Protest Decisions

              October 23, 1996

VIA UPS OVERNIGHT

James P. Hoffa

October 23, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Lawrence Brennan, President

Teamsters Joint Council 43

2801 Trumbull Avenue

Detroit, MI  48216

Terence F. Majka, President

Teamsters Joint Council 18

5 Rutger Park

Utica, NY  13501

Coleman Davis, President

Teamsters Local Union 523 

123 W. 11th Street

Tulsa, OK  74101

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Stephen Presser

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Patrick J. Szymanski

Baptiste & Wilder, P.C.

1150 Connecticut Avenue, N.W., Suite 500

Washington, DC  20036

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Ron Carey Campaign

c/o Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

James P. Hoffa

October 23, 1996

Page 1

Re:  Election Office Case No. P-1019-IBT-NYC

Gentlemen:

A pre‑election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by

James P. Hoffa

October 23, 1996

Page 1

James P. Hoffa, a member of Local Union 614 and a candidate for general president, on September 26, 1996.  By letter dated September 27, 1996, Terence F. Majka, president of Local Union 182 and Joint Council 18, joined in the protest.  In essence, the protest claims that General President Ron Carey, his attorney Nathaniel Charny and the law firm of Cohen, Weiss & Simon (“CWS”) violated Article VIII, Section 11(f); Article XII, Section 1(b); and Article XIII of the Rules by threatening in the press to file a libel action against Messrs. Hoffa, Majka and others for statements made in campaign-related material.

Specifically, the protesters make the following arguments:

·               Respondents violated the Rules by threatening to file the libel action in retaliation for Mr. Hoffa making certain statements in his campaign literature, such statements being protected as free speech under the Rules and the Labor-Management Reporting and Disclosure Act, as amended (“LMRDA”), 29 U.S.C. §411(a)(2);

·              The IBT was involved in bringing this suit.  Thus, the IBT is responsible for the retaliation and has also made an illegal campaign contribution to the Carey campaign.  As part of this general allegation, they assert that IBT General Counsel Judy Scott advised members of the press about the suit before it was formally released and lobbied a CNN correspondent concerning the suit.  They further assert that the libel complaint utilizes work product developed by the IBT in unrelated litigation.  They also assert that Mr. Carey was represented by IBT lawyers in connection with a Department of Labor investigation which resulted in a report cited in the lawsuit;

·              Finally, protesters assert that any ex parte communications between

Mr. Carey’s attorneys and the Election Officer prior to the filing of the suit are improper, both because they taint the appearance of impartiality and because the reference to those communications in the press has created the impression that the Court-appointed officers have endorsed or are supporting Mr. Carey.

Mr. Carey acknowledges announcing his intent to file a libel action and then filing the complaint in state court.  He argues that he acted in his individual capacity without any union support, that the suit is well-grounded, and that the Rules do not prohibit an individual from vindicating his right to be free from defamation.

New York City Protest Coordinator Barbara C. Deinhardt investigated this protest.  At the request of the Election Officer, the parties submitted detailed position papers on a variety of legal issues, as well as evidence in support of their respective positions.

I.              Factual Background

James P. Hoffa

October 23, 1996

Page 1

On September 25, 1996, the Carey campaign issued a press release announcing that Mr. Carey was filing a libel lawsuit against Mr. Hoffa and several local Teamster officials, charging them with a “wide-ranging scheme . . . to publish and circulate false, defamatory, and malicious statements and innuendo” about him.  The press release was circulated on that day to approximately a dozen national reporters along with a copy of the draft complaint.  Within the next few days, the press release only was widely distributed to news outlets throughout the country.  On September 26, 1996, the New York Daily News carried a story about the suit, briefly describing its basis.  Other press reports appeared as well.

The draft complaint which was made public named as defendants Messrs. Hoffa, Majka, Lawrence Brennan and Coleman Davis.[1]  At the time the alleged libel was published, Messrs. Brennan, Majka and Davis were running on a slate of candidates opposed to

Mr. Carey’s slate in the 1996 IBT International officer election.  As nominated candidates for International office, this slate published campaign materials in the September 1996 issue of the Teamster magazine which included statements which Mr. Carey claimed to be defamatory.

The complaint focuses of two sets of allegations made by various Hoffa campaign materials:

UPS Stock Ownership--Hoffa campaign literature has charged Mr. Carey with secretly owning between $400,000 and $2 million worth of stock in United Parcel Service (“UPS”) during the time Mr. Carey was general president of the IBT and was leading union negotiations against UPS for a new contract.  Among the statements identified as libelous are the following:

“Carey never disclosed that he owns close to $2 million of UPS stock.”

“Carey’s UPS deal took care of his stock and you got nothing.”

“[T]hanks to UPS millionaire stockholder Carey, thousands of feeder driver jobs will be lost.”

“Carey’s $2 million of UPS stock comes before you.”

“Why Did Carey Fail to Disclose UPS Stock During 1993 Negotiations?”

The libel complaint states that this is untrue, that Mr. Carey’s father had owned UPS stock which went into the estate when the elder Carey died.  According to the complaint, the stock was sold by the estate in August 1992, and the Department of Labor (DOL) determined on August 18, 1993 that Mr. Carey never held any direct or indirect interest in the stock.  The complaint further alleges that the defendants knew of the DOL report, but instead relied on an earlier inaccurate newspaper article for support.

James P. Hoffa

October 23, 1996

Page 1

Use of UPS Attorney to Defraud Elderly Friend--Hoffa campaign literature has also claimed that Mr. Carey swindled Ann Morgen, an elderly woman, into naming him as the principal beneficiary of her will and then collecting approximately $300,000 from the estate when she died.  The literature further claims that Mr. Carey used a UPS lawyer, Joseph Previte, to rewrite the woman’s will in Mr. Carey’s favor.  The Hoffa campaign literature made such statements as the following:

“Carey swindled an old lady out of nearly $300,000.  HIS LAWYER?  You guessed it.  ON THE PAYROLL OF UPS.”

“Next year, there’ll be another UPS contract up for negotiation.  Who will come first?  The UPS lawyer Carey used to help him swindle $300,000 from an old widow, Carey’s $2 million of UPS stock, or you?”

“In 1987, Carey hired a high-powered UPS lawyer, Joseph Previte, to draft a new will for the elderly Ms. Morgan [sic] replacing her earlier will.  The earlier will did not even mention Ron Carey . . .”

The complaint states that the allegations are untrue in that Ms. Morgen was a longtime family friend whom Mr. Carey took care of during her final years and that Mr. Previte was never a UPS attorney.  The complaint further alleges that the defendants, together with the “Hoffa/Brennan libel machine,” manufactured the will contest and planted the libelous stories in the press.

The complaint places the allegations of defamation within the context of the 1996 International officer election.  It points out that the defendants are all candidates running against Mr. Carey and his slate in the 1996 International officer election.  It recites

Mr. Carey’s original election in 1991 and how the defendants have opposed his program ever since.  It also makes the defamation claims only against his electoral opponents for statements made in campaign literature, but does not make any claims against the newspapers that also published the alleged defamation.

Sometime after the complaint was filed, the Carey campaign issued a leaflet which contains reproductions of the DOL report and Previte affidavits, next to a caption, “Now,

Ron Carey is making Hoffa answer for his lies - in court and in front of the membership!”

James P. Hoffa

October 23, 1996

Page 1

On September 30, 1996, Mr. Carey’s attorneys filed the complaint in the New York State Supreme Court for Queens County.[2]  The New York Times carried a story about the suit on October 1, 1996.  The complaint is signed by James L. Linsey and Stephen Presser, partners at the New York City law firm of Cohen, Weiss, and Simon (“CWS”).  The law firm is counsel to the Carey campaign, but also has regularly represented the IBT in various legal matters.  For the libel case, Mr. Carey executed a personal retainer agreement with CWS on September 19, 1996, in which he agreed to compensate his lawyers on a straight time basis and to be responsible for all costs.

II.              Discussion

The key issue in this case is whether the Rules provide immunity for campaign speech from a private state law libel action.  The protesters argue that the right of free speech in the campaign setting is unconditional, and that the Rules are violated if a libel suit is filed for statements made in campaign communications.  In response, Mr. Carey asserts that the Rules do not prohibit the filing of a well-founded libel action which alleges the defamation was published with actual malice and where the suit is not sponsored or supported by the union.  For the reasons stated below, the Election Officer concludes that a well-founded libel complaint is not automatically barred by the Rules.

A.              Right of Union Members to File Well-Founded State Law Libel Actions

Article VIII, Section 11(a) of the Rules recognizes the right of all union members to “participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  Article XIII of the Rules further incorporates the right of union members to freedom of expression and assembly from Section 101(a)(2) of the LMRDA, 29 U.S.C. §411(a)(2); and Section 401(e) of LMRDA prohibiting reprisal against a member for

campaigning, 29 U.S.C. §401(e).[3]

James P. Hoffa

October 23, 1996

Page 1

Article VIII, Section 11(f) of the Rules prohibits any retal­i­ation against anyone by the Union or its agents for exercising any right guaranteed by the Rules.[4]  To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute.  The Election Officer will not find retaliation if she concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct.  Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996).  See Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI

(September 20, 1995), aff’d, 95 - Elec. App. - 17 (October 10, 1995).

The Election Officer has consistently held that the Rules “neither prohibit nor regulate the content of campaign literature.”  Rogers, P-518-LU373-SOU (February 21, 1991).  Rather, as the Election Officer has stated, “[t]he goal to be protected is free speech.”  Newhouse, P-388-LU435-RMT (February 21, 1996).  See Landwehr, P-201-LU795-MOI (November 15, 1995); Braxton, P-304-LU623-PHL (May 21, 1991) (“The model for free and fair Union elections is that of partisan political elections . . . The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter”).

Here, however, Mr. Carey asserts a countervailing right, which is the right of IBT members to submit well-founded claims for personal injury to the courts.  In Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), the Supreme Court addressed an analogous situation.  There, a group of employees lawfully picketed the restaurant where they worked, complaining of unfair treatment and bad working conditions.  Employer officials threatened to get even with the workers and subsequently filed a lawsuit against them alleging, among other claims, libel for a leaflet circulated by the workers.  The workers filed unfair labor practice charges with the National Labor Relations Board (“NLRB”).  Id. at 734.  The NLRB ultimately held that the employer had committed an unfair labor practice by pursuing a baseless lawsuit against the workers.  Id. at 736-37.

James P. Hoffa

October 23, 1996

Page 1

In reviewing the Board decision, the Supreme Court noted that while the National Labor Relations Act (“NLRA”) contained “broad, remedial provisions that guarantee that employees will be able to enjoy their rights secured by §7 of the Act,” there were also “weighty countervailing considerations.”  Id. at 741.  The Court recognized that the right of access to the courts is protected by the First Amendment to the U.S. Constitution.  Id. Further, the Court recognized that the NLRA did not preempt defamation actions under state law, provided the plaintiff met certain federally imposed standards for proving defamation.  Id. at 742; see Linn v. United Plant Guard Workers, 383 U.S. 53 (1966).  Weighing these competing interests, the Supreme Court concluded, “The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the [NLRA].”  Id. at 743.

In holding that a well-founded libel action could not be enjoined as an unfair labor practice, even if it was filed with a retaliatory motive, the Court found that baseless litigation was not immunized by the First Amendment right to petition.  The Court therefore held that “it is an enjoinable unfair labor practice to prosecute a baseless lawsuit with the intent of retaliating against an employee for the exercise of rights protected by §7 of the NLRA.”  Id. at 744.

This rule is consistent with cases under the LMRDA Bill of Rights.  In Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963), the Second Circuit said, “[A]lthough libelous statements may be made the basis of civil suit between those concerned, the union may not subject a member to any disciplinary action on a finding by its governing board that such statements are libelous.”  Id. at 451.  See also Fulton Lodge No. 2, IAM v. Nix, 415 F.2d 212, 219 n.17 (5th Cir. 1969) (“a union member or official who considers himself defamed by the statements of another member, is not preempted by the LMRDA from recourse to a civil action for defamation”).

The cases cited by the protesters are consistent with this proposition.  In Clark v. Esser, 821 F. Supp. 1230 (E.D. Mich. 1993), a group of IBT members who called themselves the “rank and file Teamsters” (“RAFT”) sued their local union and the members of the incumbent caucus for violating their free speech rights under LMRDA.  The LMRDA claim stated that a libel and slander suit by the incumbent caucus members had been filed against the RAFT group for statements made in the RAFT campaign literature warning that the incumbent caucus was going to steal votes and were engaged in embezzlement.  After the election, the incumbent group failed to prosecute their libel action and it was ultimately dismissed.  The RAFT group then brought their LMRDA action.  In the course of denying summary judgment because of the presence of factual disputes, the District Court recognized that other courts had concluded that LMRDA does not deprive an aggrieved union officer of the common law right to sue for libel.  Id., 821 F. Supp. at 1237 n.5.

James P. Hoffa

October 23, 1996

Page 1

Ultimately, a jury awarded the RAFT group damages for their LMRDA claim.  On post-trial motions in the same case, the District Court affirmed the propriety of its jury instruction that the individual union officers could be held liable for filing a retaliatory libel action only if they were acting under color of union authority.  Clark v. Esser, 151 LRRM (BNA) 2087, 2101 (E.D. Mich. 1995).

Both decisions are consistent with the Second Circuit rule stated above and with the Election Officer’s holding here.  Mr. Carey concedes that sponsorship of the libel action by the IBT, an affiliate or officer acting in an official capacity against a candidate or member for making campaign statements would be prohibited retaliation, under the Rules.  However, a private lawsuit, where the plaintiff is put to his/her proofs under the federal defamation standard of actual malice and is subject to counterclaims for abuse or malicious use of process, does not present the same potential for abuse as does unre­stricted conduct by unions.

The Supreme Court’s decision in Bill Johnson’s Restaurants provides some guidance to the Election Officer in this analogous situation.  While the Rules are designed to protect the right of members to freely campaign, the Supreme Court’s decision in Bill Johnson’s Restaurants is grounded in recognition of a constitutional right which the Election Officer should be hesitant to limit.[5]  The Supreme Court has also found that the right to be free from defamation is one which is “deeply rooted in local feeling and responsibility,” such that state law defamation actions in labor disputes would not be preempted by the NLRA.  Id. at 741, quoting San Diego Bldg. Trades Council v. Garmon, 461 U.S. 236, 244 (1959).  Accord, Linn v. United Plant Guard Workers, 383 U.S. 53 (1966).

James P. Hoffa

October 23, 1996

Page 1

Allowing for well-founded libel actions is consistent with the Election Officer’s responsibilities under the Consent Decree.  While the Election Officer has exclusive authority to set the terms for the election,[6] that does not mean that every instance of conduct which is either prohibited or protected by the Rules cannot also be subject to certain other legal proceedings.  For example, in Passo, P-469-LU705-CHI (February 29, 1996), aff’d in relevant part, 96 - Elec. App. - 124 (KC) (March 13, 1996), the Election Officer found violations of the Rules based on the conduct of two groups of opposing members who engaged in a physical confrontation at the Local Union 705 hall.  However, the Election Officer’s jurisdiction should not--and did not--prohibit the State of Illinois from filing criminal charges for assault and battery arising out of that confrontation.[7]

Mr. Majka argues that campaign material is absolutely privileged, and cites to the 1991 Election Officer decisionin Petre, P-1036-LU812-NYC (November 14, 1991), aff’d,

91 - Elec. App. - 238 (SA) (December 6, 1991).  In that case, the respondent sued the protestor for defamation and malicious prosecution over statements made in an earlier protest filed with the Election Officer.  Then-Election Officer Michael Holland ruled that the filing of a protest was absolutely privileged and, thus, the contents of the protest could not be the basis of a suit.  His ruling was not only based on the importance of the protest process, but the historical immunity accorded to pleadings before adjudicatory tribunals.  Here, however, consistent with decisions under the LMRDA, the Election Officer finds that the content of campaign materials is not afforded the same absolute privilege as the filing of a protest.

Accordingly, the Election Officer finds that the filing and prosecution of a well-founded suit for libel is not a violation of the Rules, even if it was commenced for a retaliatory purpose.

B.              Application of the Bill Johnson’s Restaurants Standards to the Facts Here

In seeking to devise the appropriate method and standard of review, the Election Officer has looked to analogous law under the NLRA to see if it can be adapted to the special circumstances of this election.[8]  In Bill Johnson’s Restaurants, the Supreme Court set forth a procedure for the NLRB to follow in determining whether a lawsuit is baseless or well-founded.  The Court stated as follows:

When a suit presents genuine factual issues, the state plaintiff’s First Amendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury and the State’s interest in protecting the health and welfare of its citizens, lead us to construe the Act as not permitting the Board to usurp the traditional fact-finding function of the state-court jury or judge.  Hence, we conclude that if a state plaintiff is able to present the Board with evidence that shows his lawsuit raises genuine issues of material fact, the Board should proceed no further with the §8(a)(1)-§8(a)(4) unfair

James P. Hoffa

October 23, 1996

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labor practice proceedings but should stay those proceedings until the state-court suit has been concluded.

Id., 461 U.S. at 745-46.

In the Supreme Court’s analysis, if the NLRB does not enjoin a libel action because there is a reasonable basis for the action, but the suit is later withdrawn or determined to be without merit, the NLRB may consider the claim as meritless and proceed to determine whether it was filed in retaliation for engaging in a protected right.  If the NLRB finds that the complaint was retaliatory, it may still impose a remedy by ordering the employer to reimburse the employees for their attorneys fees and other expenses, as well as any other proper relief.  Id. at 747.  See also Phoenix Newspapers, Inc., 294 NLRB 47, 49 (1989); Int’l Union of Operating Engineers Local 520 (Alberici Construction Co.), 309 NLRB 1199, 1200 (1992); Bakery, Confectionery & Tobacco Workers Local 6 (Stroehmann Bakeries, Inc.), 320 NLRB No. 36 (1995).[9]

In deciding whether the state court suit is baseless, the Election Officer must apply certain federally-imposed standards.  A labor union is entitled to a qualified privilege under federal labor policy.  In Linn v. United Plant Guard Workers, 383 U.S. 53 (1966), the Supreme Court limited the availability of state remedies for defamatory statements made in the course of labor disputes “to those instances in which the complainant can show that the defamatory statements were circulated with malice and cause him damage.”  Id. at 64-65.  “Actual malice” means that the defamatory statements were published “with knowledge of their falsity or reckless disregard of whether they were true or false.”  New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

At the request of the Election Officer, the parties produced evidence as to the facts of the alleged libel.  Having reviewed the submissions and sought additional evidence and information from the parties, the Election Officer cannot make a finding that the libel suit is baseless.  Each of the libel defendants published campaign material involving the allegedly defamatory statements.  The evidence produced to the Election Officer indicates a dispute of facts as to the truth of whether Mr. Carey owned any UPS stock, directly or indirectly, and whether the libel defendants knew or should have known that Mr. Carey did not own such stock based upon the 1993 DOL letter.

As to using a UPS lawyer to defraud an elderly person, based on the evidence produced, there are genuine issues of fact as to the claim that Mr. Previte worked for or represented UPS and the libel defendants’ reliance on a news article in asserting this claim.

James P. Hoffa

October 23, 1996

Page 1

The protesters seem to argue, in addition to privilege, that the campaign literature is substantially true.  For example, they point out that even under Mr. Carey’s version of the facts, he held an undisclosed interest in the proceeds of an estate whose value was composed almost entirely of UPS stock, at a time when he was general president of the IBT and held responsibility for the IBT’s dealings with UPS.  The Election Officer finds that she cannot address such an argument without applying the standards of New York libel law as to what constitutes defamation, and whether a substantially true statement is enough to defeat a claim of libel.  The proper forum for those arguments is, in the first instance, before the state court.  Since the Election Officer cannot say at this stage that the case is without merit, there is no basis for an injunction against the suit.  The Election Officer therefore declines to order that the suit be dismissed.

However, this does not end the matter.  In keeping with the procedures articulated by the Supreme Court in Bill Johnson’s Restaurants, the Election Officer will defer further adjudication of this protest until a decision on the merits of this case is rendered by the state court.  If the suit is subsequently shown to be without merit, the Election Officer will proceed to determine whether the suit was brought in retaliation for engaging in protected rights under the Rules.  If the suit is both meritless and retaliatory, the libel plaintiff will be responsible for payment of all attorneys fees and costs incurred by the defendant(s) of the action, as well as any other relief deemed necessary and proper.

The Election Officer has considered whether prosecution of this libel suit could improperly interfere with the election, even if it is found to be meritless and retaliatory after the election.  The principle of free speech, which has guided the Election Officer’s determinations in refusing to censor campaign materials, applies here.  The Election Officer has found that false speech (which could include defamatory speech) does not interfere with the election process and is best left for refutation in the political arena.  Similarly, allegations raised in a libel suit can be countered in campaign statements and is simply another issue to be debated by the parties.

This conclusion follows the 1991 Election Officer’s resolution of such a claim.  In Campanella, Post-57-LU100-SCE, the protester alleged that the bulletin board posting of the cover page of a libel complaint against him, stemming from statements he made during the delegate election, adversely affected his campaign and may have affected the outcome of the election.  The Election Officer rejected this claim.  He found that just as the original leaflet, asserted in the lawsuit to be libelous, was not published in violation of the Rules, neither did the posting of “the front page of an allegedly untrue lawsuit” violate the Rules.  In a footnote at the conclusion of the decision, Election Officer Holland cited Bill Johnson’s Restaurants, suggesting that it would be utilized for evaluating a claim of whether or not a lawsuit was filed with the intention to chill rights under the Rules.  Because the Election Officer determined post-election that the filing of the lawsuit did not affect the delegate election outcome, the issue of retaliation during the campaign, as posed in this case, was not directly reached by the 1991 Election Officer.

James P. Hoffa

October 23, 1996

Page 1

The protesters claim that permitting the prosecution of libel claims will chill their right to campaign without fear of retaliatory litigation.  However, the right to campaign freely does not include the right to be free from a well-founded state defamation action.  While the Rules provide certain protection for all speech, defamatory or not, that protection does not extent to extinguishing a well-founded state law claim just because the alleged victim is a candidate for reelection.  The Election Officer finds that the free flow of information and campaign speech will not be effectively reduced by recognizing the rights of candidates alleged to be defamed from seeking redress in another forum.  Such litigation has not been and is not likely to be frequent during the course of this campaign, and resort to it is expensive.  Furthermore, the Election Officer is satisfied that the lingering threat of having to pay attorneys fees to the libel defendant is a sufficient deterrent to retaliatory and meritless litigation, and that further remedy is not necessary to maintain the integrity of the election process.

C.              Threat to File Suit

The protesters argue that the threat to file suit is a violation of the Rules independent of the actual filing of the complaint.  The Election Officer sees no need to decide that issue now, since the relief ordered herein is sufficient to provide a remedy to both the filing and the threat of filing a lawsuit.  See also Campanella, supra (posting of the cover sheet of a libel action against delegate candidates not a violation of the Rules).

D.              Participation of the IBT in the Libel Suit

The protesters also assert a claim against the IBT for allegedly participating in the filing of the libel action.  A review of the Supreme Court decision in Bill Johnson’s Restaurants and cases under the LMRDA indicate that recognition of the right to file a private libel action only applies if the plaintiff is pursuing a private action to vindicate his/her personal injuries and is not in any way the actions of the IBT or its affiliates.  A lawsuit which is financed, directed or supported in any tangible way by the union would become union retaliation for exercising protected campaign rights, the need to defer to the countervailing right to file suit would accordingly decrease, and a violation of the Rules could be found against the union in an appropriate case even if the libel case had merit.  See Salzhandler, supra; Nix; Clark v. Esser.

James P. Hoffa

October 23, 1996

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Here, there is no evidence that the IBT is directly or indirectly supporting the Carey libel action.  The evidence shows that Mr. Carey retained CWS personally and is paying their fees himself.  The media was contacted about the lawsuit by the Carey campaign, not the IBT.  In response to the specific allegation by the protesters, Ms. Scott states that she had a conversation with CNN reporter Marc Feldstein about other matters and that she did not lobby him about the suit or urge him to write about it.  The claim that the suit utilizes IBT work product refers to materials about Mr. Hoffa’s associates Richard Leebove and George Geller, which were developed by IBT lawyers in discovery during an earlier dispute involving the IBT and litigated before Judge Edelstein.[10]  Mr. Carey’s chief lawyer on the libel action,

Mr. Presser, states that he relied on an article in the Columbia Journalism Review for his information about Messrs. Geller and Leebove.  The article[11] does indeed contain much, although not all, of the information about them that appears in the complaint.  The article also contains leads to books and other publicly disseminated documents from which the allegations in the complaint could have been fashioned.

The Election Officer sees no need to track with particularity the source of the allegations in the complaint about Messrs. Geller and Leebove because those facts and allegations have entered into the realm of public discourse unrelated to any IBT attorney work product.  In Hoffa, P-865-IBT-MGN (August 26, 1996), aff’d, 96 - Elec. App. - 232 (September 6, 1996), the Election Officer ruled that materials about the activities of

Messrs. Geller and Leebove were available as a result of court litigation to any person interested in them.  She therefore found that the IBT did not violate the Rules by making the discovery materials available to the Carey campaign.  As noted in Hoffa, the discovery materials formed the basis of a pamphlet published by the Carey campaign which has been publicly disseminated.  Since the Election Officer has previously ruled that the Carey campaign did not improperly obtain the information, she finds that the further use of that information would not constitute a violation.  The allegations about Messrs. Leebove and Geller have been publicly discussed and debated for some time and once the issue becomes part of the public discourse, even the use of the materials, some of which may have originated with the IBT, does not, in these circumstances, constitute support of the lawsuit by the IBT.

Similarly, Mr. Carey’s reliance on the August 1993 letter from the DOL is not an impermissible use of IBT resources, since the letter was not exclusively within the IBT’s control, but was instead part of the campaign debate and was indeed referenced in at least one of Mr. Hoffa’s communications in dispute.[12]  The meaning and import of the DOL letter is part of the public discourse and the question of its origin is not relevant to a determination of this claim.

Viewing these facts as a whole, the use of any IBT-generated materials by this lawsuit is too tangential to constitute involvement by the union in this lawsuit.  The Election Officer therefore finds that the IBT is not supporting the libel litigation and has, therefore, not attempted to retaliate against the protesters for their campaign-related activity.

James P. Hoffa

October 23, 1996

Page 1

The protesters allege that Mr. Carey’s lawyers have also violated the Rules by their participation in the preparation of the suit, although no rationale for liability is offered.  Apparently, the theory is that the lawsuit was filed purely for campaign purposes and, therefore, CWS’s work on the suit was an improper employer campaign contribution, under Article XII, Section 1(b) of the Rules.  However, there is no evidence to support the theory.  The fact that CWS also does work for the IBT is not enough.  Mr. Hoffa filed a protest containing a similar charge about CWS recently, which was rejected for lack of evidence.  Hoffa, P-838-IBT-MGN (July 11, 1996), aff’d, 96 - Elec. App. - 214 (KC) (July 17, 1996).  CWS has a separate fee agreement with Mr. Carey and there is no evidence of a quid pro quo between CWS representing Mr. Carey in this case and CWS obtaining past or future IBT work.

E.              Impartiality of the Election Officer

The protest further makes allegations that Mr. Carey attempted to compromise the impartiality and integrity of the Election Officer by conducting ex parte communications in which he sought approval to file the suit.  However, the protest and subsequent letters also allege impropriety by the Election Officer in engaging in such communications.  In a letter dated October 1, 1996, Mr. Hoffa’s attorney asked what responses, if any, were provided by the Election Officer to Mr. Presser’s September 20, 1996 letter, and further asked “how you propose to ensure the parties that a fair and impartial adjudication can occur with respect to this matter in light of what occurred.”  Mr. Majka’s attorney’s letter of September 27 requested “an explanation as to why the communication [from Mr. Carey’s lawyer to the Election Officer] was not immediately provided” to his client.

Under the Consent Decree, the Election Officer has broad authority to supervise and conduct the 1996 International officer election.[13]  In fulfilling her duties, she and her staff regularly have communications and informal discussions about election-related concerns or problems with candidates, their staff and attorneys, and their supporters.  Such communications are often essential in resolving problems, avoiding disputes, and satisfying

the concerns of candidates.  These communications are not normally shared with other candidates or potentially adverse parties, since they are not meant to adjudicate formal disputes or resolve the rights of any party in the way a protest decision would.

James P. Hoffa

October 23, 1996

Page 1

Occasionally, the Election Officer has received requests for advice which she concluded could not be honored because the matter was likely to be the subject of a protest which the Election Officer will be required to adjudicate or because the issue is simply not ripe for reaching a conclusion.  In those situations, she has declined to give the requested advice.  However, since the communication itself is not a formal adjudication and does not define or decide the rights of any persons, she does not routinely copy others on such correspondence.

The Election Officer received a letter from Mr. Carey’s attorney dated September 20, 1996, requesting advice as to whether the filing of the proposed libel action in state court would implicate the Consent Decree or otherwise run afoul of the All Writs Order.[14]  At that time there was no lawsuit filed and no formal proceedings of any kind had commenced.  After considering the request, the Election Officer sent a letter to Mr. Presser, dated September 26, 1996, informing him that she would not provide advice on this issue and that she reserved all rights to exercise her authority in this matter.  The Election Officer did not take any further action in connection with this matter until the instant protest was filed.

The Election Officer finds that neither Mr. Carey nor his attorneys acted improperly by informally seeking guidance as to whether previous decisions of the District Court might prohibit the filing of the proposed lawsuit anywhere except before Judge Edelstein.  While the Election Officer believed she could not offer the advice sought, she finds the request was in good faith, did not violate the Rules, and did not give the impression of any improper communication between the Election Officer and Mr. Carey’s attorneys.

Further, since the Election Officer did not take any improper action in this matter and did not formulate any predisposition to the outcome as a result of her communications with Mr. Carey’s attorneys, there is no basis for any claim of bias, and the Election Officer declines to disqualify herself or any of her staff from adjudicating this case.

For the above reasons, the protests are DENIED in part and otherwise DEFERRED in light of the Election Officer’s order herein.  Within ten (10) days of the final adjudication or resolution of the libel complaint, the parties shall notify the Election Officer of the disposition and make any further applications for relief consistent with this decision.

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

James P. Hoffa

October 23, 1996

Page 1

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Barbara C. Deinhardt, New York City Protest Coordinator

Leroy Ellis, Jr., Stand Up for Teamsters Slate

Tom Pazzi, James P. Hoffa Campaign