Amicus Brief — Carpenters v. Scott

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No. 82-486 Man 16 1963

IN THE CLERK

Supreme Court of the Unite

OCTOBER TERM, 1982

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS

OF AMERICA, LOCAL 610 (AFL-CIO), et al.,

. Petitioners,

PAUL E. Scott, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES AS AMICUS CURIAE

ROBERT T. THOMPSON

MELVIN R. HUTSON

GEORGE R. SALEM

THOMPSON, MANN & HUTSON

1730 Pennsylvania Ave., N.W.

Suite 1000

Washington, D.C. 20006

202-783-1900

Of Counsel: Attorneys for the

STEPHEN A. BOKAT Chamber of Commerce

NATIONAL CHAMBER of the United States,

LITIGATION CENTER as Amicus Curiae

1616 H Street, N. W.

Washington, D. C. 20006

202-463-5337

March 18, 1983

TABLE OF CONTENTS

TABLE OF AUTHORITIES. 8

INTEREST OF THE AMICUS CURIAE ................

II.

III.

RESPONDENTS’ CLAIMS ARE PROPERLY

COGNIZABLE UNDER SECTION 1985 (3)

A. The Decision of the Court Below Is Consist-

ent With the Holding of This Court in

Griffin v. Breckenridge

THE LEGISLATIVE HISTORY OF SECTION

1985(3) SUPPORTS COGNIZANCE OF RE-

SPONDENTS’ CLAIMS. Ss

A. The Ku Klux Klan in 1871 Was A Political

B. The Legislative History Evinces Congres-

sional Concern For Persons Victimized Due

To Their Political Beliefs and Associations,

and Due to the Regional Animus Which

Motivated the K&K ann

THE REQUISITE CLASS-BASED, INVIDI-

OUSLY DISCRIMINATORY ANIMUS IS

— —— —-—-—„— — —

A. Discrimination Against Nonunion Employ-

ees and Their Employer Is Class-Based, In-

vidiously Discriminatory Animus Proscribed

by Section 1985(3), Where the Animus Is

Regional As Well As Ideological, and Mani-

fests Itself Through Violence ee

7sil apsiomemnbanl

TABLE OF CONTENTS—Continued

Page

C. Lower Court Decisions, All Progeny of Grif-

fin v. Breckenridge, Accord Broad Breadth

to the Scope of Class-Based Conspiracies

Which Fall Within the Purview of Section

. 20

IV. RESPONDENTS’ CLAIMS UNDER SECTION

1985(3) SEEK PROTECTION OF RIGHTS

CLEARLY WITHIN THE AMBIT OF THE

STATUTE AND WITHIN CONGRESS’S

eK ee

SERS

C. The Employer Is An Appropriate Plaintiff.

e AN a Se aa 28

iii

TABLE OF AUTHORITIES

Cases: Page

Abood v. Detroit Board of Education, 431 U.S. 209

ͤ—y—-—— . . ‚ —⏑ 24

Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971)

// 21

Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288

I c 28

Baer v. Baer, 450 F. Supp. 481 (N. D. Cal. 1978) 21

Beamon v. W. B. Saunders Co., 413 F. Supp. 1167

rr. e ee Lee 21

Brotherhood of Railroad Trainmen v. Virginia,

re / x 24

Browder v. Tipton, 650 F. 2d 1149 (6th Cir. 1980) 18, 19

Brown v. Villanova University, 378 F. Supp. 342

IIc 20

Buckley v. Valeo, 424 U.S. 1 (19760 28

Cameron v. Brock, 473 F. 2d 608 (6th Cir. 1973) 20

Collins v. Hardyman, 341 U.S. 651 (1950) 6, 21

Crutcher v. Commonwealth of Kentucky, 141 U.S.

90 25, 28

Curran v. Portland Superintending School Com-

mittee, 435 F. Supp. 1063 (D. Me. 1977) ............. 21

Daniel Construction Company, et al. v. Baltimore

Building and Construction Trades Council, et al.,

No. R-81-1074 (D. Md. filed April, 19817 16

Des Vergnes v. Seekonk Water District, 601 F.2d

ID . 27

District 1199 National Union of Hospital and

Health Care Employees (Frances Scherver

Home and Hospital), 345 N. L. R. B. 105 (1979) 18

Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.

t? t nr᷑ʃn)ir nn 8 18, 19

First National Bank of Boston v. Bellotti, 435

. 28

Franceschina v. Morgan, 346 F. Supp. 833 (S. D.

rr 21

Fulton Market Cold Storage Company v. Cullerton,

582 F. 2d 1071 (7th Cir. 1978), cert. denied, 439

ee 27

TABLE OF AUTHORITIES—Continued

Page

Glasson v. City of Louisville, 518 F.2d 899 (6th

Cir. 1975), cert. denied, 423 U.S. 9830 20

Great American Federal Savings & Loan Ass'n v.

Novotny, 442 U.S. 366 (19799 17, 19

Griffin v. Breckenridge, 408 U.S. 88 (19717 passim

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

U.S. 241 (1964) „„

Heyman v. Hays, 236 US. 178 (1916) — — 28

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

r 21

International Union, United Automobile, Aero-

space and Agricultural Implement Workers, et

al. v. National Right to Work Legal Defense and

Educational Foundation, Inc., 590 F.2d 1139

r .... —%—᷑⁸ꝭ1 f cc ae 28

Katzenbach v. McClung, 379 U.S. 294 (1964) 25, 26

Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th

r 21

Local 1 (ACA) Broadcast Employees v. Interna-

tional Brotherhood of Teamsters, 419 F. Supp.

263 (E.D. Pa. 1976) aff'd in part and rev'd in

part on other grounds, 614 F.2d 846 (3d Cir.

Pe eee 20

Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir.

EE 21

McLellan v. Mississippi Power & Light Co., 545

F.2d 919 (5th Cir. 1977) (en banc) 8,9

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

cert. denied, 424 U.S. 958 (1976) ........................ 20

Mother Goose Nursery Schools, Inc. v. Sendak, 502

F. Supp. 1319 (N.D. Ind. 1980))ÿ 27

NAACP v. Alabama, 357 U.S. 449 (1958) ............ 28

N.L.R.B. v. Denver Building and Construction

Trades Council, 341 U.S. 675 (19817 5, 15

N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S.

„ 26

Oklahoma v. Kansas Nat. Gas. Co., 221 U.S. 229

(1911) 28

TABLE OF AUTHORITIES—Continued

Page

Philadelphia Yearly Meeting of the Religious Soci-

ety of Friends v. Tate, 519 F.2d 1335 (3d Cir.

—A 8 20

Puentes v. Sullivan, 425 F. Supp. 249 (W. D. Tex.

— . ——— 20

Rankin v. Howard, 457 F. Supp. 70 (D. Ariz.

1978), rev'd on other grounds, 633 F.2d 844 (9th

Cir. 1980), cert. denied, 101 S.Ct. 2020 21

Reichardt v. Payne, 396 F. Supp. 1010 (N.D. Cal.

1975), aff'd sub nom. Life Insurance Co. of

North America v. Reichardt, 591 F.2d 499 (9th

Xx ͤ—ꝗ— 21

Sawmill Products, Inc. v. Town of Cicero, Cook

County, Illinois, 477 F. Supp. 636 (D. III. 1979) 27

Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en

ee passim

Selzer v. Berkowitz, 459 F. Supp. 347 (E. D. N. v.

＋— . 20

Silkwood v. Kerr-McGee Corp., 637 F. 2d 743 (10th

Cir. 1980), cert. denied, —— US. ——, 102

I een ä 18. 19

Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973),

cert. denied, 417 U.S. 910 (1974) 20

Thomas v. Collins, 323 U.S. 516 (1945) 24

Union de Tronquistas Local 901 (Lock Joint Pipe

& Co.), 202 N.L.R.B. 399 (1973) 18

United States v. Enmons, 410 U.S. 396 (19733 2

United States v. Harris, 106 U.S. 629 (1882) 7

Ward v. Connor, 657 F.2d 45 (4th Cir. 1981),

cert. denied, —— US. ——, 102 S.Ct. 1253

— en eT 21

Constitutional Provisions:

NN ayy passim

U.S. Const. amend. I ...... passim

ES 25

TABLE OF AUTHORITIES—Continued

Statutes: Page

Civil Rights Act of 1871 §1, 42 U.S.C. § 1983

Sf een 27

Civil Rights Act of 1871 nds 42 U.S.C. § 1985(3)

Fo passim

Civil Rights Act of 1964, 42 U.S. C. f 704 (a)

RS Seer ee 17, 26

Hobbs Act, 18 U.S.C. § 1951 (1976) — „% 2

National Labor Relations Act, 29 U.S.C. §§ 141-

eC 1

Racketeer Influenced and Corrupt Organization

Act, 18 U.S.C. §§ 1961-1968 (1976 & Supp. III

1717777 2

The Travel Act, 18 U.S.C. § 1952 (197055 2

Miscellaneous :

Avins, The Reconstruction Amendments Debates,

ES ne 10

Cong. Globe, 42d Cong., Ist Sess. (187177) passim

H.R. Rep. No. 1, 42d Cong., Ist Sess. XXX-XXXI

——— K . 0 10

Proposed Amendments to NLRA, Hearings on

S. 294, Before the Subcommittee on Labor, 95th

Cong., Ist Sess. 45 (1977) — 15, 16

In THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-486

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS

or AMERICA, LOCAL 610 (AFL-CIO), et al.,

4 Petitioners,

Paul E. Scorr, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Fifth Cireuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

Incidents of violence against nonunion employees are a

serious and recurring problem. Nonunion workers in in-

dustries from construction to coal mining have been sub-

jected to violent attacks based upon their decision and

efforts to perform their contractual obligations on a non-

union basis. Nonunion employers have been repeatedly

subjected to attacks upon their property by individuals

and groups protesting a nonunion construction project or

the opening of a nonunion mine.

Labor relations and, in particular, violence have been

traditional concerns of the government of the United

States and of the Federal Courts. Local courts and law

enforcement agencies are willing and able to use their

powers to protect life and property in most potentially

violent situations. However, there are far too many in-

1 See, National Labor Relations Act, 29 U.S.C. §§ 141-187 (1976).

stances in which the strength of local sentiment prevents

these agencies from properly protecting nonunion em-

ployers and workers from violence, or from providing

them with adequate remedies for injuries sustained.“

Such situations are particularly difficult where the non-

union group is regarded as a class of “outsiders” as op-

posed to “local people” who feel that they have some right

to the jobs being performed on a nonunion basis. The

instant case presents such a situation. In its en banc

opinion below the Fifth Circuit properly applies existing

law, 42 U.S.C. 8 1985 (3), to give an adequate fed-

eral remedy to a group of employers and employees in-

jured by acts of violence inflicted upon them because of

their nonunion status. The Chamber is strongly of the

opinion that violence, intentional torts against person and

property, and other coercive tactics have no place in the

labor relations context, and are contrary to the public

interest.

The Chamber of Commerce of the United States

(“Chamber”) is the largest federation of business organ-

izations and individuals in the United States. Its total

membership exceeds 235,000, including over 230,000 cor-

porations, partnerships and individuals, as well as over

4,000 state and local chambers of commerce and profes-

sional organizations. The Chamber regularly presents its

2 As the Fifth Circuit noted in its en banc opinion below:

It should be observed that the National Labor Relations Board

has a long-established policy against awarding monetary dam-

ages for physical injury and property damage caused by strike

or picket line violence for which the union is held respon-

sible... .

Scott v. Moore, 680 F.2d 979, 996 n.13 (5th Cir. 1982) (en banc)

(citations and parentheticals omitted).

Other statutory schemes are equally ineffective. See, e.g., Racketeer

Influenced and Corrupt Organization Act, 18 U.S.C. §§ 1961-1968

(1976 & Supp. III 1979); The Travel Act, 18 U.S.C. § 1952 (1976);

Hobbs Act, 18 U.S.C. § 1951 (1976) and United States v. Enmons,

410 U.S. 396 (1973).

members’ views to this Court and lower federal courts on

issues of major concern to the business community.’

Many Chamber members are employers and individuals

who have been or may be subjected to acts of violence.

Many Chamber members occasionally do business in areas

where there is some hostility toward the employment of

“outsiders.” Therefore, Chamber members are vitally in-

terested in the protection of those who have suffered from

violence directed at them because they are part of a group

that is not affiliated with locally established labor organ-

izations. Thus, with the consent of the parties,“ the

Chamber is appearing as Amicus Curiae to urge on be-

half of its members that the en banc decision of the Court

of Appeals for the Fifth Circuit be affirmed.

SUMMARY OF ARGUMENT

The principal issue on appeal is whether Section

1985(3) provides a remedy for injuries sustained by

Respondents in an episode of mob violence resulting from

a private conspiracy motivated by pervasive regional

hostility and ideological animus qualifying as “class-based

invidiously discriminatory animus” against nonunion em-

ployees and their employer attempting to perform their

contractual obligations in “union country” on a nonunion

basis. Proper resolution of this issue requires careful

analysis of the factors which led the Court to its decision

in Griffin v. Breckenridge, 403 U.S. 88 (19%), that “all

indicators—text, companion provisions, asd legislative

history—point unwaveringly to § 1985(3)’s coverage of

private conspiracies.” Id. at 101. Analysis of these fac-

See, e.g., Marshall v. Barlow's, Inc., 436 U.S. 307 (1978); Whirl-

pool Corporation v. Marshall, 445 U.S. 1 (1980); Associated Gen-

eral Contractors of California, Inc. v. California State Council of

Carpenters 46, et al., 51 U.S.L.W. 4139 (U.S. Feb. 22, 1983).

* This brief is filed with the written consent of all parties pur-

suant to Supreme Court Rule 36.2. Letters signifying consent have

been separately filed with the Court.

tors leads inescapably to the conclusion that the court

below was correct in finding that the Griffin requirements

had been met and that Respondents stated a claim for

relief under Section 1985 (3).

IL.

Analysis of the legislative history of the Congressional

debates surrounding the Ku Klux Klan Act, of which

Section 1985(3) is a part, compels the conclusion that

nonunion employees and their employer, as victims of the

sort of class-based, invidiously discriminatory ani ‘o

which Respondents herein were subjected, constitu’ §

class within the purview of Sectior 1985(3) as envisio:

by the Forty-Second Congress. The Republican Party

was in the majority in the Forty-Second Congress which

enacted the Ku Klux Klan Act in 1871. The Ku Klux

Klan in 1871 was a political organization which used

violence as a means of combatting Northern businessmen,

“carpetbaggers,” Blacks, Northern laborers and Republi-

cans. The political motivations and pervasive regional

hostilities of the Klan point unwaveringly to inclusion,

under the facts in the case at bar, of the class of non-

union “outsider” employees and their “outsider” employer

within the remedial scope of Section 1985(3). Indeed, the

class-based, invidiously discriminatory animus of Peti-

tioners herein was precisely of the sort which Section

1985(3) was designed to remedy. See Cong. Globe, 42d

Cong., 1st Sess. (1871). Regional animus involving vio-

lent means to achieve political ends was of particular

concern to Republicans in the Forty-Second Congress, be-

cause Klan violence was often aimed at coercing Republi-

cans in the Democrat-controlled South to leave that re-

gion.

The legislative history also evinces Congressional con-

cern for persons victimized due to their political beliefs

and associations and the kind of regional animus which

motivated the Klan. Thus, concern for people discrimi-

nated against because of their politicai associations, cou-

pled with concern for the precarious status of Republi-

cans in the South due to pervasive regional hostility, led

to enactment of Section 1985(3). In enacting the Ku

Klux Klan Act the Forty-Second Congress intended to

protect people victimized because of pervasive regional

hostility and their economic and political beliefs and as-

sociations. The class of nonunion employees and their

employer manifestly qualifies as a class whose members

are victimized for these same reasons, and who are thus

within the statute’s remedial scope.

III.

The requisite class-based, invidiously discriminatory

animus required by Griffin is also present. Discrimination

against nonunion employees and their nonunion employer

is class-based, invidiously discriminatory animus pro-

scribed by Section 1985(3) where the animus is re-

gional as well as ideological, and manifests itself through

violence. The facts presented typify the hatred of

craftsmen in the construction industry who choose to as-

sociate with and work for nonunion employers on jobs

that a union and its members historically regard as

theirs. This Court has long recognized the long-standing

animus of unionized workers toward nonunion craftsmen

in the construction industry. As Justice Douglas noted

in his dissenting opinion in NLRB v. Denver Building

and Construction Trades Council, 341 U.S. 675, 692

(1951), “The employment of union and nonunion men

on the same job is a basic protest in trade union history.”

Recognition of the realities of the workplace in the labor

relations context unquestionably supports the holding of

the court below that Respondents stated a claim for relief

under Section 1985 (3).

Each of the cases relied upon by Petitioners is distin-

guishable from the case at bar. None of those cases in-

volved either the regional animus or the violence which

are present in this case. Where the animus involves geo-

graphical or cultural phenomena akin to the “pervasive

regional hostility” present in this case, and when this

animus manifests itself through violent intentional torts

such as assaults, batteries and destruction of property,

then this qualifies as 2lass-based discriminatory animus

proscribed by Section 1985 (3).

Lower court decisions, all progeny of Griffin, supra,

accord broad breadth to the scope of class-based conspir-

acies which fall within the purview of Section 1985(3).

The “evolution of the decisional law” post-Griffin should

be evaluated in the same light as the Court evaluated the

trend of cases subsequent to Collins v. Hardyman, 341

U.S. 651 (1950). Evaluation of the decisional law post-

Griffin leads to the inescapable conclusion that the court

below was correct in finding that the class of Respond-

ents falls within the remedial scope of Section 1985(3).

IV.

Respondents’ claims under Section 1985(3) seek pro-

tection of rights clearly within the ambit of the statute

and within the power of Congress to protect. The object

of Petitioners’ conspiracy was to deprive Respondents of

their First Amendment associational rights and rights to

engage in interstate commerce, thereby depriving them of

equal protection within the meaning of Section 1985(3).

The legislative history and evolution of decisional law

clearly supports this conclusion. The source of Congres-

sional power to reach the conspiracy of Petitioners herein

is conferred by the Commerce Clause, Article I, Section 8

of the Constitution.

ARGUMENT

I. RESPONDENTS’ CLAIMS ARE PROPERLY COG-

NIZABLE UNDER SECTION 1985(3)

A. The Decision of the Court Below is Consistent with

the Holding of This Court in Griffin v. Breckenridge

An analysis of any claim pursuant to 42 U.S.C.

§ 1985(3)* must naturally begin with this Court’s de-

cision in Griffin v. Breckenridge, 403 U.S. 88 (1971).

5 42 U.S.C. § 1985 (3) (Supp. III 1979).

In that case, the Court, relying upon the language of the

statute itself, the statute’s legislative history and the

meaning attributed by Congress and the courts to analo-

gous statutes, held that Section 1985(3) provides a civil

remedy for damages arising from wholly private con-

spiracies aimed at depriving equal enjoyment of rights

secured by the law for all. Jd. at 102. Petitioners’

concern that the court below interpreted Section 1985 (3)

in a manner which creates a general federal tort law is

unfounded given this Court’s admonition in Griffin:

The constitutional shoals that would lie in the path

of interpreting § 1985(3) as a general federal tort

law can be avoided by giving full effect to the con-

gressional purpose—by requiring, as an element of

the cause of action, the kind of invidiously discrimi-

natory motivation stressed by the sponsors of the

limiting amendments. The language requiring intent

to deprive of equal protection, or equal privileges

and immunities, means that there must be some

racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ ac-

tion. The conspiracy, in other words, must aim at a

deprivation of the equal enjoyment of rights secured

by the law to all.

Griffin v. Breckenridge, 403 U.S. 88, 101-102 (1971)

(footnotes and citations omitted). As discussed more

fully infra, in keeping with this admonition, the court

below correctly found class-based, invidiously discrimina-

tory animus from the actions of Petitioners herein.

Petitioners’ principal argument is that Section 1985 (3)

requires some sort of state action as contemplated by the

Fourteenth Amendment. In so arguing, Petitioners would

have the Court ignore the dictates articulated in Griffin

that:

[There is nothing inherent in § 1985(3) that re-

quires the action working deprivation to come from

the State. See, e.g., United States v. Harris, 106 U.S.

629, 643. Indeed, the failure to mention any such

requisite can be viewed as an important indication

of congressional intent to speak in § 1985(3) of all

deprivation of “equal protection of the laws” and

“equal privileges and immunities under the laws,”

whatever their source.

Id. at 97.

In reaching the conclusion that Section 1985(3) pre-

vides a civil remedy for damages arising from wholly pri-

vate infringements of constitutional rights “whatever

their source,” the Court articulated the following four

elements as necessary to state a cause of action under

Section 1985 (3):

. . . IA complaint must allege that the defendant

did:] (1) “conspire or go in disguise on the highway

or on the premises of another” (2) “for the purpose

of depriving, either directly or indirectly, any person

or class of persons of the equal protection of the laws,

or of equal privileges and immunities under the

laws.” It must then assert that one or more of the

conspirators (3) did, or caused to be done, “any act

in furtherance of the object of [the] conspiracy,”

whereby another was (4a) “injured in his person or

property” or (4b) “deprived of having and exercis-

ing any right or privilege of a citizen of the United

States.”

Id. at 102-103. Under the facts herein presented, the

court below found that Petitioners’ actions satisfied each

of these four elements articulated in Griffin:

Griffin’s principles indicate the plaintiffs here have

made out a cause of action under § 1985(3). The

facts of this case clearly embody four of the five ele-

ments essential to a successful 1985(3) claim. First,

the evidence is sufficient to establish a conspiracy

among some of the Council’s constituent unions and

individual defendants. Second, proof that plaintiffs

were assaulted, beaten, and threatened and that

property was destroyed establishes the requisite “act

in furtherance” of the conspiracy. Third, these acts

are indisputably illegal apart from § 1985(3) as

required by McLellan [McLellan v. Mississippi Power

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

banc)]. Fourth, there is evidence of personal in-

juries, property damage. and economic loss. The only

element requiring analysis is the requirement that

the conspiracy be for the purpose of depriving a per-

son of the equal protection of the laws or equal privi-

leges and immunities under the laws. This require-

ment, in turn, has two components: (1) the violation

of some protected right and (2) a class-based invidi-

ously discriminatory animus motivating the violation.

Scott v. Moore, 680 F.2d 979, 988 (5th Cir. 1981) (en

banc).

The court below correctly found that the Griffin re-

quirements had been met. Amicus will first present an

analysis of the relevant legislative history to place the

Griffin requirements in the proper historical perspective.

II. THE LEGISLATIVE HISTORY OF SECTION 1985(3)

SUPPORTS COGNIZANCE OF RESPONDENTS’

CLAIMS

After extensive analysis of the legislative history of the

Ku Klux Klan Act, of which Section 1985(3) is a part,

this Court in Griffin stated, “It is thus evident that all

indicators—text, companion provisions, and legislative his-

tory—point unwaveringly to § 1985(3)’s coverage of pri-

vate conspiracies.” Id. at 101. Further analysis of the

legislative history leads inescapably to the conclusion that

nonunion employees and their employer, as victims of the

sort of class-based, invidiously discriminatory animus to

which Respondents herein were subjected, constitute a

class within the purview of Section 1985(3) as envisioned

by the Forty-Second Congress.

A. The Ku Klux Klan in 1871 Was A Political Organi-

zation

The Ku Klux Klan in 1871 was a political organization

which used violence as a means of combatting Northern

businessmen, “carpetbaggers”, Blacks, Northern laborers

and Republicans. The political motivations and regional

hostilities of the Klan are especially relevant for deter-

mining whether the class of nonunion “outsider” employ-

ees and their “outsider” employer are encompassed within

the remedial scope of Section 1985(3).

Republicans in the Forty-Second Congress were espe-

cially concerned about the political motivations for Klan

violence, because Republicans were in the majority in that

Congress and Klan violence was often aimed at coercing

Republicans in the Democrat-controlled South to leave

that region. These concerns prompted the Forty-Second

Congress to establish a joint committee to investigate the

Klan. The Majority Report of the Senate Select Commit-

tee to Investigate Alleged Outrages in the Southern States

reported :

It is clearly established . . . [t]hat the Ku-Klux or-

ganization does exist, has a political purpose, is com-

posed of members of the democratic or conservative

party, [and] has sought to carry out its purposes by

murders, whippings, intimidations, and violence.“

The political nature of the problem was repeatedly and

vociferously asserted in debates concerning the Ku Klux

Klan Act.“ Republican Congressmen spoke at length re-

garding the political nature of the Klan. Congressman

Stoughton (R-Mich.) described the Klan as having a “po-

litical purpose . . comprised of members of the Demo-

cratic or Conservative party,” and as achieving its ends

through “violence against its opponents.” Cong. Globe,

42d Cong., Ist Sess. 320 (1971). Congressman Hoar

(R.-Mass.) described the Klan as a “secret political con-

spiracy.” Id. at 333. Congressman Elliott (R.-S.C.)

stated, “the design of the Ku Klux Klan is political.” Jd.

at 391. Congressman Roberts (R.-N.Y.) described the

Klan as an organization. .. political in its origins and

aims .... [T]he victims whose property is destroyed,

* H.R. Rep. No. 1, 42d Cong., Ist Sess. XXX-XXXI (1871).

7 See Cong. Globe, 42d Cong., Ist Sess. (1871); See also Avins,

The Reconstruction Amendments Debates, 484-570 (1967).

whose persons are mutilated, whose lives are sacrificed,

are always Republicans.” Id. at 412-13. Congressman

Burchard (R-Ill.) stated: “through their agency the lives

and persons of political opponents are doomed to violence

and outrage.” Jd. at 312. The record in the House of

the Ku Klux Klan debate is thus replete with references

to the political motivations for the violent actions of Klan

members.*

The debate on the Ku Klux Klan Act in the Senate was

substantially similar. Republican Senators echoed the

sentiments of their House brethren in imputing political

designs to Klan violence. Senator Pratt (R-Ind.) re-

marked that the leading purpose of the Klan “is to punish

men for their political opinions.” Id. at 504. Senator

Edmunds (R-Vt.) asserted that the “systematic plan [of

the Klan] is not to leave in any of [the Southern] States

a brave white man who dares to be a Republican or a

colored man who dares to be a voter.” Id. at 702. Senator

Pool (R-N.C.) described the Klan as “a Democratic or-

ganization, in the interests of the Democratic Party.”

Id. at 108. Senator Morton (R-Ind.) described the Klan’s

purposes in a manner which is peculiarly applicable to

the facts of the case at bar: “The purpose [of the Klan]

is by these innumerable and nameless crimes to drive

those who are supporting the Republican party to aban-

don their political faith and to flee from the State.” Id.

at 252.

8 See, e.g., remarks of Congressman McKee (R-Miss.), id. at 426

(“The dead and the wounded, the maimed and the scourged, are

all, all Republicans.“ ]; Cobb (R-N. C.), id. at 437 (“every victim of

Ku Klux outrage has been a Republican”); Butler (R-Mass.), id.

at 443 (Klan is a “political engine in the hands of the [ Democratic

Party]“; Coburn (R-Ind.), id. at 457 (Klan is “political in its

nature”); Lansing (R-N.Y.), id. at 488 (“the Ku Klux in their

crimes are inspired by political zeal”); Blair (R-Mich.), id. app.,

at 72 (“they murder for a difference in political opinions”); Perry

(R-Ohio), id. app. at 78 (Klans are “organizations in aid of the

Democratic party“); Snyder (R-Ark.), id. app. at 196 (the “object

{of the Klan is] the defeat of Republicanism”).

As the foregoing historical analysis reveals, regional

animus involving violent means to achieve political ends

was of particular concern to the Republican majority

in the Forty-Second Congress when it enacted the Ku

Klux Klan Act, including Section 198503). These de-

bates evince a remarkable similarity between the motiva-

tions of the Klan and those of a mob of union members

engaged in violent mass picketing against an out-of-state

nonunion contractor and its out-of-state nonunion employ-

ees. The designs of both are political and regional. The

Klan attempted to force Republicans out of the South—

the area which they controlled through the conservative

Democratic party. Likewise, union members in the Port

Arthur area, all members of the constituent local unions

of the Sabine Area Building and Construction Trades

Council, were endeavoring to force Cross Construction

Company and its nonunion employees out of the area—

an area which they and their unions controlled. The

means by which each attempted to achieve their ends

were the same violence.

B. The Legislative History Evinces Congressional

Concern For Persons Victimized Due to Their

Political Beliefs and Associations, and Due to the

Regional Animus Which Motivated the Klan

A manifestation of the political motivations of the Klan

was the regional animus or hostility of Klansmen to-

werd “carpetbaggers,” Northern businessmen, Blacks,

out-of-town workers and the like. This regional animus

is exactly the sort of animus harbored by union workers

in a primarily unionized area toward out-of-town, non-

union contractors and their nonunion employees.

These carpetbaggers, Northern businessmen and work-

ers were primarily Republicans who had emigrated South

in an attempt to improve their economic circumstances

after the Civil War. These Northern emigres often allied

themselves with the newly emancipated Black population,

which was also a Republican stronghold in the post-Civil

War South. They were thus among the classes which the

Forty-Second Congress sought to protect when it enacted

the Ku Klux Klan Act.

The concern for these classes and acknowledgement of

the regional hostility which existed is evidenced by the

statements of several members of Congress. Senator Ed-

monds (R.-Vt.) chaired the Senate Judiciary Committee

at the time, was Senate Manager of the bill, and was thus

eminently familiar with its provisions. He explained the

bill as follows:

We do not undertake in this bill to interfere with

what might be called a private conspiracy growing

out of a neighborhood feud of one man or set of men

against another to prevent one getting an indictment

in the State courts against men for burning down

his barn; but, if in a case like this, it should appear

that this conspiracy was formed against this man

because he was a Democrat, if you please, or because

he was a Catholic, or because he was a Methodist, or

because he was a Vermonter, (which is a pretty

painful instance that I have in my mind in the State

of Florida within a few days where a man lost his

life for that reason) then this section could reach it.

Cong. Globe, 42d Cong., Ist Sess. 567 (1871).

As this passage indicates, “the congressional debates

evince a hearty regard for persons who are victimized

because of their political beliefs and associations.” Scott

v. Moore, supra at 992. This ‘hearty regard’ is evidenced

repeatedly throughout the debates. Senator Osborne

(R-Fla.) reiterated the necessity to protect “men who

have gone to the South from the other states in the

lawfu! and harmless pursuit of their proper vocations.”

Cong. Globe, 42d Cong. Ist Sess. 653 (1971). This con-

cern specifically encompassed workers and craftsmen.

Senator Freylinghausen (R-N.J.) stated:

The journeyman cobbler of New England may wrap

his awl and wax and lash on his leather apron and

stand in Charleston, or New Orleans, or Savannah,

and say “here I will settle in despite of the Constitu-

tion and of the laws of these States; and I have a

right to invoke the power of the nation here to pro-

tect me”. The mason or the carpenter of New Jersey

may put his chisels or his trowels in his carpetbag,

and go to any part of the land, and say, ‘Here I will

stay in despite of the holy horror of those who cry

out, ‘Adventurer!, ‘Scalawag’, ‘Carpetbagger’.

Id. at 498. Thus, Northern workers who had moved

South in search of economic opportunity were contem-

plated by the framers of Section 1985 (3).

Although the Ku Klux Klan today proclaims itself to

be a racial organization, it was principally political in

nature in 1871. These political motives and the violent

means employed by the Klan to achieve their political

ends concerned Republicans in the Forty-Second Congress.

These violent attacks on Republicans prompted Congres-

sional concern because they were viewed as manifesta-

tions of a pervasive campaign to prevent Republicans

from establishing the policies of Reconstruction in the

South. Thus, concern for people discriminated against

because of their political associations, coupled with the

concern for the precarious status of Republicans in the

South due to pervasive regional hostility, led the Forty-

Second Congress to enact Section 1985(3).

Therefore, in enacting the Ku Klux Klan Act, the

Forty-Second Congress intended to protect classes of peo-

ple victimized because of pervasive regional hostility, and

their economic and political beliefs and associations. The

class of nonunion employees and their employer mani-

festly qualifies as a class whose members are victimized

for these same reasons. Although the “labor union move-

ment in America was yet to be born when the 42d Con-

gress was in session,” Scott v. Moore, supra at 992, in-

clusion of the class of nonunion employees and their em-

ployer who are discriminated against because of their

nonunion and out-of-town status is entirely consistent

with the original intent of the framers of Section

1985 (3). :

III. THE REQUISITE CLASS-BASED, INVIDIOUSLY

DISCRIMINATORY ANIMUS IS PRESENT

A. Discrimination Against Nonunion Employees and

Their Employer Is Class-Based, Invidiously Dis-

criminatory Animus Proscribed by Section 1985(3),

Where the Animus is Regional As Well As Ideologi-

cal, and Manifests Itself Through Violence

The case law which has developed since this Court’s

decision in Griffin v. Breckenridge, supra, reveais the in-

defensible nature of Petitioners’ claim that Respondents

have failed to identify a “class” which is protected by

Section 1985 (3). In Griffin, the Court stated only “that

there must be some racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspirators’

actions” in order for there to be a cause of action under

Section 1985(3). Id. at 102. Since the discrimination in

Griffin was racially motivated, the Court did not decide

“whether a conspiracy motivated by invidiously discrimi-

natory intent other than racial basis would be actionable

under Section 1985(3).” Id. at 102, n.9. In the years

since Griffin, the federal courts have addressed the ques-

tion of what types of nonracial classes are protected by

Section 1985 (3).

The facts in this case typify the hatred of nonunion

craftsmen which historically has existed in the construc-

tion industry. At least as early as the decision in NLRB

v. Denver Building and Construction Trades Council, 341

U.S. 675 (1951), the courts began to recognize the long-

standing animus of unionized building and construction

trades members toward nonunion craftsmen in the con-

struction industry. As Justice Douglas said in his dis-

senting opinion, “The employment of union and nonunion

men on the same job is a basic protest in trade union

history.” Id. at 692.°

o The animus that Justice Douglas perceived has been repeatedly

recognized the context of a long series of congressional debates

on “common situs picketing” legislation and the equally long history

of litigation on the same subject. See, e.g., Proposed Amendments to

Counsel for the Amicus Curiae know of only four sit-

uations other than the present case where Section 1985 (3)

has been relied upon as a remedy in such situations. Two

cases involved industrial] construction and construction

workers, one coal mine construction, and one immigrant

fishermen. In only one instance has the lower court issued

a written opinion, and in that case the opinion concerns

the denial of the defendants’ motion to dismiss.“ A copy

of the Memorandum Opinion in that case is attached

hereto as an Appendix. There, the animus was directed

against a nonunion out-of-state contractor and its non-

union out-of-state employees who were performing work

under a contract to maintain power plants in Balti-

more, Maryland which had previously been maintained by

Maryland union contractors and union members, most of

whom were residents of Baltimore, Maryland. In that

case, the class-based discriminatory animus of the Mary-

land unions and their members against the out-of-state

contractor and its employees was alleged to have trans-

lated into violent episodes which resulted in personal in-

juries and property damage—much like the damages suf-

fered by Respondents in the case at bar.

The court below properly recognized the realities of the

work place in the labor relations context, and the long-

standing animus of union members toward nonunion

craftsmen in the construction industry. Recognition of

these realities and an understanding of the remedial

scope of Section 1985(3) properly led the majority of the

Fifth Circuit to hold that Section 1985(3) encompasses

a private conspiracy involving regional animus against

nonunion employees and their employer.

NLRA, Hearings on S-294, Before the Subcommittee on Labor, 95th

Cong., Ist Sess. 45 (1977) (Statement of AFL-CIO official Robert

A. Georgine: “In the Denver case, the dissenting Justices correctly

observed that: ‘The employment of union and non-union men on the

same job is a basic protest in trade union history.“

10 Daniel Construction Company, et al. v. Baltimore Building and

Construction Trades Council, et al., No. R-81-1074 (D. Md. filed

April, 1981).

The court below was carefully precise in its holding:

Our decision does not hold or imply that every union-

nonunion controversy 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 necessarily do so.

Neither unionism nor nonunionism suffices to create

a covered class. But where, as here, there is no cam-

paign 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 of the

right to freely associate with one another, a section

1985(3) action will lie.

Scott v. Moore, supra at 995-996. The persuasive reason-

ing of the court below and the precise nature of its hold-

ing renders the attempts of Petitioners to discredit it

spurious.

B. Cases Relied Upon By Petitioners Are Distinguishable

Petitioners quote liberally from Great American Fed-

eral Savings & Loan Ass’n v. Novotny, 442 U.S. 366

(1979), for the proposition that Section 1985(3) cannot

encompass a statutorily created right. The court in

Novotny held that a right created by Title VII could not

be asserted under Section 1985(3). To hold otherwise

in that case would have allowed the plaintiff to bypass

the statutory plan and administrative mechanism created

by Congress. Id. at 375-76. However, as the court below

stated in this case, “Because the litigants here have not

attempted to assert a right created by the Nationa] Labor

Relations Act, the concerns expressed in Novotny are

inapposite to this case.” Scott v. Moore, supra at 996,

n.12.

Thus, Novotny is distinguishable because plaintiff

therein asserted a statutory claim, and a statutory, ad-

ministrative scheme exists under Title VII for cognizance

and relief of a litigant’s claims. No such scheme exists

in the case at bar. Nor is a statutory right asserted by

Respondents herein.

The National Labor Relations Board has a long-

established policy against awarding monetary damages

for physical injury and property damage caused by strike

or picket line violence for which a union is responsible.

See, e.g., Union de Tronquistas Local 901 (Lock Joint

Pipe & Co.), 202 N.L.R.B. 399 (1973) ; District 1199 Na-

tionial Union of Hospital and Health Care Employees

(Frances Scherver Home and Hospital), 345 N.L.R.B.

105 (1979). As further discussed infra, the rights as-

serted by Respondents herein are associational freedoms

derived from the First Amendment and rights derived

from the Commerce Clause.

Petitioners also place heavy reliance upon Silkwood v.

Kerr-McGee Corp., 637 F.2d 743 (10th Cir. 1980) cert.

denied, —— U.S. ——, 102 S.Ct. 132, Browder v. Tipton,

650 F.2d 1149 (6th Cir. 1980), and Dombrowski v.

Dowling, 459 F.2d 190 (7th Cir. 1972). Each is dis-

tinguishable from the case at bar, because none of these

three cases involved violence or regional animus of the

sort involved herein.

The Complaint in Kerr-McGee alleged that defendants

had formed a conspiracy to prevent Silkwood and other

employees from organizing a labor union. Silkwood v.

Kerr-McGee, supra at 745. No allegations of intentional

torts or property damage, violence or any discriminatory

animus involving regional hostilities appear in the Com-

plaint. Nor were these factors evaluated in that court’s

decision. Therefore, despite its initial appearance of ap-

plicability, Kerr-McGee has no real relevance to the case

at bar. Under the historical analysis presented supra,

violence must be a manifestation of the animus in order

for it to qualify for coverage under Section 1985(3).

The legislative history is replete with references to vio-

lence and intentional torts involving assaults, batteries

and property damage. Violence of the sort contemplated

by the Forty-Second Congress was present in the case at

bar, which renders Kerr-McGee distinguishable and argu-

ably irrelevant for purposes of this case.

The facts in Dombrowski involved arbitrary business

discrimination by a corporate landlord and its agents

against lawyers engaged in the practice of criminal law.

Essentially, the defendants in that case refused to rent

office space to Plaintiff because a substantial number of

Plaintiff’s clients were Black or of Hispanic origin. In

addition to finding that the requirement of Section

1985 (3) that “two or more persons. . . conspire or go

in disguise on the highway” had not been met, the

Seventh Circuit held that arbitrary business discrimina-

tion against lawyers engaged in the practice of criminal

law did not deprive the plaintiffs of “equal protection”

under Section 1985 (3) absent state involvement. Id. at

196. No intentional torts, assaults, batteries, property

damage, or violence of any kind were present in Dombrow-

ski. Nor is there any discriminatory animus involving

regional hostility such as that presented in the case at

bar.

Likewise, Browder is distinguishable due to the lack of

violence. The issue in that case was “whether causing

the false arrest of an adversary in a labor dispute vio-

lates the provisions of . . . § 1985(3).” In Browder,

there was no violence, property damage, nor the sort of

regional hostility which is present in this case. Although

there was no “political or sectional animus” present in

Browder, supra, the court below in this case was con-

fronted with facts involving mobs of union members en-

gaging in assaults, batteries and property damage, and

“pervasive regional hostility toward nonunicn employees”

performing construction work in “union country.” The

facts of Browder involved neither the regional animus

nor the violent manifestations of the class-based, discrim-

inatory animus present in this case.

For these reasons, the Novotny, Kerr-McGee, Dombrow-

ski and Browder cases, upon which Petitioners place

heavy reliance, are distinguishable. It is the position of

Amicus that where the animus involves geographical or

cultural phenomena akin to the “pervasive regional hos-

tility” present in the case at bar, and when this animus

manifests itself through violent, intentional torts such as

assaults, batteries and property damage, then this mani-

festly qualifies as class-based, discriminatory animus pro-

scribed by Section 1985 (3).

C. Lower Court Decisions, All Progeny of Griffin v.

Breckenridge, Accord Broad Breadth to the Scope

of Class-Based Conspiracies Which Fall Within the

Purview of Section 1985(3)

Petitioners assert that the class-based, invidiously dis-

criminatory animus required by Griffin is not present in

the instant case. Petitioners would have the Court ig-

nore the growing and well-reasoned body of case law, all

progeny of Griffin, according protection under Section

1985 (3) to classes whose members ave discriminated

against because of regional animus or their political be-

liefs or associations. As discussed supra, inclusion of

these claims within the scope of Section 1985(3) is con-

sistent with the original intent of the framers of the

Ku Klux Klan Act.

Classes which have been held to be protected by Section

1985(3) include the following: professors who talk to or

associate with the CIA, Selzer v. Berkowitz, 459 F. Supp.

347 (E.D.N.Y. 1978); local unions, Local 1 (ACA)

Broadcast Employees v. International Brotherhood of

Teamsters, 419 F. Supp. 263 (E.D. Pa. 1976) affd in

part and rev'd in part on other grounds, 614 F.2d 846

(3d Cir. 1980); demonstrators, Philadelphia Yearly

Meeting of the Religious Society of Friends v. Tate,

519 F.2d 1335 (3d Cir. 1975), Glasson v. City of Louis-

ville, 518 F.2d 899 (6th Cir. 1975), cert. denied, 423

U.S. 930, Brown v. Villanova University, 378 F. Supp.

342 (E.D. Pa. 1974) ; supporters of a political candidate,

Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973),

Puentes v. Sullivan, 425 F. Supp. 249 (W.D. Tex. 1977),

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

denied, 424 U.S. 958 (1976), persons voting for a

sham candidate, Smith v. Cherry, 489 F.2d 1098 (7th

Cir. 1973), cert. denied, 417 U.S. 910 (1974); wor-

shippers at a predominantly white Catholic Church dis-

rupted by human rights demonstrators, Action v. Gannon,

450 F.2d 1227 (8th Cir. 1971) (en banc); persons at-

tempting to furnish advice, information, services to mi-

grant workers in agricultural labor camps, Franceschina

v. Morgan, 346 F. Supp. 833 (S.D. Ind. 1972); victims

of sex discrimination, Hodgin v. Jefferson, 447 F. Supp.

804 (D. Md. 1978), Curran v. Portland Superintending

School Committee, 435 F. Supp. 1063 (D. Me. 1977),

Beamon v. W.B. Saunders Co., 413 F. Supp. 1167 (E.D.

Pa. 1976), Reichardt v. Payne, 396 F. Supp. 1010 (N.D.

Cal. 1975), aff'd sub nom. Life Insurance Co. of North

America v. Reichardt, 591 F.2d 499 (9th Cir. 1979);

and victims of religious discrimination, Marlowe v.

Fisher Body, 489 F.2d 1057 (6th Cir. 1973), Action v.

Gannon, supra; Rankin v. Howard, 457 F. Supp. 70 (D.

Ariz. 1978), rev’d on other grounds, 633 F.2d 844 (9th

Cir. 1980), cert. denied, 101 S.Ct. 2020; Baer v. Baer,

450 F. Supp. 481 (N.D. Cal. 1978) ; Ward v. Connor, 657

F.2d 45 (4th Cir. 1981), cert. denied, — U.S. ——,

102 S.Ct. 1253 (1982) .™

As the Court in Griffin noted with respect to Collins v.

Hardyman, 341 U.S. 651 (1950) :

it is clear, in light of the decisional law in the years

that have passed since that case was decided, that

many of the constitutional problems there perceived

simply do not exist. Little reason remains, therefore,

not to accord to the words of the statute their appar-

ent meaning. That meaning is confirmed by judicial

construction of related laws, by the structural setting

of § 1985(3) itself, and by its legislative history.

11 The court below noted that it found two types of classes within

the protection of § 1985(3): (1) classes “having common charac-

teristics of an inherent nature”—i.e., those classes afforded special

protection under the equal protection clause; and (2) classes whose

members are discriminated against because of their political beliefs

or associations. See, Kimble v. D. J. McDuffy, Inc., 648 F.2d 340

(5th Cir. 1981) (en banc); Scott v. Moore, supra at 991-992. The

Fifth Circuit placed Respondents herein in the second category.

Id. at 992.

Griffin v. Breckenridge, supra at 95-96. The ‘evolution

of the decisional law’ post-Griffin should be evaluated in

the same light as the Court evaluated the trend of cases

post-Collins. This evaluation will lead the Court to affirm

the decision of the court below.

The foregoing line of cases, all progeny of this Court’s

decision in Griffin v. Breckenridge, supra, support the

decision of the Fifth Circuit that the class of nonunion

employees and their employer fall within the scope of

Section 1985(3), where regional union animus qualifying

as class-based discriminatory animus exists and violence

is employed to force the nonunion employer and its non-

union employees to leave the area.

IV. RESPONDENTS’ CLAIMS UNDER SECTION 1985(3)

SEEK PROTECTION OY RIGHTS CLEARLY

WITHIN THE AMBIT OF THE STATUTE AND

WITHIN CONGRESS’S POWER TO PROTECT

The second element of the Griffin test, the requirement

that the conspiracy be for the purpose of depriving Plain-

tiffs of the equal protection of the laws or equal privileges

and immunities under the laws, is the only element seri-

ously contested by Petitioners. This element requires con-

sideration of two lines of inquiry: (1) whether plaintiffs

have alleged violation of a protected right, and (2)

whether the requisite class-based, invidiously discrimina-

tory animus is present. Griffin v. Breckenridge, supra

at 102. Amicus has presented its analysis of the class-

based animus requirement. Amicus will now show the

Court that Respondents herein have alleged violation of

protected rights.

The resolution of this line of inquiry involves two con-

comitant legal questions: (A) whether the right affected

by an unlawful conspiracy is one Congress purported to

reach under Section 1985 (3); and (B) assuming the an-

swer to this question is in the affirmative, whether Con-

gress constitutionally has the power to reach and provide

a means of redress for such a right. See Griffin v.

Breckenridge, supra at 104.

The Complaint herein clearly avers a conspiracy to vio-

late fundamental freedoms Congress intended to reach in

Section 1985(3) and rights constitutionally within Con-

gress’ power to protect.

A. The Protected Rights

In Griffin, the Court stated that a Section 1985(3)

conspiracy “must aim at a deprivation of the equal en-

joyment of rights secured by the law to all.” 403 U.S.

at 102. Respondents herein successfully contended be-

low that the object of the conspiracy of Petitioners was

to deprive them of First Amendment associational rights,

and that deprivation of these associational rights de-

prived them of equal protection within the meaning of

Section 1985(3) as interpreted by the Court in Griffin.

In upholding Respondents’ claims of violation of First

Amendment rights the court below stated, “so long as

Griffin remains viable, we are bound by its determination

that section 1985(3) reaches all deprivations of equal

protection, whatever their source.” Scott v. Moore, supra

at 990. This is a correct interpretation of the law.

Although the right of association was not specifically

discussed in the debates surrounding passage of the Ku

Klux Klan Act, two types of associational rights are fre-

quently mentioned: political associational activities and

commercial association. As delineated supra in the sec-

tion which discusses legislative history, the debates are

replete with references to the Klan as a political organ-

ization and the rights of persons to engage in political

association. Similarly, the concern of the Forty-Second

Congress with economic association was manifest through

the repeated references to carpetbaggers, northern work-

ers and businessmen who had moved South in an effort to

improve their economic circumstances. Thus, economic

and political association were concerns of the Forty-

Second Congress when its members drafted Section

1985 (3).

The Court has repeatedly recognized that association

for the purpose of advancing economic, as well as politi-

cal and religious, interests falls within the protection of

the First Amendment. See Brotherhood of Railroad

Trainmen v. Virginia, 377 U.S. 1, 8 (1964); Thomas v.

Collins, 323 U.S. 516, 531 (1945); Abood v. Detroit

Board of Education, 431 U.S. 209 (1977) (where the

Court recognized that the corollary of the First Amend-

ment’s right to associate to advance economic interests is

the right not to associate). As the court below correctly

noted:

The conspiracy in the case at bar sought to deny

completely the plaintiff employees’ right not to asso-

ciate. The district court found that several truck-

loads of men assaulted 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 conspiracy was intended to deny the

nonunion employees their right not to associate either

by driving them out of the county or coercing them

to unionism through violence. The defendants sought

not merely to force plaintiffs to give financial sup-

port to a union (an act which Abood recognized

could interfere with a person’s freedom not to asso-

ciate), but also to force Cross’s employees 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 protected

right.

Scott v. Moore, supra at 990-991. (footnotes omitted).

The Fifth Circuit correctly identified the rights protected

as those deriving from the First Amendment—the right

to associate with other nonunion employees. The rights

of Cross Construction Company, as employer-plaintiff,

are discussed infra.

B. The Source of Congressional Power

In Griffin the Complaint alleged violation of several

enumerated rights, including rights to freedom of speech,

movement, association and assembly; right to petition the

government for redress of grievances; rights to be secure

in person and home; and right not to be enslaved nor de-

prived of life and liberty without due process. 403 U.S.

at 90. The Court found the Thirteenth Amendment and

the constitutional right to interstate travel authorized

Congress’s reach of the private conspiracy in that case.

However, the Griffin Court cautioned, “In identifying

these two constitutional sources of Congressional power,

we do not imply the absence of any other.” Id. at 107.

The court below rejected the Thirteenth Amendment and

the right to interstate travel! as the bases for Respond-

ents’ Section 1985(3) action, and upheld the action based

upon the Commerce Clause, Article I, Section 8 of the

Constitution. Id. at 997.

It has long been recognized that citizens of the United

States have a constitutional right to engage in interstate

commerce. Thus, in Crutcher v. Commonwealth of Ken-

tucky, 141 U.S. 47, 57 (1891), the Supreme Court rec-

ognized :

To carry on interstate commerce is not a franchise

or a privilege granted by the states; it is a right

which every citizen of the United States is entitled to

exercise under the Constitution and laws of the

United States.

Moreover, the law is well established that the Com-

merce Clause, Article 1, Section 8, Clause 3 of the Con-

stitution, empowers Congress to enact legislation regulat-

ing purely private conduct, including activity of labor

groups, affecting interstate commerce. See, e.g., Katzen-

bach v. McClung, 379 U.S. 294 (1964); Heart of At-

lanta Motel, Inc. v. United States, 379 U.S. 241, 258

12 It is the position of Amicus that the right of interstate travel

could, under the facts presented, serve as a proper basis for the

Section 1985(3) action in the case at bar. However, the Fifth

Circuit’s finding that the Commerce Clause adequately supports

the claims of Respondents is sufficient for purposes of Amicus’ argu-

ments herein. Amicus states that both the right to interstate travel

as well as the right to engage in interstate commerce serve as ade-

quate bases for the Section 1985(3) claims of Respondents herein.

(1964) ; and National Labor Relations Board v. Jones &

Laughlin Steel Corporation, 301 U.S. 1, 43 (1937).

Petitioners do not contest that Respondents were en-

gaged in interstate commerce. Contentions in their brief

are that the Commerce Clause is an inappropriate basis

for a Section 1985(3) action.

As the Court held in Griffin, the Forty-Second Congress

intended to protect the rights to travel and freedom of

association against violent, private infringements. As dis-

cussed supra, classes which the Forty-Second Congress

envisioned included carpetbaggers, Northern businessmen,

and the like who were engaging in interstate commerce.

Thus, the Congressional concern entailed the protection of

citizens from private infringements upon their rights to

engage in interstate commerce.

The Commerce Clause has served as the basis for en-

forcing the Civil Rights Act of 1964 against private con-

spiracies. See, e.g., Heart of Atlanta Motel v. United

States, supra; Katzenbach v. McClung, supra. As the

majority below eloquently reasoned :

It cannot be denied that the aim of protecting inter-

state commerce from undue burdens is a legitimate

end. Congress could reasonably have determined that

violent attacks and vandalism perpetrated 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 protecting interstate

workers in the exercise of their First Amendment

associational freedoms is a legitimate end. The means

adopted for the accomplishment of these ends, a pri-

vate 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 spirit.

Whether section 1985(3) can constitutionally be ap-

plied to other kinds of wholly private conspiracies

to deprive persons of their civil rights is a question

for another day.

Scott v. Moore, supra at 998.

Similarly, the standing of Cross Construction Company

to sue under Section 1985(3) is supported by these au-

thorities.

C. The Employer is an Appropriate Plaintiff

Petitioners’ contention that Cross Construction Com-

pany lacks standing under Section 1985(3) ignores a

well-settled body of case law recognizing the right of cor-

porations to seek protection afforded by the Civil Rights

Acts. See, e.g., Des Vergnes v. Seekonk Water District,

601 F.2d 9, 16 (1st Cir. 1979) (“It does not matter that

Heritage is not an individual. Corporations are persons

whose rights are protected by 42 U.S.C. § 1983, ....

[citation omitted]. They are also persons who, under the

Fourteenth Amendment, have a constitutional right to

the equal protection of the laws.”) ; Fulton Market Cold

Storage Company v. Cullerton, 582 F.2d 1071, 1079 (7th

Cir. 1978), cert. denied, 489 U.S. 1121 (“It should be

noted that the fact that the plaintiff in this suit [claim

under 42 U.S.C. § 1983] is a corporation is of no legal

significance. . a corporation is a ‘person’ within the

meaning of the equal protection and due process of law

clauses of the Fourteenth Amendment.” [citations omit-

ted); Sawmill Products, Inc. v. Town of Cicero, Cook

County, Illinois, 477 F. Supp. 636, 638 (D. III. 1979)

(Sawmill Products Corporation is a person for purposes

of equal protection and due process clauses of the Four-

teenth Amendment and, therefore, held to have standing

under 42 U.S.C. §§ 1983 and 1985(3)); Mother Goose

Nursery Schools, Inc. v. Sendak, 502 F. Supp. 1319, 1324

(N.D. Ind. 1980) (In action brought by corporation un-

der 42 U.S.C. § 1983, the Court stated: “[A]s a corpora-

tion, the plaintiff has all the rights and privileges af-

forded a person and can sue for deprivation of rights

secured by the Constitution and laws.” [citations omit-

ted).

Among the rights deprived by Petitioners’ unlawful

conduct were the associational freedoms of Cross Con-

struction and its employees. The authorities quite clearly

establish that a corporation enjoys the Constitutional

guarantees provided in the First Amendment, First Na-

tional Bank of Boston v. Bellotti, 435 U.S. 765, 820

(1978), and that a corporation is entitled to seek judicial

relief on its own behalf as well as on behalf of its em-

ployees, to protect the latter’s Constitutional rights in-

cluding their freedom of association. See, NAACP v.

Alabama, 357 U.S. 449 (1958); Buckley v. Valeo, 424

U.S. 1 (1976); and International Union, United Auto-

mobile, Aerospace and Agricultural Implement Workers,

et al. v. National Right to Work Legal Defense and Edu-

cational Foundation, Inc., 590 F.2d 1139, 1152 (D.C.

Cir. 1978).

In addition to the associational freedoms enjoyed by

corporations, Petitioners interfered with Cross Construc-

tion’s right to engage in interstate commerce. Since

Crutcher v. Kentucky, supra, the Court has repeatedly

recognized and upheld the right of a corporation to en-

gage in interstate commerce. See, e.g., Oklahoma v.

Kansas Nat. Gas Co., 221 U.S. 229, 235 (1911) (“The

right of a citizen of the United States to carry on inter-

state commerce is a privilege guaranteed by the Federal

Constitution, and is enjoyed without distinction by cor-

porations engaged in interstate commerce as well as in-

dividuals . . . [citations omitted].” Heyman v. Hays,

236 U.S. 178 (1915); and Anglo-Chilean Nitrate Sales

Corp. v. Alabama, 288 U.S. 218 (1933). Thus, Cross

Construction Company’s right to engage in interstate

commerce unquestionably exists and clearly suffices to

support a claim under Section 1985 (3).

CONCLUSION

As discussed herein, the experience of Cross Construc-

tion and other nonunion employers and employees is a

recurring problem of serious proportions. Respondents

herein were subjected to pervasive regional hostility and

ideological animus which manifested itself through vio-

lent means, including intentional torts such as assaults,

batteries, and property damage. The mechanism recog-

nized by the court below is an appropriate means for

providing redress for personal injuries and property dam-

ages resulting from violence. It was the intention of the

Forty-Second Congress to protect Northern carpetbaggers

and businessmen emigrating to the South in search of eco-

nomic opportunities. Similarly, nonunion contractors and

their nonunion employees seeking to work in primarily

unionized areas are equally entitled to protection of their

rights against violence, which has a disruptive effect upon

and unduly burdens interstate commerce.

For the foregoing reasons and those stated in Respond-

ents’ Brief, the Chamber respectfully urges that the

judgment of the Court of Appeals for the Fifth Circuit

sitting en banc be affirmed.

Respectfully submitted,

ROBERT T. THOMPSON

MELVIN R. HUTSON

GEORGE R. SALEM

THOMPSON, MANN & HUTSON

1730 Pennsylvania Ave., N.W.

Suite 1000

Washington, D.C. 20006

202-783-1900

Attorneys for the

Chamber of Commerce

of the United States,

as Amicus Curiae

Of Counsel:

STEPHEN A. BOKAT

NATIONAL CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, D.C. 20006

202-463-5337

March 18, 1983

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. R-81-1074

DANIEL CONSTRUCTION COMPANY, a Division of Daniel

International Corporation, DouGLAs L. MANTURANO,

CLYDE MASSEY, JIMMY M. MASSEY, ROBERT GENE

SPENCER, ERNEST JOHNSON,

Plaintiffs

BALTIMORE BUILDING & CONSTRUCTION

TRADES COUNCIL, et al.

Defendants

MEMORANDUM AND ORDER

Daniel Construction Co., a South Carolina corporation

authorized to do construction contracting in Maryland,

and five employees of Daniel, all residents of South Caro-

lina, sue the Baltimore Building and Construction Trades

Council (Trades Council), three of its constituent labor

organizations (Local 438, Local 16 and Local 37), the

business agents of Local 438 and Local 16, and various

unidentified individuals and labor organizations for al-

leged interference with a contract entered into by Daniel

on February 1, 1981, to perform maintenance services

and other work for Baltimore Gas and Electric Company

(BG&E) at various facilities in the Baltimore area.

Daniel claims that defendants opposed the contract from

its outset because (1) Daniel employees are not repre-

sented by any labor union and (2) Daniel is an out-

of-state contractor with many employees who are not resi-

dents of Maryland.

Specifically, plaintiffs allege that on the morning of

April 16, 1981, defendants, and others acting pursuant

to defendants’ directions, picketed the entrances of the

BG&E plants at Riverside and Wagner in order to pre-

vent Daniel and its employees from performing the work

which they had contracted to do. On the morning of

April 16, 1981, defendants allegedly assaulted and bat-

tered plaintiffs C. Massey, J. Massey, Spencer and John-

son at the Wagner plant and forced them to leave the

state. On May 16, 1981, defendants and their repre-

sentatives allegedly assaulted and battered plaintiff

Manturano while he was working at the North Cliff fa-

cility of BG&E. Additionally, defendants have allegedly

caused “thousands” of their agents and others to throw

rocks at Daniel vehicles and employees, block roads lead-

ing to the construction sites at Wagner Station, Riverside

and Notch Cliff, and built rock walls preventing ingress

to and egress from the BG&E facilities. Because of the

massive nature of the demonstration against Daniel and

its employees, State and County Police were allegedly

unable to protect plaintiffs.

Plaintiffs’ amended complaint states nine claims for

relief :

Count 1 asserts that, in violation of the Civil Rights

Act of 1871, 42 U.S.C. § 1985(3), defendants conspired

to deprive Daniel and its employees of equal protection of

the laws and privileges and immunities guaranteed under

the Constitution. Specifically, defendants allegedly inter-

fered with plaintiffs’ right to engage in interstate com-

merce, right to travel and right to freely associate with

fellow non-union employees.

Count 2 alleges that defendants failed to prevent the

unlawful conduct complained of in Count 1, in violation

of 42 U.S.C. § 1986.

Counts 3 and 4 are pendent state claims for inten-

tional interference with contractual relations and inter-

ference with plaintiffs’ right to pursue a lawful business.

Counts 5 through 9 are claims by individual plaintiffs

for assault and battery.

Jurisdiction of this Court allegedly exists under 42

U.S.C. § 1985(3), 28 U.S.C. 1343 (1), (2), and (3) and

under 28 U.S.C. 1332, based on diversity of citizenship

of the parties.

Plaintiffs request an injunction against further inter-

ference with their constitutional rights by defendants and

an injunction restraining defendants from further picket-

ing. They also request compensatory and punitive dam-

ages.

Presently before the Court is defendants’ motion to

dismiss. The motion has been extensively briefed by both

parties and the Court heard oral argument by counsel on

January 20, 1982. For the reasons stated below, defend-

ents’ motion will be denied.

Class-Based Animus

Section 1985(3), under which plaintiffs’ bring their

constitutional claims, imposes civil liability on persons

conspiring to deprive another person or class of persons

of “the equal protection of the laws, or of equal privileges

and immunities under the law.”' In 1971, the Supreme

Court broadened the applicability of the statute by re-

moving the judicially imposed prerequisite that the al-

leged deprivation involved state action. A civil remedy

was thus provided for damages against wholly private

Section 1985(3) reads, in relevant part:

If two or more persons in any State or Territory conspire .. .

for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws

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, or deprived of having and

exercising any right or privilege of a citizen of the United

States, the party so injured or deprived may have an action for

the recovery of damages, occasioned by such injury or depriva-

tion, against any one or more of the conspirators.

infringements of constitutionally protected rights. Griffin

v. Breckenridge, 403 U.S. 88 (1971). The Court in

Griffin noted, however, that Section 1985(3) was not

meant to cover all tortious, conspiratorial interferences

with the rights of others, but requires “that there must

be some racial or perhaps otherwise class-based, invidi-

ously discriminatory animus behind the conspirators’ ac-

tion. The conspiracy, in other words, must aim at a

deprivation of the equal enjoyment of rights secured by

the law to all.“ Jd. at 102. The Court then delineated

the four elements which a plaintiff must establish in a

Section 1985 (e) action:

To come within the legislation a complaint must al-

lege that the defendants did (1) “conspire...” (2)

“for the purpose depriving, either directly or indi-

rectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws.” It must then assert

that one or more of the conspirators (3) did, or

caused to be done, “any act in furtherance of the

object of [the] conspiracy,” whereby another was

(4a) “injured in his person or property” or (4b)

“deprived of having and exercising any right or

privilege of a citizen of the United States.”

Id. at 102-103.

Having reviewed the facts alleged here, the Court finds

that of the four elements required under Griffin, three

are clearly met and only the requirement that the con-

spiracy be for the purpose of depriving a person of the

equal protection of the laws or equal privileges and im-

munities under the laws requires analysis. This require-

ment has two components: (1) a class-based, indiviously

discriminatory animus motivating (2) conduct which vio-

lates some protected right. Defendants argue that plain-

tiffs’ action must be dismissed because discrimination based

on the non-union status of employees does not constitute

the “class-based invidiously discriminatory animus” re-

quired as a motivating factor for conspiratorial acts in

violation of § 1985 (3). Griffin v. Breckenridge, 403 U.S.

88 (1971) ; Silkwood v. Kerr-Magee Corp., 460 F. Supp.

399 (W.D. Okl. 1978), aff'd, 637 F.2d 743 (10th Cir.

1980), cert. denied, 102 S.Ct. 132 (1981) ; Murphy v. Mt.

Carmel High School, 543 F.2d 1189, 1192 n.1 (7th Cir.

1976) ; Western Telecasters, Inc. v. California Federation

of Labor, AFL-CIO, 415 F. Supp. 30 (S.D. Cal. 1976).

Defendants argue tnat labor union controversies tradi-

tionally have not been considered a proper area for fed-

eral intervention and that applying Section 1985(3) in

this case opens the door to broad expansion of the classes

cognizable under the statute without establishing proper

limits. They would construe Section 1985(3) to cover

only those classes contemplated as beneficiaries of the Act

at its inception, that is classes based on race, religion,

political affiliation or beliefs, and, perhaps, gender.

The Supreme Court in Griffin specifically refrained

from deciding whether a conspiracy motivated by in-

vidiously discriminatory intent other than racial bias

would be actionable under Section 1985(3). 403 U.S. at

102, n.9. This question has been addressed by lower

courts during the ensuing decade. The trend within this

circuit appears to be toward expanding the scope of

class-based conspiracies which fall within the purview of

Section 1985(3). Ward v. Connor, 657 F.2d 45 (4th

Cir. 1981), cert. denied, 50 U.S.L.W. 3570 (Jan. 18,

1982) ; Hodgin v. Jefferson, 447 F. Supp. 804, 808 (D.

Md. 1978) (Northrop, J.)

2 Preliminarily defendants assert that the amended complaint

fails to allege facts sufficient for a finding that the individually

named plaintiffs are members of a class of non-union employees.

Plaintiffs respond that the allegations in the amended complaint

clearly state that “Daniel employees are not and historically never

have been, represented by any labor union or unincorporated asso-

ciation.” The Court finds these allegations sufficient under Rule

8(a), Fed.R.Civ.P.

The fifth circuit, in a case similar to the one at bar,

considered Section 1985(3) claims by a construction com-

pany and two of its employees against defendants who

allegedly attacked plaintiff’s construction site because

plaintiffs were not union affiliated. Scott v. Moore, 640

F.2d 708 (5th Cir. 1981), aff'g, 461 F. Supp. 224 (E. D.

Tex. 1978), rehearing en bane granted, 656 F.2d 108

(Aug. 31, 1981). There, in an opinion which this Court

finds pursuasive, Judge Clark noted that no post Griffin

decision by a circuit court had limited the scope of the

statute to racially motivate conspiracies. The court found

inclusion of suits brought under Section 1985(3), based

on discrimination against. a “non-union class” to be con-

sistent with the language of the statute and with its leg-

islative history.* Id. at 718-20. See Local No. 1 (ACA),

Broadcast Employees of International Brotherhood of

Teamsters, etc. v. International Brotherhood of Team-

sters, etc., 419 F. Supp. 263, 275-77 (E.D. Pa. 1976),

aff'd in part and rev'd in part on other grounds, 614 F.2d

846 (3d Cir. 1980). This Court finds the decision in

Western Telecasters, Inc. v. California Federation of La-

bor, AFL-CIO, 415 F. Supp. 30 (S. D. Cal. 1976), holding

that the animus behind the conspirator’s action in a Sec-

tion 1985(3) action must be akin to racial bias, not con-

trolling in the instant action. Silkwood v. Kerr-Magee

The remarks of Senator Edmunds, made during the debate pre-

ceding the passage of the Civil Rights Act of 1871 are widely

quoted by courts attempting to delineate the scope of the Act:

We do not undertake in this bill to interfere with what might

be called a private conspiracy growing out of a neighborhood

feud of one man or set of men against another to prevent one

[from] getting indictment in the State courts against men for

burning down his bar; but, if in a case like this, it should

appear that this conspiracy was formed against this man be-

cause he was a Catholic, or because he was a Methodist, or be-

cause he was a Vermonter .. then this section could reach it.

Cong. Globe, 42nd Cong., Ist Sess. 567 (1871). See Griffin, 403

U.S. at 102, n.9; Ward, supra, 657 F.2d at 47; Scott, supra, 640

F. ad at 720.

Corp., 460 F. Supp. 399 (W. D. Okl. 1978), aff'd, 637

F.2d 743 (10th Cir. 1980), cert. denied, 102 S. Ct. 132

(1981), ean be distinguished in that there the court found

the motivating animus was directed against Karen Silk-

wood personally rather than against plaintiffs as mem-

bers of a particular class.

The plaintiffs here, non-union employees and their em-

ployer constitute a clearly cognizable and easily identifi-

able group. The class is not so large and amorphous that

its members are indistinguishable from the public at

large and its members share a common characteristic be-

yond simply being victims of the defendants’ conspira-

torial conduct. See Scott, supra, 640 F.2d at 720. In

light of the numerous cases recently applying Section

1985(3) beyond race-based animus to classes character-

ized by gender, religion, occupation and political affilia-

tion, the Court finds no rational grounds for denying ap-

plication of the statute to the clearly definable, histori-

cally recognized, political affiliation of non-union laborers

and employers.* Thus, the Court holds that claimed dis-

crimination against non-union laborers and their employ-

ers alleges sufficient class-based animus for the purposes

of stating a claim under Section 1985 (3).

Recent cases ir cluded Glasson v. Louisville, 518 F.2d 899 (6th

Cir.), cert. deniea, 492 U.S. 930 (1975) (supporters of political

candidate protected); Siatth v. Cherry, 489 F.2d 1098 (7th Cir.

1973), cert denied, 417 U.S. 910 (1974) (losing political candidate

and his supporters); Marlowe v. Ficking Body, 489 F.2d 1057 (6th

Cir. 1973) (victims of religious 2iscrin:ination) ; Cameron v. Brock,

473 F.2d 608 (6th Cir. 1573) (supporters uf nolitical candidate);

Selzer v. Berkowitz, 459 F. Supp. 347 (E.D.N.Y. 1978) (professors

who cooperated with the CIA); Curran v. Portland Superintending

School Committee, 435 F. Supp. 1063 (D. Me. 1977) (victims of sex

discrimination); Frenceschina v. Morgan, 346 F. Supp. 833 (S.D.

Ind. 1972) (persons attempting to furnish advice and assistance to

migrant workers).

Protected Right

Having found the requisite class-based animus for an

action under Section 1985(3), the Court must identify a

source of congressional power by which to reach the al-

leged conspiracy.

In Griffin, swpra, the Supreme Court, having found

class-based animus motivated by racial bias, set out two

constitutional sources of power through which § 1985(3)

could reach such a purely private conspiracy; (1) the

13th amendment and (2) Congress’ power to protect by

appropriate legislation the right of interstate travel.

The complaint in this case clearly charges that a pur-

pose of the conspiracy was to prevent the defendants from

traveling from state to state. That this allegation is suffi-

cient to support the plaintiffs’ cause of action is clear in

light of the Fourth Circuit’s opinion in Ward v. Connor,

657 F.2d 45, 48 (4th Cir. 1981), cert. denied, 50 U.S.L.W.

3570 (Jan. 18, 1982). Defendants assert that the right

to travel as protected by Section 1985(3) under Griffin

extends only te blacks who are denied the right because

of racial bias. This Court rejects defendant’s attempts

to impose a racial-bias restriction under this aspect of

the Griffin analysis. In Ward, the Fourth Circuit had no

difficulty in finding that a non-Negro right to travel was

protected under Section 1985 (3). Id. at 48. Likewise,

this Court finds that the individually named defendants

have properly asserted a Section 1985(3) violation of

their right to travel.

5 Having found congressional authority to reach the conspiracy

under plaintiffs’ right to interstate travel, the Court need not con-

sider “the troublesome questions of congressional power under

Section 5 of the 14th Amendment” which arises as to plaintiffs’ Ist

Amendment associational rights claim. Ward, supra, 657 F.2d at

48, n.5. Nor will the Court address plaintiffs’ asserted rights to

gainful employment. See Murphy v. Mt. Carmel High School, 543

F.2d 1189 (7th Cir. 1976); Bellamy v. Mason’s Stores, Inc., 500

F.2d 504 (4th Cir. 1974).

An additional source of Congressional authority to

reach the conduct complained of here can be found in the

Commerce Clause, Art. 1, § 8, and in the Congressional

power, conferred by clause 18 of that article, to make all

laws necessary and proper for carrying out the regula-

tion of commerce among the several states. As set forth

in the amended complaint, Daniel is a corporation or-

ganized under and by virtue of the laws of South Caro-

lina and is engaged in interstate commerce. Pursaunt to

its BG&E contract, valued by plaintiff at approximately

$1,000,000, Daniel transports men and goods in interstate

commerce from South Carolina to Maryland.

There is no question that the commerce clause author-

izes Congress to reach and regulate this type of interstate

commerce. The Supreme Court has stated that “the

power of Congress to promote interstate commerce also

includes the power to regular the local incidents thereof,

including local activities in both the State of origin and

destination, which might have a substantial and harmful

effect upon that commerce.” Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241, 258 (1964) ; National

Labor Board v. Jones & Laughlin Steel Corporation, 301

U.S. 1, 13 (1957). It is equally clear that a corporation

may assert a violation of its rights under the commerce

clause. See, e.g., Anglo-Chilean Nitrate Sales Corp. v.

Oklahoma, 288 U.S. 218 (1933); West v. Kansas Nat-

ural Gas Co., 221 U.S. 229, 235 (1911); Crutcher v.

Kentucky, 141 U.S. 47 (1891). In light of the analysis

above, the Court concludes that all the plaintiffs herein

have asserted a claim under Section 1985(3) which is

legally and factually sufficient to overcome defendants’

motion to dismiss.“

* Having found an actionable claim under Section 1985 (3), the

Court need not consider defendants’ argument that no Section 1986

claim for relief will lie if the claim under Section 1985 is not valid.

Nor need the Court consider the argument that jurisdiction over

the pendent state claims may not be exercised if the federal claims

are dismissed.

10a

There is no merit to defendants’ claim that the amended

complaint makes only conclusory and general allegations

and should therefore be dismissed. To the contrary, the

complaint specifies the injuries alleged by plaintiffs and

provides the date on which the injuries occurred. The

complaint clearly satisfies both the requirements of Rule

8, Fed.R.Civ.P., and the judicial standards of specificity

established for actions alleging a conspiracy to violate

civil rights. See, e.g., Ostrer v. R. Aronwald, 567 F.2d

551 (2d Cir. 1977); Rende v. Rizzo, 418 F. Supp. 96

(E.D. Pa. 1976).

Defendants argue that plaintiffs’ request for injunctive

relief is barred under 29 U.S.C. § 105, which prevents

courts of the United States from issuing injunctions in cer-

tain cases involving labor disputes. 29 U.S.C. § 107(a),

however, specifically permits a federal court to issue in-

junctive relief where it finds “that unlawful acts have

been threatened and will be committed unless restrained.”

Here, acts of violence are clearly alleged. Additionally,

an injunction by a federal court is prohibited under Sec-

tion 105 only in the case of a conspiracy to commit acts

enumerated in Section 104, none of which is clearly

shown to exist here.

Finally, defendants’ argument that the National Labor

Relations Act preempts plaintiffs’ claims under 42 U.S.C.

§ 1985(3) is without merit because that Act is concerned

with preemption of state law rather that preemption of

alternative bases for relief under federal law and is,

therefore, inapplicable to plaintiffs’ civil rights claim.

See, Sears, Roebuck & Company v. San Diego County

District Council of Carpenters, 486 U.S. 180 (1979);

Farmer v. United Brotherhood of Carpenters & Joiners

of America, Local 25, 430 U.S. 290, 298 (1977) ; Paca v.

Sipes, 386 U.S. 171 (1967).

For the reasons stated herein, it is this Ist day of

April, 1982, by the United States District Court for the

District of Maryland,

lla

ORDERED:

1. That the motion by defendants to dismiss is

DENIED; and

2. That the Clerk will mail copies of this Memo-

randum and Order to all counsel of record.

/3/ Norman P. Ramsey

NORMAN P. RAMSEY

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.