Protest Decisions

IN RE: ANTHONY BROWN,
Protest Decision 2001 EAD 434
Issued: August 30, 2001
OEA Case No. PR062212CA

(See also Election Appeals Master decision 01 EAM 95)

Anthony Brown, a member of Local 213, filed a post-election protest pursuant to Article XIII, Section 3(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that IBT Local 213, its secretary-treasurer Don McGill and its president Ray Zigmont have violated Article VII, Section 11(g) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") by commencing a defamation action against Brown in a civil court in British Columbia, in retaliation for his exercise of rights protected by the Rules.

Election Administrator representative Gwen Randall investigated the protest.

Findings of Facts

Two slates contested the Local 213 delegate election: the McGill Unified Members slate (the "MGM slate") and the Local 213 Teamsters Rank & File slate (the "TRF slate"). Ballots were mailed on February 21, 2001 and counted on March 14. The MGM slate was elected.

Brown was the spokesperson for the TRF slate during the delegate election campaign, and his name was listed first on the delegate election ballot. Brown signed correspondence with the local union and our office on behalf of the TRF slate. McGill and Zigmont were candidates on the MGM delegate slate.

During the course of the delegate campaign, supporters of the TRF slate established an internet website with the address of http://213rankandfileslate.homestead.com. The internet domain server was Homestead Technologies Inc., a California company. The website contained a chat page which was open to anyone who wished to log on.

Between February 26 and March 18, 2001, a message appeared on the TRF slate website chat page. It made reference to McGill and Zigmont personally, suggesting that certain serious charges had been laid against them by a former officer of Local 213. The message suggested further that McGill and Zigmont had "paid off" or threatened the officer to drop the charges. The message went on to say that McGill and Zigmont were people that the author did not want running the union and that the MGM slate members were corrupt. The message was signed with the pseudonym "Concerned."

In fact, in May 2000, a former officer had instituted internal charges under the IBT Constitution at the joint council level against McGill and Zigmont. Hearing of the charges was postponed a number of times at the request of the former officer. In October 2000, the internal charges were dismissed, as the former officer did not appear at the hearing. This result was reported to the regularly scheduled January 2001 meeting of the local in the officer's report.

Following the tallying of the election results at Local 213 on March 14, 2001, a Local 213 lawyer sent a letter to each member of the TRF slate requesting that the message described be deleted from the website immediately. The TRF slate complied on the same date, deleting the message, posting a retraction and mailing a letter of apology to the union's lawyer.

On May 9, 2001, Local 213, McGill and Zigmont commenced an action in the Supreme Court of British Columbia, Vancouver Registry, against Anthony G. Brown, Homestead Technologies Inc., John Doe #1 and John Doe #2, alleging defamation against McGill, Zigmont and Local 213, as McGill and Zigmont are officers of Local 213. The action was commenced on the recommendation of the executive board of Local 213 and approved by a motion of the membership at a local union meeting through acceptance of the officer's report. The local union is subsidizing the cost of the litigation.

In his protest, Brown states that the offending statement was not posted on the website by any member of the slate, and that he is not aware of the identity of the person who posted the message. Brown further claims that the litigation has had a chilling effect on his ability to participate in the upcoming Local 213 officer elections. Zigmont and McGill advised our investigator that despite their being aware of the posting of the message during the delegate election campaign, they decided to wait until after the delegate election before taking legal steps. They claim that the website message defamed them personally and in their capacity as officers of Local 213.

The plaintiffs' Statement of Claim alleges that the words were published falsely and maliciously. Brown, however, testified that he did not have a computer, and that he was unaware of the posting of the allegedly defamatory message until his post-election receipt of the lawyer's correspondence. Lacking any knowledge of the posting, he says, he could not be said to have maliciously posted the same.

Analysis

Article VII, Section (11)(g) of the Rules prohibits retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a union member, officer or employee for exercising any right guaranteed by any Article of the Rules. Here, Brown engaged in protected conduct by running for delegate and campaigning for himself and other members of the TRF slate.

Prior election rules precedent establishes that IBT members may pursue a "well-founded" defamation claim against a fellow member if brought by the plaintiff-member in his individual capacity and without the support or subsidization of the IBT or any IBT subordinate body, even if motivated by a retaliatory purpose. See Hoffa, P1019 (October 23, 1996), aff'd, 96 EAM 267 (November 28, 1996). However, Hoffa also holds that "[a] lawsuit which is financed, directed or supported in any tangible way by the union would become union retaliation for exercising protected campaign rights, [and] 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."

Hoffa further teaches that the appropriate standard to be used in determining whether a member's defamation suit against a fellow member is "well-founded" is that established in light of the qualified privilege recognized under the federal labor policy in favor of free debate in labor matters. Thus, Hoffa cites to the recognition of that standard in Linn v. Plant Guard Workers, 383 U.S. 53 (1966), where the Supreme Court limited the availability of state remedies for defamatory statements made in labor settings "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. 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).

After consideration of the foregoing, we conclude that the maintenance of the British Columbia litigation against Brown violates Article VII, Section 11(g) of the Rules. We base this conclusion upon the uncontested fact that the challenged litigation here has been brought and subsidized by Local 213 itself, and therefore is not subject to the countervailing right of an individual to bring a defamation action against another individual. In light of the local union's sponsorship and subsidization of the litigation against Brown, the suit does not meet the requirement recognized by the Election Appeals Master in Hoffa, supra, 96 EAM 267, that "the suit must be brought by the plaintiff in his individual capacity and free of union sponsorship." (page 7) As recognized by the Election Appeals Master, when such union support exists, there is "an impermissible campaign contribution" made by the union to the plaintiff-candidates. (pages 7-8)

We also note that the litigation here does not appear to be "well-founded" under the Linn standard, and thus does not appear to be of the type that would be protected even if it had not been improperly funded by the local union. Thus, Brown asserts that he had no knowledge of the allegedly defamatory message here until after his slate was asked to remove it, and his prompt action in doing so lends credit to his claim. However, we do not adopt this reasoning as a basis for our finding of a Rules violation here, since the local union's funding of the litigation by itself supports the result we reach.[1]

Nor does the fact that this litigation has been brought in Canada change this result. The Rules adopt LMRDA Sections 101(a)(2)(freedom of expression and assembly) and 609 (prohibition against union discipline for exercising LMRDA rights) as applicable to all members and local unions of the IBT, without regard to their location. Since the IBT has adopted the Rules in this manner, it has agreed to their enforcement in a uniform manner in both the United States and Canada. It is that agreement which requires the application of election rules precedent here.

For the foregoing reasons, we GRANT the protest and conclude that Local 213, McGill and Zigmont have violated Article VII, Section 11(g) of the Rules by commencing and prosecuting the challenged defamation litigation against Brown with the support and financial aid of Local 213.[2]

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 interference with the election process.

To remedy the violation found, we order Local 213, McGill and Zigmont to immediately dismiss with prejudice their pending union-financed defamation litigation against Brown, and to cease and desist from bringing any such action against any other member, officer or employee of the IBT or any of its subordinate bodies. We further order Local 213 to fully reimburse Brown for all attorney fees and costs incurred by him in defending the defamation action.

A decision of the Election Administrator takes immediate effect unless stayed. 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 15^th Street NW, Tenth Floor, Washington, DC 20005 (fax: 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 434

DISTRIBUTION LIST VIA UPS NEXT DAY AIR:

Patrick Szymanski

IBT General Counsel

25 Louisiana Ave. NW

Washington, DC 20001

Bradley T. Raymond

Finkel, Whitefield, Selik,

Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

J. Douglas Korney

Korney & Heldt

30700 Telegraph Road

Suite 1551

Bingham Farms, MI 48025

Barbara Harvey

Penobscot Building

Suite 1800

645 Griswold

Detroit, MI 48226

Betty Grdina

Yablonski, Both & Edelman

Suite 800

1140 Connecticut Ave. NW

Washington, D.C. 20036

Tom Leedham c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

Todd Thompson

209 Pennsylvania Ave. SE

Washington, DC 20003

Matt Ginsburg

30 Third Avenue

Brooklyn, NY 11217

James L. Hicks, Jr.

Suite 1100

2777 N. Stemmons Freeway

Dallas, Texas 75207

IBT Local 213

490 East Broadway

Vancouver, BC V5T 1X3

Canada

Bruce Laughton

Laughton & Company

Suite 1090

1090 West Georgia Street

Vancouver, BC V6E 3V7

Canada

Dwight Stewart

Miller/Thompson

Suite 1840

Howe Street

Vancouver, BC V6Z 2M1

Anthony Brown

11060 154^th Street

Surrey, BC V3R 6J2

Canada

Gwen Randall, Q.C.

421 Seventh Avenue, SW

Suite 3300

Calgary, AB T2P 4K9

Canada