Scott v. Moore

• Decision Date: 01 July 1982
• Docket Number: L,AFL-CI,No. 79-1196,No. 870,870,79-1196
• Citation: Scott v. Moore, 680 F.2d 979 (5th Cir. 1982)
• Parties: 110 L.R.R.M. (BNA) 3097, 94 Lab.Cas. P 13,678 Paul E. SCOTT, et al., Plaintiffs-Appellees, v. Bill MOORE, et al., Defendants, Laborers International Union of North America, Local, et al., Defendants-Appellants, International Union of Operating Engineers, etc.,ocal 450, Defendant-Appellant. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 979

680 F.2d 979

110 L.R.R.M. (BNA) 3097, 94 Lab.Cas. P 13,678

Paul E. SCOTT, et al., Plaintiffs-Appellees, v.Bill MOORE, et al., DefendantsLaborers International Union of North America, Local No 870, et al., Defendants-AppellantsInternational Union of Operating Engineers, etc., AFL-CIO Local 450, Defendant-Appellant.

No. 79-1196.

United States Court of Appeals, Fifth Circuit. ^*

July 1, 1982.

Martin W. Dies, Orange, Tex., for defendants-appellants.

Robert Q. Keith, Arthur R. Almquist, Beaumont, Tex., for plaintiffs-appellees.

Laurence Gold(AFL-CIO), Washington, D. C., for amicus curiae.

John H. Smither, Houston, Tex., for Assoc. Bldg. & Const.

David Crump, Houston, Tex., David T. Bryant, Nat. Right To Work Legal Defense Foundation, Inc., Springfield, Va., for Legal Foundation of America.

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. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, 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 under 42 U.S.C. § 1985(3), the extent of congressional power to enact a civil remedy for wholly private infringement of constitutional rights, and the relationship between section 1985(3) and the labor relations laws.The district court, 461 F.Supp. 224, issued a permanent injunction against the defendants, including numerous labor organizations.It also awarded money damages for violations of section 1985(3), concluding that the statute afforded a remedy for the kind of private conspiracy involved here and that Congress was constitutionally empowered to provide such a remedy.A panel of this 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 mob violence that occurred in the early morning hours of January 17, 1975.The plaintiffs are A.A. Cross Construction Company, Inc., and two of its employees, Paul Scott and 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 named as defendants are twenty-five of the Council's member unions and several individual members of some of these labor unions.The individual defendants are not parties to this appeal.The plaintiffs contend that the defendants conspired for the purpose of depriving them of the equal protection of the laws and equal privileges and immunities under the law when they planned and executed an attack on the Cross construction site, assaulting workers and destroying property.

A.A. Cross Construction Company is a Texas corporation engaged in the building and construction industry as a general contractor.In May, 1974, Cross contracted with the Department of the Army, United States Corps of Engineers to erect the Alligator Bayou Pumping Station and Gravity Drainage Structure on the hurricane levee along Taylor's Bayou near Port Arthur.The agreement had a contract price in excess of $8 million and called for the construction 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, employing 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 labor 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 confronted Cross employees at a local tavern and pool hall frequented by them, threatening 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 threatened that he would "hurt you bad," saying, "What is going to happen when that big rig of yours down there burns up?"On another occasion, John Wallace, financial secretary and business representative for the Carpenters Local # 610, had told Cross 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 construction 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 demonstration, 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 protest, and some of the union representatives in attendance informed the Council that the demonstration had apparently been scheduled for the following Friday.

On Thursday, the sixteenth, Cross Construction Company learned of the scheduled protest from two union employees associated with the Alligator Bayou project.Fred Dukes, a member of Cement Masons Local 884, worked for Cross as a cement finisher on a two-day job.Earl Stevens, a member of Plumbers Local 504, worked as a foreman for Cross Construction Company's mechanical subcontractor.Both men received warnings from their respective union business agents about a possible picket or demonstration to be held at the Cross construction site, and both men passed that information 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 vehicles made brief forays up the access road and their occupants confirmed with Cross and Scott that they were at the Cross Construction Company jobsite.The crowd began to get unruly, pushing and shoving the remaining Cross workers as they arrived.Nevertheless, Cross'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 jobsite.Plaintiff Scott went out to meet the intruders and 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 interlocutor 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 mission, 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 construction site office, smashing automobile 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 construction site did not resume for nearly three weeks.Some of Cross's employees, frightened by the possibility of repeated attacks at the jobsite, refused to return to work.In addition, the violence and vandalism delayed 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 persons, 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 complaint, 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 unions from future misconduct, and...