiency of the Evidence

The unions finally urge that the evidence

adduced at trial is insufficient to support

the judgment against them under any stan-

dard of procf. After carefully reviewing

Association v. Hinton, 315 U.S. 143, 62 S.Ct.

520, 86 L.Ed. 750. it jound that Hinton stood

SCOTT v. MOORE

the entire record, we agree that the evi-

dence does not warrant the district court’s

finding of involvement in the conspiracy for

many of the unions vouched in judgment.

However, as to the remaining unions, we

cannot say Ui the factual conclusions

reached by the district court are clearly

erruncous.

[19,20] The factual findings made and

the inferences drawn by the district court

“come here well armed with the buckler

and shield” of the clearly erroneous rule

embodied in Federal Rule of Civil Proce-

dure 52(a). Horton v. U. S. Steel Corp., 286

F.2d 710, 713 (5th Cir. 1961). “A finding is

‘clearly erroneous’ when although there is

evidence to support it, the reviewing court

on the entire evidence is left with the defi-

nite and firm conviction that a mistake has

been committed.” United States v. Gyp-

sum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542,

92 L.Ed. 746, 765 (1948). The appellate

court must be especially reluctant to disre-

gard a factual finding based upon the eval-

uation of testimony that draws credibility

into question, Graver Tank and Mfg. Co. v.

Linde Air Products Co., 336 U.S. 271, 275,

69 S.Ct. 535, 537-38, 93 L.Ed. 672, 676

(1949); it may not consider the evidence

anew, Zenith Radio Corp. v. Hazeltime Re-

search, Inc., 395 U.S. 100, 423, 89 S.Ct. 1562,

1576, 23 L.Ed.2d 129, 151 (1969); and mere-

ly because it might have reached a different

result on the same evidence will not justify

its setting the district court's findings aside.

United States v. National Ass'n of Real

Estate Bids, 339 U.S. 485, 495 96, 70 S.Ct.

711, 717, 94 L.Ed. 1007, 1016 (1950).

[21] The court below concluded that the

assault on the Alligator Bayou construction

site “evolved from a meeting held by the

15. The minutes show that the “good and wel-

A-27

Executive Committee of the Sabine Area

Building and Construction Trades Council

on January 15, 1975, wherein a ‘citizen pro-

test’ was discussed and a time and place

were chosen for such a protest.” 461

F.Supp. at 226. However, the evidence in

the record does not support this inference.

There was nothing unique about the Janu-

ary 15 congregation; it was the Council's

regularly scheduled weekly meeting. The

minutes of the meeting contain only one

cryptic entry which might conceivably be

construed to refer to the Cross construction

site protest, and it is wholly innocuous."* In

addition, those union representatives who

actually attended the meeting testified that

the committee discussed the Cross project

and that some members mentioned they

had heard of a demonstration to be held on

the jobsite the following Friday. The im-

port of their testimony is that the protest

had already been conceived several weeks

before January 15 and that neither the time

nor the place for it were set by the Council.

Furthermore, there is no evidence that the

Council endorsed the planned protest: no

motions were offered and no formal resoiu-

tions were adopted. The only connection

between the Wednesday meeiing and the

Friday violence is the nearness in time be-

tween the two events. Given the regular

sequence of such weekly meetings, this link

is too tenuous. As to those unions linked

only by the evidence of their participation

in the January 15 meeting of the Sabine

Area Building and Construction Trades

Council, the judgment of the district court

must be reversed.

An additional fact casts the district

court’s error into even sharper relief. The

court exonerated two unions as to which

the only evidence of involvement was their

fare” of the community were discussed.

A-28

representation at the January 15 meeting,

yet it held other unions liable even though

the proof against them was no stronger.

Furthermore, the district court held the Op-

erating Engineers, Local 450, liable, and

that organization neither belonged w the

Building and Construction Trades Council

nor attended its January 15 mevting nor

was otherwise shown lo be connected with

the violence. The additional evidence rele-

vant w the Operating Engineers is no more

compelling. The judgment against the un-

ion of Operating Engineers, Local 450, woo

must be reversed.

However, the situation is different with

respect to the United Brotherhood of Car-

penters and Joiners of America, Local 610.

In mid-summer of 1974, before construction

began on the Alligator Bayou project, Cross

received a visit in his Houston office from

an official of the union. John Wallace,

financial secretary and business representa-

tive for the Carpenters Local 610, gave

Cross his business card and informed him

that he wanted the union to furnish labor-

ers for the job. He also asked Cross to sign

a union contract. Cross agreed w hire

members of Wallace's union but refused to

enter into the proposed agreement. Wal-

lace then told Cross that his refusal would

“cost him a million dollars.”

Wallace had no further contact with the

Alligator Bayou project until January 17,

1975, when the attack occurred. On that

day, Wallace was present at the highway

near the acoess road which led to the Cross

jobsite on at least two separate occasions.

More damaging, however, is the fact that

Wallace was also observed with Robert

Faulk, subsequently identified as one of the

principal participants in the violence com-

mitted that morning. The two men, riding

in Wallace's pickup truck, drove part of the

way down the road leading to the construc-

SCOTT v.

MOORE

tien site, confirmed that the Cross workers

had arrived at the scene, and returned to

the highway. Shortly thereafter, the mob

attacked Cross’s workers. Wallace admit-

ted that he was at the highway and that he

and Faulk approached the construction site

wgether. Not surprisingly, however, his

version is less sinister. He also testified

that he saw some members of Local 610 and

that, before leaving the area, he expressly

instructed them not to engage in any vio-

lence. From this evidence, the district

court concluded that the union had actually

participated in the conspiracy, and we can-

not say that his factual inferences and cred-

ibility resolution are clearly erroneous.

Therefore, the judgment against the United

Brotherhood of Carpenters and Joiners,

Local 610, is affirmed.

Similarly, we affirm the judgment

against the United Association of Journey-

men and Apprentices of the Plumbing and

Pipefitting Industry of the United States

and Canada, Local 195. Bruce Hill, one of

two business representatives for the local,

appeared at the Cross construction site

shortly after the violence had ended. Ful-

ton Johnson, the Corps of Engineers inspec-

tor assigned to the Alligator Bayou project,

described Hill's conduct at the seene. He

testified that Hill was laughing and joking

and that his light-hearted demeanor and

remarks were highly inappropriate for the

gravity of the situation. While Johnson

and a colleague were allempling Ww take

photographs of the damage, Hill repeatedly

interposed himself in front of the camera,

urging him to take his photograph with a

burning trailer behind him. Johnsen re-

called that Hill sarcastically told them he

wanted the photograph to post on the bulle-

tin board at the local so that “he could show

his men what not to do.”

SCOTT v.

Like Wallace, Hill himself gave a more

innocent account of the episode, and denied

saying that he wanted the picture for the

union bulletin board. His explanation for

secking the photograph was, “I don't know.

1 guess | am a camera freak. | like Ww have

my picture taken.” Although the local’s

other business representative had attended

the January 15 meeting of the Trades

Council when the protest was discussed, Hill

said he first learned of the events around

8:00 that Friday morning when he over-

heard some men talking at a grocery store.

He stated that he went to the Cross con-

struction site to check on a friend who

worked nearby, even though he had never

been there to see him before. Although the

evidence is sparse, we cannot say that the

district court's finding that the Pipefitters

Local 195 wus involved in the conspiracy is

clearly erroneous.

Lastly, we also affirm the district court's

finding as to the United Brotherhood of

Carpenters and Joiners of America, Local

753. Jay Desormeaux and Curtis Beasley,

members but not officers of Local 753, were

both observed on the Cross construction site

during the violent melee of Junuary 17.

Desormeaux recounted a conversation he

hud with Randy Wylie, assistant business

agent for the local, on the preceding

Wednesday or Thursday when they dis-

cussed the planned protest. Wylie admitted

that Desormeaux had called him w ask

about the demonstration but denied in-

structing him to go to the work site. Wylie

also admitted seeing Desormeaux at the

highway on the fateful Friday morning.

There was still more evidence suggesting

that the union had authorized the unlawful

conduct. Both Desormeaux and Beasley

were named as defendants in this lawsuit.

Beasley testified that, after the suit was

commenced, Wylie had referred him to the

MOORE A-29

union's own lawyers for representation. in

matters connected with his part in the vio-

lent events of January 17. Desormeaux

also stated that he had spoken with both

Wylie and W. H. Carr, business agent for

Local 753, about obtaining a lawyer and

expressed his belief that the union would

pay his attorney fees. Carr informed De-

sormeaux that the union furnishing him

with a lawyer would be “the least they

could do,” since he was a union member.

However, Desormeaux knew of no formal

arrangement by which the union regularly

provided legal services to its members and

conceded that the union had never done so

for him. Wylie denied talking with Desor-

meaux about attorney fees, but, apart from

that denial, the union made no effort to

rebut this testimony. It did not deny fur-

nishing legal services for its members in

actions arising from the violence. The evi-

dence in the record permitted the inference

that the union sponsored the attack on the

Cross employees and then undertook to lend

assistance to its members who were discov-

ered in the unlawful enterprise. The appel-

late issue is not whether we might have

taken a different view had the evidence

been presented initially to us. It is whether

the district court's determination that the

Carpenters Local 753 authorized or partici-

pated in the attack is clearly erroneous. It

is not.

VI. CONCLUSION

In summary, we hold that (1) the anti-in-

junction provisions of the Norris-LaGuardia

Act do not deprive the district court of

jurisdiction to enjoin violence, and (2) Con-

gress intended 42 U.S.C. § 1985(3) to pro-

Ss acai for private conspiracies di-

rected at nonracial classes. Specifically, we

determine that the statute encompasses a

A-30

conspiracy designed to deprive nonunion

workers of the First Amendment right to

freely associate with one another where

that conspiracy does not occur in conjunc-

tion with legitimate union activity and is

perfected by force and violence. In addi-

tion, we hold that the Commerce Clause

empowers Congress to reach the private

conspiracy involved in the cus before us.

Furthermore, since this case doves not in-

volve a labor union participating or inter-

ested in a labor dispute within the meaning

of 29 U.S.C. § 113(c), the clear-proof stan-

dard of 29 U.S.C. § 106 is inapplicable. We

conclude that the district court's findings

that the Carpenters Local 610, Pipefitters

Local 195, and Carpenters Local 753 autho-

rized or paruicipated in this conspiracy were

not clearly erroneous. Nevertheless, we

find that the evidence of participation in

the conspiracy is insufficient lo warrant the

district court's judgment against the re-

maining eight uniwns.

In lycht of the foregoing, the judgment of

the district court is

AFFIRMED IN PART AND RE-

VERSED IN PART.

ALVIN B. RUBIN and JERRE S. WIL-

LIAMS, Circuit Judges, with whom JOHN

R. BROWN, VANCE, KRAVITCH, RKAN-

DALL, TATE and SAM D. JOHNSON, Cir-

cuit Judges, join, disseating:

No one can condone an unprovoked and

brutal attack on law-abiding citizens who

1. James Matthews did not testify at tral, nor

was he deposed by any purty. The district

court, however, awarded him $5,000 in dam-

ages from the defendant labor unions. A. A.

Cross stated in a post-trial depusition that, «1

ter the January 17 incident, he decided to main-

tain Cross Construction’s records im Houston

and accordingly paid Matthews's Heouston hutel

bill while Matthews worked there on the com-

SCOTT v.

MOORE

are peacefully minding what is literally

their own business. However, the issue be-

fore us is not the reprehensibility of the

conduct but whether the district court prop-

erly issued an injunction in a case over

which, we submit, Congress has, by the

terms of the Norris-LaGuardia Act, denied

federal courts jurisdiction. Our colleagues

also interpret the Ku Klux Klan Act of 1871

in an unprecedented fashion Lo permit dam-

ages to be imposed for an assault, a state

law tort, merely because it occurred in the

course of a dispute about whether union or

nonunion workers would do a job. Further

our colleagues impose t’ is liability without

the stringent evidentiary findings exacted

by the Norris-LaGuardia Act. We, there-

fore, respectfully dissent.

The factual background is accurately

stated in the majority opinion. These facts

lead the majority to conclude that the de-

fendant labor organizations purposefully

adopted violence as their course, Slip op.

page 15467, page ——— supra, that a group

of about fifty persons who were either un-

ion members or union sympathizers drove to

the jobsite in four pickup trucks, and there

brutally beat A. A. Cross (“Cross”), the

president and controlling stockholder of A.

A. Cross Construction Company, Ine.

(“Cross Construction”), and several of the

construction company’s employees, includ-

ing Paul Scott and James Matthews. Scott

was an engineer and assistant superintend-

ent; Matthews was a bookkeeper and time-

keeper!

pany's recordkeeping. Cross further testified

that Matthews had been threatened several

times after the January !7 incident, was subse-

quently fired from Cross Construction for

cause, and that he did not know Matthews’s

current whereabouts. Paul Scott stated in his

deposition that, to the best of his knowledge,

Matthews wus in New York.

SCOTT v.

I. THE PRIVATE INJUNCTION AND

THE NORRIS-LAGUARDIA ACT

The judgment of the district court af-

firmed by the majority included a perma-

nent injunction aguinst the defendant labor

organizations. The majority, in finding

that the district court had authority to issue

the injunction, neglects the original pur-

pose, as well as the half century of interpre-

tution and application, of the Norris-La-

Guardia (Anti-Injunction) Act, 29 U.S.C.

§§ 101-115 (1976), passed in 1932.

The patent purpose of the Norris-La-

Guardia Act was to limit stringently the

jurisdiction and authority of federal courts

to enjoin labor disputes? The Act requires

three determinations. First, the court must

LaGuardia Act. The Taft-Hartley Act did in-

deed curtail the Norris-LaGuardia Act, but it

was carefully written to ensure that no in-

creased power to obtain labor injunctions was

placed in the hands of private litigants. The

labor injunctions and cease and desist orders

authorized by the Taft-Hartley Act against un-

ions and their members must be initiated and

its proponents, was asked if the Taft-Hartley

Act would not “slice a wedge” from the Norris-

MOORE A-3I

decide whether a labor dispute is involved.

Second, to have jurisdiction to issue an in-

junction under the Act, the court must

make all five findings required by 29 U.S.C.

§ 107: (1) unlawful acts have been threat-

ened and will be committed or have been

committed and will be continued; (2) irrep-

arable injury will follow; (3) the balance of

injury is more severe on the complainant

than the harm the injunction inflicts on the

defendant; (4) there is no adequate remedy

at law; and (5) the public officers charged

with the duty to protect the complainant's

property are unable or unwilling to furnish

adequate protection. Third, the injunction,

if issued, must not prohibit any of the activ-

ities listed in 29 U.S.C. § 1048

changed only where an injunction is sought

by the National Labor Relations Board, aot

where proceedings are instituted by a private

party.

Bakery Sales Drivers Local 33 v. Wagshal, 333

U.S. 437, 442, 68 S.Ct. 630, 632, 92 L.Ed. 792,

796 (1948).

3. No cov-t has jurisdiction to issue an injunc-

tion growing out of a labor dispute to prohibit

any persons from doing any of the following:

(a) Ceasing or refusing to perform any work

or to remain in any relation of employment;

(b) Becomung or remaining a member of any

labor organization or of any employer organi-

zation, regardless of any such undertaking or

promise as is described in [section 3 of this

Act};

(c) Pay ng or giving to, or withholding from,

any person participating or interested in such

labor dispute, any strike or unemployment

benefits or insurance, or other moneys or

things of value,

(¢d) By all lawful means aiding any person

participating or interested in any labor dis-

pute who is being proceeded against in, or is

prosecuting, any action or swit in any court

of the United States or of any State,

(e) Giving publicity to the existence of, or the

facts involved in, any labor dispute, whether

A-32

The majority concedes that the require-

ments of § 107 were not met in this case,

slip op. page 15449 n.3, page —— 0.3 supra,

but sidesteps deciding whether this ts juris-

dictional. The statute itself, however, is

unequivocal: “No court of the United

Stites shall have jurisdiction Wo issue a lem-

porary or permanent injunction ..— except

after [the required] findings of fact [have

been made} by the court.” 29 U.S.C. § 107

(emphasis added). Indeed, the entire thrust

of the Norris-LaGuardia Act is to deny dis-

trict courts jurisdiction with respect to in-

junctions in labor disputes. Our colleagues

justify the injunction, however, by finding

that there was no “labor dispute” as

defined in the Act. That definition is:

The term “labor dispute” includes any

controversy concerning terms or condi-

tions of employment, or concerning the

association or representation of persuns in

negotiating, fixing, maintaining, chang-

ing, or seeking lo arrange terms or condi-

tions of employment, regardless of

whether or not the disputants stand in

the proximate relation of employer and

employee.

29 Id. § 113(c) (emphasis added).

Even according to the majority view, this

was a “controversy concerning terms or

conditions of employment” and “concerning

the association ... of persons in ... main-

(f) Assembling peaceably to act or to organ-

ize to act im promotion of thei interests in a

labor dispute,

(g) Advising or notifying any person of an

intention to do any of the acts heretofore

specified:

(h) Agreeing with other persons to do or not

to do any of the acts heretotore specified,

and

(i) Advising, urging, or otherwise causing or

inducing without fraud or vwlence the acts

heretofore specified, regardless of any such

undertaking of promise as is desembed in

(section 3 of this Act].

SCOTT v.

MOORE

taining ... employment.” Not only was

the controversy thus one literally embraced

by the Act, but it was also covered by the

Act's embracive purpose. The definition of

a labor dispute is broad and should be

broadly read because the Act caters to the

need of labor organizations to organize en-

tire industries. Gregory & Katz, Labor and

the Law 190 (3d ed. 1979). It abrogates the

view, once held by some, that there can be a

labor dispute only between persons in an

employee-employer or prospective employ-

eeemployer relationship. Instead, it in-

cludes in its ambit all laboring people and

their unions. It is not confined to formal

efforts to have employees sign union autho-

rization cards. Its terms precisely charac-

terize as a labor dispute the controversy

involved in this case: a group of employees

and labor unions protesting the failure of

an employer working in their community to

hire union workers and to sign collective

bargaining agreements with local unions.

While the unions were not engaged in a

formal campaign to sign up employees of

Cross Construction at the exact time of the

critical incident,® the entire thrust of their

activities from the time Cross Construction

entered the community was organizational.

As the majority opinion indicates, on one

occasion the business representative for the

carpenters’ local told Cross, “this is union

29 U.S.C. § 104.

4 Lauf v E G. Shinner & Co., 33 US. 323,

329-30, 58 S.Ct. 578, 561-82, 82 L.Ed. 872, 877

(1938) (“The District Court made none of the

required (§ 107] findings save as to wreparable

injury and lack of remedy at law. it follows

that in issuing the injunction exceeded its

jurisdiction.”’).

5. As the majority reports: “Cross did not have

a collective bargaining agreement with any la-

bor union.” Slip op. page 15446, page ——

supra.

SCOTT v.

country,” and added that, if Cross persisted

in using non-union labor, it was “going lo

cost [him] a million dollars.” Slip op. page

15446, page —— supra. Cross Construction

employees were confronted by local union

members in various public gathering places

in the community. Local unions and their

members also threatened to picket the con-

struction project because it was non-union.

The public demonstration the morning the

violence occurred was obvivusly a form of

informational mass picketing to publicize

Cross Construction’s employment practices.

The majority finds that, “where a labor

organization purposefully adopts violence as

its course—violence not associated with or

happening to result from any ongoing legit-

imate union conduct, the union is not par-

ticipating in a labor dispute within the

meaning of 29 U.S.C. § 113(c).” Slip op.

page 15467, page —— supra. Violence,

however, is not a stranger to the labor

union movement nor dues its presence vili-

ate the existence of a dispute. If the dis-

pute concerns labor matters, it does not

com to be a labor dispute because it be-

6. Ey. United Mine Workers v. Gibbs, 383 U.S.

715, 86 S.Ct. 1130, 16 L_Ed 2d 218 (1966) (Court

found there was a labor dispute even though

members of the United Mine Workers forcibly

prevented the opening of a mine staffed by

members of a rival umon organization, threat-

ened the employer, and beat an organizer for

the rival umon,; mine was finally reopened

when UMW nuners were hired.), Milk Wagon

Drivers’ Local 753 v. Lake Valley Farm Prods.,

Inc., 311 US. 91, 96, 61 S.Ct. 122, 124, 8S L.Ed.

64, 66 (1940) (union organizing drive was acri-

momous and frequently violent: “store win-

dows were broken, personal altercations oc-

curred, charges and countercharges were fre-

quent, arrests were made and court proceed-

ings mstituted”, nevertheless the Court found

that a labor dispute existed); Lake Charles

Stevedores, inc. v. Mayo, 20 F.Supp. 698 (W.D.

La.1935) (umon, striking to gain recognition,

engaged in a pitched battle, including yuntire,

with private armed guards brought m by port

authorities, district court granted an injunc-

MOORE A-33

comes violent. This court early held that

the use of violence to achieve a labor objec-

tive does not prevent the activity from be-

ing considered a labor dispute within the

Norris-LaGuardia Act. Carter v. Herrin

Motor Freight Lines, Inc., 131 F.2d 557 (5th

Cir. 1942). This view is amply supported

throughout the history of litigation under

the Act®

The majority concedes that “a labor dis-

pute does exist where unlawful conduct oc-

curs in conjunction with some legitimate

union activity .... [or where] the other-

wise legitimate union conduct is unlawful

under some statutory scheme.” Slip op.

pages 15467, pages -—— - -—— supra. This

fails to explain why unlawful conduct

falls within the ambit of the Act only

if it is connected with legitimate’ un-

ion conduct, for the Norris-LaGuardia Act

does not confine its definition of labor dis-

putes to those involving legitimate conduct.

Indeed, by definition, the Act is applicable

only when the union is engaging in unlaw-

ful conduct." We cannot assume that any

tion, but only after specific findings that the

requirements of § 107 were satisfied); see also

Gregory & Katz, Labor and the Law 190 (3d ed.

1979) (“Congress did not give organized labor a

complete carte blanche.” Labor activities after

the pussage of the Norris-LaGuardia Act were

“still subject to other legal procedures such as

crumnal proceedings and actions for damages,

where appropriate."’).

7. Whether the defendants’ activities were oth-

erwise “legitimate” depends only on whether

the local unions were in compliance with the

technical requirements for organizational activ-

ity under the Natwnal Labor Relatwons Act.

Concededly, they were not. But it is not essen-

ual to the existence of a labor dispute that the

contest be connected with “legitimate” labor

activity or that it be peaceful.

8. See California Ass'n of Employers v. !

& Constr. Trades Council, 176 F.2d 175 (9th

Cw. 1949) (holding that the controversy im-

A-34

court would issue an injunction ayuinst law-

ful activities, and of the five prerequisites

to the issuance of an injunction, already

listed, one demands a finding that unlawful

acts have been threatened and will be com-

mitted.

A “labor dispute” can, indeed, be foment-

ed even without traditional labor activity.

Thus in New Negro Alliance v. Sanitary

Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82

L.Ed. 1012 (1938), a grocery store owner

was picketed by a group protesting the

shop's refusal to hire blacks. No member

of the group was employed by the shop, and

the group was not a labor organization.

The Supreme Court, nevertheless, held that

the pickets were publicizing a controversy

about the shop owner's “terms and condi-

tions of employment” and that the picket-

ing grew out of a labor dispute.’

Nationa! policy, as reflected in labor leg-

islation, was being implemented precisely as

Congress intended until the district court

granted the injunction at the behest of

Cross Construction. The National Labor

Relations Board (“NLRB”) had filed unfair

labor practice charges against the Sabine

Area Building and Construction Trades

Council and the various unions that were

council members for their actions, including

the violence in the episode that is the sub-

ject of this lawsuit. The NLRB had issued

a cease and desist order that prohibited the

Trades Council and the unions from, among

other things:

volved a labor dispute although the union was

insisting on a closed shop and closed shops had

previously been outlawed by the Taft-Hartley

Act).

®. See also Marine Cooks & Stewards v. Pana-

ma S.S. Co. 362 US. 365, 80 SCt 779, 4

L.Ed.2d 797 (1960). A union picketed a foreign

ship that employed foreign seamen and paid

them less than the gong American wage rates.

SCOTT v. MOORE

(a) Restraining or coercing employees of

Cruss Construction Co., Inc. or any other

employer, in the exercise of the rights

guaranteed in Section 7 of the National

Labor Relations Act, as amended, includ-

ing the right to refrain from joining or

assisting any constituent local union of

Sabine Area Building & Construction

Trades Council, AFL-CiO, by: threaten-

ing, assaulting, or inflicting bodily harm

on said employees, threatening, assault-

ing, or inflicting bodily harm on supervi-

sory or management personnel of Cross

Construction Co., Inc.; and damaging or

destroying property and equipment be-

longing either to Cross Construction Co.,

Inc., to its supervisory or management

personnel, or \o its employees.

(b) Organizing, encouraging, sanctioning

and engaging in mass picketing by its

constituent local unions at the entrance

to the roadway leading to the Alligator

Bayou Pumping Station and Drainage

Structure construction project in order to

obstruct or impede ingress or egress to

said jobsite.

NLRB Case 23-CB-1624, May 1, 1975.

This order says it all. It was upheld and

enforced by us as a result of a settlement

stipulation in an unpublished opinion," long

before the injunction was issued in this

case. Ironically, the majority finds no “la-

bor dispute” in the very situation that

caused the NLRB wo file charges and to

issue @ stipulated cease and desist order.

The NLRB had jurisdiction only if there

The foreign employees had no dispute with the

vessel owners, and the unions had no desire to

organize or to represent the foreign employees.

The Supreme Court held, however, that the

Norris-LaGuardia Act applied, finding that the

picketing related to the terms and conditions of

employment.

10. NLRB v. Sabine Area Bidg. & Constr. Trades

Council, No. 75-2481 (Sth Cir. June 24, 1975).

SCOTT v.

was a labor dispute. Thus we at once hold

an occurrence not to be a labor dispute for

purposes of the Norris-LaGuardia Act

(which emphasizes the breadth of the defi-

nition of labor dispute)" but to be one for

purposes of the National Labor Kelations

Act (“NLRA”) despite universal recognition

that the “definition of ‘labor dispute’ in this

Act |NLRA] and in the Norris-LaGuardia

Act are virtually identical.”

The brutal assault on Cross Construction

employees was overt criminal conduct that

should also have been and was prosecuted

by state law enforcement authorities. The

Act permits injunctive intervention only

when “public officers charged with the

duty to protect complainant's property

[and, we submit, their persons] are unalle

or unwilling to furnish adequate protec-

tion.” 29 U.S.C. § 107(e), against future,

not past unlawful activity.”

The Supreme Court has just reaffirmed

the broad interpretation of the definition of

labor dispute in the Norris-LaGuardia Act

which has been the law since the Act was

passed. Jacksonville Bulk Terminals, Ine.

v. International Longshoremen’s Assovia-

tion, US. , 2 SCL. -—, 72

L. Bal. 2 , OUS.L.W 4789 (US., June

ZA, 1982). As reported in the majority opin-

ion (fn. 14), the Court held that a dispute

involving the refusal w load cargo to Russia

in protest of Soviet intervention in Afghan-

istan was a labor dispute within the mean-

ing of the Act.

11. The Supreme Court has noted that “Con-

gress made the definition [of “labor dispute” in

the Norris-LaGuardia Act] broad because it

wanted it to be broad. There are few pieces of

legislation where the congressional hearings,

committee reports, and the language im the

leyislation atself more clearly pot to the ne-

cessity tor giving an Act a construction that

will protect the congressional policy the Act

adopted.” Order of R. R. Telegraphers v. Chi-

MOORE A-35

The majority opinion relies upon the

Court's statement that the employer«m-

ployee relationship was the “matrix” of the

dispute in Jacksonville Bulk Terminals.

First, it needs to be emphasized that, as

pointed oul above, a unionized workforce

was the “matrix” of the dispute in the

instant case—clearly a labor dispute objec-

tive. Second, the matrix statement must

be taken in the context that Jacksonville

Bulk Terminals was a dispute between em-

ployers and their employees. As has been

shown above, the employer-employee rela-

tionship is not a requirement to establish a

labor dispute under the Act. Indeed, to

show the breadth of the definition of labor

dispute in the Act, the opinion in Jackson-

ville Bulk Terminals relies heavily upon the

New Negro Alliance case, supra, where

there was not even a prospective employer-

employee relationship.

What is of most importance in Jacksoa-

ville Bulk Terminals is the Court's exten-

sive emphasis upon the history of the devel-

opment of the Norris-LaGuardia Act to

show the breadta of the definition of labor

dispute. The Court said that to narrow the

definition woul! “embroil federal judges in

the very scrutiny of ‘legitimate objectives’

that Congress intended to prevent when it

passed the Act.” -- US. at ——-, We

S.Ct. at The Court then concluded:

“In the past, we have consistently declined

wo constrict Norris-LaGuardia's broad prohi-

bitions except in narrowly defined situa-

tions where accommodation of that Act to

cago & N. W. Ry., 362 U.S. 330, 335, 80 S.Ct.

761, 764, 4 L.Ed 2d 774, 779 (1960).

12. National Maritime Union of Am. v. NLRB,

342 F.2d 538, 541 (2d Cir.), cert. denied, 382

U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 78 (1965).

13. As stated above, the court must find prior to’

issuing an myunction, that “unlawful acts have

been threatened and will be committed or

have been committed and will be continued.”

29 U.S.C. § 107(a) (emphasis added).

A-36

specific congressional policy is necessary.

We refuse w deviate from that path loday.”

Ibid. (emphasis added).

No specific congressional policy exists in

this cuse to justify deviation. Instead, con-

gressional policy as clearly established was

carried out in the acuion under the National

Labor Relations Act.

The Norris-LaGuardia Act applies to ev-

ery kind of labor dispute, and not only to

conventional organizing campaigns conduct-

ed under the auspices of the NLKB. In-

ved, as both the NLKB and a panel of this

court have found, this was plainly an organ-

izational labor dispute. The federal district

court had no jurisdiction to issue the injunc-

tion.

Il. SECTION 1985(3) DOES NOT GRANT

A CAUSE OF ACTION FOR THE DE-

FENDANTS’ CONDUCT

A. The Nature of the Right for Which

§ 19%5(3) Provides a Remedy

Section 1985(3) provides that an injured

party “may have an action for the recovery

14. 42 U.S.C. § 1985(3) provides in full:

if two or more persons in any State or

indirectly, any persun or class of persons of ©

SCOTT v.

MOORE

of damages” “{i}f two or more persons

conspire ... for the purpose of depriving

.. @my person or class of persons of the

equal protection of the laws or of equal

privileges and immunities under the laws.”

42 U.S.C. § 19853) (emphasis added).”

This language does not establish a cause of

action for every deprivation of any legal

right, privilege, or immunity. The statute

condemns only conspiracies to deny equal

protection or equa! privileges and immuni-

ties. If these restrictive terms are over-

looked in interpreting the statute, its reach

is ubiquitous; for it would then authorize a

federal tort action for every conspiracy to

deprive any person or class of persons of

any legal right.

In Griffin v. Breckenridge, 403 U.S. 88, 91

S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Su-

preme Court recognized that § 1985(3) is

premised on a conspiracy to deny equality

and is not a general federal tort law." To

show that the conspiracy was designed to

deny a person equality, the Court said, the

plaintiff must demonstrate that the purpose

port or advocacy: in any case of conspiracy

set forth in this section, if one or more per-

sons engaged therein do, or cause to be done,

any act in furtherance of the object of such

conspiracy, whereby another is injured in his

person or property, or deprived of having and

exercising any right or privilege of a citizen

rivation, against any one or more of the con-

Spirators.

15. “That the statute was meant to reach pri-

vate action does not, however, mean that it

was intended to apply to all tortious, conspira-

torial interferences with the rights of others.”

Griffin, 403 U.S. at 101, 91 S.Ct. at 1798, 29

L.Ed2d at 347. See also Cong Globe, 42d

Cong., Ist Sess. 485 (1871) (remarks of Rep.

Cook addressing Rep. Shellabarger’s amend-

ment to the original proposed Act).

SCOTT v. MOORE

of the conspiracy was “a deprivation of the

equal enjoyment of rights secured by the

law to all,” not merely the infliction of an

injury on that person. /d. at 102, 91 S.Ct.

at 1798, 29 L.bd.2d at 348 (emphasis adde:|).

The necessary corvllary is thal a conspiracy

merely tw injure one person or a group of

persons, or even some or all of the members

of a class of persons, does not give rise to

an action under the statute.

This interpretation of the statute is sup-

ported by the history of its enactment.

That history, often recounted in fragments,

is reported at length in Comment, A Con-

struction of Section 1985(c) in Light of Its

Original Purpose, 46 U.Chi.L.Rev. 402

(1979). Section 193) was adopted in

reaction to the activities of the Ku Klux

Klan. The original Kian, which had begun

to operate in the South prior to 1871, was

for the most part a political organization.”

I think it is within the power of Congress to

protect and enforce every right secured to

American citizens by the Constitution of the

United States. | do not believe, and | do not

know of any man who does believe, that

Congress has a nght to punish an assault and

battery when commutted by two or more per-

sons within a State. | know of no one who

believes that Congress has any right to en-

force the laws of a State except in the emer-

gency contemplated in the Constitution,

when the State may be unable to do so by

reason of lawless combination too strong for

the State authorities to suppress. The state-

ment that this bill aims at any such end is an

utter misstatement of its object and effect.

16. See generally | Statutory History of the

United States 591-656 (B. Schwartz «.i. 1970),

Avins, The Ku Klux Klan Act of 1871: Some

Reflected Light on State Action and the Four-

teenth Amendment, || St. Lows U.LJ. 331

(1967).

Section 1985(c) was renumbered § 1985(3). 42

U.S.C. § 1985(3) (Supp. 11 1979).

17. See Comment, A Construction of Section

1985(c) in Light of Its Original Purpose, 46

U.ChLL. Rev. 402, 408 2.32 (1979) [heremafter

cited as A Construction of Section 1985(c) |.

A-37

In enacting § 1985(3), Congress did not

seek primarily to prevent racial diserimina-

tion but to proscribe conspiracies whuse ob-

jective or effect was to frustrate the “con-

stitutional operations of government

through assaults on the person, property,

and liberties of individuals.” “

The Forty-Second Congress, dominated

by a Republican majority, became alarmed

at reports of violent activities of the Klan

ani similar organizations, such as the

Knights of the White Camelia, the White

Brotherhood, the Pale Faces, and the "76

Association.” It established a joint com-

mittee to investigate the Klan.™ The Re-

publican majority thought the Klan’s objec-

tive was to wrest control of the southern

state governments from the Republican

Party and Ww reestablish Democratic gover-

nance." Democrats also viewed the Klan’s

objectives as political,” but considered them

18. id at 403.

19. A Construction of Section 1985(c), supra

note 17, at 407 n.29, (citing K. Stampp, The Era

of Reconstruction 199 (1965)).

20. Cong. Globe, 42d Cong. Ist Sess. 116-17

(1871), sd. at 180-82.

21. id at 653, col. 3 (The Kian’s “well-defined

, is for the

Wilson (R-Ind.)).

22. See id. at 517, col. 2 (“the minority of the

commuttee reach the same conclusion as the

A- 38

honorable, adopted to resist unjust laws and

to restore control of governmental affairs

to “the wise, virtuous, influential men of

the South,” dislodging “adventurers and ne-

groes.” #

The first proposed Ku Klux Klan Act

made it criminal to conspire to commit par-

ticular crimes “in violation of the rights,

privileges, or immunities of any persen, to

which he is entitled under the Constitution

and laws of the United States.”"™ It autho-

rized no civil action. Some more moderate

Republicans opposed the proposal a3 a usur-

pation of the states’ power to punish crimes.

Other members of Congress opposed the

enactment on the basis that the federal

government lacked power to prohibit the

acts of private individuals. Another group

believed that Congress could punish only

those “private conspiracies intended to ob-

struct the performance of government offi-

cials’ constitutional duty to provide equal

protection of the laws.”™ Still others be-

lieved that, regardless of its power, the

federal government should provide jrotec-

tion for individuals against private conspir-

acies only when the state failed w do so.™

An amendment suggested by Congress-

man Burton Cook (R-Ill.) and drafted by

Congressman Charles Willard (R-Vt.)” sat-

isfied the constitutional objections and pro-

vided an acceptable compromise. For the

wicked laws”) (remarks of Rep. Shellabarger

(RK Otio)).

23. id at 386, col. 2 (remarks of Rep. Lewis

(D Ky.)). See alsu additional references in A

Construction of § 1985(c), supra note 17, at

408 09 & n.32.

24. Cong.Globe, 42d Cong. Ist Sess. 68 app.

(1871).

25. A Construction of Section 1985(c), supra

note 17, at 415, and authorities cited therein.

See yeneraily id. at 411 17.

26. id at 415-16, and authorities cited therein.

27. id. at 417.

SCOTT v. MOORE

language first proposed in the criminal stat-

ute prohibiting conspiracies “in violation of

the rights, privileges, or immunities of any

person, to which he is entitled under the

Constitution and the laws of the United

States,” the amendment substituted the

words “for the purpose of depriving any

persons or class of persons, directly or indi-

rectly, of the equal protection of the laws,

or of equal privileges and immunities under

the laws.” The amendment also added

the civil cause of action that we now con-

sider.”

It is thus obvious that one purpose of this

amendment was to confine the operation of

the statute to discriminatory deprivations

of rights. As the draftsman of the limiting

amendment, Representative Willard, said,

the amendment “provid|ed]} that the essence

of the crime should consist in the intent to

deprive a person of the equal protection of

the laws and of equal privileges and immu-

nities under the laws; in other words, that

the Constitution secured, and was only in-

tended to secure, equality of rights and

immunities, and that we could only punish

by United States laws a denial of that

equality.” Congressman Horatio Burch-

ard (R-Ill.) expiained that the conspiracies

condemned were “those designed to prevent

the equal and impartial administration of

justice.... The gravamen of the offense

28. Cong Globe, 42d Cong., Ist Sess. 477, col. 3

(1871) (emphasis added)

29. id As one commentator has noted: “This

addition of remedy was not a subject of con-

gressional discussion or debate. it was pre-

sumably inspired at least in part by concern for

the victims of acts of terror or indirect subver-

sion committed to imhibit the exercise of the

rights of citizens.” A Cuonstructiun of Section

1985(c), supra note 17, at 417.

30. Cong Globe, 42d Cong., Ist Sess. 188 app.,

col. 2 (1871).

SCOTT v. MOORE

is the unlawful attempt to prevent a State

through its officers enforcing in behalf of a

citizen of the United States his constitution-

al right to equality of protection.”* Oth-

ers echoed this analysis.™

In Griffin, ihe Supreme Court interpret-

ed § 1983) in a fashion consistent both

with its literal language and this congres-

sional intention:

The language requiring intent to deprive

of equal protection, or equa! privileges

ami ummunities, means that there must

be some racial, or perhaps otherwise

class-based, invidiously discriminatory an-

imus behind the conspirators’ action. The

conspiracy, in other words, must aim at a

deprivation of the equal enjoyment of

rights secured by the law to all.

403 U.S. at, 102, 91 S.Ct. at 1798, 29 L. Ed.2d

at 348 (footnotes omitted). The statute

31. Id. at 315 app., col. 2.

32. id. at 478, col. 2 (“The object of the amend-

ment ts to confine the authority of this law

to the prevention of deprivations which shall

attack the equality of mghts of Amencan citi-

zens, that any violation of the right, the ani-

mus and effect of which is to strike down the

citizen, to the end that he may not enjoy equali-

ty of rights as contrasted with his and other

citizens’ rights, shall be within the scope of

remedies of this section.) (remarks of Rep.

Shellab«' er), id. at 486, col. 3 (remarks of

Rep. Cook (K Ii), if. at 514, col. 3 (remarks

of Rep. Poland (R -V1.)).

33. See A Construction of Section 1985(c), su-

pra note 17, at 437 (“The enacting Congress did

not intend the statute to be an antidiscrim-

ination law. The language of equa/ protection

and equal privileges and immunities was added

as a limitation, not as an expansion."’).

This is the interpretation of § 1985(3) that we

adopted in McClellan v. Mississippi Power &

Light Co., 545 F.2d 919 (Sth Cir. 1977) (en

banc). Turning first to what private action

constitutes a deprivation of the protection of

the laws, we held that “the inquiry must initial-

ly concentrate on the legality of the Jetendants’

activity apart from section 1985(3). If the ob-

A-39

thus has a “motivation aspect.” Relying on

the legislative history we have recounted,

the Griffin Court explained that the re-

quirement of “invidiously discriminatory

motivation stressed by the sponsors of the

limiting amendment” was necessary to

avoid “constitutional shoals.” Jd. The for-

bidden purpose of § 1985(3) is the denial of

equality under the laws, not merely an inju-

ry forbidden by law.™

Although § 1985(3) reaches both public

and private conspiracies to deny constitu-

tional equality, it is a non sequitur to con-

elude that i! therefore, reaches all constitu-

tional violations. The statute is not de-

signed to protect constitutional rights; it is

at once narrower, safeguarding equality,

and broader, protecting against any con-

spiracy to deny equal protection of the

“laws.” ™ .

ject of the defendants’ conspiracy did not in-

clude a violation of some law (independent of

section 1985(3) self) which protects the piain-

uff, the conspiracy could not have deprived the

plainuff of the ‘protection of the laws."" id at

925. We then turned to the requirement that

the deprivation be of the equal protection of

the laws, and held that violation of equality is a

separate component of the action although we

declined to decide whether the section extends

to other bias than racial. Jd. at 929.

Section 1985(3) also prohibits conspiracies “for

the purpose of preventing or hindering the con-

Stituted authorities of any State or Territory

from giving or securing to all persons within

such State or Terrmtory the equal protection of

the laws.” Although § 1985(3) claims do not

typically allege that state authorities are “un-

willing or unable to provide protection,” the

language of the statute, allows it to reach “indi-

rect efforts to thwart equal protection.” A

Construction of Section 1985(c), supra nove 17,

at 420.

34. Some courts have held that § 1985(3) covers

violations of federal statutory mghts. Ey.

Hodgin v. Jefferson, 447 F Supp. 804 (D.Md.

1978) (claims based on § 3 of the Equal Pay

Act), Broadcast Employees v. international

A-40

The Supreme Court held in Griffin that

the reach of § 19853) is limited by the

requirement that the conspiracy be directed

at a denial of equality. Our colleagues

state, however, that in Griffin “(t}he blacks

brought an action under section 198%5(3) to

redress violations of the laws of the United

States and of Mississippi, including the

rights of free speech, assembly, association,

interstate travel, liberty, and security of

their persons.” Slip op. page 15450, page

——— supra (emphasis added). If that were

the basis of the action in Griffin, then Grif-

fin would be authority for a simple tort

action. The complaint in Griffin was more

subtle.™ In addition to the language quot-

ed by the majority, the complaint stated

that the purpose of the conspiracy “ ‘was to

prevent [the] plaintiffs and other Negro-

Americans, through .. . force, violence and

Bhd. of Teamsters, 419 F Supp. 263 (E.D.Pa.

1976) (conspiracy to violate Labor

ment Reporting and Disclosure Act), aff'd in

part and reversed in part on other grounds, 614

F.2d 846 (3d Cir. 1980); Milner v. National

School of Health Technology, 409 F Supp. 1389

(E.D.Pa. 1976).

in Great Am. Fed. Sav. & Loan Ass'n v. Novot-

ny, 442 U.S. 366, 370 n.6, 99 S.Ct. 2345, 2348

n.6, 60 L.Ed.2d 957, 962 n.6 (1979), however,

the Supreme Court specifically declined to de-

cide “whether § 1985(3) creates a remedy for

Statutory ryghts other than those fundamental

rights derived from the Constitution.” Justice

Powell suggested in his concurnny opimon that

the statute's “reach is lunited to conspiracies to

violate thuse fundamental rghts derived from

the Constitution.” Jd. at 378, 99 S.Ct. at 2352,

6) L.Ed.2d at 967. Justice Stevens went fur-

ther and said, “I do nut believe that [§ 1985(3) |

was intended to provide a remedy fur the viwla-

tion of statutory rghts—let alone myhts creat-

ed by statutes that had not yet «nn enacted.”

id. at 385, 99 S.Ct. at 2355, 60 L.bd.2d at 971

(concurring opinion). Justices White, Brennan,

and Marshall expressed the opposite view in

their dissenting opimon: “|Section) 1985(3) en-

compasses all rights guaranteed in federal stat-

utes as well as rights guaranteed directly by

the Constitution.” id at 364 2.5, 99 S.Ct. at

2357 0.5, 60 L.Ed.2d at 971 9.5; cf Note, Pri-

SCOTT v.

intimidation, from seeking the equal protec-

tion of the laws and from enjoying the

equal rights, privileges and immunities of

citizens under the laws of the United States

and the State of Mississippi, including

their rights wo freedom of speech, move-

ment, association and assembly.’"” 403 U.S.

at 90, 91 S.Ct. at 1792, 29 L.Ed.2d at 341.

The assault on and battery of the plaintiffs

were acts done in furtherance of the con-

spiracy to deny the plaintiffs equal rights,

not acts designed merely to injure the

plaintiffs or to deprive them of the protec-

tion of the law.

In Great Am. Fed. Sav. & Loan Ass'n v.

Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345,

2349, 60 L.Ed.2d 957, 963 (1979), the Su-

preme Court held that “[sjection 1985(3)

provides no substantive rights itself; it

vate Conspiracies to Violate Civil Rights: The

Scope of Section 1985(3) After Great Amencan

Federal Savings & Loan Association v. Novot-

ny, 61 B.U.L. Rev. 1007, 1028-33 (1981) (argu-

ing that § 1985(3) should be applied “only to

statutes whose primary purpose 1s to guarantee

eyual treatment”).

Some courts have also held that “[v}iolations of

state conferred mghts and privileges are suffi-

cient to constitute a deprivation of ‘equal pro-

tection of the laws.'" Life ins. Co. of N. Am.

v. Reichardt, 591 F.2d 499, 504-05 (9th Cir.

1979) (violation of Calitorma’s Civil Rights Act)

(decided betore Novotny), accord, Harrison v

Brooks, 446 F.2d 404 (ist Cir. 1971) (zoning

law infringement) The Supreme Court sug-

gested in Novotny, however, that a denial of

mghts under state laws may not be covered

under § 1985(3) unless unconst!-

tutional. See 442 US. at 377, 9Y S.Ct. at 2351,

60 L.Ed.2d at 966 (§ 1985(3) provides “a civil

cause of action when some otherwise defined

federal right—to equal protection of the laws

or equal privileges and mmmunities under the

laws—ts breached by a conspiracy in the man-

ner defined by the section”) (emphasis added).

35. Griffin arose out of the dismissal of a com-

plait tor failure to state a cause of action.

SCOTT v.

merely provides a remedy for violation of

the rights it designates.” Thus, § 1985(3)

provides a cause of action for private inter-

ference only with those rights that the Fed-

eral Constitution protected prior to the en-

actment of the Civil Rights Act of 1871, and

in particular, for those rights protected by

the newly ratified fourteenth amendment.

See Novotny, 442 U.S. at 383, 99 S.Ct. at

2354, 60 L.Ed.2d at 970 (Stevens, J., concur-

ring). Insofar as equal protection of the

laws is concerned, the cause of action is

restricted not only to conspiracies to deny

equality, but the conspiracy must also be

directed at the denial of protection of the

laws, in the sense that it must be aimed at

preventing the injured party from obtain-

ing legal protection. See id. at 3384, 99 S.Ct.

at 2355, 60 L.Ed.2d at 971; A Construction

36. Novotny held that § 1985(3) could not be

invoked to redress vwlations of Title VIL.

Rights created by the Equal Employment Op-

portunity Act could not “be asserted within the

remedial framework of § 1985(3)" because Ti-

tle VIL provided its own remedial apparatus.

442 US. at 377, 99 S.Ct. at 2351, 60 L.bd2d at

yeni; cf. Note, supra note 34, at 1019 21 (argu-

ing that § 1985(3) is “neither purely remedial

nor purely substantive, but rather a mixture”).

37. tn Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971). the Court held that

there was a federal cause of action for damages

under the fourth amendment upon proof of

damages resulting from viwlations of that

amendment by federal agents acting under col-

or uf federal authority.

38. We, therefore, agree with the Fourth Cir-

cuit's refusal to recognize a § 1985(3) cause of

action for private interference with the “associ-

ational right” of belonging to the Ku Klux Klan.

Bellamy v. Mason's Stores, Inc., 508 F.2d 504

(4th Cir. 1974). This holding ts correct, in part,

because the mght of association derives from

the first amendment—tself framed as a prohi-

bition against the federal governmert and not

against private persons. 4A number of other

courts have declined to extend 9 19853) pro-

tection to infringements of all consttutional

rights.

MOORE A- 4

of Section 1985(c), supra note 17, at 407,

419.

The extension of § 19853) to protect

against private infringement of every right

protected against governmental action by

the Constitution would create a Bivens

type tort action against every private con-

spiracy that affects a federal constitutional

right.” A citizen has a right to be secure in

his property and home, but we do not think

that § 1985(3) confers a cause of action for

a conspiracy by a person's neighbors to

block his driveway in order to keep him

from driving his automobile to his place of

business. The fourth amendment protects

against illegal searches, but we do not think

that, if two persons conspire to search their

neighbor's house, the neighbor has a

§ 19853) action.™ In neither case would

First amendment :

Murphy v. Muunt Carmel High School, 543

F.2d 1189 (7th Cir. 1976).

Sex discrimination:

Doski v. M. Goldseker Co., 539 F.2d 1326

(4th Cir. 1976) (employment); Cohen v. ili-

nuts Inst. of Technology, 524 F.2d 818 (7th

Cir. 1975) (employment), cert. denied, 425

U.S. 943, 96 S.Ct. 1683, 48 LEd2d 187

(1976).

Procedural! due process :

Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976);

Collins v. Bensinger, 374 F Supp. 273 (N D.

Il.) (recognizing that § 1985(3) refers only to

equal protection and not due process), aff'd

mem., 506 F.2d 1405 (7th Cir. 1974), cert.

denied, 422 US. 1058, 95 S.Ct. 2683, 45

L.Ed.2d 710 (1975).

Other courts, however, have held that

§ 1985(3) reaches every private conspiracy

that Congress has power to forbid. Ex.

Means v. Wilson, 522 F.2d 833 (8th Cir. 1975)

(interference with right to vote in tribal elec-

uuons), cert. denied, 424 U.S. 958, 96 S.Ct. 1436,

47 LEd.2d 364 (1976); Weise v. Syracuse

Univ., 522 F.2d 397 (2d Cir. 1975) (employment

discrimination); Cameron v. Brock, 474 + .2d

608 (6th Cir. 1973) (free speech; distribution of

A- 42

the addition of violent overt acts meta-

morphose the tort into a § 1985(3) cause of

action.

Unlike Griffin, this case does not rest on

the adequacy of notice pleading. The plain-

tiffs have had their day in court. They

proved no conspiracy to prevent them from

seeking the eyua/ protection of the laws, or

to deny them that protection, or to bar

them from enjoying the equal rights, privi-

leges, and immunities of citizens under the

laws. Even if there is a “First Amendment

right to aswniate with their fellow non-

union employees,” slip op. page 15452, page

—— supra, a question to which we will

soon turn, it would not suffice w prove a

conspiracy aimed at denying the plaintiffs

this “right.” Our colleagues, mistakenly we

suggest, assume that “curtailment of [plain-

tiffs’) interests secured by the First Amend-

ment is a deprivation of equal protection of

the laws within the meaning of section

1985(3) as interpreted by Griffin.” Slip op.

page 15452, page ——— supra (emphasis add-

ed). The mere deprivation of a right, how-

ever fundamental, is not a deprivation of

equal protection. For a denial uf equality

to be th: conspiratorial objective, the con-

spirators must seek to permit some persons

to enjoy the protected right and to deny it

to others. The reprobated objectives al-

leged in Griffin included, for example, the

denial of the right of black persons to

“‘travel the public highways without re-

straint in the same terms as white citizens

in Kemper County, Mississippi.” 403 U.S.

at 92, 106, 91 S.Ct. at 1793, 1800, 29 L.Ed.2d

at 342, 350 (quoting the complaint). The

proof in this case shows no comparable ob-

jective; the defendants did not seek to deny

the right to work with nonunion workers to

campaign material); Action v. Gannon, 450

F.2d 1227 (Sth Cir. 1971) (en banc) (free exer-

SCOTT v.

MOORE

the individual plaintiffs while according

that nght to others.

B. The Right Found Protected by the

Majority

Our colleagues interpret § 1985(3) to find

that it protects a constitutional right of

association, or more specifically, the consti-

tutional right, first found to exist in this

very opinion, of nonunion workers to work

with other nonunion workers. This right is

analogized w the right of political assucia-

tion. Protection for political assuciation is

thus expanded into protection for any kind

of association having some economic com-

munity of interest. This seems to us to

confuse the right protected with the class of

persons protected. Although the. is a con-

stitutional right to refuse to work, no court,

so far as we know, has ever previously

found that workers have a constitutional

right to work only with the kind of persons

they choose to work with.

If nonunion workers have a constitutional

right to work together, then the collective

bargaining policy of the National Labor

Relations Act is at least in part unconstitu-

tional. Under it, nonunion workers have

the right to join or not to join a union. 29

U.S.C. § 157. They have the right to vote

against or for a union in a collective bar-

gaining election. Id. If, however, a collec-

live bargaining agent is chosen, the wurkers

do not have a constitutional right to bar-

gain individually ur to work only with non-

union associates. They may be required to

become union members thirty days after

being hired, id. § 15%a)3), unless the state

has a “right to work” law.” Once an em-

cise of religion), Richardson v. Miller, 446 F 2d

1247 (3d Cir. 1971) (freedom of expression).

39. 29 U.S.C. § 164(b) (“Nothing in this sub-

SCOTT v.

ployer is ordered to bargain collectively,

employees who are not union members are

compelled to work with union members if

they choose to work at all. Their employer

certainly has no right to employ only non-

union labor-—unless the National Labor Re-

lations Act is unconstitutional.

This case does not involve the question

whether a person has a right to join or not

to join a union, to affiliate or not to affili-

ate with a political group, or to believe or

disbelieve a creed. The desire to work for a

nonunion employer cannot be escalated into

a first amendment associational right.

“What the [Supreme] Court has recognized

as implicit in the first amendment ... is a

right to join with others to pursue goals

independenUy protected | . the first amend-

Meni—snes as Ae ee WL

(regarded as a form of ad\ucacy), or reii-

gious worship.” Although there is obvi-

ously some political content in union activi-

ty, nonmembership in a union is not a goal

independently protected hy the first amend-

ment.

C. Discriminatory, Class-Based Animus

The majority does not hold Cross Con-

struction to be a member of any class. We

search the majority opinion in vain for

something more than an ad hoc definition

of the class to which the plaintiffs Scott

and Matthews belong. After discussing the

chapter shall be construed as authorizing the

execution or application of agreements requir-

ing membership in a labor organization as a

condition of employment in any State or Terri-

tory in which such execution or application is

protubited by State or Territorial law."’).

Texas’ Right to Wurk :.aw prohibits the denial

of employment to anyone because of a failure

to pay “any fee, assessment, or sum of money

whatsoever” to a umon. Tex.Rev.Civ.Stat.

Ann. art. 5154a(8a) (Vernon 1971).

MOORE A-43

necessity of discriminatory class-based ani-

mus for two and one half pages, our col-

leagues state conclusorily, “the plaintiffs

constitute a class for 1985(3) purposes.” “

They then discuss the labor union move-

ment and the reputed kinship of economic

views with political association, and state

that “the plaintiffs were attacked because

of their economic, rather than their politi-

cal, association.” @ In the next sentence we

are told that there was animus aguinst the

plaintiffs for their “nonunion association.”

The plaintiffs are later referred to as “non-

union employees” and, without noting the

distinction, as “nonunion workers who are

attacked for their choice to associate with

other nonunion workers.” Slip op. page

15459. page supra It is difficult for

8 W Ciime Chet) O5el Gas S tle ekee

by tnese differing phrases, for Une ev ience

makes it clear that Scott and Matthews

were not attacked because they were not

union members or because they wished to

work with “other” nonunion members, but

because they chose to work for Cross Con-

struction, a firm that hired nonunion work-

ers and did not pay union wages. Scott

was a supervisor and Matthews was a cleri-

cal worker. It has not been shown that

either of them was even eligible for mem-

bership in any of the unions involved.

Let us assume, however, that the facts

can be construed to make Scott and Mat-

#. L. Tribe, American Constitutional Law

§ 12-23, at 702 (1978) (emphasis and footnotes

omitted).

42. Slip op. page 15459, page —— supra (empha-

sis added).

43. Cross Construction hired the workers they

needed without inquiring as to their union affil-

iat.on. In fact, some of the Cross Construction

employees did belong to unions.

A-44

thews members of a class of persons who do

not belong to a union and want to work

with people who are also nonunion. This,

we submit, is not a class protected by

§ 19853). The Supreme Court in Griffin

said, “there must be some racial, or perhaps

otherwise class-based, invidiously discrimi-

natory animus behind the conspirators’ ac-

tion” to warrant § 19853) relief“ We

have gone further and held that § 1985(3)

forbids not only racial discrimination but

the denial of equality to other classes: ©

those having common characteristics of an

inherent nature; that is, classes accorded

special protection by the equal protection

clause of the fourteenth amendment and

“the kinds of classes Congress was trying to

protect when it enacted the Ku Klux Klan

Act.” Kimble v. D. J. MceDuffy, Inc., 648

F.2d 340, 347 & n.9 (5th Cir.) (en bane), cert.

denied, —— US. ——., 102 S.Ct. 687, 70

L.Ed.2d 651 (1981). The phrase “the kind

of classes Congress was trying to protect”

states a purely historical test, directing us

to look to the purposes of the Ku Klux Klan

Act when it was adopted. Kimble suggest-

ed as an illustration of classes in this cate-

#4. 403 US. at 102, 91 S.Ct. at 1798, 29 L.Ed 2d

at 348 (1971).

45. As the majority opinion points out, other

circuits have also extended § 1985(3) to cover

non-racial classes. Slip op. page 15455, page

—— supra.

44. See generally Note, The Class-Based Animus

Requirement of 42 U.S.C. § 1985(c): A Sug-

gested Approach, 64 Minn.L.Rev. 635 (1980).

47. We note that in their amended complaint,

(a) All persons presently employed by A. A.

Cross Cunstrucuon Company, Inc. (herein-

after called “Cross”), their wives and chil-

dren,

(b) All persons, together with their wives

and children, who may become employed by

SCOTT v.

MOORE

gory conspiracies based on the target's af-

filiation with a major political party. Jd.

The majority opinion holds that, although

the “[p)iaintiffs are not a class normally

afforded special protection under the equal

protection clause merely because they wish

work nonunion,” Slip op. page 15454,

page ——— supra, and although “Congress

did not express a specific intent to protect

nonunion employees in enacting the Ku

Klux Klan Act, the legislative history dem-

onstrates that the nonunion employees in

this case comprised the kind of class Con-

gress intended to protect,” Slip op. page

15458-15459, page ——— supra. We differ

with this conclusion also.

The plaintiffs are, we submit, not mem-

bers of a class at all,” but simply two

individuals injured in the same assault.

The majority agrees that not every conceiv-

able grouping of persons capable of being

defined as a class is protected by § 19853).

Slip op. page 1545€, page ——— supra. Not

only must the class share some common

characteristic beyond simply being the vic-

tims of a conspiracy, but it must also be

distinguishable from the genera! populace

Cross and perform work leading to construc-

tion of the Alligator Bayou Pump Station on

the hurricane protection levee along Taylor's

Bayou near Port Arthur, Jefferson County,

Texas;

(c) All persons, their wives and children, and

all firms and corporations who may supply,

deliver, or provide labor, materials, goods or

services to Cross or others for construction

of the Alligator Bayou Pump Station;

(d) All persons, their wives and children,

who may lawfully be present upon the site of

the Alligator Bayou Pump Station, or the

ways leading thereto.

Interestingly, we found no indication, in our

examunation of the record, of any attempt to

have the class certified. Final judgment, there-

fore, was rendered only on behalf of the named

plaintiffs.

SCOTT v. MOORE

by this characteristic. Id. These are but

first steps, and do not enable us w define

the § 1985(3) class, for many clearly

defined and easily identifiable groups of

persons who- might be considered a “class”

for seme other purpose have been denied

§ 19853) class status: homosexuals,” ten-

ant organizers,” debtors,” persons who file

voluntary petitions in bankruptcy physi-

cians who testify in malpractice suits,™ in-

jured workers who assert claims™ and

trade association members.“

The majority looks to our en bane deci-

sion in Melallan v. Mississippi Power &

Light Co., 54S F.2d 919 (Sth Cir. 1977), for

the gauge Ww measure whether the Scott-

Matthews class is the kind of class Congress

intended to protect when it enacted

§ 19853). They correctly recount the three

reasons given in McLellan for holding that

§ 19853) does not cover persons who file

voluntary petitions in bankruptcy.™

First, the legislative history of the Ku

Klux Klan Act contains no evidence of

congressional concern about discrimina-

tion against persons who become insol-

vent. Second, while the protection af-

forded by the civil rights acts is not stat-

ic, it would be inappropriate to enlarge

the group of protected classes to include

bankrupts when Congress had specifically

declined to prohibit discrimination

against them. Third, including bank-

rupts within the ambit of Section 19853)

48. DeSantis v Pacific Tel. & Tel Co., 08 F 2d

327 (9th Cw 1979).

49. Carchman v. Korman Corp., 594 F.2d 354

(34 Cir), cert. demed, 444 U.S. 898, 100 S.Ct.

205, 62 L.Ed.2d 133 (1979).

3®. Lessman v. McCormick, 59) F.2d 605 (10th

Cir. 1979).

Si. Mei etlan v Mississippi Power & Light Co.

545 F 2d Y19 cath Cor. 1977) (em banc).

A-45

would be unwarranted in light of the

Supreme Court's refusal to characterize

the right to file a bankruptcy petition as

a fundamental right.

Slip op. page 15457, page ——- supra.

But, as our colleagues acknowledge,

McLellan does not attempt to define what

groups are and what groups are not

§ 19853) classes. Jd McLellan sets up

only some of the criteria for exclusion. To

determine that the present group is includ-

ed as a § 1985(3) class because it is not one

of those excluded by McLellan is to adopt

the erroneous premise that all classes are

comprehended except those barred for the

same reason bankruptcy petitioners were

eliminated by McLellan.

Furthermore, we believe that the majori-

ty’s analysis of the McLellan factors is in-

correct. The legislative history and, indeed,

the popular name of the statute make clear

the evil that was addressed, the Ku Klux

Klan. Congress in 1871 was assuredly not

trying to protect non-union workers, not

only because it would not then have recog-

nized the difference between union mem-

bers and non-members but simply because

the Klan posed no threat to such workers.

The regional hostility the majority finds as

a second identification for an appropriate

class could scarcely embrace Cross Con-

struction, a Texas corporation, Paul Scott, a

resident of Texas, or James Matthews, also

a resklent of Texas at the time of the

$2. Bricker v. Crane, 468 F.2d 1228 (ist Cir.

1972). cert. dened, 410 U.S. 930, 93 S.Ct 1368,

35 L.Ed.2d 592 (1973).

53. Kimble v. D. J. McDuffy, inc , 648 F.2d 340

(Sth Cor. 1981) (en banc), cert. dened, US

~~, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981).

534. Arnold v. Tiffany, 487 F.2d 216 (%h Cir

197%) cert. demed, 415 U.S. 984, 94 S.Ct. 1578,

39 Ltd. 2d B81 (1974)

55. McLellan, 545 F.2d at 932-33.

A- 46

incklent. Nor does subsequently enacted

federal labor legislation suggest that Scott

and Matthews are members of a class pro-

tected by § 19853). That legislation ex-

presses the national labor policy as encour-

aging collective bargaining. 2 U.S.C.

§ 102. Although Congress has recognized

the “right to refrain from any or all such

activities,” id. § 157, it has never adopted a

national labor policy protecting an individu-

al’s “right” w work for a nonunion employ-

er. The right to belong or not to belong to

a union is considerably different from the

asserted “right” to work for a nonunion

employer, for, as we have already seen,

every employer whose activities affect in-

terstate commerce and his employees are

subject to the requirements of collective

bargaining. /d. § 158(d). Finally, the kin-

ship asserted by the majority to exist be-

tween economic and political association is a

strange one, fur in this country our political

parties embrace the entire spectrum of eco-

nomic classes.

If the class recognized by the majority

includes, as we have supposed, persons who

do not belong to a union and who want to

work for an employer who hires other non-

union employees, there are yet other rea-

sons not to accor! such a class § 1985(3)

protection. This class is one newly defined

by this case, not one having any previous

discernible jurisprudential identity. It is

not a “class” marked by historical oppres-

sion, by minority status, by any social or

political animus directed against it, by any

56. Compare Slip op. pages 15460-15461, pages

~~ supra with the panel opimion, Scott

v. Moore, 640 F.2d 708, 718 (1981) (che class

composed of “nonumion workers and their em-

ployers falls within the statute's protective

ambit").

87. Slip op. pages 15460-15461, pages —— -

—— supra.

SCOTT v. MOORE

political or religious belief, or by any of the

indicia usua

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