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    Paul E. SCOTT, et al., Plaintiff-Appellees, v. Bill MOORE,
       et al., Defendants, Laborers International Union of North
           America, Local No. 870, et al., Defendants-Appellants,
      International Union of Operating Engineers, etc., AFL-CIO,
                      Local 450, Defendant-Appellant.
                                  No. 79-1196.
            UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
    * Former Fifth Circuit case, section 9(1) of Public Law
                   96-452 -- October 14, 1980.
          680 F.2d 979; 110 L.R.R.M. 3097; 94 Lab. Cas. (CCH)
P13,678
                July 1, 1982; As Amended; Reversed July 5, 1983

PRIOR HISTORY: Appeals from the United States District Court for
the Eastern District of Texas.

COUNSEL: Martin W. Dies, 712 Division, Orange, TX 77630, Paul F.
Waldner, Suite 1220, 811 Dallas St., Houston, TX 77002, (Rep. IUOE,
Local 450), Marvin Peterson, Suite 1220, 811 Dallas St., Houston,
TX 77002, for Appellant

   Robert Q. Keith, 1400 San Jacinto Bldg., Beaumont, TX 77701,
Arthur R. Almquist, 1400 San Jacinto Bldg., Beaumont, TX 77701,
AMICUS CURIAE Lawrence Gold (AFL-CIO), 815 16th St., N.W.,
Washington, D.C. 20001, (Assoc. Bldg. & Cont.) John H. Smither,
2900 First City Tower Bldg., Hosston, TX., 77002, (Legal Foundation
of America) David Crump, Law School, University of Houston,
Houston, TX 77004, David T. Bryant, National Right to Work Legal
Defense Foundation, 8001 Braddock Road, Springfield, VA 22160, for
Appellee

OPINIONBY: CLARK

OPINION:   [*982]

   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.
    PAGE  136                      680 F.2d 979, *982; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

   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
Arther, 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 contruction 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   [*983]   with the Department of
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
    PAGE  137                      680 F.2d 979, *983; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

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 subconstractor. 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,
[*984]   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,
    PAGE  138                      680 F.2d 979, *984; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

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 assessed damages
against eleven of the union defendants. n1

   n1 The district court assessed damages against the following
eleven unions: Laborers International Union of North America, Local
870; Operative Plasters and Cement Masons International
Association, Local 884; United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, Local 195; United Brotherhood of Carpenters and
Joiners of America, Local 610; United Brotherhood of Carpenters and
Joiners of America, Local 753; International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers,
AFL-CIO, Local 587; International Association of Bridge Structural
and Ornamental Ironworkers, Local 125; Sheet Metal Workers
International Association, Local 196; Carpenters District Council
of Sabine Area; International Brotherhood of Electrical Workers,
Local 479; and International Union of Operating Engineers, Hoisting
and Portable Engineers, AFL-CIO, Local 450.

   II.  THE JURISDICTIONAL QUESTION: INJUNCTIVE RELIEF AND THE
NORRIS-LAGUARDIA ACT

   The district court issued a permanent injunction against the
Sabine Area Building and Construction Trades Council, twenty-four
of its member unions, and all persons conspiring with them.  The
court's injunction ordered that those parties subject to its terms

   . . . shall not hereafter combine, conspire, threaten,
intimidate, assault, or commit any act of violence toward or upon
any person, property or possession of any person or his family who
may work upon, travel to, deliver materials, goods, or services to
A.A. Cross Construction Co.,   [*985]   Inc., or to the site of the
Alligator Bayou Pump Station on Taylor's Bayou near Port Arther,
Jefferson County, Texas.

   The defendants contest the district court's power to issue such
an injunction, arguing that the Norris-LaGuardia Act deprives the
district court of jurisdiction to enjoin labor organizations from
engaging in conspiratorial conduct.  They maintain that the
unembellished language of the Act is sufficient to show the court's
usurpation of authority.   We disagree.  The Norris-LaGuardian Act was passed for the
purpose of limiting the circumstances and conditions under which
injunctive action could be taken against labor organizations in the
context of a labor dispute.  The labor injunction had been an
important device used by employers to counter organized labor's
most effective economic weapons, strikes, boycotts, and picket
lines.However, the Act was predicated on the conviction that labor
disputes turned on issues of social and economic policy that could
not appropriately be resolved by the courts.  The legislative
solution to the problems confronting workers in a complex
industrial economy was union organization and collective
    PAGE  139                      680 F.2d 979, *985; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

bargaining.  Since the ready issuance of labor injunctions
presented a serious obstacle to the concerted activities of
organized workers, Congress decided to remove the federal judiciary
from labor disputes.  Thus, section 5 of the Act, 29 U.S.C.  @ 105,
limits the equitable power of the federal courts in the following
way:

   No court of the United States shall have jurisdiction to issue
a restraining order or temporary or permanent injunction upon the
ground that any of the persons participating or interested in a
labor dispute constitute or are engaged in an unlawful combination
or conspiracy because of the doing in concert of the acts
enumerated in section 104 of this title.

   29 U.S.C.  @ 105.

   But the Act does not impose an unqualified prohibition against
federal injunctive relief.  Section 105 merely restricts the
court's power to enjoin concerted or conspiratorial activity where
the conduct to be enjoined is an act enumerated in section 104. n2
The enumerated acts include refusing to work, joining a labor
organization, paying or withholding strike benefits from a labor
disputant, lawfully giving aid to a labor disputant who is
prosecuting or defending a court action, truthfully and peacefully
publicizing a labor dispute, peaceably assembing to promote one's
interests  [*986]   in a labor dispute, and agreeing with or
inducing other persons to do any of those acts.  In short, section
104 interdicts injunctive relief against legitimate activities of
labor unions.  Nothing in this provision, however, denies to
federal courts the power to enjoin violence, breaches of the peace,
or criminal acts simply because they may be committed by persons
seeking to forward or interested in some labor-related objective.

   n2 Section 104 provides as follows:

   No court of the United States shall have jurisdiction to issue
any restraining order or temporary or permanent injunction in any
case involving or growing out of any labor dispute to prohibit any
person or persons participating or interested in such dispute (as
these terms are herein defined) from doing, whether singly or in
concert, any of the following acts:

   (a) Ceasing or refusing to perform any work or to remain in any
relation of employment;

   (b) Becoming or remaining a member of any labor organization or
of any employer organization, regardless of any such undertaking or
promise as is described in section 103 of this title;
   (c) Paying or giving to, or withholding from, any person
participating or interested in such labor dispute, any strike or
unemployment benefits or insurance, or other moneys or things of
value;

   (d) By all lawful means aiding any person participating or
interested in any labor dispute who is being proceeded against in,
or is prosecuting, any action or suit in any court of the United
States or of any State;

   (e) Giving publicity to the existence of, or the facts involved
in, any labor dispute, whether by advertising, speaking,
patrolling, or by any other method
    PAGE  140                      680 F.2d 979, *986; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

not involving fraud or violence;

   (f) Assembling peaceably to act or to organize to act in
promotion of their interests in a labor dispute;

   (g) Advising or notifying any person of an intention to do any
of the acts heretofore specified;

   (h) Agreeing with other persons to do or not to do any of the
acts heretofore specified; and

   (i) Advising, urging, or otherwise causing or inducing without
fraud or violence the acts heretofore specified, regardless of any
such undertaking or promise as is described in section 103 of this
title.
29 U.S.C.  @ 104.

   In fact, the Norris-LaGuardia Act itself recognizes by negation
the threatened commission of violent acts as a condition under
which an injunction may issue: Section 107 states that no court of
the United States has jurisdiction to grant an injunction, unless,
after a hearing, the court finds "[t]hat unlawful acts have been
threatened and will be committed unless restrained. . . ." 29
U.S.C.  @ 107(a).  Thus, violence, intimidation, threats, vandalism
and combinations or conspiracies to commit such acts may be
restrained and enjoined even though they arise in connection with
a labor dispute.  See, e.g., Westinghouse Broadcasting Co. v.
Dukakis, 412 F.Supp. 580 (D.Mass.1976); Potomac Electric Power Co.
v. Congress of Racial Equality, 209 F.Supp. 559 (D.D.C. 1962). The
Norris-LaGuardia Act does not divest the district court of
jurisdiction to enjoin the kind of violent conduct present in this
case. n3

   n3 Even where jurisdiction to grant injunctive relief is
authorized, the Norris-LaGuardia Act imposes strict procedural
requirements upon the court.  See 29 U.S.C.  @@ 107-109; New Negro
Alliance v. Sanitary Grocery Co., 303 U.S. 552, 561-62, 58 S.Ct.
703, 707, 82 L.Ed. 1012, 1016 (1938). Section 107 provides that no
federal court shall have jurisdiction to issue a "permanent
injunction in any case involving or growing out of a labor dispute"
except after hearing testimony in open court and after making
certain findings of fact.  The district court must find: i) that
the danger to the complainant is imminent; ii) that the defendant's
acts will result in irreparable injury; iii) that, as to each item
of relief sought, the harm to the complainant if relief were denied
outweighs the harm to the defendant if relief were granted; iv)
that there is no adequate remedy at law; and v) that the officials
charged with protecting the complainant are either unwilling or
unable to do so.  See 29 U.S.C.  @ 107.   The district court in the case at bar issued a permanent
injunction without specifically making these five findings;
however, the defendants have not objected to the district court's
failure to do so.  Although this court will normally not consider
an issue which a party fails to raise on appeal, a federal court is
under an independent obligation to determine whether it has
jurisdiction to decide a claim.  See Pettinelli v. Danzig, 644 F.2d
1160, 1161 (5th Cir. 1981). Because the findings required by
section 107 are arguably a jurisdictional prerequisite to the
issuance of an injunction in a labor dispute, the defendant's
failure to raise this question on appeal does not dispose of the
issue.  We need not decide, however, whether the district court's
failure to make the requisite findings deprived it of jurisdiction.
Even assuming that
    PAGE  141                      680 F.2d 979, *986; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

these findings are a jurisdictional prerequisite to the issuance of
an injunction, they are required only in cases "involving or
growing out of a labor dispute." As we discuss below, this case
does not involve a labor dispute within the meaning of the Norris-LaGuardia Act.  Thus, the absence of a labor dispute renders an
inquiry into the jurisdictional nature of the section 107 findings
unnecessary.

   III.  THE STATUTORY QUESTION: THE SCOPE OF REMEDY UNDER 42
U.S.C.  @ 1985(3)

   A.  Griffin v. Breckenridge

   Section 1985(3) was originally enacted by Congress as a part of
the Ku Klux Klan Act in order to enforce the Civil War amendments
to the Constitution and to provide a means of redress for persons
victimized by the Klan's acts of terror and intimidation.  The
statute 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 laws." n4
Narrow judicial construction  [*987]   made section 1985(3) a
seldom-used remedy during the first century after its enactment.
See, e.g., Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95
L.Ed. 1253 (1951). However, the Supreme Court decided in 1971 to
"accord to the words of the statute their apparent meaning" and
held section 1985(3) provided a civil remedy for damages against
wholly private infringements of constitutionally protected rights.
Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1795, 29
L.Ed.2d 338, 345 (1971). In Griffin, a group of whites assaulted
three black men along a Mississippi highway in the mistaken belief
that their victims were associates of a civil rights worker. The
blacks brought an action under section 1985(3) to redress
violations of the laws of the United States and of Mississippi,
including the rights of free speech, assembly, association,
interstate travel, liberty, and security of their persons.  The
Supreme Court first held that the text of the statute, recent
judicial interpretations given to related civil rights provisions,
the complementary relationship of the various civil rights
statutes, and the legislative history surrounding section 1985(3)
all "point unwaveringly to @ 1985(3)'s coverage of private
conspiracies." 403 U.S. at 101, 91 S.ct. at 1794, 29 L.Ed.2d at
347.

   n4 The relevant part of section 1985(3) reads as follows:

   If two or more persons in any State or Territory cnspire or go
in disguise on the highway or on the premises of another, 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; . . . 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 deprivation, against any one or more
of the conspirators.
42 U.S.  @ 1985(3).

   While eliminating the state action requirement, the Griffin
court recognized that the statute, if applied too broadly, could
displace many areas of tort law that have traditionally been
reserved to the states and thereby violate
    PAGE  142                      680 F.2d 979, *987; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

constitutionally based principles of federalism.  "That the statute
was meant to reach private action does not . . . mean that it was
intended to apply to all tortious, conspiratorial interferences
with the rights of others." 403 U.S. at 101, 91 S.Ct. at 1798, 29
L.Ed.2d at 347. The Court delineated the reach of the statute by
giving full effect to a limiting amendment drafted by Congress.
The Court construed the language of the amendment, which limited
section 1985(3)'s application to deprivations of equal protection
or equal privileges and immunities, to require that there be some
"class-based, invidiously discriminatory animus behind the
conspirators' action." 403 U.S. at 102, 91 S.Ct. at 1798. Griffin
thus made clear that the limiting principle adopted by Congress is
satisfied by a showing of class-based animus.The Court then noted
four elements necessary for a plaintiff to establish a 1985(3)
cause of action:

   (1) the defendants must conspire or go in disguise on the
highway or premises of another;

   (2) for the 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; and

   (3) one or more of the conspirators must commit some act in
furtherance of the conspiracy; whereby

   (4) another is either (a) injured in his person or property or
(b) deprived of having and exercising any right or privilege of a
citizen of the United States.

   See id.  at 102-03, 91 S.Ct. at 1790, 29 L.Ed.2d at 348.
Subsequently, this court has added a fifth element,

   (5) that the conspirators' conduct must be unlawful independent
of the section 1985(3) violation.

   See McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th
Cir. 1977) (en banc).

   The Griffin court, having concluded that the plaintiffs had
stated a cause of action under section 1985(3), then sought to
locate a source of congressional power to reach the private
conspiracy alleged.  The sources identified in Griffin were the
Thirteenth Amendment and the constitutional right to travel. 403
U.S. at 104-06, 91 S.Ct. at 1799-1800, 29 L.Ed.2d at 349-50. The
Court observed, however, that other provisions of the Constitution,
including section 5 of the Fourteenth Amendment, might empower
Congress to reach other conspiracies by private persons.  Id.  at
107, 91 S.Ct. at 1801, 29 L.Ed.2d at 351. However, the Court foundthe facts of that case made it   [*988] unnecessary to look beyond
the Thirteenth Amendment and the right to interstate travel.

   B.  The Present Case

   Griffin's principles indicate the plaintiffs here have made out
a cause of action under section 1985(3).  The facts of this case
clearly embody four of the five elements essential to a successful
1985(3) claim.  First, the evidence is sufficient to establish a
conspiracy among some of the Council's constituent
    PAGE  143                      680 F.2d 979, *988; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

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
@ 1983(3) as required by McLellan.  Fourth, there is evidence of
personal injuries, property damage, and economic loss.  The only
element requiring analysis is the requirement that the conspiracy
be for the purpose of depriving a person of the equal protection of
the laws or equal privileges and immunities under the laws.  This
requirement, in turn, has two components: (1) the violation of some
protected right and (2) a class-based, invidiously discriminatory
animus motivating the violation.

   1.  Violation of a Protected Right

   In Griffin, the Supreme Court stated that a 1985(3) conspiracy
"must aim at a deprivation of the equal enjoyment of rights secured
by the law to all." 403 U.S. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d
at 348. The plaintiffs in the case at bar contend that the object
of the defendants' conspiracy was to deprive them of their First
Amendment right to associate with their fellow nonunion employees.
They argue that curtailment of their interests secured by the First
Amendment is a deprivation of equal protection of the laws within
the meaning of section 1985(3) as interpreted by Griffin.

   The Ku Klux Klan Act was originally entitled, "An Act to Enforce
the Provisions of the Fourteenth Amendment to the Constitution of
the United States, and for Other Purposes." 17 Stat. 13 (1871).
The guaranties afforded by the First Amendment are protected by the
due process clause of the Fourteenth Amendment.  E.g., Williams v.
Rhodes, 393 U.S. 23, 30-31, 89 S.ct. 5, 10, 21 L.Ed.2d 24, 31
(1968); New York Times v. Sullivan, 376 U.S. 254, 276-77, 84 S.Ct.
710, 724, 11 L.Ed.2d 686, 709 (1964); Cantwell v. Connecticut, 310
U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1217 (1940); De
Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed.
278, 283 (1937). Moreover, the right of free association is closely
aligned with the right of free speech and is similarly protected by
the First Amendment.  E.g., Abood v. Detroit Board of Education,
431 U.S. 209, 233, 97 S.Ct. 1782, 1798-99, 52 L.Ed.2d 261, 283
(1977); Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33
L.Ed.2d 266, 279 (1972); Baird v. State Bar of Arizona, 401 U.S. 1,
6, 91 S.Ct. 702, 705, 27 L.Ed.2d 639, 646 (1971); NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171-72, 2
L.Ed.2d 1488, 1499 (1958).

   The defendants raise two objections to the plaintiffs' assertion
of a protected right.  First, they cntend that section 1985(3) does
not provide a remedy for private interference with First Amendment
freedoms.  Second, they argue that even if such a remedy doesexist, the plaintiff's activities did not rise to the level of a
constitutionally protected right.

   In arguing that section 1985(3) does not protect against private
infringement on First Amendment freedoms, the defendants note the
well-established principle that the Fourteenth Amendment "erects no
shield against merely private conduct, however discriminatory or
wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842,
92 L.Ed.1161, 1180 (1948).  To support their construction of
section 1985(3) the defendants rely upon several decisions of the
Seventh Circuit.  In Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.
1972), the court held that section 1985(3) does not afford
protection against private deprivations of rights protected under
the Fourteenth Amendment absent some kind of state
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involvement.   [*989]   Emphasizing the historical connection
between sections 1983 and 1985(3), Dowling decided that it is
necessary to identify the interests which Congress intended to
protect from unequal treatment as well as the kinds of conduct
which it meant to proscribe.

   The breadth of the statute's coverage is yet to be determined,
but three categories of protected rights have been plainly
identified.  Griffin gives express recognition to a black citizen's
Thirteenth Amendment rights and to this federal right to travel
interstate; the title of the statute expressly identifies the third
category, namely, rights protected by the Fourteenth Amendment.  We
think the @ 1983 cases make it clear that in this third category a
"state involvement" requirement must survive Griffin.

    459 F.2d at 195 (footnotes omitted). n5 The Seventh Circuit
subsequently extended the Dowling rationale in Murphy v. Mount
Carmel High School, 543 F.2d 1189 (7th Cir. 1976), expressly
holding that section 1985(3) provides no remedy for purely private
impairment of First Amendment speech and associational freedoms.
Accord Bellamy v. Mason's Stroes, Inc., 508 F.2d 504 (4th Cir.
1974).

   n5 Dowling recognizes that there is no statutory requirement of
state participation or support for the conduct of the conspirators,
i.e., that there is no requirement that the defendants act under
color of state law.  However, where one suffers a deprivation of a
federally created right which necessarily includes some component
of state action, Dowling holds that such state action is also a
necessary ingredient of the section 1985(3) cause of action.  See
459 F.2d at 194-95.

   To explain how private conspirators could deprive a person of
rights which are only protected against state interference, Justice
Stevens, the author of Dowling, later suggested that "if private
person take conspiratorial action that prevents or hinders the
constituted authorities of any State from giving or securing equal
treatment, the private persons would cause those authorities to
violate the Fourteenth Amendment." See Great American Federal
Savings & Loan Association v. Novotny, 442 U.S. 366, 384, 99 S.Ct.
2345, 2355, 60 L.Ed.2d 957 (1979) (Stevens, J. concurring).

   Our problem with this line of analysis arises from the Supreme
Court's express reasoning in Griffin.  Because most basic
constitutional provisions impose limitations on the power of
government to regulate private conduct, the rights these
limitations confer on individuals are typically rights against the
state.  The Griffin Court acknowledged the conceptual difficulties
associated with private deprivations of constitutional rights.  TheCourt, however, construed section 1985(3) to reach both public and
private constitutional wrongs.

   A century of Fourteenth Amendment adjudication has . . . made it
understandably difficult to conceive of what might constitute a
deprivation of the equal protection of the laws by private persons.
Yet there is nothing inherent in the phrase that requires the
action working the deprivation to come from the State.  Indeed, the
failure to mention any such requisite can be viewed as an important
indication of congressional intent to speak in @ 1985(3) of all
deprivations of "equal protection of the laws" and "equal
privileges and immunities under the laws," whatever their source.
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   403 U.S. at 97, 91 S.Ct. at 1796, 29 L.Ed.2d at 345 (citation
omitted and some emphasis supplied).  The Court also said: "It is
thus evident that all indicators -- text, companion provisions, and
legislative history -- point unwaveringly to @ 1985(3)'s coverage
of private conspiracies." Id.  at 101, 91 S.Ct. at 1798, 29 L.Ed.2d
at 347. n6 These clear, decisional words in Griffin simply will not
permit us to speculate that section 1985(3) might not afford a
remedy for private conspiracies.

   n6 Technically, of course, this language is dicta.  Griffin
grounded its decision on the rights secured to black citizens under
the Thirteenth Amendment and the right to interstate travel, both
of which operate as limits on individual conduct as well as state
conduct.  However, we believe that the language and reasoning of
Griffin on this issue are sufficiently indicative of the Supreme
Court's approach to be regarded as dispositive.    [*990]

   Griffin even considered and rejected the very explanation of
section 1985(3) which was later suggested in the Novotny
concurrence.  In concluding that the first part of section 1985(3)
reached all deprivations of the equal protection of the law,
"whatever their source," Griffin considered the various forms which
a state action limitation might take but rejected the idea that
Congress had intended to impose any state action limitation on
section 1985(3). Specifically, the Court rejected the notion that
a private conspiracy had to hinder state officials in their
obligation to give equal protection because it found that this type
of conduct was explicitly dealt with elsewhere in the Act. See
Griffin v. Breckenridge, 403 U.S. at 98-99, 91 S.Ct. at 1796-97.

   We are not unmindful of the Supreme Court's statement in
Novotny, that section 1985(3) "provides no substantive rights
itself; it merely provides a remedy for violation of the rights it
designates." 442 U.S. at 372, 99 S.Ct. at 2349. We also acknowledge
that some commentators have read this statement as an implicit
endorsement of the Seventh Circuit's position in Dowling.See Note,
Private Conspiracies to Violate Civil Rights, 61 B.U.L.Rev. 1007
(1981). However, 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.

   The second prong of defendants' argument on this point asserts
that even if section 1985(3) protects first amendment rights from
private infringement, the plaintiffs' actions in this case --
merely working for a nonunion employer -- do not qualify for
constitutional protection.  We disagree.

   The Supreme Court has long recognized that association for the
purpose of advancing economic, as well as political or religious,interests falls within the protection of the First Amendment.  See
Brotherhood of Railroad Trainment v. Virginia, 377 U.S. 1, 8, 84
S.Ct. 1113, 117-18, 12 L.Ed.2d 89 (1964); Thomas v. Collins, 323
U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945).In Abood v.
Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d
261 (1977), the Court recognized that the corollary of the right to
associate to advance conomic interests is the right not to
associate.  Abood stated that "[t]o compel employees financially to
support their collective-bargaining representative has an impact
upon their First Amendment interests." 431 U.S. at 222, 97 S.Ct. at
1793. The Court reasoned that because the employees' forced support
would entail the advancement of interests and ideas which they did
not share, the employees' right not to associate could be infringed
by union shop laws.  Moreover, the
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Court pointed out that union shop laws had been upheld previously,
not because employees lack a First Amendment right not to
associate, but because "such interference [with that right] as
exists is constitutionally justified by the legislative assessment
of the important contribution of the union shop to the system of
labor relations established by Congress." Id. Though it found such
infringement justified, Abood thus recognized that requiring
financial support could infringe first amendment rights.

   The conspiracy in the case at bar sought to deny completely the
plaintiff employees' right not to associate.  The district court
found that several truckloads of men assaulted the plaintiffs and
"threatened to continue violent actons 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 county or by
coercing them to unionism through violence.  The defendants sought
not merely to force plaintiffs to give financial support at a union
(an act which Abood recognized could interfere with a person's
freedom not to associate), 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   [*991]   was to
deprive the plaintiffs of protected right. n7

   n7 Because of our disposition of the case, it is not necessary
to decide whether section 1985(3) also protects against private
conspiracies to deny rights secured under state law.  See Life
Insurance Company of North America v. Reichardt, 591 F.2d 499 (9th
Cir. 1979) (holding violations of state antidiscrimination statute
cognizable).  It is also unnecessary to decide whether federal
statutory rights are protected by @ 1985(3).  See Novotny v. Great
American Federal Savings & Loan Ass'n, 584 F.2d 1235 (3d Cir.
1978), rev'd, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979)
(violations of Title VII).  Cf. McLellan, 545 F.2d 919 (5th Cir.
1977) (right to file bankruptcy petition not protected.)

   2.  Discriminatory, Class-Based Animus

   While Griffin made clear that Congress intended to reach a
denial of equal protection because of race, it left open the issue
of whether section 1985(3) prohibited other class-based
discrimination.  See 403 U.S. at 102 n.9, 91 S.Ct. 1798 n.9. We
find it does and that plaintiffs come within its protection.

   In Kimble v. D. J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981)
(en banc), we recently considered what other types of class-based
animus section 1985(3) might reach.  We found that two types of
classes come within the statute's protection. First, we recognized
that section 1985(3) covers classes "having common characteristicsof an inherent nature" -- i.e., those kinds of classes offered
special protection under the equal protection clause.  Id.  at 347.
We also recognized that:

   [t]he class-based animus required by the Supreme Court in
Griffin and now reasserted by this court is not identical with the
class-based distinctions required to support an action under the
equal protection clause. . . .  For example, section 1985 was
certainly intended to cover conspiracies against Republicans;
distinctions based on affiliation with a major political party are
not among those traditionally subject to special scrutiny under the
Fourteenth Amendment.  What Griffin stands for, and what we now
hold, is that Section
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1985 was intended to encompass only those conspiracies motivated by
animus against the kinds of classes Congress was trying to protect
when it enacted the Ku Klux Klan Act.

   Id.  at 347 n.9.

   Kimble is consistent with the decisions of the other circuits.
Decisions which have accorded protection to nonracial classes have
generally fallen into the two categories identified by Kimble.  The
first category consists of those classes afforded special
protection under the equal protection clause.  See, e.g., Ward v.
Connor, 657 F.2d 45 (4th Cir. 1981), cert. denied,    U.S.   , 102
S.Ct. 1253, 71 L.Ed.2d 445 (1982) (members of Unification Church);
Life Insurance Company of North America v. Reichardt, 591 F.2d 499
(9th Cir. 1979) (women); Marlowe v. Fisher Body, 489 F.2d 1057 (6th
Cir. 1973) (Jews); Baer v. Vaer, 450 F.Supp. 481 (N.D.Cal.1978)
(members of the Unification Church); Mandelkorn v. Patrick, 359
F.Supp. 692 (D.D.C.1973) (Children of God).The second is made up of
classes whose members are discriminated against because of their
political beliefs or associations.See, e.g., Means v. Wilson, 522
F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct.
1436, 47 L.Ed.2d 364 (1976) (supporters of a particular political
candidate); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.),
cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975)
(political demonstrators); Smith v. Cherry, 489 F.2d 1098 (7th Cir.
1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214
(1974) (voters for a sham political candidate); Cameron v. Brock,
473 F.2d 608 (5th Cir. 1973) (supporters of incumbent sheriff);
Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (worshippers at a
predominantly white Catholic church disrupted by black civil rights
protesters).

   Plaintiffs are not a class normally afforded special protection
under the equal protection clause merely because they wish to work
nonunion.  They are entitled to section 1985(3) protection only if
they are persons within the second category of protected classes
noted by Kimble, "the kind[] of   [*992] class Congress was trying
to protect when it enacted the Ku Klux Klan Act." 648 F.2d at 347
n.9. In considering whether plaintiffs qualify, we must from the
outset be mindful that the conspiracy in this case was motivated by
a prounion animus so strong that it staked its claim not merely
ideologically, but geographically.  The nonunion plaintiffs were
repeatedly told that they were in union country and would be
punished for choosing to work there nonunion.

   Not every conceivable class of persons is covered by section
1985(3). Members of the plaintiff class must share some common
characteristic beyond simply being victims of the defendant's
conspiratorial conduct.  See, e.g., Askew v. Bloemker, 548 F.2d 673(7th Cir. 1976) (homeowners raided by drug enforcement agents);
Harrison v. Brooks, 519 F.2d 1358 (1st cir. 1975) (property owners
allegedly injured by city council rezoning efforts).  The class
cannot be so large and amorphous that its members are virtually
indistinguishable from the vast majority of the populace.  See,
e.g., Blevins v. Ford, 572 F.2d 1336 (9th Cir. 1978) (nonlawyers).
Even some clearly defined and easily identifiable groups have been
denied protected status under the statute.  See, e.g., DeSantis v.
Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979)
(homosexuals); Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.
1979), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133
(1979) (tenant organizers); Lessman v. McCormick, 591 F.2d 605
(10th Cir. 1979) (debtors); McLellan v. Mississippi Power & Light
Co., 545 F.2d 919 (5th Cir. 1977) (en banc) (persons who file
voluntary bankruptcy
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petitions); Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert.
denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973)
(physicians who testify in malpractice suits).

   In the absence of Supreme Court guidance as to the kinds of
classes protected by section 1985(3) or a method by which protected
classes should be identified, we turn to our own en banc decision
in McLellan to provide our gauge.  In McLellan, we held that the
statute does not cover persons who file voluntary petitions in
bankruptcy.  The decision was based on three factors.  First, the
legislative history of the Ku Klux Klan Act contains no evidence of
congressional concern about discrimination against persons who
become insolvent. Second, while the protection afforded by the
civil rights acts is not static, it would be inappropriate to
enlarge the group of protected classes to include bankrupts when
Congress had specifically declined to prohibit discrimination
against them.  Third, including bankrupts within the ambit of
section 1985(3) would be unwarranted in light of the Supreme
Court's refusal to characterize the right to file a bankruptcy
petition as a fundamental right.  545 F.2d at 932-33. While the
presence of the first factor indicates that a particular class
should come under the aegis of section 1985(3), the last two
factors act more as checks on unwarranted expansion of section
1985(3).  Their presence does not suggest so much that a particular
class should be protected as their absence indicates that coverage
would be inappropriate.

   Applying the McLellan factors to our case today, we find that
the plaintiffs constitute a class for 1985(3) purposes. n8 The
labor union movement in America was yet to be born when the 42d
Congress was in session, so it could not have been specifically
concerned with discrimination perpetrated against nonunion
laborers.  However, the congressional debates evince a hearty
regard for persons who are victimized because of their political
beliefs and associations.  Today's Ku Klux Klan proclaims itself to
be a racist organization.  But in 1871 it was regarded primarily as
a political one.  The motives and ambitions of the Klan disturbed
the Republicans in the 42d Congress because they feared that its
activities would defeat the policies of Reconstruction and deprive
the newly emancipated blacks of rights secured to them under
[*993]   the recent amendments to the Constitution.  Senator John
Sherman of Ohio voiced this concern after he read aloud from a copy
of the Klan's secret oath,

   showing that here is a political organization, with political
ends, political aims; it shows that the object and intent of that
political organization is to prevent large masses of the people of
the southern States from enjoying a right which has been guaranteed
to them by the Constitution of our country.   n8 Our reliance upon the factors deemed relevant in McLellan
does not necessarily imply that they are the only relevant
considerations.  Conceivably, other factors may be regarded as
sufficient to include or to exclude other classes from @ 1985(3)
coverage.

   Cong. Globe, 42d Cong., 1st Sess. 153 (1971).  The Klan's
political objective formed a recurrent theme in the Senate debates.
n9

   n9 See, e.g., Cong. Globe, 42d Cong., 1st Sess. 252 (remarks of
Sen. Morton) ("[t]he purpose [of the Klan] is by these innumerable
and nameless crimes to drive those who are supporting the
Republican party to abandon their political faith or to flee the
State."); id.  at 504 (remarks of Sen. Pratt) (the
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primary purpose of the Klan "is to punish men for their political
opinions"); id.  at 702 (remarks of Sen. Edmunds) (the "systematic
plan [of the Klan] is not to leave in any of those States a brave
whiteman who dares to be a Republican or a colored man who dares to
be a voter").

   The apprehension of Republican senators over the Klan's scheme
of terrorizing citizens for their political views and of preventing
voters from exercising their franchise also echoed throughout the
debates conducted in the House. Representative Ellis Roberts of New
York expressed this concern in the following terms:

   But one rule never fails: the victims whose property is
destroyed, whose persons are mutilated, whose lives are sacrificed,
are always Republicans.  They may be black or white; they include
those who wore the blue and those who wore the gray; newcomers and
life-long residents, but only Republicans.  Stain the door lintels
with the mark of opposition to reconstruction and of hostility to
the national Administration and the destroying angel passes by.
Omit that sign and the torch may kindle the roof that covers women
and children. . . .  Such uniformity of result can come only from
design.  Republicans only are beaten and mutilated and murdered,
because the blows are aimed at Republicans only.

   Cong. Globe, 42d Cong., 1st Sess. 412-13 (1871).  Other
Republican Congressmen expressed similar views. n10 See generally
Comment, A Construction of Section 1985(c) in Light of its Original
Purpose, 46 U.Chi.L.Rev. 402, 407-420 (1979).

   n10 See, e.g., Cong. Globe, 42d Cong., 1st Sess. 72 (remarks of
Rep. Blair) (the Klansmen "murder for a difference in political
opinions"); id.  at 333 (remarks of Rep. Hoar) (the Klan is a
"secret political conspiracy"); id.  at 392 (remarks of Rep.
Elliott) ("the design of the Ku Klux is political"); id. at 488
(remarks of Rep. Lansing) ("the Ku Klux in their crimes are
inspired by political zeal").

   These attacks on Republicans prompted congressional concern
because they were viewed as more than isolated or chance
occurrences.  Congress saw them as part of a pervasive campaign to
prevent Republicans from establishing the policies of
Reconstruction in an areas of the nation -- the South.  See Avins,
The Ku Klux Klan Act of 1871, 11 St. Louis U.L.J. 331, 376 (1967).
The Congressmen consistently noted the pervasive regional hostility
toward the Republicans as a reason for extending federal protection
in section 1985(3).  See, e.g., Cong. Globe, 42d Cong., 1st Sess.
333-34 (1871) (remarks of Rep. Hoar); id.  at 412-13 (remarks of
Rep. Roberts.) n11
   n11 The plaintiffs argue that Congress also intended to extend
protection to workers.  They note particularly Senator
Freylinghausen's concern for the rights of northern laborers
migrating south:

   The journeyman cobbler of New England may wrap his awl and wax
and last in his leather apron and stand in Charleston, or New
Orleans, or Savannah, and say "Here I will settle in despite of the
constitution and the laws of these States; and I have a right to
invoke the power of the nation here to protect me." The mason or
carpenter of New Jersey may put his chisels or his trowels in his
carpet-bag, and go to any part of tis land and say, "Here I will
stay in despite of the holy horror of those who cry out,"
"Adventurer!" "Scalawag!"
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"Carpet-bagger!"
Cong. Globe, 42d Cong., 1st Sess. 500 (1871).  Although this, and
other remarks noted by the plaintiffs, do express Congress' intent
to protect northern laborers, we discount their importance to the
case at bar for two reasons. First, because these remarks occur
only sporadically throughout the legislative history, they do not
appear to reflect a major concern of the 42d Congress. Second, the
hostility directed toward the carpetbaggers appears to have arisen
because of the carpetbaggers' association with the policies of
Reconstruction, not because of any economic association.  Their
status as workers appears to have been merely incidental to the
hostility they experienced and to Congress' concern.    [*994]

   Although Congress did not express a specific intent to protect
nonunion employees in enacting the Ku Klux Klan Act, the
legislative history demonstrates that the nonunion employees in
this case comprised the kind of class Congress intended to protect.
The debates over the need for protecting the Republicans in the
South reveal two class characteristics which prompted Congress to
extend protection in section 1985(3).  First, the legislative
history reflects a pervasive concern for people discriminated
against because of their political associations.  Second, Congress'
concern was prompted by the tenuous status of Republicans' attempt
to establish an extended new order had met with pervasive regional
hostility.  It was this regional hostility which Congress sought to
counterbalance by extending federal protection in section 1985(3).
Although regional hostility is not an intrinsic class
characteristic, those who would exercise a false territorial
sovereignty by fomenting hositility against persons antagonistic to
their aims create a class in need of federal protection of
precisely the sort Congress intended to protect.

   In this case, the plaintiffs were attacked because of their
economic, rather than their political, association.  However, an
animus directed against nonunion association is closely akin to
animus directed against political association. Second, the position
of these nonunion employees in Jefferson County, Texas, is markedly
similar to that of the Republicans in the South.  The presence of
these nonunion employees in "union country," no less than the
presence of the Republicans in the previously Democratic
stronghold, ignited a pervaisve regional hostility.  It was this
regional hostility which classified Republicans as protected.  In
this case, the same hostility toward nonunion employees classifies
them as the kind of person Congress intended the Ku Klux Klan Act
to protect.

   Similarly, acknowledging that the scope of the statute includes
nonunion workers who are attacked for their choice to associate
with other nonunion workers, thereby enabling an employer to offersignificant work to the class, is appropriate in light of
subsequently enacted federal legislation.  While Congress
specifically refused to prohibit discrimination against bankrupts
by legislation, it expressed a desire to protect laborers who opt
not to affiliate themselves with a labor organization.  Section 7
of the original Wagner Act provided

   [e]mployees shall have the right of self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities, for the purpose of collective bargaining or
other mutual aid or protection.
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   Wagner Act, @ 7, 49 Stat. 452 (1935).

   At the time Congress passed the original Act, it rejected the
argument that parity required granting protection against coercive
tactics of labor organizations as well as against those committed
by employers.  See S.Rep. 573, 74th Cong., 1st Sess. 16 (1935).
However, significant change was not long in coming.  The 1947 Taft-Hartley amendments to the National Labor Relations Act put unfair
labor practices by labor organizations in the list of condemned
actions.  Under the Taft-Hartley Act employees retained the right
to form, join, or assist labor organizations.  However, section 7
of the original Act was revised to also protect "the right to
refrain from any or all such activities." Taft-Hartley Act, @ 101,
61 Stat. 140 (1947), currently codified at 29 U.S.C.  @ 157.
Section 8(b) (1) now declares it to be an unfair labor practice for
a labor organization or its agents to restrain or coerce employees
in the exercise of the rights guaranteed by section 7.  29 U.S.C.@
158(b) (1).  By these actions Congress has underscored the
importance of the right of   [*995]   free association in the labor
relations context and guaranteed the right to free and untrammeled
choice to associate or not to associate with a labor organization.
This manifestation of congressional concern for those in
plaintiffs' class makes their protection by section 1985(3)
particularly appropriate.

   Finally, McLellan regarded the Supreme Court's refusal to call
the right to file a bankruptcy petition a fundamental right as
relevant to its own determination that bankrupts are not protected
by section 1985(3).  By contrast, the Supreme Court has
characterized the right of free association as "a right which, like
free speech, lies at the foundation of a free society." Shelton v.
Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231, 236
(1960).Our legal system honors the freedom of the individual to
associate as he chooses because that freedom "tends to produce the
diversity of opinion that oils the machiner of democratic
government and insures peaceful, orderly change." Gilmore v. City
of Montgomery, 417 U.S. 556, 577, 94 S.Ct. 2416, 2427, 41 L.Ed.2d
304, 321 (1974). The importance of the freedom of association has
led the court to call it one of the "indispensable liberties,"
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 78 S.Ct.
1163, 1171, 2 L.Ed.2d 1488, 1499 (1958), which ranks "among our
most precious freedoms." Williams v. Rhodes, 393 U.S. 23, 30, 89
S.Ct. 5, 10, 21 L.Ed.2d 24, 31 (1968). The right of association is
fundamental in our constitutional scheme of values.  Thus, the
difference in importance assigned to the right to file a bankruptcy
petition and the right of the individual to freely associate with
others of his own choosing favors protecting these plaintiffs.

   Although we find that Congress intended to classify thesenonunion employees as entitled to use section 1985(3) that finding
does not resolve the question of whether their employer, which is
not a member of the class, can assert a claim under this section.
Section 1985(3) provides that "in any case of conspiracy set forth
in this section, if one or more persons engaged therein do, or
cause to be done, any act in furtherance of the object of such
conspiracy whereby another is injured in his person or property, .
. . the party so injured . . . may have an action for the recovery
of such damages, occasioned by such injury. . . ." The language of
section 1985(3) specifically provides a remedy for any person
injured by an act taken in furtherance of the conspiracy.  See
Great American Federal Savings & Loan Association v. Novotny, 442
U.S. 366, 390-91, 99 S.Ct. 2345, 2358, 60 L.Ed.2d 957 (1979)
(White, J., dissenting) (reaching an issue not addressed by the
majority).  But see Canlis v. San Joaquin Sheriff's
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Possee Comitatus, 641 F.2d 711, 712 (9th Cir. 1981).

   The district court found that Cross Construction had been
injured by the attack on its Alligator Bayou worksite.  There is no
dispute as to the fact of the corporation's injury or that it
resulted from the defendants' acts in furtherance of the
conspiracy.  The plain language of the statute grants the employer
a right to recover for these injuries.  Cf. Sullivan v. Little
Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386
(1969).

   The plaintiff, Cross Construction Company, was denied the equal
protection of law because, in this "union country" area, it
attempted to construct a government project without entering into
a collective bargaining agreement to hire nonunion workers.  The
plaintiff class of Cross employees were denied equal protection
because they dared to try to work nonunion in this place.  Both
employer and employee plaintiffs were attacked and beaten and their
property was destroyed because union adherents put themselves above
the law and used brute force to enforce their territorial claim.
The actions of plaintiffs and the reaction of defendants joined to
define the class and designate the persons who could claim the
protection of section 1985(3).  The plaintiff employees form a
class of nonunion workers who have a right not to belong to a union
and the plaintiff employer is a person who has been injured by a
class-based invidiously discriminatory animus directed toward its
workers and it.    [*996]

   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.Powerful limitations exist to restrict an overly broad
application of the statute.  See generally McLellan, 545 F.2d at
940-41 (Godbold, J., dissenting).  Section 1985(3) cannot be
invoked to disrupt the operation of a carefully integrated
statutory shceme.  See Great American Federal Savings & Loan Ass'n
v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) n12
Neither can a section 1985(3) cause of action be predicated upon an
unfair labor practice, without more.Cf. United States v.
DeLaurentis, 491 F.2d 208 2d Cir. 1974) (holding an unfair labor
practice no cognizable under 18 U.S.C.  @ 241, the criminal
analogue to section 1985(3)).  Neither unionism or nonunionism
suffices to create a covered class.  But where, as here, there is
no campaign to organize employees and force or violence is used to
stake out one group's territorial claim and to deprive other
workers and their employer of the right to freely associate with
one another, a section 1985(3) action will lie. n13
   n12 Novotny held that a right created by Title VII could not be
asserted under section 1985(3).  To do so would allow a litigant to
bypass the statutory plan, particularly the administrative process,
created by Congress.  See 442 U.S. at 375-76, 99 S.Ct. at 2350-51.
Because the litigants here have not attempted to assert a right
created by the National Labor Relations Act, the concerns expressed
in Novotny are inapposite to this case.

   n13 It should be observed that 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 the union is held responsible.  See
Union de Tronquistas Local 901 (Lock Joint Pipe & Co.), 202
N.L.R.B. 399 (1973); R. Gorman, Basic Text on Labor Law 217 (1976);
D. McDowell & K. Huhn, NLRB Remedies for Unfair Labor Practices
99-100 (1976).
    PAGE  153                      680 F.2d 979, *996; 110 L.R.R.M.
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The Board's refusal to give damage awards is predicated in part
upon its view that such awards would unduly interfere with the
policy of the National Labor Relations Act to protect concerted
activities and that other remedies against union violence are
sufficient deterrent.  Union de Tronquistas, 202 N.L.R.B. at 400.
Its practice is also grounded in concern for the proper
institutional role to be played by the Board.  See District 1199,
National Union of Hospital and Health Care Employees (Frances
Scherver Home and Hospital), 345 N.L.R.B. 105 (1979) (board is not
equipped to handle personal injury claims); Union Nacional de
Trabajadores, 219 N.L.R.B. 157 (1975) (awards are punitive and,
therefore, not part of the Board's statutory function).

   Whatever the basis for the Board's refusal to order compensation
for injuries suffered during strike or picket line violence, our
decision that section 1985(3) affords a remedy in this case does
not offend that policy.  In this case, no lawful concerted activity
was taking place when the Cross construction site was attacked.
There was no organizational campaign, no union demand for
recognition, no informational picket, and no collective bargaining
in progress. In such circumstances, a civil remedy for damages
presents no danger of thwarting the Board's policy.  However,
whether section 1985(3) should also extend to other conspiracies
against nonunion workers and their employers is a question which we
expressly pretermit.

   IV.  THE CONSTITUTIONAL QUESTION: THE SOURCE OF CONGRESSIONAL
POWER

   Having determined that section 1985(3) was intended to provide
a civil remedy for the kind of conspiracy involved here, we must
respond to defendants' argument that Congress lacks the
constitutional power to enact legislation of this breadth.  The
plaintiffs maintain that section 5 of the Fourteenth Amendment
authorizes Congress to provide a civil remedy for this private
conspiracy.  On the particular facts before us, we hold that the
Commerce Clause empowers Congress to reach defendants' conduct and
do not reach the Fourteenth Amendment issue.

   Griffin emphasized that it was unnecessary to test the
constitutionality of section 1985(3) in all conceivable
applications in order to sustain its facial constitutionality and
its application to the facts of any particular case.  403 U.S. at
105, 91 S.Ct. at 1799, 29 L.Ed.2d at 350. Griffin also makes clear
that section 1985(3) is not unconstitutional merely because it
reaches wholly private conspiracies.  Griffin does, however,
indicate that a source of congressional power   [*997]   must be
identified to warrant application of the statute in each case.
   The Griffin court concluded that the Thirteenth Amendment and
the constitutional right to interstate travel authorized Congress
to reach the private conspiracy alleged there.  But the court
concluded its opinion, stating

   In identifying these two constitutional sources of congressional
power, we do not imply the absence of any other.  More specfically,
the allegations of the complaint in this case have not required
consideration of the scope of the power of Congress under @ 5 of
the Fourteenth Amendment.

   Id.  at 107, 91 S.Ct. at 1801, 29 L.Ed.2d at 351.
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   The plaintiffs' 1985(3) action cannot be sustained under the
Thirteenth Amendment, for they are neither a racially oppressed
group nor suffering in the bonds of involuntary servitude.  See,
e.g., Jones v. Mayer, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189
(1958); Clyatt v. United States, 197 1.S. 207, 25 S.Ct. 429, 49
L.Ed. 726 (1905). Neither can it be supported by the right to
travel on the present record.Although the plaintiffs alleged that
the object of the defendants' conspiracy was to deprive them of the
right to interstate travel, they have introduced no evidence to
show that either the purpose or the result of the conspirators'
acts was to infringe upon their right to such travel.

   However, the alternative path suggested by Griffin is itself
fraught with uncertainty.  A major controversy still exists over
the extent to which section 5 of the Fourteenth Amendment grants
Congress the power to reach wholly private conduct.  Particularly,
whether section 1985(3) can be constitutionally applied to private,
nonracially motivated conspiracies is a question which as divided
the circuits.  Compare Action v. Gannon, 450 F.2d 1227 (8th Cir.
1971) and Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971)
(holding that the Fourteenth Amendment authorizes Congress to reach
purely private conduct) with Murphy v. Mount Carmel High School,
543 F.2d 1189 (7th Cir. 1976) (finding that it does
not).Furthermore, no single interpretation of the expanse of
Congress's power under section 5 has consistently commanded the
adherence of a majority of the Supreme Court.  Compare United
States v. Guest, 383 U.S. 745, 762, 86 S.Ct. 1170, 1180, 16 L.Ed.2d
239, 251 (1966) (Clark, J., concurring, joined by Black and Fortas,
J.J.) and id.  at 782, 86 S.Ct. at 1190, 16 L.Ed.2d at 263
(Brennan, J., concurring and dissenting, joined by Warren, C.J. and
Douglas, J.) (suggesting that @ 5 empowers Congress to punish
purely private conspiracies to deprive Fourteenth Amendment
rights), with, id.  at 753-60, 86 S.Ct. at 1175-80, 16 L.Ed.2d at
246-50 (opinion of the Court by Steward, J., relying on right to
interstate travel) and id.  at 762, 86 S.Ct. at 1180, 16 L.Ed.2d at
251 (Harlan, J., concurring and dissenting).  See Oregon v.
Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970);
Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct 1717, 16 L.Ed.2d 828
(1966).

   We need not depend on this uncertain precedent for congressional
power. Griffin clearly contemplated that other sources of
congressional power might be available to justify other
applications of section 1985(3).Indeed, the original proponents of
the Ku Klux Klan Act did not base their assertion of congressional
power exclusively on the Fourteenth Amendment.  See, e.g., Cong.
Globe, 42d Cong., 1st Sess. 81 (1871) (remarks of Rep. Bingham)
("It was always competent for the Congress of the United States by
law to enforce every affirmative grant of power. . . ."); id.  at477-78 (remarks of Rep. Shellabarger (referring to the amendment to
@ 2 "so far as it is not confined to infractions of rights which
are clearly independent of the Fourteenth Amendment, referable to
and sustained by the old provisions of the Constitution").  On the
facts presented in this case, we hold Congress has the authority to
reach a wholly private conspiracy under the commerce power
conferred by article I, section 8 of the Constituion.

   A.A. Cross Construction Company is a general contractor in the
building and construction  [*998]   industry.  The record indicates
that during the years preceding the violent episode of January 17,
1975, Cross had performed work outside of Texas valued in excess of
$300,000.  During that same period, Cross purchased goods and
materials which originated outside of Texas, were used in
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its operations within Texas, and were valued at more than $50,000.
In addition, at the time of the attack on the Alligator Bayou
construction site, Cross was performing its obligations under a
contract with the United States Army Corps of Engineers.

   Article I, section 8, clause 3 of the Constitution confers upon
Congress the power "[t]o regulate Commerce . . . among the several
states" and clause 18 of the same article grants it the power "[t]o
make all laws which shall be necessary and proper for carrying into
execution the foregoing powers. . . ." As the Supreme Court has
pointed out, this grant of power "extends to those activities
intrastate which so affect interstate commerce, or the exertion of
the power over it, as to make regulation of them appropriate means
to the attainment of a legitimate end, the effective execution of
the granted power to regulate interstate commerce." United States
v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86
L.Ed. 726, 732 (1942). "If it is interstate commerce that feels the
pinch, it does not matter how local the operation which applies the
squeeze." United States v. Women's Sportswear Mfg. Ass'n, 336 U.S.
460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805, 811 (1949). See United
States v. Darby, 312 U.S. 100, 118, 61 S.Ct. 451, 459, 85 L.Ed.
609, 619 (1941); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,
37, 57 S.Ct. 615, 624, 81 L.Ed. 893, 911 (1937). Moreover, that the
volume of goods and supplies purchased by Cross or that the volume
of business done outside of Texas is comparatively small in terms
of the total amount of goods moved or work performed in interstate
commerce is not significant.  Katzenbach v. McClung, 379 U.S. 294,
300-01, 85 S.Ct. 377, 382, 13 L.Ed.2d 290, 291 (1964); Wickard v.
Filburn, 317 U.S. 111, 127-28, 63 S.Ct. 82, 90, 87 L.Ed. 122, 136
(1942). Judicial inquiry is limited to asking whether Congress had
"a rational basis for finding a chosen regulatory scheme necessary
to the protection of commerce. . . ." Katzenbach v. McClung, 379
U.S. at 304, 85 S.Ct at 377, 13 L.Ed.2d at 298. And it is not
constitutionally relevant that Congress was actually "legislating
against moral wrongs" when it enacted the provisions in question.
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257,
85 S.Ct. 348, 357, 13 L.Ed.2d 258, 268 (1946). Chief Justice
Marshall's classic formulation of the extent of congressional power
is still viable.

   Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional.
McCulloch v. Maryland, 4 Wheat 316, 421, 4 L.Ed. 579, 605 (1819).

   By these standards, Congress acted within its constitutional
power when it enacted section 1985(3) to reach the private
conspiracy involved here.  It cannot be denied that the aim ofprotecting interstate 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 private civil remedy for damages, is plainly reasonable and
appropriate.  Section 1985(3) as applied to the facts before us is
compatible with both its letter and its spirit.  Whether section
1985(3) can constitutionally be applied to other kinds of wholly
private conspiracies to
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deprive persons of their civil rights is a question for another
day.    [*999]

   V.  THE EVIDENTIARY QUESTION: STANDARD OF PROOF AND SUFFICIENCY
OF EVIDENCE

   A.  The Standard of Proof

    The unions contend that they cannot be held liable for unlawful
acts committed at the Cross construction site by some individual
members of their organizations without "clear proof" that they
actually participated in the unlawful conduct, gave prior
authorization of it, or ratified the acts after actual knowledge of
their commission.  This more rigorous standard of proof derives
from section 6 of the Norris-LaGuardia Act which provides:

   No officer or member of any association or organization, and no
association or organization participating or interested in a labor
dispute, shall be held responsible or liable in any court of the
United States for the unlawful acts of individual officers,
members, or agents, except upon clear proof of actual participation
in, or actual authorization of, such acts, or of ratification of
such acts after actual knowledge thereof.

   29 U.S.C.  @ 106. This statutory standard of proof thus lies
somewhere between the traditional burdens of reasonable doubt and
preponderance of the evidence.  With it, Congress intended to
require "clear, unequivocal, and convincing proof" of union
involvement in unlawful conduct to impose liability for it.  United
Mine Workers v. Gibbs, 383 U.S. 715, 737, 86 S.Ct. 1130, 1145, 16
L.Ed.2d 218, 234 (1966). Yet, while section 106 requires clear and
convincing evidence as to union authorization, participation in, or
ratification of the acts allegedly performed by its members, it
does not prescribe a different standard of proof for other issues
in actions against a union or its officers or members involved in
a labor dispute.  Ramsey v. United Mine Workers, 401 U.S. 302, 91
S.Ct. 658, 28 L.Ed.2d 64 (1971).

   The unions also recognize that section 106 is by its own terms
limited to cases in which the union is participating or interested
in a labor dispute.  The Norris-LaGuardia Act defines a "labor
dispute" to encompass

   any controversy concerning terms and conditions of employment,
or concerning the association or representation of persons in
negotiating, fixing, maintaining, charging, or seeking to arrange
terms or conditions of employment, regardless of whether or not the
disputants stand in the proximate relation of employer and
employee.   29 U.S.C.  @ 113(c).  The unions insist that the literal
language of section 113(c) squarely covers the conduct at issue
here.  The persons who planned and executed the attack on the
Alligator Bayou construction site was motivated by a desire to
punish Cross for engaging in employment practices which violates
their misperceived area of exclusive control and to punish those
who would work for Cross without attorning to them.  Because the
conspiracy that generated the case was formed around this nonunion
animus, the defendants maintain that the controversy out of which
this case arose cannot be anything other than a labor dispute.

   This approach has a certain superficial appeal.  The attack on
the Cross construction site was certainly conceived in reprisal for
the refusal of Cross
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and his workers to accede to demands that the Alligator Pumping
Station project be conducted as a union job.  Nevertheless, in
construing any congressional enactment it is necessary to interpret
the meaning of the words as they are used in relation to the
setting in which they were written, with due regard to the mischief
which the legislation was designed to remedy.  In that light, these
unions were not participating in a "labor dispute" as that language
is employed in section 113(c) because their activity does not fall
within the abuses that Congress intended to prevent.

   The Norris-LaGuardia Act was passed in a particular social,
economic, and legal milieu.  During the early part of this century,
federal injunctive powers were often invoked to check the spread of
union organization and collective bargaining.  But Congress
conceived that the courts were being   [*1000]   made to play a
partisan role in labor-management conflicts, in part because
judicial injunctive relief usually did nothing to resolve the
underlying industrial dispute.  The Norris-LaGuardia Act was
intended to curb this unwarranted judicial interference in the
struggle between employers and employees.  Instead, Congress
decided to allow such controversies to be settled through
negotiation and through the free play of economic forces.

   The Norris-LaGuardia Act . . . was designed primarily to protect
working men in the exercise of organized, economic power, which is
vital to collective bargaining. . . .  Congress acted to prevent
the injunctions of the federal courts from upsetting the natural
interplay of the competing economic forces of labor and capital.

   Brotherhood of Railroad Trainmen v. Chicago River and Indiana
Rd., 353 U.S. 30, 39, 77 S.Ct. 635, 640, 1 L.Ed.2d 622, 628 (1957).
Thus, the policy section of the Act stresses the worker's "freedom
of association, self-organization, and designation of
representatives of his own choosing" as indispensable to the
private settlement of these disputes.  29 U.S.C.  @ 102. Congress
thereby made the use of legitimate economic weapons -- the picket,
the strike, the boycott --part of the warp and woof of our national
labor relations policy.  See generally Boys Markets, Inc. v. Retail
Clerk's Union, Local 770, 398 U.S. 235, 250-51, 90 S.Ct. 1583,
1592, 26 L.Ed.2d 199, 210 (1970); Milkwagon Drivers' Union v. Lake
Valley Farm Products, Inc., 311 U.S. 91, 100-03, 61 S.Ct. 122,
127-28, 85 L.Ed. 63, 68-70 (1940); A. Cox., D. Bok, & R. Gorman,
Labor Law 60-64 (8th ed. 1977).

   One of the special abuses identified by Congress was the use of
vicarious liability doctrines under which the misconduct of a few
individuals could be attributed to the labor organization that
sponsored a strike or picket line. Courts had applied the common
law of conspiracy to hold unions responsible not only for theconduct of their authorized agents, but also "for every act
committed by any member of a union merely because he was a member,
or because he had some relation in the union although not
authorized by virtue of his position to act for the union in what
he did." United Brotherhood of Carpenters and Joiners v. United
States, 330 U.S. 395, 419, 67 S.Ct. 775, 788, 91 L.Ed. 973, 991
(1947) (Frankfurter, J., dissenting).

   Congress recognized that this dragnet conspiracy approach to
union responsibility could frustrate its chosen labor relations
policy.  Imposing liability on the union for the unauthorized
lawlessness of its more improvident members would penalize the
union lawfully engaged in using the legitimate economic weapons
necessary for the proper resolution of labor-management
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conflicts.  Therefore, Congress enacted section 106, requiring
clear proof of union participation in, authorization, or
ratification of unlawful conduct before liability could attach.

   However, there is no danger of frustrating the congressional
policy favoring collective bargaining and no risk of punishing
union engagement in protected activity in the case before us.  When
the events giving rise to this case occurred, no union had a
collective bargaining agreement with Cross, and none was seeking
recognition as the collective bargaining representative for Cross's
workers.No solicitation or other organizational efforts were in
progress to attain representation of the Cross employees.  No labor
organization was engaged in informational picketing to publicize
Cross's employment practices.  In short, the attack on the
Alligator Bayou construction project did not grow out of any
legitimate union activity.  The employer-employee relationship was
not the matrix of the controversy. n14 The district court found:
"the acts of [*1001]   violence . . . are manifestations of the
illwill and hatred these union members harbor toward non-union
individuals, as well as an attempt by the unions to intimidate and
coerce these non-union people from working or being employed within
a "union area."" This is not the kind of controversy contemplated
by Congress when it required "clear proof" of misconduct by a union
"participating or interested in a labor dispute."

   n14 In Jacksonville Bulk Terminals, Inc. v. International
Longshoremen's Association,    U.S.   , 102 S.Ct. 2673, 72 L.Ed.2d
327, 50 U.S.L.W. 4789 (U.S. June 24, 1982), the Supreme Court
considered whether a politically motivated strike was a "labor
dispute" within the meaning of the Norris-LaGuardia Act. Two
controversies were involved: a political strike and a dispute over
whether that strike was barred by the no-strike pledge in the
collective bargaining contract.  The dispute over the no-strike
clause was held to be sufficient to bring the employees' actions
within the protections of the Norris-LaGuardia Act. See id.  at
, 102 S.Ct. at 2680. In the case before us there was no strike and
no underlying collective bargaining contract dispute.  The holding
of Jacksonville Bulk Terminals does not affect our holding today.

   The Court noted that even if the dispute over the contract term
were absent, this controversy might still be a "labor dispute." The
Court reasoned that the union's political "objections were
expressed in a work stoppage by employees against their employer,
which focused on particular work assignments." Id. at    n.12, 102
S.Ct. at 2681 n.12. Thus, the test for determining a labor dispute,
whether the employer-employee relationship is the matrix of the
controversy, might have been satisfied.  See id.  However, the
Court also noted the continuing viability of Columbia River Packers
Association v. Hinton, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750. Itfound that Hinton stood for the proposition "that the protections
of [the Norris-LaGuardia Act] do not extend to labor organizations
when they cease to act as labor groups or when they enter into
illegal combinations with nonlabor groups in restraint of trade."
Jacksonville Bulk Terminals v. International Longshoremen's
Association,    U.S. at    , 102 S.Ct. at 2681. The broad scope of
the Norris-LaGuardia Act does have limits.  In the case at bar,
those limits were exceeded.  The defendants were not acting as
labor groups.  Instead, they sought to dominate "their" territory
through force and violence.

   On the other hand, a labor dispute does exist where unlawful
conduct occurs in conjunction with some legitimate union
activity.See, e.g., Cedar Crest
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Hats, Inc. v. United Hatters, Cap & Millinery Workers Int'l Union,
362 F.2d 322, 327-28 (5th Cir. 1966). A labor dispute may also
exist even though the otherwise legitimate union conduct is
unlawful under some other statutory scheme.See, e.g., Marine Cooks
& Stewards v. Panama Steamship Co., 362 U.S. 365, 370-71, 80 S.Ct.
779, 783-84, 4 L.Ed.2d 797, 801-02 (1960); Order of R.R.
Telegraphers v. Chicago & N.W. Ry., 362 U.S. 330, 339 n.15, 80
S.Ct. 761, 766 n.15, 4 L.Ed.2d 774, 781 n.15 (1960); Milkwagon
Drivers' Union v. Lake Valley Farm Products, Inc., 311 U.S. at 103,
61 S.Ct at 128, 85 L.Ed. at 70. But neither situation is present
here.Our holding, therefore, is necessarily a very narrow one:
where a labor organization purposefully adopts violence as its
course -- violence not associated with or happening to result from
any ongoing legitimate union conduct, the union is not
participating in a labor dispute within the meaning of 29 U.S.C.
@ 113(c).  Since the violence at the Alligator Bayou construction
site did not occur in conjunction with a labor dispute, the clear-proof standard of section 106 is not applicable.

   B.  Sufficiency of the Evidence

    The unions finally urge that the evidence adduced at trial is
insufficient to support the judgment against them under any
standard of proof.  After careful reviewing the entire record, we
agree that the evidence does not warrant the district court's
finding of involvement in the conspiracy for many of the unions
vouched in judgment.  However, as to the remaining unions, we
cannot say that the factual conclusions reached by the district
court are clearly erroneous.

   The factual findings made and the inferences drawn by the
district court "come here well armed with the buckler and shield"
of the clearly erroneous rule embodied in Federal Rule of Civil
Procedure 52(a).Horton v. U.S. Steel Corp., 286 F.2d 710, 713 (5th
Cir. 1961). "A finding is "clearly erroneous' when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed." United States v. Gypsum Co., 333 U.S.
364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 765 (1948). The
appellate court must be especially reluctant to disregard a factual
finding based upon the evaluation  [*1002]   of testimony that
draws credibility into question, Graver Tank and Mfg. Co. v. Linde
Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537-38, 93 L.Ed.
672, 676 (1949); it may not consider the evidence anew, Zenith
Radio Corp. v. Hazeltime Research, Inc., 395 U.S. 100, 123, 89
S.Ct. 1562, 1576, 23 L.Ed.2d 129, 151 (1969); and merely because it
might have reached a different result on the same evidence will not
justify its setting the district court's findings aside.  United
States v. National Ass'n of Real Estate Bids, 339 U.S. 485 495-96,70 S.Ct. 711, 717, 94 L.Ed. 1007, 1016 (1950).

   The court below concluded that the assault on the Alligator
Bayou construction site "evolved from a meeting held by the
Executive Committee of the Sabine Area Building and Construction
Trades Council on January 15, 1975, wherein a "citizen protest" was
discussed and a time and place were chosen for such a protest." 461
F.Supp. at 226.However, the evidence in the record does not support
this inference.  There was nothing unique about the January 15
congregation; it was the Council's regularly scheduled weekly
meeting.  The minutes of the meeting contain only one cryptic entry
which might conceivably be construed to refer to the Cross
construction site protest, and it is wholly innocuous. n15 In
addition, those union representatives who actually attended the
meeting testified that the committee discussed the Cross project
and that
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some members mentioned they had heard of a demonstration to be held
on the jobsite the following Friday.  The import of their testimony
is that the protest had already been conceived several weeks before
January 15 and that neither the time nor the place for it were set
by the Council.  Furthermore, there is no evidence that the Council
endorsed the planned protest: no motions were offered and no formal
resolutions were adopted.The only connection between the Wednesday
meeting and the Friday violence is the nearness in time between the
two events. Given the regular sequence of such weekly meetings,
this link is too tenuous. As to those unions linked only by the
evidence of their participation in the January 15 meeting of the
Sabine Area Building and Construction Trades Council, the judgment
of the district court must be reversed.

   n15 The minutes show that the "good and welfare" of the
community were discussed.

   An additional fact casts the district court's error into even
sharper relief. The court exonerated two unions as to which the
only evidence of involvement was their representation at the
January 15 meeting, yet it held other unions liable even though the
proof against them was no stronger.  Furthermore, the district
court held the Operating Engineers, Local 450, liable, and that
organization neither belonged to the Building and Construction
Trades Council nor attended its January 15 meeting nor was
otherwise shown to be connected with the violence. The additional
evidence relevant to the Operating Engineers is no more
compelling.The judgment against the union of Operating Engineers,
Local 450, too must be reversed.

   However, the situation is different with respect to the United
Brotherhood of Carpenters and Joiners of America, Local 610. In
mid-summer of 1074, before construction began on the Alligator
Bayou project, Cross received a visit in his Houston office from an
official of the union.  John Wallace, financial secretary and
business representative for the Carpenters Local 610, gave Cross
his business card and informed him that he wanted the union to
furnish laborers for the job.  He also asked Cross to sign a union
contract.  Cross agreed to hire members of Wallace's union but
refused to enter into the proposed agreement.Wallace then told
Cross that his refusal would "cost him a million dollars."

   Wallace had no further contact with the Alligator Bayou project
until January 17, 1975, when the attack occurred.  On that day,
Wallace was present at the highway near the access road which led
to the Cross jobsite on at least two separate occasions.More
damaging, however, is the fact that Wallace was also observed with
Robert Faulk, subsequently identified as one of the   [*1003]
principal participants in the violence committed that morning.  Thetwo men, riding in Wallace's pickup truck, drove part of the way
down the road leading to the construction site, confirmed that the
Cross workers had arrived at the scene, and returned to the
highway.  Shortly thereafter, the mob attacked Cross's
workers.Wallace admitted that he was at the highway and that he and
Faulk approached the construction site together.  Not surprisingly,
however, his version is less sinister.  He also testified that he
saw some members of Local 610 and that, before leaving the area, he
expressly instructed them not to engage in any violence.  From this
evidence, the district court concluded that the union had actually
participated in the conspiracy, and we cannot say that his factual
inferences and credibility resolution are clearly erroneous.
Therefore, the judgment against the United Brotherhood of
Carpenters and
    PAGE  161                     680 F.2d 979, *1003; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

Joiners, Local 610, is affirmed.

   Similarly, we affirm the judgment against the United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local 195.  Bruce Hill,
one of two business representatives for the local, appeared at the
Cross construction site shortly after the violence had ended.
Fulton Johnson, the Corps of Engineers inspector assigned to the
Alligator Bayou project, described Hill's conduct at the scene. He
testified that Hill was laughing and joking and that his light-hearted demeanor and remarks were highly inappropriate for the
gravity of the situation.While Johnson and a colleague were
attempting to take photographs of the damage, Hill repeatedly
interposed himself in front of the camera, urging him to take his
photograph with a burning trailer behind him.  Johnson recalled
that Hill sarcastically told them he wanted the photograph to post
on the bulletin board at the local so that "he could show his men
what not to do."

   Like Wallace, Hill himself gave a more innocent account of the
episode, and denied saying that he wanted the picture for the union
bulletin board.His explanation for seeking the photograph was, "I
don't know.  I guess I am a camera freak.  I like to have my
picture taken." Although the local's other business representative
had attended the January 15 meeting of the Trades Council when the
protest was discussed, Hill said he first learned of the events
around 8:00 that Friday morning when he overheard some men talking
at a grocery store.He stated that he went to the Cross construction
site to check on a friend who worked nearby, even though he had
never been there to see him before. Although the evidence is
sparse, we cannot say that the district court's finding that the
Pipefitters Local 915 was involved in the conspiracy is clearly
erroneous.

   Lastly, we also affirm the district court's finding as to the
United Brotherhood of Carpenters and Joiners of America, Local 753.
Jay Desormeaux and Curtis Beasley, members but not officers of
Local 753, were both observed on the Cross construction site during
the violent melee of January 17.  Desormeaux recounted a
conversation he had with Randy Wylie, assistant business agent for
the local, on the preceding Wednesday or Thursday when they
discussed the planned protest.  Wylie admitted that Desormeaux had
called him to ask about the demonstration but denied instructing
him to go to the work site.  Wylie also admitted seeing Desormeaux
at the highway on the fateful Friday morning.

   There was still more evidence suggesting that the union had
authorized the unlawful conduct.  Both Desormeaux and Beasley were
named as defendants in this lawsuit.  Beasley testified that, afterthe suit was commenced, Wylie had referred him to the union's own
lawyers for representation in matters connected with his part in
the violent events of January 17.  Desormeaux also stated that he
had spoken with both Wylie and W. H. Carr, business agent for Local
753, about obtaining a lawyer and expressed his belief that the
union would pay his attorney fees.Carr informed Desormeaux that the
union furnishing him with a lawyer would be "the least they could
do," since he was a union member. However, Desormeaux knew of no
formal   [*1004]   arrangement by which the union regularly
provided legal services to its members and conceded that the union
had never done so for him.  Wylie denied talking with Desormeaux
about attorney fees, but, apart from that denial, the union made no
effort to rebut this testimony.  It did not deny furnishing legal
services for its members in actions arising from the violence.  The
evidence in the record permitted the inference
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3097;                                                 94 Lab. Cas.
(CCH) P13,678

that the union sponsored the attack on the Cross employees and then
undertook to lend assistance to its members who were discovered in
the unlawful enterprise. The appellate issue is not whether we
might have taken a different view had the evidence been presented
initially to us.  It is whether the district court's determination
that the Carpenters Local 753 authorized or participated in the
attack is clearly erroneous.  It is not.

   VI.  CONCLUSION

   In summary, we hold that (1) the anti-injunction provisions of
the Norris-LaGuardia Act do not deprive the district court of
jurisdiction to enjoin violence, and (2) Congress intended 42
U.S.C.  @ 1985(3) to provide a remedy for private conspiracies
directed at nonracial classes.  Specifically, we determine that the
statute encompasses a conspiracy designed to deprive nonunion
workers of the First Amendment right to freely associate with one
another where that conspiracy does not occur in conjunction with
legitimate union activity and is perfected by force and violence.
In addition, we hold that the Commerce Clause empowers Congress to
reach the private conspiracy involved in the case before us.
Furthermore, since this case does not involve a labor union
participating or interested in a labor dispute within the meaning
of 29 U.S.C.  @ 113(c), the clear-proof standard of 29 U.S.C.  @
106 is inapplicable.  We conclude that the district court's
findings that the Carpenters Local 610, Pipefitters Local 195, and
Carpenters Local 753 authorized or participated in this conspiracy
were not clearly erroneous.Nevertheless, we find that the evidence
of participation in the conspiracy is insufficient to warrant the
district court's judgment against the remaining eight unions.

   In light of the foregoing, the judgment of the district court is

   AFFIRMED IN PART AND REVERSED IN PART.

DISSENTBY: RUBIN; WILLIAMS; BROWN; VANCE; KRAVITCH; RANDALL; TATE;
JOHNSON; ANDERSON; GARWOOD

DISSENT: ALVIN B. RUBIN and JERRE S. WILLIAMS, Circuit Judges, with
whom JOHN R. BROWN, VANCE, KRAVITCH, RANDALL, TATE and SAM D.
JOHNSON, Circuit Judges, join, dissenting:

   No one can condone an unprovoked and brutal attack on law-abiding citizens who are peacefully minding what is literally their
own business.  However, the issue before us is not the
reprehensibility of the conduct but whether the district court
properly issued an unjunction in a case over which, we submit,
Congress has, by the terms of the Norris-LaGuardia Act, denied
federal courts jurisdiction.  Our colleagues also interpret the KuKlux Klan Act of 1871 in an unprecedented fashion to permit damages
to be imposed for an assault, a state law tort, merely because it
occurred in the course of a dispute about whether union or nonunion
workers would do a job.  Further our colleagues impose this
liability without the stringent evidentiary findings exacted by the
Norris-LaGuardia Act.  We, therefore, respectfully dissent.

   The factual background is accurately stated in the majority
opinion.  These facts lead the majority to conclude that the
defendant labor organizations purposefully adopted violence as
their course, Slip op. page 15467, page 1001 supra, that a group of
about fifty persons who were either union members or
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(CCH) P13,678

union sympathizers drove to the jobsite in four pickup trucks, and
there brutally beat A. A. Cross ("Cross"), the president and
controlling stockholder of A.A. Cross Construction Company, Inc.
("Cross Construction"), and several of the construction company's
employees, including Paul Scott and James Matthews. Scott was an
engineer and assistant  [*1005]   superintendent; Matthews was a
bookkeeper and timekeeper. n1

   n1 James Matthews did not testify at trial, nor was he deposed
by any party.The district court, however, awarded him $5,000 in
damages from the defendant labor unions.  A. A. Cross stated in a
post-trial deposition that, after the January 17 incident, he
decided to maintain Cross Construction's records in Houston and
accordingly paid Matthews's Houston hotel bill while Matthews
worked there on the company's recordkeeping.  Cross further
testified that Matthews had been threatened several times after the
January 17 incident, was subsequently fired from Cross Construction
for cause, and that he did not know Matthews's current whereabouts.
Paul Scott stated in his deposition that, to the best of his
knowledge, Matthews was in New York.

   I.  THE PRIVATE INJUNCTION AND THE NORRIS-LAGUARDIA ACT

   The judgment of the district court affirmed by the majority
included a permanent injunction against the defendant labor
organizations.  The majority, in finding that the district court
had authority to issue the injunction, neglects the original
purpose, as well as the half century of interpretation and
application, of the Norris-LaGuardia (Anti-Injunction) Act, 29
U.S.C.  @@ 101-115 (1976), passed in 1932.

   The patent purpose of the Norris-LaGuardia Act was to limit
stringently the jurisdiction and authority of federal courts to
enjoin labor disputes. n2 The Act requires three determinations.
First, the court must decide whether a labor dispute is involved.
Second, to have jurisdiction to issue an injunction under the Act,
the court must make all five findings required by 29 U.S.C.  @ 107;
(1) unlawful acts have been threatened and will be committed or
have been committed and will be continued; (2) irreparable injury
will follow; (3) the balance of injury is more severe on the
complainant than the harm the injunction inflicts on the defendant;
(4) there is no adequate remedy at law; and (5) the public officers
charged with the duty to protect the complainant's property are
unable or unwilling to furnish adequate protection.  Third, the
injunction, if issued, must not prohibit any of the activities
listed in 29 U.S.C.  @ 104. n3

   n2 When the Labor Management Relations (Taft-Hartley) Act of
1947 was passed, there was concern that the power given to theNational Labor Relations Board to obtain injunctions in labor
disputes and to issue cease and desist orders was a limitation upon
the Norris-LaGuardia Act.  The Taft-Hartley Act did indeed curtail
the Norris-LaGuardia Act, but it was carefully written to ensure
that no increased power to obtain labor injunctions was placed in
the hands of private litigants.  The labor injunctions and cease
and desist orders authorized by the Taft-Hartley Act against unions
and their members must be initiated and controlled by the
government.  Senator Smith, who was handling the debate on the
Taft-Hartley Act on the floor of the Senate on behalf of its
proponents, was asked if the Taft-Hartley Act would not "slice a
wedge" from the Norris-LaGuardia Act on injunctions.  His reply was
"we were very careful in this bill to protect the injunctive
process as it is protected in the Norris-LaGuardia Act, except in
the exceptional cases where the Government has
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3097;                                                 94 Lab. Cas.
(CCH) P13,678

to step in. " Cong.Rec. 4,411 (April 30, 1947) (emphasis added).

   The Supreme Court later commented:

   The short answer to the argument that the Labor Management
Relations Act of 1947 . . . has removed the limitations of the
Norris-LaGuardia Act upon the power to issue injunctions against
what are known as secondary boycotts, is that the law has been
changed only where an injunction is sought by the National Labor
Relations Board, not where proceedings are instituted by a private
party. Bakery Sales Drivers Local 33 v. Wagshal, 333 U.S. 437, 442,
68 S.Ct. 630, 632, 92 L.Ed. 792, 796 (1948).

   n3 No court has jurisdiction to issue an injunction growing out
of a labor dispute to prohibit any persons from doing any of the
following:

   (a) Ceasing or refusing to perform any work or to remain in any
relation of employment;

   (b) Becoming or remaining a member of any labor organization or
of any employer organization, regardless of any such undertaking or
promise as is described in [section 3 of this Act];

   (c) Paying or giving to, or withholding from, any person
participating or interested in such labor dispute, any strike or
unemployment benefits or insurance, or other moneys or things of
value;

   (d) By all lawful means aiding any person participating or
interested in any labor dispute who is being proceeded against in,
or is prosecuting, any action or suit in any court of the United
States or of any State;

   (e) Giving publicity to the existence of, or the facts involved
in, any labor dispute, whether by advertising, speaking,
patrolling, or by any other method not involving fraud or violence;

   (f) Assembling peaceably to act or to organize to act in
promotion of their interests in a labor dispute;

   (g) Advising or notifying any person of an intention to do any
of the acts heretofore specified;

   (h) Agreeing with other persons to do or not to do any of the
acts heretofore specified; and

   (i) Advising, urging, or otherwise causing or inducing without
fraud or violence the acts heretofore specified, regardless of anysuch undertaking or promise as is described in [section 3 of this
Act].
29 U.S.C.  @ 104.   [*1006]

   The majority concedes that the requirements of @ 107 were not
met in this case, slip op. page 15449 n.3, page 986 n.3, supra, but
sidesteps deciding whether this is jurisdictional.  The statute
itself, however, is unequivocal: "No court of the United States
shall have jurisdiction to issue a temporary or permanent
injunction . . . except after [the required] findings of fact [have
been made] by the court." 29 U.S.C.  @ 107 (emphasis added).
Indded, the
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3097;                                                 94 Lab. Cas.
(CCH) P13,678

entire thrust of the Norris-LaGuardia Act is to deny district
courts jurisdiction with respect to injunctions in labor disputes.
n4 Our colleagues justify the injunction, however, by finding that
there was no "labor dispute" as defined in the Act.  That
definition is:

   The term "labor dispute" includes any controversy concerning
terms or conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment,
regardless of whether or not the disputants stand in the proximate
relation of employer and employee.

   n4 Lauf v. E.G. Shinner & Co., 303 U.S. 323, 329-30, 58 S.Ct.
578, 581-82, 82 L.Ed. 872, 877 (1938) ("The District Court made
none of the required [ @ 107] findings save as to irreparable
injury and lack of remedy at law.  It follows that in issuing the
injunction it exceeded its jurisdiction.").

   29 Id.  @ 113(c) (emphasis added).

   Even according to the majority view, this was a "controversy
concerning terms or conditions of employment" and "concerning the
association . . . of persons in . . . maintaining . . .
employment." Not only was the controversy thus one literally
embraced by the Act, but it was also covered by the Act's embracive
purpose.  The definition of a labor dispute is broad and should be
broadly read because the Act caters to the need of labor
organizations to organize entire industries.  Gregory & Katz, Labor
and the Law 190 (3d ed. 1979).  It abrogates the view, once held by
some, that there can be a labor dispute only between persons in an
employee-employer or prospective employee-employer relationship.
Instead, it includes in its ambit all laboring people and their
unions.  It is not confined to formal efforts to have employees
sign union authorization cards. Its terms precisely characterize as
a labor dispute the controversy involved in this case: a group of
employees and labor unions protesting the failure of an employer
working in their community to hire union workers and to sign
collective bargaining agreements with local unions.

   While the unions were not engaged in a formal campaign to sign
up employees of Cross Construction at the exact time of the
critical incident, n5 the entire thrust of their activities from
the time Cross Construction entered the community was
organizational.  As the majority opinion indicates, on one occasion
the business representative for the carpenters' local told Cross,
"this is union country," and added that, if Cross persisted in
using non-union labor, it was "going to cost [him] a million
dollars." Slip op. page 15446, page 983 supra.  Cross Constructionemployees were confronted by local union members in various public
gathering places in the community.  Local unions and their members
also threatened to picket the construction project because it was
non-union.  The public demonstration the morning the violence
occurred was obviously a form of informational mass picketing to
publicize Cross Construction's employment practices.

   n5 As the majority reports: "Cross did not have a collective
bargaining agreement with any labor union." Slip op. page 15446,
page 982-83 supra. [*1007]

   The majority finds that, "where a labor organization
purposefully adopts violence as its course -- violence not
associated with or happening to result
    PAGE  166                     680 F.2d 979, *1007; 110 L.R.R.M.
3097;                                                 94 Lab. Cas.
(CCH) P13,678

from any ongoing legitimate union conduct, the union is not
participating in a labor dispute within the meaning of 29 U.S.C.
@ 113(c)." Slip op. page 15467, page 1001 supra.  Violence,
however, is not a stranger to the labor union movement nor does its
presence vitiate the existence of a dispute.  If the dispute
concerns labor matters, it does not cease to be a labor dispute
because it becomes violent.  This court early held that the use of
violence to achieve a labor objective does not prevent the activity
from being considered a labor dispute within the Norris-LaGuardia
Act.  Carter v. Herrin Motor Freight Lines, Inc., 131 F.2d 557 (5th
Cir. 1942). This view is amply supported throughout the history of
litigation under the Act. n6

   n6 E.g., United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966) (Court found there was a labor dispute
even though members of the United Mine Workers forcibly prevented
the opening of a mine staffed by members of a rival union
organization, threatened the employer, and beat an organizer for
the rival union; mine was finally reopened when UMV miners were
hired); Milk Wagon Drivers' Local 753 v. Lake Valley Farm Prods.,
Inc., 311 U.S. 91, 96, 61 S.Ct. 122, 124, 85 L.Ed. 63, 66 (1940)
(union organizing drive was acrimonious and frequently violent:
"store windows were broken, personal altercations occurred, charges
and countercharges were frequent, arrests were made and court
proceedings instituted"; nevertheless the Court found that a labor
dispute existed); Lake Charles Stevedores, Inc. v. Mayo, 20 F.Supp.
698 (W.D.La.1935) (union, striking to gain recognition, engaged in
a pitched battle, including gunfire, with private armed guards
brought in by port authorities; district court granted an
injunction, but only after specific findings that the requirements
of @ 107 were satisfied); see also Gregory & Katz, Labor and the
Law 190 (3d ed. 1979) ("Congress did not give organized labor a
complete carte blanche." Labor activities after the passage of the
Norris-LaGuardia Act were "still subject to other legal procedures
such as criminal proceedings and actions for damages, where
appropriate.").

   The majority concedes that "a labor dispute does exist where
unlawful conduct occurs in conjunction with some legitimate union
activity . . . [or where] the otherwise legitimate union conduct is
unlawful under some statutory scheme." Slip op. pages 15467, pages
  -    supra.  This fails to explain why unlawful conduct falls
within the ambit of the Act only if it is connected with legitimate
n7 union conduct, for the Norris-LaGuardia Act does not confine its
definition of labor disputes to those involving legitimate conduct.
Indeed, by definition, the Act is applicable only when the union is
engaging in unlawful conduct. n8 We cannot assume that any court
would issue an injunction against lawful activities, and, of the
five prerequisites to the issuance of an injunction, alreadylisted, one demands a finding that unlawful acts have been
threatened and will be committed.

   n7 Whether the defendant's activities were otherwise
"legitimate" depends only on whether the local unions were in
compliance with the technical requirements for organizational
activity under the National Labor Relations Act. Concededly, they
were not.  But it is not essential to the existence of a labor-dispute that the contest be connected with "legitimate" labor
activity or that it be peaceful.

   n8 See California Ass'n of Employers v. Building & Const. Trades
Council, 178 F.2d 175 (9th Cir. 1949) (holding that the controversy
involved a labor dispute although the union was insisting on a
closed shop and closed shops had
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(CCH) P13,678

previously been outlawed by the Taft-Hartley Act).

   A "labor dispute" can, indeed, be fomented even without
traditional labor activity.  Thus in New Negro Alliance v. Sanitary
Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012 (1938), a
grocery store owner was picketed by a group protesting the shop's
refusal to hire blacks.  No member of the group was employed by the
shop, and the group was not a labor organization.  The Supreme
Court, nevertheless, held that the pickets were publicizing a
controversy about the shop owner's "terms and conditions of
employment" and that the picketing grew out of a labor dispute. n9

   n9 See also Marine Cooks & Stewards v. Panama S.S. Co., 363 U.S.
365, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960). A union picketed a foreign
ship that employed foreign seamen and paid them less than the going
American wage rates.  The foreign employees had no dispute with the
vessel owners, and the unions had no desire to organize or to
represent the foreign employees.  The Supreme Court held, however,
that the Norris-LaGuardia Act applied, finding that the picketing
related to the terms and conditions of employment.    [*1008]

   National policy, as reflected in labor legislation, was being
implemented precisely as Congress intended until the district court
granted the injunction at the behest of Cross Construction.  The
National Labor Relations Board ("NLRB") had filed unfair labor
practice charges against the Sabine Area Building and Construction
Trades Council and the various unions that were council members for
their actions, including the violence in the episode that is the
subject of this lawsuit.The NLRB had issued a cease and desist
order that prohibited the Trades Council and the unions from, among
other things:

   (a) Restraining or coercing employees of Cross Construction Co.,
Inc. or any other employer, in the exercise of the rights
guaranteed in Section 7 of the National Labor Relations Act, as
amended, including the right to refrain from joining or assisting
any constituent local union of Sabine Area Building & Construction
Trades Council, AFL-CIO, by: threatening, assaulting, or inflicting
bodily harm on said employees, threatening, assaulting, or
inflicting bodily harm on supervisory or management personnel of
Cross Construction Co., Inc.; and damaging or destroying property
and equipment belonging either to Cross Construction Co., Inc., to
its supervisory or management personnel, or to its employees.

   (b) Organizing, encouraging, sanctioning and engaging in mass
picketing by its constituent local unions at the entrance to the
roadway leading to the Alligator Bayou Pumping Station and Drainage
Structure construction project in order to obstruct or impede
ingress or egress to said jobsite.   NLRB Case 23-CB-1624, May 1, 1975.

   This order says it all.  It was upheld and enforced by us as a
result of a settlement stipulation in an unpublished opinion, n10
long before the injunction was issued in this case.  Ironically,
the majority finds no "labor dispute" in the very situation that
caused the NLRB to file charges and to issue a stipulated cease and
desist order.  The NLRB had jurisdiction only if there was a labor
dispute.  Thus we at once hold an occurrence not to be a labor
dispute for purposes of the Norris-Laguardia Act (which emphasizes
the breadth of the definition of labor dispute) n11 but to be one
for purposes of the National
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3097;                                                 94 Lab. Cas.
(CCH) P13,678

Labor Relations Act ("NLRB") despite universal recognition that the
"definition of "labor dispute" in this Act [NLRB] and in the
Norris-LaGuardia Act . . . are virtually identical." n12

   n10 NLRB v. Sabine Area Bldg. & Constr. Trades Council, No.
75-2481 (5th Cir. June 24, 1975).

   n11 The Supreme Court has noted that "Congress made the
definition [of "labor dispute" in the Norris-LaGuardia Act] broad
because it wanted it to be broad.There are few pieces of
legislation where the congressional hearings, committee reports,
and the language in the legislation itself more clearly point to
the necessity for giving an Act a construction that will protect
the congressional policy the Act adopted." Order of R.R.
Telegraphers v. Chicago & N.W. Ry., 362 U.S. 330, 335, 80 S.Ct.
761, 764, 4 L.Ed.2d 774, 779 (1960).

   n12 National Maritime Union of Am. v. NLRB, 342 F.2d 538, 541
(2d Cir.), cert. denied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 78
(1965).

   The brutal assault on Cross Construction employees was overt
criminal conduct that should also have been and was prosecuted by
state law enforcement authorities.  The Act permits injunctive
intervention only when "public officers charged with the duty to
protect complainant's property [and, we submit, their persons] are
unable or unwilling to furnish adequate protection," 29 U.S.C.  @
107(e), against future, not past unlawful activity. n13

   n13 As stated above, the court must find prior to issuing an
injunction, that "unlawful acts have been threatened and will be
committed . . . or have been committed and will be continued." 29
U.S.C.  @ 107(a) (emphasis added).

   The Supreme Court has just reaffirmed the broad interpretation
of the definition of labor dispute in the Norris-LaGuardia Act
which has been the law since the Act was   [*1009]   passed.
Jacksonville Bulk Terminals, Inc. v. International Longshoremen's
Association,    U.S.   , 102 S.Ct. 2673, 72 L.Ed.2d 327, 50
U.S.L.W. 4789 (U.S., June 24, 1982).  As reported in the majority
opinion (fn 14), the Court held that a dispute involving the
refusal to load cargo to Russia in protest of Soviet intervention
in Afghanistan was a labor dispute within the meaning of the Act.

   The majority opinion relies upon the Court's statement that the
employer-employee relationship was the "matrix" of the dispute in
Jacksonville Bulk Terminals. First, it needs to be emphasized that,
as pointed out above, a unionized workforce was the "matrixof the
dispute in the instant case -- clearly a labor dispute objective. Second, the matrix statement must be taken in the context that
Jacksonville Bulk Terminals was a dispute between employers and
their employees.  As has been shown above, the employer-employee
relationship is not a requirement to establish a labor dispute
under the Act.  Indeed, to show the breadth of the definition of
labor dispute in the Act, the opinion in Jacksonville Bulk
Terminals relies heavily upon the New Negro Alliance case, supra,
where there was not even a prospective employer-employee
relationship.

   What is of most importance in Jacksonville Bulk Terminals is the
Court's extensive emphasis upon the history of the development of
the Norris-LaGuardia Act to show the breadth of the definition of
labor dispute.  The court said that to narrow the definition would
"embroil federal judges in the very scrutiny of
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(CCH) P13,678

"legitimate objectives' that Congress intended to prevent when it
passed the Act."    U.S. at    , 102 S.Ct at 2684.  The Court then
concluded: "In the past, we have consistently declined to constrict
Norris-LaGuardia's broad prohibitions except in narrowly defined
situations where accommodation of that Act to specific
congressional policy is necessary.  We refuse to deviate from that
path today." Id.  (emphasis added).

   No specific congressional policy exists in this case to justify
deviation. Instead, congressional policy as clearly established was
carried out in the action under the National Labor Relations Act.

   The Norris-LaGuardia Act applies to every kind of labor dispute,
and not only to conventional organizing campaigns conducted under
the auspices of the NLRB. Indeed, as both the NLRB and a panel of
this court have found, this was plainly an organizational labor
dispute.  The federal district court had no jurisdiction to issue
the injunction.

   II.  SECTION 1985(3) DOES NOT GRANT A CAUSE OF ACTION FOR THE
DEFENDANTS" CONDUCT

   A.  The Nature of the Right for Which @ 1985(3) Provides a
Remedy

   Section 1985(3) provides that an injured party "may have an
action for the recovery of damages" "[i]f two or more persons . .
. conspire . . . for the purpose of depriving . . . any person or
class of persons of the equal protection of the laws or of equal
privileges and immunities under the laws." 42 U.S.C.  @ 1985(3)
(emphasis added). n14   [*1010]   This language does not establish
a cause of action for every deprivation of any legal right,
privilege, or immunity.  The statute condemns only conspiracies to
deny equal protection or equal privileges and immunities.If these
restrictive terms are overlooked in interpreting the statute, its
reach is ubiquitous; for it would then authorize a federal tort
action for every conspiracy to deprive any person or class of
persons of any legal right.

   n14 42 U.S.C.  @ 1985(3) provides in full:

   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 drpriving, 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; or for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State
or Territory the equal protection of the laws; or if two or morepersons conspire to prevent by force, intimidation, or threat, any
citizen who is lawfully entitled to vote, from giving his support
or advocacy in a legal manner, toward or in favor of the elector
for President or Vice President, or as a Member of Congress of the
United States; or to injure any citizen in person or property on
account of such support or advocacy; 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 deprivation, against any one or more of the conspirators.
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   In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29
L.Ed.2d 338 (1971), the Supreme Court recognized that @ 1985(3) is
premised on a conspiracy to deny equality and is not a general
federal tort law. n15 To show that the conspiracy was designed to
deny a person equality, the Court said, the plaintiff must
demonstrate that the purpose of the conspiracy was "a deprivation
of the equal enjoyment of rights secured by the law to all," not
merely the infliction of an injury on that person.  Id.  at 102, 91
S.Ct at 1798, 29 L.Ed.2d at 348 (emphasis added).  The necessary
corollary is that a conspiracy merely to injure one person or a
group of persons, or even some or all of the members of a class of
persons, does not give rise to an action under the statute.

   n15 "That the statute was meant to reach private action does
not, however, mean that it was intended to apply to all tortious,
conspiratorial interferences with the rights of others." Griffin,
403 U.S. at 101, 91 S.Ct at 1798, 29 L.Ed.2d at 347. See also Cong.
Globe, 42d Cong., 1st Sess. 485 (1871) (remarks of Rep. Cook
addressing Rep. Shellabarger's amendment to the original proposed
Act):

   I think it is within the power of Congress to protect and
enforce every right secured to American citizens by the
Constitution of the United States.  I do not believe, and I do not
know of any man who does believe, . . . that Congress has a right
to punish an assault and battery when committed by two or more
persons within a State.  I know of no one who believes that
Congress has any right to enforce the laws of a State except in the
emergency contemplated in the Constitution, when the State may be
unable to do so by reason of lawless conbination too strong for the
State authorities to suppress.  The statement that this bill aims
at any such end is an utter misstatement of its object and effect.

   This interpretation of the statute is supported by the history
of its enactment.  That history, often recounted in fragments, is
reported at length in Comment, A Construction of Section 1985(c) in
Light of Its Original Purpose, 46 U.Chi.L.Rev. 402 (1979). n16
Section 1985(3) was adopted in reaction to the activities of the Ku
Klux Klan.  The original Klan, which had begun to operate in the
South prior to 1871, was for the most part a political
organization. n17 In enacting @ 1985(3), Congress did not seek
primarily to prevent racial discrimination but to proscribe
conspiracies whose objective or effect was to frustrate the
"constitutional operations of government through assaults on the
person, property, and liberties of individuals." n18

   n16 See generally 1 Statutory History of the United States
591-656 (B. Schwartz ed. 1970); Avins, The Ku Klux Klan Act of
1871: Some Reflected Light on State Action and the FourteenthAmendment, 11 St. Louis U.L.J. 331 (1967).

   Section 1985(c) was renumbered @ 1985(3).  42 U.S.C.  @ 1985(3)
(Supp. III 1979).

   n17 See Comment, A Construction of Section 1985(c) in Light of
Its Original Purpose, 46 U.Chi.L.Rev. 402, 408 n.32 (1979)
[hereinafter cited as A Construction of Section 1985(c) ].

   n18 Id.  at 403.
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   The Forty-Second Congress, dominated by a Republican majority,
became alarmed at reports of violent activities of the Klan and
similar organizations, such as the Knights of the White Camelia,
the White Brotherhood, the Pale Faces, and the '76 Association. n19
It established a joint committee to investigate the Klan. n20 The
republican majority thought the Klan's objective was to wrest
control of the southern state governments from the Republican Party
and to reestablish Democratic governance.   [*1011]   n21 Democrats
also viewed the Klan's objectives as political, n22 but considered
them honorable, adopted to resist unjust laws and to restore
control of governmental affairs to "the wise, virtuous, influential
men of the South," dislodging "adventureres and negroes." n23

   n19 A Construction of Section 1985(c), supra note 17, at 407
n.29, (citing K. Stampp, The Era of Reconstruction 199 (1965)).

   n20 Cong.Globe, 42d Cong., 1st Sess. 116-17 (1871); id.  at
180-82.

   n21 Id.  at 653, col. 3 (The Klan's "well-defined and clearly-proven object is to gain political control by intimidation and
murder.") (remarks of Sen. Osborn (R-Fla.)); id.  at 484, col. 1
(The "purpose of all this bloody work . . . is for the express
purpose of controlling government in the states where these things
are done, by preventing citizens from exercising their legitimate
constitutional privileges.") (remarks of Rep. Wilson (R-Ind.)).

   n22 See id.  at 517, col. 2 ("the minority of the Committee
reach the same conclusion as the majority reach as to the fact that
the disorders have a political origin and purpose, the difference
being, in substance, that the majority find it to originate in an
aim at the overthrow of the reconstruction laws and the people and
State governments they were designed to protect, while the minority
seem to conclude that the violence is natural and just in
resistance of wicked laws") (remarks of Rep. Shellabarger (R-Ohio)).

   n23 Id.  at 386, col. 2 (remarks of Rep. Lewis (D-Ky.)).  See
also additional references in A Construction of @ 1985(c), supra
note 17, at 408-09 & n.32.

   The first proposed Ku Klux Klan Act made it criminal to conspire
to commit particular crimes "in violation of the rights,
privileges, or immunities of any person, to which he is entitled
under the Constitution and laws of the United States." n24 It
authorized no civil action.  Some more moderate Republicans opposed
the proposal as a usurpation of the states' power to punish crimes.
Other members of Congress opposed the enactment on the basis that
the federal government lacked power to prohibit the acts of privateindividuals.  Another group believed that Congress could punish
only those "private conspiracies intended to obstruct the
performance of government officials' constitutional duty to provide
equal protection of the laws." n25 Still others believed that,
regardless of its power, the federal government should provide
protection for individuals against private conspiracies only when
the state failed to do so. n26

   n24 Cong.Globe, 42d Cong., 1st Sess. 68 app. (1871).

   n25 A Construction of Section 1985(c), supra note 17, at 415,
and authorities cited therein.  See generally id.  at 411-17.
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   n26 Id.  at 415-16, and authorities cited therein.

   An amendment suggested by Congressman Burton Cook (R-Ill.) and
drafted by Congressman Charles Willard (R-Vt.) n27 satisfied the
constitutional objections and provided an acceptable compromise.
For the language first proposed in the criminal statute prohibiting
conspiracies "in violation of the rights, privileges, or immunities
of any person, to which he is entitled under the Constitution and
the laws of the United States," the amendment substituted the words
"for the purpose of depriving any persons or class of persons,
directly or indirectly, of the equal protection of the laws, or of
equal privileges and immunities under the laws." n28 The Amendment
also added the civil cause of action that we now consider. n29

   n27 Id.  at 417.

   n18 Cong.Globe, 42d Cong., 1st Sess. 477, col. 3 (1871)
(emphasis added).

   n29 Id. As one commentator has noted: "This addition of remedy
was not a subject of congressional discussion or debate.  It was
presumably inspired at least in part by concern for the victims of
acts of terror or indirect subversion committed to inhibit the
exercise of the rights of citizens." A Construction of Section
1985(c), supra note 17, at 417.

   It is thus obvious that one purpose of this amendment was to
confine the operation of the statute to discriminatory deprivations
of rights.  As the draftsman of the limiting amendment,
Representative Willard, said, the amendment "provid[ed] that the
essence of the crime should consist in the intent to deprive a
person of the equal protection of the laws and of equal privileges
and immunities under the laws; in other words, that the
Constitution secured, and was only intended to secure, equality of
rights and immunities, and that we could only punish by United
States laws a denial of that   [*1012]   equality." n30 Congressman
Horatio Burchard (R-Ill.) explained that the conspiracies condemned
were "those designed to prevent the equal and impartial
administration of justice. . . .  The gravamen of the offense is
the unlawful attempt to prevent a State through its officers
enforcing in behalf of a citizen of the United States his
constitutional right to equality of protection." n31 Others echoed
this analysis. n32

   n30 Cong.Globe, 42d Cong., 1st Sess. 188 app., col. 2 (1871).

   n31 Id.  at 315 app., col. 2.

   n32 Id.  at 478, col. 2 ("The object of the amendment is . . .to confine the authority of this law to the prevention of
deprivations which shall attack the equality of rights of American
citizens; that any violation of the right, the animus and effect of
which is to strike down the citizen, to the end that he may not
enjoy equality of rights as contrasted with his and other citizens'
rights, shall be within the scope of remedies of this section.")
(remarks of Rep. Shellabarger); id.  at 486, col. 3 (remarks of
Rep. Cook (R-Ill.)); id.  at 514, col. 3 (remarks of Rep. Poland
(R-Vt.)).

   In Griffin, the Supreme Court interpreted @ 1985(3) in a fashion
consistent both with its literal language and this congressional
intention:
    PAGE  173                     680 F.2d 979, *1012; 110 L.R.R.M.
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   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' action. The
conspiracy, in other words, must aim at a deprivation of the equal
enjoyment of rights secured by the law to all.

   403 U.S. at, 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348 (footnotes
omitted). The statute thus has a "movivation aspect." Relying on
the legislative history we have recounted, the Griffin Court
explained that the requirement of "invidiously discriminatory
motivation stressed by the sponsors of the limiting amendment" was
necessary to avoid "constitutional shoals." Id.  The forbidden
purpose of @ 1985(3) is the denial of equality under the laws, not
merely an injury forbidden by law. n33

   n33 See A Constructionof Section 1985(c), supra note 17, at 437
("The enacting Congress did not intend the statute to be an
antidiscrimination law. The language of equal protection and equal
privileges and immunities was added as a limitation, not as an
expansion.").

   This is the interpretation of @ 1985(3) that we adopted in
McClellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir.
1977) (en banc).  Turning first to what private action constitutes
a deprivation of the protection of the laws, we held that "the
inquiry must initially concentrate on the legality of the
defendants' activity apart from section 1985(3).  If the object of
the defendants' conspiracy did not include a violation of some law
(independent of section 1985(3) itself) which protects the
plaintiff, the conspiracy could not have deprived the plaintiff of
the "protection of the laws."" Id.  at 925. We then turned to the
requirement that the deprivation be of the Equal protection of the
laws, and held that violation of equality is a separate component
of the action although we declined to decide whether the section
extends to other bias than racial.  Id.  at 929.
Section 1985(3) also prohibits conspiracies "for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State
or Territory the equal protection of the laws." Although @ 1985(3)
claims do not typically allege that state authorities are
"unwilling or unable to provide protection," the language of the
statute, allows it to reach "indirect efforts to thwart equal
protection." A Construction of Section 1985(c), supra note 17, at
420.

   Although @ 1985(3) reaches both public and private conspiracies
to deny constitutional equality, it is a non sequitur to conclude
that it, therefore, reaches all constitutional violations.  Thestatute is not designed to protect constitutional rights; it is at
once narrower, safeguarding equality, and broader, protecting
against any conspiracy to deny equal protection of the "laws." n34

   n34 Some courts have held that @ 1985(3) covers violations of
federal statutory rights.  E.g., Hodgin v. Jefferson, 447 F.Supp.
804 (D.Md. 1978) (claims based on @ 3 of the Equal Pay Act);
Broadcast Employees v. International Bhd. of Teamsters, 419 F.Supp.
263 (E.D. Pa. 1976) (conspiracy to violate Labor Management
Reporting and Disclosure Act), aff'd in part and reversed in part
on other grounds, 614 F.2d 846 (3d Cir. 1980); Milner v. National
School of Health Technology, 409 F.Supp. 1389 (E.D.Pa.1976).
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   In Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366,
370 N.6, 99 S.Ct. 2345, 2348 n.6, 60 L.Ed.2d 957, 962 n.6 (1979),
however, the Supreme Court specifically declined to decide "whether
@ 1985(3) creates a remedy for statutory  rights  other than those
fundamental rights  derived from the Constitution." Justice Powell
suggested in his concurring opinion that the  statute's  "reach is
limited to conspiracies to violate those  fundamental   rights
derived from the Constitution." Id.  at 378, 99 S.Ct. at 2352, 60
L.Ed.2d at 967. Justice Stevens went further and said, "I do not
believe that [ @ 1985(3)] was intended to provide a remedy for the
violation of statutory rights -- let alone rights created by
statutes that had not yet been enacted." Id.  at 385, 99 S.Ct. at
2355, 60 L.Ed.2d at 971 (concurring opinion).  Justices White,
Brennan, and Marshall expressed the opposite view in their
dissenting opinion: "[Section] 1985(3) encompasses all rights
guaranteed in federal statutes as well as rights guaranteed
directly by the Constitution." Id.  at 384 n.5, 99 S.Ct. at 2357
n.5, 60 L.Ed.2d at 971 n.5; cf.  Note, Private Conspiracies to
Violate Civil Rights: The Scope of Section 1985(3) After Great
American Federal Savings & Loan Association v. Novotny, 61
B.U.L.Rev. 1007, 1028-33 (1981) (arguing that @ 1985(3) should be
applied "only to statutes whose primary purpose is to guarantee
equal treatment").
Some courts have also held that "[v]iolations of state conferred
rights and privileges are sufficient to constitute a deprivation of
"equal protection of the laws."" Life Ins. Co. of N. Am. v.
Reichardt, 591 F.2d 499, 504-05 (9th Cir. 1979) (violation of
California's Civil Rights Act) (decided before Novotny ); Accord,
Harrison v. Brooks, 446 F.2d 404 (1st Cir. 1971) (zoning law
infringement).  The Supreme Court suggested in Novotny, however,
that a denial of rights under state laws may not be covered under
@ 1985(3) unless independently unconstitutional.  See 442 U.S. at
377, 99 S.Ct. at 2351, 60 L.Ed.2d at 966 ( @ 1985(3) provides "a
civil cause of action when some otherwise defined federal right --
to equal protection of the laws or equal privileges and immunities
under the laws -- is breached by a conspiracy in the manner defined
by the section") (emphasis added).    [*1013]

   The Supreme Court held in Griffin that the reach of @ 1985(3) is
limited by the requirement that the conspiracy be directed at a
denial of equality.  Our colleagues state, however, that in Griffin
"[t]he blacks brought an action under section 1985(3) to redress
violations of the laws of the United States and of Mississippi,
including the rights of free speech, assembly, association,
interstate travel, liberty, and security of their persons." Slip
op. page 15450, pages 986-87 supra (emphasis added).  If that were
the basis of the action in Griffin, then Griffin would be authority
for a simple tort action.  The complaint in Griffin was more
subtle. n35 In addition to the language quoted by the majority, thecomplaint stated that the purpose of the conspiracy ""was to
prevent [the] plaintiffs and other Negro-Americans, through . . .
force, violence and intimidation, from seeking the equal protection
of the laws and from enjoying the equal rights, privileges and
immunities of citizens under the laws of the United States and the
State of Mississippi, including . . . their rights to freedom of
speech, movement, association and assembly."" 403 U.S. at 90, 91
S.Ct. at 1792, 29 L.Ed.2d at 341. The assault on and battery of the
plaintiffs were acts done in furtherance of the conspiracy to deny
the plaintiffs equal rights, not acts designed merely to injure the
plaintiffs or to deprive them of the protection of the law.

   n35 Griffin arose out of the dismissal of a complaint for
failure to state a cause of action.
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   In Great Am. Fed. Sav. & Loan As'n v. Novotny, 442 U.S. 366,
372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957, 963 (1979), the Supreme
Court held that "[s]ection 1985(3) provides no substantive rights
itself; it merely provides a remedy for violation of the rights it
designates." n36 Thus, @ 1985(3) provides a cause of action for
private interference only with those rights that the Federal
Constitution protected prior to the enactment of the Civil Rights
Act of 1871, and in particular, for those rights protected by the
newly ratified fourteenth amendment.  See Novotny, 442 U.S. at 383,
99 S.Ct. at 2354, 60 L.Ed.2d at 970 (Stevens, J., concurring).
Insofar as equal protection of the laws is concerned, the cause of
action is restricted not only to conspiracies to deny equality, but
the conspiracy must also be directed at the denial of protection of
the laws, in the sense that it must be aimed at   [*1014]
preventing the injured party from obtaining legal protection.  See
id.  at 384, 99 S.Ct. at 2355, 60 L.Ed.2d at 971; A Construction of
Section 1985(c), supra note 17, at 407, 419.

   n36 Novotny held that @ 1985(3) could not be invoked to redress
violations of Title VII.  Rights created by the Equal Employment
Opportunity Act could not "be asserted within the remedial
framework of @ 1983(3)" because Title VII provided its own remedial
apparatus.  442 U.S. at 377, 99 S.Ct. at 2351, 60 L.Ed.2d at 966;
cf.  Note, supra note 34, at 1019-21 (arguing that @ 1985(3) is
"neither purely remedial nor purely substantive, but rather a
mixture").

   The extension of @ 1985(3) to protect against private
infringement of every right protected against governmental action
by the Constitution would create a Bivens- type tort action against
every private conspiracy that affects a federal constitutional
right. n37 A citizen has a right to be secure in his property and
home, but we do not think that @ 1985(3) confers a cause of action
for a conspiracy by a person's neighbors to block his driveway in
order to keep him from driving his automobile to his place of
business.  The fourth amendment protects against illegal searches,
but we do not think that, if two persons conspire to search their
neighbor's house, the neighbor has a @ 1985(3) action. n38 In
neither case would the addition of violent overt acts metamorphose
the tort into a @ 1985(3) cause of action.

   n37 In Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the
Court held that there was a federal cause of action for damages
under the fourth amendment upon proof of damages resulting from
violations of that amendment by federal agents acting under color
of federal authority.

   n38 We, therefore, agree with the Fourth Circuit's refusal torecognize a @ 1985(3) cause of actionfor private interference with
the "associational right" of belonging to the Ku Klux Klan.
Bellamy v. Mason's Stores, Inc., 508 F.2d 504 (4th Cir. 1974). This
holding is correct, in part, because the right of association
derives from the first amendment -- itself framed as a prohibition
against the federal government and not against private persons.  A
number of other courts have declined to extend @ 1985(3) protection
to infringements of all constitutional rights.
First amendment:

   Murphy v. Mount Carmel High School, 543 F.2d 1189 (7th Cir.
1976). Sex discrimination:
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   Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976)
(employment); Cohen v. Illinois Inst. of Technology, 524 F.2d 818
(7th Cir. 1975) (employment), cert. denied, 425 U.S. 943, 96 S.Ct.
1683, 48 L.Ed.2d 187 (1976). Procedural due process:

   Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Collins v.
Bensinger, 374 F.Supp. 273 (N.D. Ill.) (recognizing that @ 1985(3)
refers only to equal protection and not due process), aff'd mem.,
506 F.2d 1405 (7th Cir. 1974), cert. denied, 422 U.S. 1058, 95
S.Ct. 2683, 45 L.Ed.2d 710 (1975). Other courts, however, have held
that @ 1985(3) reaches every private conspiracy that Congress has
power to forbid.  E.g., Means v. Wilson, 422 F.2d 833 (8th Cir.
1975) (interference with right to vote in tribal elections), cert.
denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Weise
v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975) (employment
discrimination); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973)
(free speech; distribution of campaign material); Action v. Gannon,
450 F.2d 1227 (8th Cir. 1971) (en banc) (free exercise of
religion); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971)
(freedom of expression).

   Unlike Griffin, this case does not rest on the adequacy of
notice of pleading.  The plaintiffs have had their day in court.
They proved no conspiracy to prevent them from seeking the equal
protection of the laws, or to deny them that protection, or to bar
them from enjoying the equal rights, privileges, and immunities of
citizens under the laws.  Even if there is a "First Amendment right
to associate with their fellow nonunion employes," slip op. page
15452, page 988 supra, a question to which we will soon turn, it
would not suffice to prove a conspiracy aimed at denying the
plaintiffs this "right." Our colleagues, mistakenly we suggest,
assume that "curtailment of [plaintiffs"] interests secured by the
First Amendment is a deprivation of equal protection of the laws
within the meaning of section 1985(3) as interpreted by Griffin. "
Slip op. page 15452, page 988 supra (emphasis added).  The mere
deprivation of a right, however fundamental, is not a deprivation
of equal protection.  For a denial of equality to be the
conspiratorial objective, the conspirators must seek to permit some
persons to enjoy the protected right and to deny it to others.  The
reprobated objectives alleged in Griffin included, for example, the
denial of the right of black persons to ""travel the public
highways without restraint in the same terms as white Citizens in
Kemper County, Mississippi."" 403 U.S. at 92, 106, 91 S.Ct. at
1793, 1800, 29 L.Ed.2d at 342, 350  [*1015] (quoting the
complaint).  The proof in this case shows no comparable objective;
the defendants did not seek to deny the right to work with nonunion
workers to the individual plaintiffs while according that right to
others.
   B.The Right Found Protected by the Majority

   Our colleagues interpret @ 1985(3) to find that it protects a
constitutional right of association, or more specifically, the
constitutional right, first found to exist in this very opinion, of
nonunion workers to work with other nonunion workers.  This right
is analogized to the right of political association.  Protection
for political association is thus expanded into protection for any
kind of association having some economic community of interest.
This seems to us to confuse the right protected with the class of
persons protected.  Although there is a constitutional right to
refuse to work, no court, so far as we know, has ever previously
found that workers have a constitutional right to work only with
the kind of persons they choose to work with.
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   If nonunion workers have a constitutional right to work
together, then the collective bargaining policy of the National
Labor Relations Act is as least in part unconstitutional.  Under
it, nonunion workers have the right to join or not to join a union.
29 U.S.C.  @ 157.They have the right to vote against or for a union
in a collective bargaining election.  Id.  If, however, a
collective bargaining agent is chosen, the workers do not have a
constitutional right to bargain individually or to work only with
nonunion associates.  They may be required to become union members
thirty days after being hired, id.  @ 158(a) (3), unless the state
has a "right to work" law. n39 Once an employer is ordered to
bargain collectively, employees who are not union members are
compelled to work with union members if they choose to work at all.
Their employer certainly has no right to employ only nonunion labor
-- unless the National Labor Relations Act is unconstitutional.

   n39 29 U.S.C.  @ 164(b) ("Nothing in this subchapter shall be
construed as authorizing the execution or application of agreements
requiring membership in a labor organization as a condition of
employment in any State or Territory in which such execution or
application is prohibited by State or Territorial law.").

   Texas' Right to Work Law prohibits the denial of employment to
anyone becuase of a failure to pay "any fee, assessment, or sum of
money whatsoever" to a union.  Tex.Rev.Civ.Stat. Ann. art.
5154a(8a) (Vernon 1971).

   This case does not involve the question whether a person has a
right to join or not to join a union, to affiliate or not to
affiliate with a political group, or to believe or disbelieve a
creed.  The desire to work for a nonunion employer cannot be
escalated into a first amendment associational right.  "What the
[Supreme] Court has recognized as implicit in the first amendment
. . . is a right to join with others to pursue goals independently
protected by the first amendment -- such as political advocacy,
litigation (regarded as a form of advocacy), or religious worship."
n40 Although there is obviously some political content in union
activity, nonmembership in a union is not a goal independently
protected by the first amendment.

   n40 L. Tribe, American Constitutional Law @ 12-23, at 702 (1978)
(emphasis and footnotes omitted).

   C.  Discriminatory, Class-Based Animus

   The majority does not hold Cross Construction to be a member of
any class. We search the majority opinion in vain for something
more than an ad hoc definition of the class to which the plaintiffs
Scott and Matthews belong. After discussing the necessity ofdiscriminatory class-based animus for two and one half pages, our
colleagues state conclusorily, "the plaintiffs constitute a class
for 1985(3) purposes." n41 They then discuss the labor union
movement and the reputed kinship of economic views with political
association, and state that "the plaintiffs were attacked because
of their economic, rather than their political,   [*1016]
association." n42 In the next sentence we are told that there was
animus against the plaintiffs for their "nonunion association." The
plaintiffs are later referred to as "nonunion employees" and,
without noting the distinction, as "nonunion workers who are
attacked for their choice to associate with other nonunion
workers." Slip op. page 15459, page 994 supra.  It is difficult for
us to divine exactly what class is intended by these differing
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phrases, for the evidence makes it clear that Scott and Matthews
were not attacked because they were not union members or because
they wished to work with "other" nonunion members, but because they
chose to work for Cross Construction, a firm that hired nonunion
workers and did not pay union wages. n43 Scott was a supervisor and
Matthews was a clerical worker.  It has not been shown that either
of them was even eligible for membership in any of the unions
involved.

   n41 Slip op. pages 15455-15457, pages 991-992 supra.

   n42 Slip op. page 15459, page 994 supra (emphasis added).

   n43 Cross Construction hired the workers they needed without
inquiring as to their union affiliation.In fact, some of the Cross
Construction employees did belong to unions.

   Let us assume, however, that the facts can be construed to make
Scott and Matthews members of a class of persons who do not belong
to a union and want to work with people who are also nonunion.
This, we submit, is not a class protected by @ 1985(3).  The
Supreme Court in Griffin said, "there must be some racial, or
perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators' action" to warrant @ 1985(3) relief. n44
We have gone further and held that @ 1985(3) forbids not only
racial discrimination but the denial of equality to other classes:
n45 those having common characteristics of an inherent nature; that
is, classes accorded special protection by the equal protection
clause of the fourteenth amendment and "the kinds of classes
Congress was trying to protect when it enacted the Ku Klux Klan
Act." Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 347 & n.9 (5th
Cir.) (en banc), cert. denied,    U.S.   , 102 S.Ct. 687, 70
L.Ed.2d 651 (1981). n46 The phrase "the kind of classes Congress
was trying to protect" states a purely historical test, directing
us to look to the purposes of the Ku Klux Klan Act when it was
adopted.  Kimble suggested as an illustration of classes in this
category conspiracies based on the target's affiliation with a
major political party. Id.

   n44 403 U.S. at 102, 91 S.Ct at 1798, 29 L.Ed.2d at 348 (1971).

   n45 As the majority opinion points out, other circuits have also
extended @ 1985(3) to cover non-racial classes.  Slip op. page
15455, page 991 supra.

   n46 See generally Note, The Class-Based Animus Requirement of 42
U.S.C.  @ 1985(c): A Suggested Approach, 64 Minn.L.Rev. 635 (1980).

   The majority opinion holds that, although the "[p]laintiffs arenot a class normally afforded special protection under the equal
protection clause merely because they wish to work nonunion," Slip
op. page 15456, page 991 supra, and although "Congress did not
express a specific intent to protect nonunion employees in enacting
the Ku Klux Klan Act, the legislative history demonstrates that the
nonunion employees in this case comprised the king of class
Congress intended to protect," Slip op. page 15458-15459, page 944
supra.  We differ with this conclusion also.

   The plaintiffs are, we submit, not members of a class at all,
n47 but simply two   [*1017]   individuals injured in the same
assault.  The majority agrees that not every conceivable grouping
of persons capable of being defined as a
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(CCH) P13,678

class is protected by @ 1985(3).  Slip op. page 15456, page 992
supra.  Not only must the class share some common characteristic
beyond simply being the victims of a conspiracy, but it must also
be distinguishable from the general populace by this
characteristic.  Id.  These are but first steps, and do not enable
us to define the @ 1985(3) class, for many clearly defined and
easily identifiable groups of persons who might be considered a
"class" for some other purpose have been denied @ 1985(3) class
status: homosexuals, n48 tenant organizers, n49 debtors, n50
persons who file voluntary petitions in bankruptcy, n51 physicians
who testify in malpractice suits, n52 injured workers who assert
claims, n53 and trade association members. n54

   n47 We note that in their amended complaint, the plaintiffs
purported to represent a class of persons composed of four
categories or subclasses of plaintiffs consisting of:

   (a) All persons presently employed by A.A. Cross Construction
Company, Inc. (hereinafter called "Cross"), their wives and
children;

   (b) All persons, together with their wives and children, who may
become employed by Cross and perform work leading to construction
of the Alligator Bayou Pump Station on the hurricane protection
levee along Taylor's Bayou near Port Arthur, Jefferson County,
Texas;

   (c) All persons, their wives and children, and all firms and
corporations who may supply, deliver, or provide labor, materials,
goods or services to Cross or others for construction of the
Alligator Bayou Pump Station;

   (d) All persons, their wives and children, who may lawfully b-
present upon the site of the Alligator Bayou Pump Station, or the
ways leading thereto. Interestingly, we found no indication, in our
examination of the record, of any attempt to have the class
certified.  Final judgment, therefore, was rendered only on behalf
of the named plaintiffs.

   n48 DeSantis v. Pacific Tel & Tel. Co., 608 F.2d 327 (9th Cir.
1979).

   n49 Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.), cert.
denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979).

   n50 Lessman v. McCormick, 591 F.2d 605 (10th Cir. 1979).

   n51 McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th
Cir. 1977) (en banc).   n52 Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert.
denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973).

   n53 Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981)
(en banc), cert. denied,    U.S.   , 102 S.Ct. 687, 70 L.Ed.2d 651
(1981).

   n54 Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973), cert.
denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974).

   The majority looks to our en banc decision in McLellan v.
Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977), for
the guage to measure whether the
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(CCH) P13,678

Scott-Matthews class is the kind of class Congress intended to
protect when it enacted @ 1985(3).  They correctly recount the
three reasons given in McLellan for holding that @ 1985(3) does not
cover persons who file voluntary petitions in bankruptcy. n55

   n55 McLellan, 545 F.2d at 932-33.

   First, the legislative history of the Ku Klux Klan Act contains
no evidence of congressional concern about discrimination against
persons who become insolvent.  Second, while the protection
afforded by the civil rights acts is not static, it would be
inappropriate to enlarge the group of protected classes to include
bankrupts when Congress had specifically declined to prohibit
discrimination against them.  Third, including bankrupts within the
ambit of Section 1985(3) would be unwarranted in light of the
Supreme Court's refusal to characterize the right to file a
bankruptcy petition as a fundamental right.

   Slip op. page 15457, page 992 supra.

   But, as our colleagues acknowledge, McLellan does not attempt to
define what groups are and what groups are not @ 1985(3) classes.
Id.  McLellan sets up only some of the criteria for exclusion.  To
determine that the present group is included as a @ 1985(3) class
because it is not one of those excluded by McLellan is to adopt the
erroneous premise that all classes are comprehended except those
barred for the same reason bankruptcy petitioners were eliminated
by McLellan.

   Furthermore, we believe that the majority's analysis of the
McLellan factors is incorrect.  The legislative history and,
indeed, the popular name of the statute make clear the evil that
was addressed, the Ku Klux Klan.Congress in 1871 was assuredly not
trying to protect non-union workers, not only because it would not
then have recognized the difference between union members and non-members but simply because the Klan posed no threat to such
workers.  The regional hostility the majority finds as a second
identification for an appropriate class could scarcely embrace
Cross Construction, a Texas corporation, Paul Scott, a   [*1018]
resident of Texas, or James Matthews, also a resident of Texas at
the time of the incident.Nor does subsequently enacted federal
labor legislation suggest that Scott and Matthews are members of a
class protected by @ 1985(3).  That legislation expresses the
national labor policy as encouraging collective bargaining.  29
U.S.C.  @ 102. Although Congress has recognized the "right to
refrain from any or all such activities," id.  @ 157, it has never
adopted a national labor policy protecting an individual's "right"
to work for a nonunion employer.  The right to belong or not to
belong to a union is considerably different from the asserted"right" to work for a nonunion employer, for, as we have already
seen, every employer whose activities affect interstate commerce
and his employees are subject to the requirements of collective
bargaining.  Id.  @ 158(d).  Finally, the kinship asserted by the
majority to exist between economic and political association is a
strange one, for in this country our political parties embrace the
entire spectrum of economic classes.

   If the class recognized by the majority includes, as we have
supposed, persons who do not belong to a union and who want to work
for an employer who hires other nonunion employees, there are yet
other reasons not to accord such a class @ 1985(3) protection.
This class is one newly defined by this case, not
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(CCH) P13,678

one having any previous discernible jurisprudential identity.  It
is not a "class" marked by historical oppression, by minority
status, by any social or political animus directed against it, by
any political or religious belief, or by any of the indicia usually
used to identify a class of persons who must be accorded special
protection.  The animus here was not directed at the membership of
the plaintiffs in such a class or at their association together
either as persons or in some anti-union group campaign, but at
their activities: working without union membership for an employer
who wished to hire them.

   D.  The Corporation as a Beneficiary of @ 1985(3)

   The majority rejects the view that Cross Construction is a
member of the protected class. n56 They manage to find a @ 1985(3)
cause of action in favor of Cross Construction, however, by holding
that the statute extends a remedy to any person injured by a
forbidden conspiracy despite the fact that he is not within the
protected class. n57 This view extends @ 1985(3) protection to
injured persons outside the protected class even if no member of
that class has filed suit.  By this reasoning, if, in the present
case, a person had been injured by the negligence of the driver of
one of the pick-up trucks speeding from the scene of the attack, he
would also be entitled to sue under the statute's aegis.

   n56 Compare Slip op. pages 15460-15461, pages 995-996 supra with
the panel opinion, Scott v. Moore, 640 F.2d 708, 718 (1981) (the
class composed of "nonunion workers and their employers . . . falls
within the statute's protective ambit").

   n57 Slip op. pages 15460-15461, pages 995-996 supra.

   The Ninth Circuit has considered this reading of the statute and
rejected it. n58 The only authority cited for the creation of this
penumbra is the dissenting opinion of Justice White in Novotny.
n59

   n58 Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d
711, 720-21 (9th Cir.) ("The law of this circuit is clear: the
plaintiff must be a member of the class discriminated against to
claim the benefits of @ 1985(3)."), cert. denied, 454 U.S. 967, 102
S.Ct. 510, 70 L.Ed.2d 383 (1981); Briley v. California, 564 F.2d
849, 858-59 (9th Cir. 1977); Lopez v. Arrowhead Ranches, 523 F.2d
924, 927 (9th Cir. 1975).

   n59 Novotny, a male, was a loan officer and member of the
Savings and Loan Association's Board of Directors.  He alleged that
when he "expressed support for the female employees at a meeting of
the board of directors, his connection with the Associationabruptly ended." 442 U.S. at 370, 99 S.Ct. at 2347, 60 L.Ed.2d at
962. The en banc court of appeals for the Third Circuit held that
Novotny was injured as a result of the conspiracy motivated by an
invidious animus against women and had standing to bring suit under
@ 1985(c).  584 F.2d 1235, 1244-45 (3d Cir. 1978) (en banc).  The
Supreme Court majority did not, however, address this issue.

   Justice White in his dissent stated: "Because @ 1985(3) provides
a remedy for any person injured as a result of deprivation of a
substantive federal right, it must be seen as itself creating
rights in persons other than those to whom the underlying federal
right extends." 442 U.S. at 390, 99 S.Ct at 2358, 60 L.Ed.2d at
975.   [*1019]
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   The majority opinion in Novotny held, however, that @ 1985(3)
created no new rights but is remedial in nature, and rejected
Justice White's view.The majority here finds a substantive cause of
action in the statute for non-class members. This is not only, we
submit, a misreading of the statute, but also a rejection of the
authority by which we are bound.

   E.The Constitutional Question: The Source of Congressional Power

   The Supreme Court recognized in Griffin that @ 1985(3), if
applied literally to every situation apparently embraced by it,
might in some applications exceed Congress's authority. n60
Therefore, as the majority opinion recognizes, "a source of
congressional power must be identified to warrant application of
the statute in each case." n61 Our colleagues accurately describe
the controversy concerning "the extent to which section 5 of the
Fourteenth Amendment grants Congress the power to reach wholly
private conduct." n62 Pretermitting that issue, they find authority
for the present application of @ 1985(3) in the commerce power. n63

   n60 Griffin v. Breckenridge, 403 U.S. at 104, 91 S.Ct. at 1799,
29 L.Ed.2d at 349.

   n61 Slip op. page 15462, page 996 supra.

   n62 Slip op. page 15462, page 997 supra; see Frantz,
Congressional Power to Enforce the Fourteenth Amendment Against
Private Acts, 73 Yale L.J. 1353, 1359 (1964); Wildman, 42 U.S.C.
@ 1985(3) -- A Private Action to Vindicate Fourteenth Amendment
Rights: A Paradox Resolved, 17 San Diego L.Rev. 317 (1980); A
Construction of Section 1985(3), supra note 17, at 440; Note, The
Troubled Waters of Section 1985(3) Litigation, 1973 Law & Soc.Ord.
639; Comment, Private Conspiracies to Violate Civil Rights, 90
Harv.L.Rev. 1721, 1722 n.11 (1977). But see Note, Federal Power to
Regulate Private Discrimination: The Revival of the Enforcement
Clauses of the Reconstruction Era Amendments, 74 Colum.L.Rev. 449,
516-17 (1974).

   Compare United States v. Guest, 383 U.S. 745, 783, 86 S.Ct.
1170, 1191, 16 L.Ed.2d 239, 263 (1966) (Brennan, J., concurring)
and Action v. Gannon, 450 F.2d 1227, 1235 (8th Cir. 1971) (en banc)
with Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972) and
Retail Clerks Local 770 v. Retail Clerks Int'l Ass'n, 359 F.Supp.
1285, 1287 (C.D.Cal.1973).

   n63 We would hold that the fourteenth amendment permits Congress
to enact the statute if the statute is interpreted as we have
suggested it should be: to provide a remedy for private conduct
designed to deny a citizen equal protection of the laws because ofhis membership in a class that is protected by the fourteenth
amendment.  The class of persons who want to work for a nonunion
employer, however, is not thus protected by the fourteenth
amendment.  We consider, therefore, the question whether Congress
relied on the commerce clause in enacting the statute.

   Although the power of Congress under the commerce clause is
broad enough to permit it to reach any private conspiracy designed
to affect interstate commerce, n64 Congress assuredly did not rely
on the commerce clause in enacting @ 1985(3).  The statute does not
invoke the commerce clause, nor does it distinguish between
conspiracies that affect interstate commerce and those
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whose aim is solely intrastate.

   n64 See, e.g., Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); United States v.
Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86
L.Ed. 726, 732 (1942); NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937).

   The debates of the 1871 Congress focused on the constitutional
power of Congress under the thirteenth, fourteenth, and fifteenth
amendments.  Griffin found congressional power also in the
constitutional protection afforded interstate travel. n65 The
Forty-Second Congress, accustomed to a narrow construction of the
commerce clause n66 and seeking to reach conspiracies [*1020]
that denied equality whether or not interstate commerce was
implicated, never considered the commerce clause as its authority.

   n65 403 U.S. at 105, 91 S.Ct. at 1800, 29 L.Ed.2d at 350.

   n66 E.g., United States v. Dewitt, 76 U.S. (9 Wall.) 41, 19
L.Ed. 593 (1870) (invalidating federal statute because the commerce
clause was a denial of power to interfere with internal trade and
business of the States); Paul v. Virginia, 75 U.S. (8 Wall.) 168,
19 L.Ed. 357 (1869) (holding insurance contracts not to be articles
of commerce).  ""Relatively little emerges up to the death of
[Chief Justice] Waite in 1888, regarding the Court's attitude
towards the commerce clause as an affirmative instrument for
promoting "commerce among the states." The preoccupation [of
earlier periods] is with the restrictive use of the clause."" J.
Nowak, R. Rotunda & J. Young, Handbook on Constitutional Law 134
(1978) (brackets in original) (quoting F. Frankfurter, The Commerce
Clause Under Marshall, Taney and Waite 7 (1964) (first published
1937).

   When the Congress has relied upon the commerce clause, it has
either defined the necessary commerce impact in the statute or
given authority to an administrative agency to define the
triggering amount of interstate commerce. Thus, in some instances,
Congress has sought to reach every transaction "affecting"
interstate commerce. n67 In other instances, Congress has exerted
power only when there is a prescribed volume of interstate
transactions. n68 There are no such indications of congressional
intent here and no statutory guides for the quantum of interstate
activity necessary to activate the statute.

   n67 See cases cited in note 64 supra.

   n68 E.g., 29 U.S.C.  @ 203(s) (Supp. IV 1980) (defining an
enterprise engaged in commerce for purposes of the Fair LaborStandards Act as, inter alia, an enterprise whose annual gross
volume of business is not less than $250,000).

   The majority appears to assume that Congress intended to
authorize a remedy for any conspiracy that might affect interstate
commerce.  The limits of that interstate impact must be spelled out
by future decision.  They also find authority to protect interstate
workers, but that could scarcely justify application of the statute
to Scott and Matthews, both of whom are Texans.

   F.  Reconfining the Genie

   Recognizing implicitly that they have released a brand new
federal tort, our colleagues attempt in dicta to enclose this genie
in a larger bottle.  They
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say that they would not extend @ 1985(3) to every kind of unlawful
conduct, only to the limited instance where "there is no campaign
to organize employees and force or violence is used to stake out
one group's territorial claim and to deprive other workers and
their employer of the right to freely associate with one another."
n69 We see no basis in the statute for distinguishing violent
unlawful conduct from other kinds of unlawful activity such as
unfair labor practices, secondary boycotts, and criminal libel, or,
indeed, criminally reckless driving.The rationale of the decision
cannot be thus confined save by ipse dixit.  If the decision is
based on principle, and not like Justice Robert's railway ticket,
"good for this day and train only," n70 it extends logically not
only to a multitude of "classes" having some sort of economic or
"associational" tie but protects each member of those classes
against any kind of unlawful conduct that results in bodily injury,
or even, perhpas, economic harm.

   n69 Slip op. page 15461, page 995 supra (emphasis added).

   n70 Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88
L.Ed. 987, 1000 (1944) (Roberts, J. concurring).

   III.  THE EVIDENTIARY QUESTION: STANDARD OF PROOF AND
SUFFICIENCY OF EVIDENCE

   The majority holds that the existence of a conspiracy on the
part of some of the unions to interfere with the constitutional
rights of the plaintiffs in this case can properly be established
by a preponderance of the evidence.  They conclude that, because no
labor dispute existed, the clear proof standard required by @ 6 of
the Norris-LaGuardia Act should not be applied. n71 [*1021]   Part
I of this opinion demonstrates that this case does involve a labor
dispute within the meaning of the Norris-LaGuardia Act, thus
compelling the application of the more rigorous standard of proof
required by the Act.

   n71 Section 6 of the Norris-LaGuardia Act provides:

   No officer or member of any association or organization, and no
association or organization participating or interested in a labor
dispute, shall be held responsible or liable in any court of the
United States for the unlawful acts of individual officers,
members, or agents, except upon clear proof of actual participation
in, or actual authorization of, such acts, or of ratification of
such acts after actual knowledge thereof.
29 U.S.C.  @ 106 (emphasis added).

   Section 6 of the Act was added to overturn decisions holding
unions liable in damages for the unlawful acts of their members,and members liable for the unlawful acts of other members. n72 The
Act does not immunize unions from liability but it does protect
them "against liability for unauthorized illegal acts" committed
during a labor dispute except upon clear proof of authorization.
n73 In United Mine Workers v. Gibbs, 383 U.S. 715, 737, 86 S.Ct.
1130, 1133, 16 L.Ed.2d 218, 234 (1966), the Supreme Court held that
the clear proof standard applies even when federal courts are
adjudicating claims against unions based on state law. n74

   n72 United Bhd. of Carpenters & Joiners v. United States, 330
U.S. 395, 404, 67 S.Ct. 775, 780, 91 L.Ed. 973, 983 (1947).
    PAGE  185                     680 F.2d 979, *1021; 110 L.R.R.M.
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   n73 Id.  at 404, 407, 67 S.Ct. at 780, 781, 91 L.Ed.2d at 983,
984.

   n74 The employer there had attempted to open a mine with miners
belonging to a union rival of the United Mine Workers Union.  Armed
members of the UMW then forcibly prevented the opening of the mine,
threatened the employer, and beat an organizer for the rival union.
The mine was kept closed by peaceful picketing. Gibbs, the
supervisor of the mine, sued for damages caused by the illegal
activity.  The Supreme Court held that damages flowing from the
violence used to close the mine could be recovered under state law,
but the Court specifically required use of the clear proof
standard.

   Under Gibbs, an allegation that a union has adopted a strategy
of violence and intimidation to achieve labor gaols is not
sufficient to preclude application of the Norris-LaGuardia Act and
its exacting standard of proof.  As the Court there said, one of
the central purposes of the Act is to insulate unions from
liability for unauthorized violent sprees of the union membership.
"The driving force behind @ 6 . . . was the fear that unions might
be destroyed if they could be held liable for damage done by acts
beyond their practical control." Id.  at 736-37, 86 S.Ct. at 1144,
16 L.Ed.2d at 233-34.

   The Court today strips unions of the protection that Congress
sought to give them when a violent act occurs in a conflict
engendered because of an employer's labor policies.  There was
enough evidence to sustain, as not clearly erroneous, a finding by
the fact trier under the preponderance of evidence standard that
the unions were reresponsible for the assault.  The unions were
entitled, however, to have the clear proof standard applied.

   This conclusion is not inconsistent with finding the unions
guilty of unfair labor practices under the NLRA.  To implement
later-developed national labor policy, Congress adopted a different
standard for cases arising under the NLRA -- preponderance of the
evidence, @ 10(c), 29 U.S.C.  @ 160(c).This standard is also
required in the limited situations in which private damage suits
may be brought for violations of the NLRA, see @ 301(e), 29 U.S.C.
@ 185(e).  In all other instances, including those present here,
the standard of the Norris-LaGuardia Act stands unmodified.  The
district court applied the wrong burden of proof and it follows
inexorably that its decision must be reversed. We would go further
and hold that the evidence was insufficient to warrant a finding of
liability under the correct standard.

   IV.  CONCLUSION
   This is not the kind of hard case that ought to lead us into
making new law. Section 1985(3) was adopted to provide a federal
forum for those who could find no redress in state courts.  Today,
the majority extend the statute to embrace conduct condemned by
state law.  State tort law offered adequate redress for the
damages.  Injunctive relief at private instigation was available in
state court. State criminal law has prosecuted the offenders.
Federal injunctive relief was obtained by federal administrative
intervention.  Neither indignation at criminal conduct nor sympathy
for   [*1022]   its victims should lead us to disregard the Norris-LaGuardia Act or misconstrue @ 1985(3).  Therefore, we respectfully
dissent.

   R. LANIER ANDERSON, III, Circuit Judge, dissenting:
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   I join Parts I and III of the dissent authored by Judges Rubin
and Williams. Having thus concluded that the district court erred
in granting the injunction (Part I) and that there is not
sufficient evidence to support the judgment when tested under the
proper standard of proof (Part III), I find it unnecessary to reach
the very difficult issues discussed by Judges Rubin and Williams in
Part II.  While I probably agree that the evidence in this case did
not establish the necessary "class-based, invidiously
discriminatory animus," I have reservations concerning the broader
implications of Part II of the dissent of Judges Rubin and
Williams.

   GARWOOD, Circuit Judge, dissenting.

   I respectfully dissent and join in Parts II A ("The Nature of
the Right for Which @ 1985(3) Provides a Remedy") and II E ("The
Constitutional Question: The Source of Congressional Power") of the
dissenting opinion authored by Judges Rubin and Williams.

   In my opinion, the phrase "equal privileges and immunities under
the laws" in the first clause of section 1985(3) refers to those
rights that the United States Constitution protects against
interference by private action (as well as from impairment by state
action), such as the right to be free of the badges of slavery as
secured by the Thirteenth Amendment and the right to interstate
travel.  In other words, this phrase applies to rights that have no
"state action" requirement.  The majority concedes that such rights
are not involved here.  On the other hand, the phrase "the equal
protection of the laws" in the first clause of section 1985(3),
repeating verbatim the concluding words of Section 1 of the
Fourteenth Amendment, would seem to refer to rights that the United
States Constitution protects only aginst deprivation by some kind
of state action or inaction.  This is not to say that a private
conspiracy cannot deprive a party of the equal protection of the
laws; but the object of the conspiracy must be to, "directly or
indirectly," in some manner bring about a situation where the
protection of the law is unequally afforded or applied to the
victim. I believe this construction accords with the wording of the
Ku Klux Klan Act, with its title ("An Act to enforce the Provisions
of the Fourteenth Amendment to the Constitution of the United
States, and for Other Purposes"), and with both the operative
intent and the constitutional understanding of those in the Forty-Second Congress who supported the Cook-Willard limiting amendment.

   The overall purpose of this amendment was plainly to prevent the
Act from becoming a kind of national tort law and to keep it from
transgressing the preceived limitations on the power of Congress.
While certainly one method of accomplishing this purpose was the
imposition of a class based animus requirement, this was not theonly method.  The amendment also reflects its proponents'
recognition that, with but few exceptions, the rights of citizens
are protected by the United States Constitution only against
governmental invasion.While with respect to such rights Section 5
of the Fourteenth Amendment was doubtless understood by the
proponents of the Cook-Willard amendment as allowing Congress to
prohibit private conduct designed to, directly or indirectly, deny
the protection thus afforded by the United States Constitution,
Section 5 was not understood as allowing Congress to change the
ultimate nature of what the United States Constitution protected
those rights against, namely governmental misfeasance or
nonfeasance.  This understanding is reflected, for example, in the
remarks of Congressman Burchard, quoted in the opinion of Judges
Rubin and Williams, Slip op. at 15479-15480, at 1011-1012 supra,
that the Act
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as amended condemned conspiracies

   "designed to prevent ehe equal and impartial administration of
justice. . . . The gravamen of the offense is the unlawful  [*1023]
 attempt to prevent a State through its officers enforcing in
behalf of a citizen of the United States his constitutional right
to equality of protection."

   As stated in A Construction of Section 1985(c): n1

   "The language of equal protection and equal privileges and
immunities was added as a limitation, not as an expansion.  The
fundamental congressional purpose was to prevent private
conspiracies from taking over the government, or from affecting the
political environment so as to inhibit state authorities from
according equal protection to their citiznes." Id.  at 436.
(Footnote omitted) (emphasis in original.)

   n1 Comment, A Construction of Section 1985(c) in Light of Its
Original Purpose, 46 U.Chi.L. Rev. 402 (1979).

   While section 2 of the Ku Klux Klan Act also prohibits
conspiracies "for the purpose of preventing or hindering the
constituted authorities of any State from giving or securing to all
persons within such State the equal protection of the laws," this
clause is distinct from the "for the purpose, either directly or
indirectly, of depriving any person or any class of persons of the
equal protection of the laws" clause in at least two respects.  The
former clause refers to "all persons within such State," while the
latter speaks of "any person or any class of persons." Moreover,
the last-quoted clause has the expansive modifier "either directly
or indirectly," while the first-quote clause does not.  As pointed
out in this connection in A Construction of Section 1985( c) :

   "It would be a mistake to read this  legislative intent  as
limited to direct interference with government provision of equal
protection. . . .  The Ku Klux Klan was a political conspiracy; its
depredations frequently involved no component of direct obstruction
of officials.  The Klansmen's object was to seize control of state
governments, to reverse the process of reconstruction, and to
nullify the rights recently conferred upon the freedmen by the
thirteenth, fourteenth, and fifteenth amendments.  Their primary
weapon was political terror, directed especially against those
whose votes and efforts sought to bring about just and impartial
state administration.  In this way they hoped to make it
politically impossible for the states to accord equal protection.
The moderates who drafted the statute were careful not to curtail
the effect of the general clause of section 2 by words such as
"obstructing a governmental official." Rather, they employed thephrase "directly or indirectly" to insure that the statute would
reach the schemes of conspirators designed to block equal
protection by indirect and political means." Id.  at 419-20.
(Emphasis in original)

   In my opinion this analysis is not contrary to either the
holding or the ratio decidendi of Griffin v. Breckenridge, 403 U.S.
88, 91 S.Ct 1790, 29 L.Ed.2d 338 (1971). The views expressed in
this dissent are essentially those espoused in the concurring
opinion of Justice Stevens, with which Justice Powell agreed, in
Great American S. & L. Assn. v. Novotny, 442 U.S. 366, 99 S.Ct.
2345, 2353, 60 L.Ed.2d 957 (1979) (Stevens, J., concurring).
Neither Justice
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Stevens nor Justice Powell appear to consider their views in this
regard as being at variance with Griffin, nor does the majority
opinion in Novotny indicate that these concurrences misread
Griffin. Indeed, the statement by Novotny majority that "[s]ection
1985(c) provides no substantive rights itself," 442 U.S. at 372, 99
S.Ct. at 2349, 60 L.Ed.2d 963, supports the analysis here made,
namely that the Forty-Second Congress designed the Ku Klux Klan Act
to guard against subversion of those rights secured to citizens by
the United States Constitution.  It did not create new substantive
rights.

   Moreover, I believe the appropriate reading of Griffin is that
stated as follows in A Construction of Section 1985(c):   [*1024]

   "The Court's decision that the acts alleged in Griffin stated a
section 1985(c) cause of action accords with the original purpose
of the statute.  The defendants in Griffin assaulted the plaintiffs
on the highway on the mistaken impression that the driver was a
civil rights worker.  There was no hint of state action in any of
the three possible forms: no state officers were involved by action
or inaction, no state authorities were coerced, influenced, or
impeded in the performance of their duty toward the plaintiffs, and
no conspiracy existed so massive as to supplant state authority.
Nevertheless, the purpose of the defendants was in part to drive
civil rights workers from the state, and thereby to make it less
likely politically that the state would carry out its duty of equal
protection to blacks.  This purpose falls squarely within the scope
of conspiratorial designs that prompted the Forty-Second Congress
to pass the Ku Klux Klan Act.

   ". . .

   ". . .  The Court's holding does not suggest that conspiracies
of a wholly different purpose and effect from those motivating the
framers of the statute --for example, private acts of
discrimination in employment -- are also within the statute's
reach.  The Griffin Court insisted as much by expressly recognizing
the necessity of "giving full effect to the congressional purpose"
by restricting the scope of the action in the manner intended by
the sponsors of the "limiting amendment." In order to decide the
Griffin case, it was not necessary to explore the full extent of
the limiting amendment -- the requirement of discriminatory animus
sufficed for Griffin's purposes -- but the opinion endorses, in
principle, the restriction of section 1985(c) in accordance with
its extensive legislative history." Id.  at 425-27. (Footnotes
omitted) (emphasis in original.)

   In this case there is not only no evidence that these defendants
had the purpose of denying plaintiffs any of those rights that theUnited States Constitution secures against private (or public)
abridgement (such as the right to be free of the badges of slavery
or to travel interstate), but there is also no evidence of any
purpose to directly or indirectly deny plaintiffs the protection of
any laws.  There nor only was no direct interference with law
enforcement, there was no suggestion that defendants were
attempting to prevent plaintiffs from exercising or achieving any
political influence or governmental power or to create a climate of
opinion or situation in which governmental authorities would be
unwilling or unable to protect plaintiffs in the exercise of their
legal rights or to afford plaintiffs equal governmental treatment
or protection.
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   Nor, in my view, has there been any showing of the requisite
class based animus.  While I agree with the majority that a purely
racial animus is not the only class based animus reached by the Ku
Klux Klan Act, I nevertheless believe that the animus reflected in
this case is far removed from that which the Act intended to
protect against.  As one of the above-quoted passages from A
Construction of Section 1985(c) correctly observes:

   "The klansmen's object was to seize control of state
governments, to reverse the process of reconstruction, and to
nullify the rights recently conferred upon the freedmen by the
thirteenth, fourteenth and fifteenth amendments.  Their primary
weapon was political terror, directed especially against those
whose votes and efforts sought to bring about just and impartial
state administration."

   The Ku Klux Klan Act, of course, was designed to combat such
phenomenon. Consistent with this evident design, I would require
that the animus, whether directed at individuals or a class, be
related in some manner to race (or perhaps some other analogously
immutable class characteristic).  Under this theory, the Act would
also extend to those harmed either because of their actual or
preceived, present or potential, allegiance with a discriminated-against race (or similar class) or because of their efforts to
secure on behalf of such race (or similar class) the rights which
the United   [*1025]   States Constitution guarantees against
governmental denial on account of race (or similar characteristic)
or the rights, such as freedom from the badges of slavery, which
the United States Constitution protects against private
infringement.

   I do not denigrate the right of individuals not to belong to
unions, nor do I suggest that the right to work on a job not
restricted to union members is unworthy of protection against
unlawful interference.And, I cannot accept the proposition that
there has been no significant discrimination or violence against
nonunion workers.  But it is plain to me that this was not the sort
of discriminatory deprivation of rights that the Ku Klux Klan Act
was designed to prevent.

   I also agree with Judges Rubin and Williams that, for the
reasons stated by them, the majority errs in its reliance on the
commerce clause as a source of congressional power to enact the Ku
Klux Klan Act, so as to reach purely private conspiracies directed
at purely private ends unrelated to rights protected by the United
States Constitution.  Such reliance at least indirectly undermines
the majority's reading of congressional intent concerning the scope
of section 1985(3).  At the very least, reliance on the commerce
clause bespeaks a serious doubt as to the existence of any othersource of congressional power sufficient to support the Ku Klux
Klan Act as interpreted by the majority.  We are cited to no
legislative history, or other contemporary evidence, that Congress
intended to invoke its power under the commerce clause, and it is
beyond dispute that congressional power under this clause was then
considered far more limited than it is today.  Accordingly, since
Congress did not purport to act under the commerce clause and yet
considered it was acting constitutionally, a strong inference
arises that Congress did not intend the Ku Klux Klan Act to have
the broad reach ascribed to it by the majority.

   Moreover, we are cited to no decision of the Supreme Court that
has sustained under the commerce clause an act of Congress not by
its terms directed at interstate or foreign commerce, or matters
affecting them, or expressly stated
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to be enacted pursuant to the power to regulate commerce.  To do so
when the legislateive history, and other contemporary evidence,
plainly indicate that Congress was relying on other constitutional
sources of power, seems to me to be a most serious error.  To
regulate only conduct in or affecting interstate commerce is quite
a different proposition from regulating conduct irrespective of its
relation to interstate commerce.  Under Section 8 of Article I, it
is Congress, not the courts, that is given the "power" "to regulate
commerce." When the courts "sustain" under the commerce clause an
act of Congress plainly not intended as an exercise of the power to
regulate commerce, an act not limited to conduct in or affecting
commerce but rather applying equally to conduct within and without
the scope of the commerce power, then the courts have made the
decision, which the Constitution committed to Congress, to regulate
interstate commerce.  The majority relies on Chief Justice
Marhsall's classic formulation in McCulloch v. Maryland, 4 Wheat
316, 421, 4 L.Ed. 479, 605 (1819), but overlooks the import of the
opening phrases, "Let the end be legitimate, let it be within the
scope of the constitution. . . . " Here, the "end" which Congress
sought to achieve was not the regulation of commerce.  It stands
McCulloch v. Maryland on its head to say that an "end" not intended
by Congress, and which Congress was not required to intend, can be
used to sustain, and in sustaining to transform, an act of Congress
taken in the exercise of distinctly different constitutional
powers.

   Concluding, for the above-referenced reasons, that plaintiffs
have no cause of action under 42 U.S.C.  @ 1985(3), I find it
unnecessary to reach the other issues addressed in the majority
opinion and in the dissent of Judges Rubin and Williams.