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Labor Eyes Scott versus Moore By James Castagnera-Cain Austin With conservatism seemingly back in the saddle since the election of Ronald Reagan, the word “conspiracy” is rearing its ugly head in labor law once again. Affirming the decision of conservative U.S. District Court Judge Joe Fisher of Texas, the Fifth Circuit Court of Appeals has held that a labor union can be found guilty of conspiracy under the venerable Ku Klux Klan Act. The controversial case is Scott v. Moore nated in the U.S. District Court for the Eastern District of Texas. It involves the International Union of Operating Engineers, Local 450, Laborers InternaArea Building and Construction Trades Council, which clashed in 1975 with the A.A. Cross Construction Company over the latter’s practice of hiring workers without regard to union affiliation. In May 1974, Cross had landed a contract with the Army Corps of Engineers to erect the Alligator Bayou Pumping Station and Gravity Drainage Structure on a hurricane levee near Port Arthur. The company had no collective bargaining agreement with any union, and in fact brought in some non-union workers from outside the Port Arthur/Sabine area to work on the project. The response to these hiring practices was predictable local union agents, officers and rankand-file expressed at every opportunity their hostility to Cross’s management and labor. According to the Fifth Circuit’s published opinion on the case, “Local residents had confronted Cross employees at a local tavern and pocil 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.” This festering situation came to a head on January 17, 1975, when a “crowd of nearly three hundred people,” according to the appellate report, “assembled at the main access road leading to the Cross construction site. . . .” Although most of the Cross employees were on the job by 7 am, when the crowd gathered, apparently the late arrivals were treated to some jostling by the pickets. Then shortly after seven, four pickup trucks turned up at the site and entered the jobsite premises via the access road. According to the story accepted by the court, the plaintiff, a manager named Scott, met the trucks and requested those onboard to leave the site. He was told, “Man, you all have got to be crazy . . . this is a union town.” Scott testified that he then attempted to gather the employees together and vacate the jobsite, but before he could do so, someone struck him on the head. The mob then swarmed over the construction site, beating up Cross and some of his employees, burning his office trailer and damaging some of the company’s vehicles and equipment. Stated Circuit Judge Charles Clark for the majority, “The entire episode lasted only a few minutes but the destruction was devastating.” In the wake of the incident, Scott, Cross and the company sued the unions, the trades council, and several individual officers for damages. The case is novel in at least two respects. First, it based liability upon the old Ku Klux Klan Act, which reads in relevant part: “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, . . . the party so injured or deprived may have an action for the recovery of damages . . . against any one or more of the conspirators.” [42 U.S.C. Second, the Fifth Circuit agreed with Judge Fisher that the unions themselves should respond in damages. This conclusion seems somewhat surprising in light of the Supreme Court’s statement in the 1966 case, UMW of A v. Gibbs, that damages should not be assessed against labor unions in conspiracy cases because, “The tort claimed was in essence a conspiracy to interfere with Gibbs’ contractual relations. The tort of conspiracy is poorly defined and susceptible to judicial expansion; its relatively brief history is colored by use as a weapon against the developing labor movement.” Indeed, the decision in Scott v. Moore seems to be open to this very criticism, as the court stated the “civil rights statute encompassed conspiracy designed to deprive nonunion workers and their employer of First Amendment right to freely associate with one another. . . .” To reach this result the district and appellate courts had to take at least one giant step in legal reasoning. They had to conclude that while not “every conceivable class of persons is covered by civil rights conspiracy statute,” employers and nonunion workers were. The circuit court rested its concurrence on this point upon Congressional history, which seems to suggest that the ‘act was intended to cover more than just raciallymotivated conspiracies. Apparently some congressmen who supported the act were concerned about Klan attacks upon southern Republicans of either race. The court’s opinion seems unclear concerning where or how one can know which classes of persons are protected by the act and which are hot. Initial reaction by Texas news media to the Fifth Circuit decision is that the case “could have far-reaching implications.” Reports are that Brown & Root, the Houston-based construction and engineering firm noted to be “The most anti-union of them all,” has already filed a suit against the Houston building trades unions, based upon Scott v. Moore. Texas Monthly was led to comment in October, “Unless Fisher’s ruling is overturned, the unions will have to decide whether picketing, their best weapon, is worth the risk of depleted treasuries.” Critical issues that face the U.S. Supreme Court, if it ultimately has opportunity to deal with them, are whether the Gibbs rationale should be applied to union liability under a federal statute, as opposed to common law of tort, and if it does not and therefore a union can be liable under the Ku Klux Klan Act how lowly in the union organization can the conspirators be and still bring down such liability upon the labor organization. Meanwhile, the case was granted a rehearing en banc by the Fifth Circuit in January. Texas labor lawyers are anxiously awaiting the results of the rehearing. James Castagnera-Cain is Assistant Professor of Business Law at UT-Austin. ANDERSON & COMPANY COFFEE TEA SPICES AUSTIN TEXAS 7:731 512 453-1533 Send me your list. Name Street City Zip 18 MAY 7, 1982