October 20, 1998
VIA FIRST CLASS MAIL
Pedro Pelayo
October 20, 1998
Page 1
Pedro Pelayo
8195 Jurupa Road
Riverside, CA 92509
Juan Cruz, Business Agent
Teamsters Local Union 396
880 Oak Park Road
Suite 200
Covina, CA 91724
Raul Lopez, Sec.-Treas.
Teamsters Local Union 396
880 Oak Park Road
Suite 200
Covina, CA 91724
Paul Alan Levy, Esq.
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Pedro Pelayo
October 20, 1998
Page 1
Re: Election Office Case No. PR-259-LU396-EOH
Gentlemen:
Pedro Pelayo, a member of Local Union 396, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Juan Cruz, a business agent at Local Union 396, and Local Union 396. The protester alleged that Local Union 396 and Mr. Cruz retaliated against him by threatening to have the union sue him for a statement published in the Convoy Dispatch that Raul Lopez, secretary-treasurer of Local Union 396, believes libeled the union.
This protest was investigated by Director of Campaign Finance Leslie Deak.
Mr. Pelayo is a shop steward for Local Union 396 and a member of Teamsters for a Democratic Union (“TDU”). The June/July 1998 issue of the Convoy Dispatch, TDU’s newspaper, contained a picture of Mr. Pelayo and a quote attributed to him. The quote read, in part, “our local union officials side with the company. They’ve gone over to Hoffa [a candidate for general president] – but not the members. We support Tom Leedham [a candidate for general president] because he has pledged to bring members together to fight for good contracts. Tom Leedham mobilized members to win a national agreement at Kroger. We need his leadership to win a national contract in other industries like sanitation.”
Pedro Pelayo
October 20, 1998
Page 1
Raul Lopez, the Secretary-Treasurer of Local Union 396, saw the statement printed in the Convoy Dispatch. Mr. Lopez believed that the statement contained deliberate, material inaccuracies that injured Local Union 396 and harmed negotiations between Local Union 396 and USA Waste, the company employing Mr. Pelayo. As a result of the injury Mr. Lopez believed the local union to have suffered, he decided to explore the option of filing a civil defamation claim on behalf of Local Union 396 against the party responsible for the statement. Mr. Lopez also considered filing internal union charges against Mr. Pelayo, claiming that Mr. Pelayo’s statement had undermined on-going negotiations.
Mr. Lopez had Local Union 396 Business Agent Juan Cruz investigate the matter to determine the party responsible for the statement. Mr. Pelayo stated that he received a telephone call from Mr. Cruz, and that Mr. Cruz said that Mr. Pelayo was going to be sued for having made the statements that had appeared in the Convoy Dispatch. Mr. Pelayo understood that the suit would be brought by Local Union 396, not by any individual. The conversation was brief, and it concerned only the possible filing of a lawsuit against Mr. Pelayo. Internal union discipline was not raised in this conversation.
Mr. Lopez does not deny that he commenced the investigation with the thought of having Local Union 396 sue Mr. Pelayo for defamation. He contends that the matter is outside the Election Officer’s jurisdiction because Mr. Pelayo’s statement related only to local union negotiations and any intimidation of Mr. Pelayo could not constitute a retaliation for conducting the Rerun Election.
Article VIII, Section 11(f) of the Rules prohibits the Union and its agents from retaliating or threatening retaliation against anyone for having exercised any right guaranteed by the Rules. When a retaliation claim is based on a verbal threat, the context of the statement must be carefully considered. The Election Officer does not regulate the content of campaign-related speech. Thus, where a retaliation claim is based on speech alone, not completed conduct, the Election Officer must consider whether the alleged wrongdoer has the power and ability to execute the threatened act of retaliation. Furthermore, the Election Officer will not find speech exchanged in the context of the campaign, even if it is heated or intemperate, to be retaliatory conduct. The Election Officer’s goal is to protect and encourage speech on the theory that open, robust debate is the best approach to campaign dialogue, with the electorate being the final arbiter. Braxton, P-304-LU623 PHL (may 21, 1991); Newhouse, P-338-LU435-RMT (February 21, 1996).
Pedro Pelayo
October 20, 1998
Page 1
The courts have held that a union official cannot use the union’s internal disciplinary mechanism to squelch member dissent. See Fulton Lodge No. 2, International Association of Machinists and Aerospace Workers v.Nix, 415 F.2d 212 (5th Cir.1969) (union’s filing and adjudication of disciplinary charges against member for defamation infringes member’s LMRDA rights); Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963) (same). The Election Officer has not found a general rule, however, that precludes a union entity from asserting before an independent, impartial court any rights it may have against a member.[1] In contrast to union discipline, where panel members might be influenced or controlled by the officers seeking vengeance, a lawsuit regulated by an impartial judge provides the member with the protections of a fair forum ruled by public law.[2]
The Election Officer has addressed a claim of retaliation arising from the prosecution of a defamation claim on one other occasion. In Hoffa, P-1019-IBT-NYC (October 23, 1996), aff’d, 96 Elec. App. -267 (KC) (November 8, 1996), the protester alleged that Ron Carey’s filing of a defamation action against James Hoffa and certain IBT local officers constituted retaliation for campaign activity and statements of Mr. Hoffa. The Election Officer denied the protest and declined to intervene and stop the defamation case. Hoffa recognized that the libel action would be adjudicated in the court system, independent of the IBT’s authority, and that the plaintiff was subject to the proof requirements, and the ethical and other constraints that govern private civil actions. Citing Bill Johnson’s Restaurants, the Election Officer also recognized that regulation of private civil actions by the Election Officer would only be proper if the action were “not well-founded.” Thus, in the only other protest to consider the interaction of the Rules and a private civil action, the Election Officer held that the lawsuit was not sanctionable retaliation.
The circumstances here involve, at most, the threat of a possible lawsuit. There is, at this point, no official “union action” adverse to Mr. Pelayo. The purported claim (if brought) would not be adjudicated in a forum under Mr. Lopez’ control.
Pedro Pelayo
October 20, 1998
Page 1
The Election Officer finds, for the purposes of this ruling, that Mr. Lopez intended for Mr. Pelayo to know of the prospect of a lawsuit and that he had Mr. Cruz make the call with that objective. Furthermore, the Election Officer finds that Mr. Pelayo’s statements were campaign-related and have protection under the Rules. Nevertheless, Mr. Lopez did not threaten to discipline Mr. Pelayo with a procedure under the union’s control. Neither Mr. Lopez nor Mr. Cruz threatened Mr. Pelayo in any other way that could be considered retaliatory (e.g., physical harm or loss of employment). If a defamation suit is ever filed, a court would assess the merits independent of the union’s authority. Moreover, if such a claim were brought and proved baseless an analysis would then be done to determine if the suit constituted retaliation and an abuse of union power.
Accordingly, this protest is hereby DENIED.
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 (1) 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:
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, 444 North Capitol Street, NW, Suite 445, Washington DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master
[1] Cf. Clark v. Esser, 821 F. Supp. 1230 (E.D. Mich. 1993). In Clark, members sued a local union and certain officers alleging that an allegedly baseless defamation action by the defendants constituted malicious prosecution and a violation of their LMRDA rights. The Clark court held that issues of fact concerning a local union’s complicity in the earlier suit precluded a summary judgment dismissing the union. The court based its holding on precedent involving internal union disciplinary actions, not other lawsuits brought by unions against members. Moreover, unlike the matter in protest, the members had been subjected to adverse conduct in the form of an actual lawsuit, not a verbal threat.
[2] The Supreme Court has held that a company’s filing of a claim against a union member that is “not well-founded” may constitute an unfair labor practice. Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983). The law presumes, however, that personal lawsuits should ordinarily proceed and be resolved on the merits in the court system. The NLRB’s power to supersede a court is reserved only for extreme cases. Similarly, only in an extraordinary case involving an utterly baseless claim could the Election Officer consider interfering with the right of a union, or an individual, to assert a claim in court.