IN RE: JOHN HULL,
Protest Decision 2001 EAD 453
Issued: September 14, 2001
OEA Case No. PR060511CA
John Hull, a member of Local Union 938, delegate to the IBT convention and nominated candidate for Vice President Teamsters Canada on the Tom Leedham Rank and File Power slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") against Leo Blain and Local Union 938 principal officer Ray Bartolotti. The protest alleges that Blain's threat to bring a defamation suit against Hull constitutes retaliation against him for his protected activity of filing a protest under the Rules.
Election Administrator representative Jeffrey Ellison investigated the protest.
Findings of Fact and Analysis
In a March 14, 2001 letter from his counsel, Cynthia Watson, Blain threatened suit against the Election Administrator, Election Administrator representative Gwen Randall, and Hull, alleging Blain had suffered "damage to reputation and character occasioned in the broadcast of certain defamatory untruths." Watson's letter contends that Blain suffered loss of professional reputation as the result of our decision in Hull, 2001 EAD 153 (February 10, 2001), aff'd, 01 EAM 37 (February 21, 2001).
In the protest that led to our decision in 2001 EAD 153, Hull alleged the following:
Local 938 President Ray Bartolotti has again used union resources to campaign, in flagrant violation of the Rules.
He has sent a letter to all 10,500 members of Local 938 regarding an insurance company, which in its text promotes Ray Bartolotti. This is timed to come just before the mailing of ballots for Local 938 convention delegates, two weeks from now. There are three praises of Bartolotti in a letter which purports to be about an insurance company. In this letter an insurance agent asserts that "Ray Bartolotti endeavors to seek out services like this to help the members of your local enjoy the savings associated with group plans and to enhance the value of your membership in Local 938."
The insurance company letter Hull attached to his protest was on letterhead of Traders General Insurance Company and was signed by Joe Pansino. Our investigation determined, however, that Blain, owner of Haber-Blain Insurance Brokers, prepared the letter. We recounted facts Blain provided to investigator Randall as follows:
Blain acknowledges that he drafted the letter that is the subject of this protest, and that he read the letter to Bartolotti early in January, before it was mailed. He advised Bartolotti that the letter was going out to the members of Local 938 and that, as usual, the insurers would subsidize the cost of the envelopes, labels and postage.
We held the Traders General letter "constitutes campaign literature as it promotes the candidacy of Ray Bartolotti to members of Local 938." We explained this holding, writing:
It goes beyond its predecessor letters in lauding Bartolotti and his negotiating accomplishments, and does so less than three weeks before the mailing date for the delegate election ballots. And, by so lauding Bartolotti, the letter goes beyond the legitimate information provided to members in the letter about the availability of an insurance program. We conclude that the letter was a campaign contribution because it had the purpose, object or foreseeable effect of influencing positively the election of Bartolotti as a delegate.
We then held:
Since the letter was prepared and paid for by the insurance company and the broker, both of which are employers, it thus constitutes an improper campaign contribution under Article XI, Section 1(b)(2) of the Rules.
To remedy Bartolotti's improper receipt of an employer contribution to his delegate campaign, we ordered him to reimburse the cost of the insurance mailing and to fund the cost of mailings by other campaign organizations in the local's delegate election. We also ordered him to pay the cost of mailing a notice to members from the Election Administrator.
We did not order relief against the Traders General or Haber-Blain companies, or against Pansino or Blain.
The Election Appeals Master affirmed our decision, writing:
[W]hether Mr. Bartolotti knew of the Trader General Letter contents is irrelevant, since under Article XI, Section 14, a candidate's ignorance that employer or union funds were used to promote his candidacy is not a defense to a Rules violation. A candidate is held to be strictly liable, under Article XI, Section 13 to insure that no contribution received violates the Rules and to promote a level playing field for all candidates in the race for office.
01 EAM 37 (February 21, 2001)
In Watson's March 14 letter threatening suit, she asserted our decision falsely accused Blain "of knowingly colluding with Mr. Bartolotti in an attempt to thwart the Teamster election rules regarding campaign contributions." She demanded the Election Administrator make an "unqualified retraction" of "the allegations made against Mr. Blain in the original protest decision," and publish that retraction in various ways, including on our website and in a mailing to every member of Local 938.
Watson made no demand against Hull but threatened him with suit nonetheless.
On May 31, 2001, Watson wrote Hull again, advising that "we have instructions from our client [Blain] to proceed with the proposed action, if we do not hear from you by June 7th, 2001." Again, she did not specify the manner in which Hull was alleged to have defamed Blain, nor did she demand any specific action of Hull.
Hull responded with the instant protest. His counsel alleged that Blain "has threatened to bring a defamation action against Mr. Hull in retaliation, we believe, for Mr. Hull's protected conduct under the Election Rules in filing an earlier election protest regarding employer contributions to the Bartolotti convention delegate campaign …"
When Blain and Bartolotti were served with Hull's protest, Watson wrote us:
I have made Mr. Blain aware of the protest. In the circumstances, I have suggested that it may be appropriate for Mr. Blain to seek independent counsel. He is considering this option.
As soon as I receive instructions, I will advise you of his position. In the interim, however, given that we are counsel of record for Mr. Blain on the other matter, I would confirm that any communication with respect to this or other matters vis-à-vis Mr. Blain be directed to our office.
Watson served as counsel for Bartolotti in the following decisions: Hull, 2001 EAD 153 (February 10, 2001); Hull, 2001 EAD 193 (February 26, 2001); Hull and Seguin, 2001 EAD 269 (March 26, 2001), Bartolotti, 2001 EAD 312 (April 17, 2001); Hull, 2001 EAD 313 (April 17, 2001); and Bartolotti, 2001 EAD 314 (April 17, 2001).
She did not represent Blain in 2001 EAD 153; her first appearance for him came in her March 14 letter threatening defamation suit.
Following receipt of Watson's June 8 letter, our investigator attempted to contact her by phone several times without success. On June 22, he wrote her as follows:
Our investigation thus far has revealed that you, as counsel for Leo Blain, have threatened a defamation action against John Hull, among others, asserting at bottom that Hull defamed Blain and Blain's insurance agency. The protest Hull filed that resulted in our decision in 2001 EAD 153 asserted that Ray Bartolotti had impermissibly used union resources for campaign purposes by sending to the membership of Local 938 an insurance company's letter lauding him. The letter, which Hull attached to his protest, was printed on the letterhead of Traders General Insurance Company and bore the signature of Joe Pansino, whom the letter identified as Senior Account Manager for that company. Our investigation has not thus far revealed any evidence that Hull or his counsel ever uttered or published the name of Leo Blain or Blain's organization, Haber-Blain Insurance Brokers, or made reference to them, let alone in a purportedly defamatory context. For this reason among others, the instant protest asserts that the defamation action you have threatened to institute in behalf of Blain against Hull carries a retaliatory animus for Hull's action, protected under the Rules, to file a protest.
By 5:00 p.m. EDT, Monday, June 25, 2001, I request that you submit any evidence and argument you may have that demonstrates or tends to demonstrate that Blain's threatened action against Hull has a substantial factual and legal basis and is unrelated to Hull's protected right to protest violations of the Rules.
Watson replied on June 25, stating she believed the matter was a topic of discussion between our office and "the International office," stating further that once she "ascertain[ed] the status of such discussions," "I will respond to your letter with our formal position." Watson has supplied nothing further.
In Brown, 2001 EAD 434 (August 30, 2001), appeal pending, we reviewed the precedent under which an individual may pursue a "well-founded defamation claim" against another, consistent with the Rules. Under the precedent cited there, remedies for defamatory statements made in labor settings are limited "to those instances in which the complainant can show that the defamatory statements were circulated with malice and cause him damage." Linn v. Plant Guard Workers, 383 U.S. 53, 64-65 (1966). Such "actual malice" means that the defamatory statements must be 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).
To be actionable, the defamatory words must be published "of the plaintiff." Here, Hull complained of a letter on Traders General letterhead signed by Pansino. There is no evidence that Hull or the 10,500 other recipients of the letter knew or should have known that the letter was written by Blain of Haber-Blain Insurance Brokers, nor did Hull identify Blain or his company in the protest filed over the letter.
On these facts, Blain has no substantial argument that Hull defamed him because the words Hull published in his protest were not "of the plaintiff" Blain. This fact alone supports the conclusion that Blain does not have a "well-founded defamation claim" against Hull. Our conclusion is reinforced by the acquiescence on this point of Blain's counsel, who failed to present any evidence or argument to counter it.
Proof of a false statement is an essential element of a "well-founded defamation claim." Blain's threatened action against Hull fails this test as well because Hull's statements about the insurance letter quote the letter directly and accurately. Hull's assertion that the letter had the effect of supporting Bartolotti's candidacy for delegate was adopted by the Election Administrator and the Election Appeals Master. We find, therefore, that Hull did not utter or publish any untruth regarding the insurance letter.
Because Blain does not have a well-founded defamation claim against Hull, we conclude that his threatened action retaliates against Hull for his Rules-protected right to protest violations of those Rules. Accordingly, we GRANT the protest against Blain.
Although Watson has served as counsel for Bartolotti and Blain arising from the same occurrence, this does not establish that Blain threatened his action against Hull at the behest of Bartolotti, and we lack any other evidence of such abetting or encouragement. We therefore DENY the protest against Bartolotti.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process.
We order Blain to cease and desist from pursuing or threatening to pursue his defamation action against Hull.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73 (February 13, 1996).
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 453
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John Hull
3231 Eglinton Avenue East
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Ray Bartolotti
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