UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

 

T.C. STONE, Jr., 
Plaintiff, 

v.                                                                                No. 3-92-CV-0939-G

DIANA KILMURY, et al.,  
Defendants and 
Third-party Plaintiffs, 

v. 

CENTRAL FREIGHT LINES, INC.,  
Third-party Defendant. 

 

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

 

This is a libel action filed by T.C. Stone, the leader of the Teamsters union in Texas, against a union reform group and an officer of that group whose slate had just defeated Stone in a union election. The alleged libelous statement is contained in a letter from defendants to members of the public who were interested in union reform, which cited as an example problems experienced by Teamsters in Stone's local union.

This motion asks the Court to hold either that the Letter was published during a "labor dispute," warranting application of Linn v. Plant Guards, 383 U.S. 53 (1966), or that Stone is a public figure under New York Times v. Sullivan, 376 U.S. 254 (1964). These are key issues because (1) they fix the evidentiary standard that governs the case (plaintiff must show actual malice by clear and convincing evidence), and (2) if the case involves a labor dispute, plaintiff must both plead and prove actual damages, which he has not done and cannot do, thus warranting dismissal of the suit.

STATEMENT OF FACTS(1)

A. Stone Is an Important Labor Leader.

Since 1989, Stone has been the principal officer of Teamsters Local 745, which is the largest Teamsters local in the South. For five years before that, he was the local's main representative vis-a-vis other unions. He also heads Teamsters Joint Council 80 and the Texas Conference of Teamsters, which includes all Texas locals, as well as the local in Shreveport. SMF 3-4. The Texas Conference represents approximately 49,000 workers in many industries. SMF 5.

Stone has also been an officer of both the Dallas Central Labor Council and the Texas AFL-CIO. SMF 7. Until Stone pulled his union out of the Texas AFL-CIO in March 1993, because it sought to help workers instead of unions,(2) the Teamsters had an unusually large number of representatives on its governing body, which gave him a "strong voice in state government." SMF 8.

Stone also participates in numerous national gatherings of union leaders, through which he has come to know most of the national leadership, as well as to be known nationwide. SMF 9. Stone and his local have a national reputation for their unique style of operation. SMF 11. Although he has lost two races for higher union office, Stone remains, by his own account, "a major player" within the union. SMF 12. Stone is a trustee of several pension plans, and he has had national union appointments to negotiating and grievance committees. SMF 13.

These positions make Stone, by his own admission, "an important labor leader," so important that any "document critical of Plaintiff . . . is likely to be of great interest." November 1992 Dep. at 40, and Exhibit 3, page 5, ¶ (b). As Stone explained,

I head the largest conference in the Southern Conference of teamsters, I am the most active [political action committee] in America within this Teamsters Union. . . . My DRIVE program collects more money than any local union in the entire International union. We are very active in state politics, very active. The Teamsters Union has three district vice presidents on the AFL-CIO plus one union vice president. We are very active politically in state politics. . . . We do extensive lobbying in the capital of this state, which is Austin, Texas . . ..

November 1992 Dep. at 40-41. See also id. at 34 ("I deal with politicians all the time"); Answer to Interrog. No. 39, Exhibit 1 to Dec. Dep. ("hundreds of dealings with politicians," too many to remember or recount).

Consequently, Stone's union positions give him great ability to influence public policy on labor issues. He is nationally known for the size of his PAC, which allocates almost $300,000 per election cycle to various candidates, and sends an equal sum to the national Teamster PAC for distribution at the national level. SMF 17. In addition to financial support, Stone is able to supply large numbers of campaign workers to put up signs, make telephone calls, and otherwise help favorite candidates win elections. SMF 18. Under Stone, Local 745 has been the biggest contributor to many successful candidates, SMF 19, and Stone receives public recognition for this role, such as membership on the "inner" fundraising committees for Texas Attorney General Mattox and Texas Lieutenant Governor Bullock. Stone was also Bullock's representative on the committee that planned the inaugural ceremony for Bullock and Governor Ann Richards. SMF 20-21. The union's political clout enables Teamster leaders to be appointed to various state government posts. For example, Stone was a member of the Texas Employment Commission Advisory Council from 1989 to 1993. SMF 22-23.

Stone believes that such contributions buy substantial influence. Regarding Texas Lieutenant Governor Bullock, Stone has said, "We got a bigger stick with him than anybody else in the state, and I'll tell you why: we bought his ass." SMF 25. And about Charles Miller, a judge on the Court of Criminal Appeals, he said, "we always put the money where we need it . . . He's definitely our kind of guy, you can talk to him, and there's been a few times when we were instrumental to his survival, and . . . Chuck remembers that." Judge Miller, in turn, called Stone "one of my closest advisers."(3) SMF 25. When U.S. Senator Kay Bailey Hutchison was elected, her widely-reported victory speech singled out Local 745 as one of two key supporters, apart from her family and staff. SMF 28.

Stone also engages in political activity between elections. In answering interrogatories, Stone modestly identified only three pieces of legislation that he tried to influence -- workers compensation reform, commercial driver's license laws, and trucking deregulation -- but many other issues are identified in the Texas-wide union newspaper he ran from 1989 to 1991. SMF 29. Although the Texas AFL-CIO nominally co-ordinates the lobbying for labor in Texas, Local 745 supplied most of the actual lobbyists. SMF 30.

In addition, under Stone's guidance, Local 745 and the other Teamster bodies he runs constantly appeal for public support. SMF 31. Such appeals include efforts to persuade employees at particular companies to select Local 745 as their bargaining representative.(4) Appeals are also made to the public when Stone mounts picket lines during a strike, or "informational" pickets whose avowed purpose is to appeal to the public not to patronize nonunion companies, although the real purpose, as Stone has admitted, is to "cause chaos, just as we always did." SMF 33-34.

Stone has also appealed to the public through the Texas Conference [of Teamsters] News. This paper, prepared under Stone's direction and featuring a column by Stone on the front page, was mailed to members, and to selected Teamster unions outside Texas and to some non-Teamster unions in Texas. SMF 35-36. The paper was also used to affect public perception of the Teamsters, and so was directed to the communities in which the members live, as well as to the members themselves. Members were asked to recirculate the paper in order to spread Teamster news and views. SMF 36-37.

Stone and Local 745 have also been the focus of other, less favorable controversies and media attention. Many civil or criminal charges have been made about use of violence by the union and its adherents. SMF 39-43. In 1986, a large Local 745 membership meeting was told that a grand jury was pursuing allegations that all of the union's then-officers -- which included Stone -- had engaged in racketeering activity, specifically including use of violence. Union lawyer James Hicks described criminal investigations of Local 745 leaders as a recurring phenomenon. SMF 40. At least two charges apparently concerned violence against union dissenters employed as dock workers at Yellow Freight Lines, where Stone was a union business agent. SMF 41. Charges of threats and violence against disfavored individuals have also been considered by the NLRB and intra-union bodies, SMF 42-43, including one NLRB case, which was pending when the Letter was sent, where Stone was charged with personally warning a worker that he would be assaulted if he did not stop exercising his legal rights. SMF 43-44.(5)

As a rule, "labor unions in general, and the Teamsters in particular [have been] good fodder for the media," in the sense that they are "a topic that they like to cover." SMF 46. The prominent public role of Teamsters Local 745 and its leadership is reflected in the continuing media coverage that they have attracted over the years. SMF 47-48, 50-52.

Although some of this coverage has related generally to labor relations and politics, a fair amount of it has been related specifically to problems of violence in Local 745. Newspaper and magazine articles have reported on the NLRB charges, civil suits and criminal investigations mentioned above; television news stories have reported on beatings, shootings, and other forms of intimidation, including violence directed against reporters who were trying to cover the local's political affairs. See evidence cited id.

Stone himself repeatedly refers to such incidents of violence against the news media. In March, 1991, he gave the "riot" against the media as an example of what would happen to union dissenters if they came to Dallas; two years later, he teased reporters who came to film a Stone-backed candidate at a union meeting, "You didn't fare so well last time you were here," emphasizing that this improvement was because on this occasion their coverage was invited, and praising a member who was convicted of assault on the previous occasion for his restraint on this occasion. SMF 52-53. He was referring to an occasion when members of Local 745, angry about unfavorable coverage, had assaulted camera crews who were filming reformers trying to attend a union meeting. SMF 50-51.

B. The RICO Consent Decree and the IBT Election.

The International Brotherhood of Teamsters ("IBT") is the nation's largest union. It represents employees in many different crafts and industries, in every state in the union and every province in Canada. Its role in the transportation industry gives it particular economic importance. SMF 1.

In part because of its size and influence, the Teamsters union has been infiltrated by organized crime figures and other corrupt elements. Many IBT presidents have been indicted and convicted in office. These problems drew attention from both prosecutors, who tried for many years to jail the malefactors, and union members, who formed rank-and-file groups to encourage fellow members to "vote the rascals out," as well as insisting on good representation and honest unionism. Over the years, these efforts to reform the Teamsters and to oust its criminals have drawn unceasing attention from all sectors of the mass media, as well as government commissions, legislative committees, and the like. SMF 2.

Public interest in Teamster union affairs intensified in the two or three years just before the Letter was mailed. In 1988, after overcoming intense political opposition generated by Teamster lobbying and publicity, the United States filed a massive action under the RICO Act against the IBT and its officers, alleging that La Cosa Nostra controlled the union, and alleging as predicate acts a large number of instances of corruption and violence against reform elements within the union. SMF 54. The government's original plan had been to impose a court-appointed trusteeship on the union, but the Teamster reform movement successfully urged a different approach -- to use the power to "reorganize" the union to require that all officers be elected democratically by a direct, one-person, one-vote ballot, instead of having local union officers select leaders at a convention. SMF 55. These reforms were accomplished through a Consent Decree that required the union to amend its constitution to incorporate several major structural reforms. SMF 56.

Stone was a participant in the debate about whether this Consent Decree was a good idea, and was a member of the IBT's Constitution Committee. His committee urged the IBT convention to vote against almost all of these structural reforms. SMF 57-58. This challenge was the subject of public debate, and implementation of the votes was enjoined by the federal court overseeing the consent decree at the behest of the United States government. SMF 59-60.

Plaintiff and both defendants were active participants in the election campaign, which began in mid-1989 and culminated with the certification of the reform slate's victory in January, 1992. SMF 61. Defendant Kilmury was elected IBT Vice-President, running on the reform slate headed by Ron Carey. She is a long-time leader of Teamsters for a Democratic Union ("TDU"), which has for many years been recognized as the principal reform group in the Teamsters union. SMF 62-63. TDU is not a defendant here, but defendant TRF is an educational foundation, recognized as tax-exempt by the Internal Revenue Service, that was created to provier educational and legal services in connection with Teamster reform efforts. As a foundation, TRF could not endorse candidates, but it provided legal support services to supporters of the reform slate, and non-partisan election rights advice for Teamster members. SMF 64.

The incumbent leadership divided into two factions. Stone ran for International Vice-President for the Southern Conference, nominally as an independent candidate but, in fact, supporting the main incumbent candidate, R.V. Durham, and most of Durham's slate. SMF 65-66. Stone campaigned in every major city in the South, and in many smaller ones, as well, and mailed campaign flyers to the union membership, in addition, his campaign materials were distributed nationwide to some 1.5 million Teamster members. SMF 69. Stone also sought press coverage of his campaign, SMF 69, and expressed gratitude even for critical coverage in TDU's newspaper.(6) Stone explained that TDU only criticizes what he considers to be "good" union officers; thus, TDU criticism counts as praise among right-thinking Teamsters. SMF 71.

Throughout the campaign, Stone expounded his views about the direction the union ought to take. He glorified the rough and tumble reputation of his own local, and urged a return to the methods of the past, which, he said, had worked well. He urged undecided voters to talk to Local 745 members to find out what kind of leader he was. As he admitted during his deposition, he held out his own local as a model for the Teamsters union of the future, offered his own performance as a fair subject for comment. SMF 72-73.

There was extensive press coverage of the campaign. Stories appeared in Texas newspapers, and there were over 75 stories in 1991 alone in five leading national newspapers. SMF 74. See also 8/93 VIDEOTAPE, 4:03 (extensive television coverage of election, which was "the most publicized [union] election there ever was"). The election also received extensive coverage in specialized, labor-related publications. For example, a steady diet of stories about the election appeared in TDU's newspaper (Convoy-Dispatch) and in the newsletter Labor Notes. One story in Convoy-Dispatch specifically criticized Stone for plundering the union treasury to reward himself with a big salary and a big car. SMF 75-76.

The election resulted in a resounding victory for the reform slate, which won an overwhelming plurality of the vote. Stone carried his own local by a two to one margin, but in the rest of Texas he ran slightly behind the reform slate. SMF 75-76.

The election did not end the debate, either in the union or beyond it, about the future of the Teamsters union. Newly elected President Carey and his slate set about to implement their reform program, while the Teamster Old Guard opposed it. The two sides have continued to proclaim their positions and criticize each other to this very day, and the mass media have continued to cover this debate. SMF 78. Stone has also continued to seek higher office in the union, such as by leading a slate for the Policy Committee that runs the Southern Conference of Teamsters. In that race, he again held forth his record in Local 745 as the model for what he hoped to do throughout the South. SMF 79.

Plaintiff and his representatives have continued to be avid participants in the debate. For example, the day before the Letter was mailed, Stone's counsel, James Hicks, Esquire, spoke to a Local 745 membership meeting, and proclaimed that Carey's inaugural promise to promote democracy and clean up corruption showed that Carey "is not a union man, and is carrying a torch to do great destruction [to the union];" consequently, he announced, members should stand behind Stone and "the barbed wire fence, through which only our friends can come to Dallas, is going to have to be built stronger and higher, and you're the ones are going to have to do it." SMF 79. Similarly, the next week, as the Letter was in the mail, Stone was a featured speaker at a national meeting in Puerto Rico, where he denounced TDU and expressed dismay at the direction in which TDU was taking the union. SMF 82. Stone testified at his deposition that he has continued to speak out in this manner throughout the country, and in a recent lawsuit against Carey over a proposed union dues increase, he described himself as an "outspoken critic" of Carey's policies. SMF 83-84.

C. The Letter at Issue in This Case.

On February 3, 1992, shortly after Carey's victory was confirmed, TRF published the Letter over Kilmury's signature, and mailed it to 3525 members of the public who were believed to be interested in the cause of union reform. SMF 81. The names were drawn from two separate mailing lists: persons who had previously contributed to TRF, and persons who were current subscribers to the newsletter Labor Notes. Because TRF contributors have, for many years, been sent copies of the Convoy-Dispatch as a premium, and because Labor Notes has long covered the Teamster reform movement, the members of the public who received the letter were aware of, and presumably interested in, the on-going Teamsters election and debate about the future of the union that had been extensively reported in both publications. SMF 85-88.

The Letter reported on the current status of Teamster reform efforts. It said that election of the reform slate was a major step forward, but that old leaders controlled other levels of the union and continue to oppose the push for reform. It continued,

One example, from the fair state of Texas, will show what I mean about the challenges facing the rank-and-file movement. T.C. Stone, head of Local 745 in Dallas, told a union meeting recently that he was going to build a wall around "his" local 745, with barbed wire across the top. He was describing in advance his reaction to any programs the new International leadership might have for rank and file involvement.

And rank and file members have paid a price for their own involvement. Meetings of reformers have been disrupted by goons, mail boxes and cars with Carey bumper stickers have been vandalized, and the front door of one members' home was blasted with a shot-gun -- all in response to these members voicing views that Stone wouldn't tolerate.

The Letter added that members were determined to run against Stone in the next election, and asked for funds to help train members for leadership in this and other locals.

Stone alleges that the words quoted above defamed him -- by misstating his remarks at a union meeting, and by implying that he caused criminal acts (disruption of union meetings and of vandalism) to be committed against members. His complaint alleges that the statements were both false and made with "malice," and claims in very general terms that he suffered damage to his reputation and emotional state as a result. However, as we explain below, principles of federal labor law and the First Amendment required Stone to prove both that defematory statements were made with "actual malice," and that they caused him "actual damage." Because Stone has expressly waived most claims of actual harm, summary judgment should be granted for defendants on grounds of federal preemption.

ARGUMENT

A. FEDERAL LABOR LAW REQUIRES STONE TO SHOW THAT A LIBEL WAS PUBLISHED WITH ACTUAL MALICE AND THAT HE SUFFERED ACTUAL DAMAGES.

Although plaintiff filed this action as one for libel under Texas law, its result is controlled by federal standards under Linn v. Plant Guards, 383 U.S. 53 (1966). In Linn, the Supreme Court applied principles of federal labor law preemption to decide whether federal law "supersedes state law with respect to libels published during labor disputes." Id. at 57. The Court said that because "labor disputes are ordinarily heated affairs, [characterized by] bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions, . . . libel actions might interfere with the national labor policy." Id. at 58. The Court held that, although there would not be total preemption, libel involving a labor dispute must have been made with "actual malice" under the standards of New York Times v. Sullivan. Id. 61, 65. In addition, the plaintiff must both plead, and prove, actual damages, id. 65-66, which must be specifically alleged in the complaint. Id. 66. Absent both actual malice and actual damages, however, a state libel claim is preempted.

Although Linn itself involved a union's accusations against management in a union organizing campaign governed by the National Labor Relations Act, Linn's protections are not limited to that sort of labor dispute. In Letter Carriers v. Austin, 418 U.S. 264, 279 (1974), the Court held that,

whether Linn's partial preemption of state libel remedies is applicable obviously cannot depend on some abstract notion of what constitutes a "labor dispute"; rather, application of Linn must turn on whether the defamatory publication is made in a context where the policies of the federal labor laws leading to protection of freedom of speech are significantly implicated.

In Letter Carriers, the publication was made during a union effort to persuade non-members employed in an existing bargaining unit to join the union, by denouncing them as "scabs." Similarly, in Farmer v. Carpenters, 430 U.S. 290, 298-300, 302 (1977), the Court relied on Linn principles to hold that a union dissident could seek damages for intentional infliction of emotional distress, where the labor dispute involved operation of the union's hiring hall.

The labor dispute at issue here was the continued effort to democratize the Teamsters union, especially at the local level. Plaintiff and defendants have been on opposite sides of this lengthy dispute, beginning many years ago, through the 1990-1991 election of IBT officers, and continuing after the new IBT administration was sworn in, as both sides continued to assert their positions and appeal for support.

The principles of federal labor law apply equally to protect freedom of speech, and to demand application of the principles of Linn, when the speech was made in the course of an intra-union dispute like the Letter at issue here. Section 7 of the NLRA has long been held to protect criticisms of union leaders by individuals and groups like defendants. General Motors Corp. v. NLRB, 512 F.2d 447 (6th Cir. 1975). Indeed, members of TDU and its predecessor group, PROD, set many precedents on this issue. E.g., Roadway Express v. NLRB, 831 F.2d 1285 (6th Cir. 1987); Teamsters Local 745, 240 NLRB 537 (1979). Similarly, section 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2), specifically protects the right to criticize union leaders for alleged abuses in office. E.g., Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963). This right extends to the expression of views outside the union hall, and to the press. Machinists Fulton Lodge No. 2 v. Nix, 415 F.2d 212 (5th Cir. 1969); Deacon v. Operating Eng'rs Local 12, 273 F. Supp. 169 (C.D. Cal. 1967). See also Black v. Ryder/PIE, 970 F.2d 1461, 1469 (6th Cir. 1992).(7)

This is precisely the kind of case where preemption should apply because the labor dispute is one where federal policies protect freedom of speech. As the Letter related to plaintiff, it criticized his union leadership and encouraged continued public interest in Teamster reform efforts, which were, after all, one reason why the LMRDA was passed in the first place, and the reason why vast government resources have been devoted to the RICO suit against the Teamsters. Stone's ability to keep his union offices or expand his power should be decided in the marketplace of ideas, after hearing defendants' criticisms and plaintiff's responses, not by courts or juries in the context of a libel suit.

For these reasons, many federal and state courts have applied the standards of Linn and Letter Carriers to libel cases by members or leaders of unions in the private sector complaining of criticism by their intra-union rivals.(8) Our research has not identified a single case to the contrary. Because Linn requires both clear and convincing proof of malice, and proof of actual damages, unless Stone can meet both tests, he canot prevail here. As we now show, because his complaint, as limited by his representations in the course of discovery, establishes an absence of actual damages, the case must be dismissed without reaching the issue of malice.

The record shows an absence of actual damages in a number of respects. First, plaintiff's answers to interrogatories expressly disclaimed any claim of financial loss. SMF 89. Second, in justification of his refusal to identify witnesses who knew of his reputation before and after the Letter, plaintiff assured the Court that he would present no evidence at trial to prove actual loss of reputation, but would rest on a legal presumption that the Letter injured his reputation. Opposition to Defendants' Motion to Compel, attached to the Levy Affidavit as Exhibit X, at 13-14.

The only other damages mentioned in the complaint and asserted in answers to interrogatories, is that plaintiff suffered humiliation as a result of the Letter. We question whether this bare allegation suffices to meet Linn's heightened pleading standard. Hitzfelder v. Koppelman, 70 S.W. 353, 354 (Tex. App. 1902). Moreover, the evidence of humiliation is insufficient as a matter of law to meet the standard of Texas law, which requires "more than mere disappointment, anger, resentment or embarrassment." Outlet Co. v. International Sec. Group, 693 S.W.2d 621, 629 (Tex. App. 4 Dist. 1985). Stone must show "intense pain of body and mind" and "a high degree of mental suffering." Id. Not only is there no such proof, but Stone's admissions are directly to the contrary.(9)

Most important, however, under Texas law, in cases where actual damage to reputation must be proved, mental anguish damages may be awarded only if there is sufficient proof of actual damage to reputation. Leyendecker & Assoc. v. Wechter, 683 S.W.2d 369 (Tex. 1984). Having foresworn proof of actual harm to his reputation, Stone is not entitled to present his assertion of mental anguish to the jury. And, because he has no viable claims of actual damages, Stone cannot satisfy requirements of Linn, and his complaint must be dismissed regardless of the issue of malice.

B. PLAINTIFF IS A LIMITED PURPOSE PUBLIC FIGURE WHO MUST PLEAD ACTUAL MALICE AND PROVE IT BY CLEAR AND CONVINCING EVIDENCE.

If the Court decides that the Letter did not arise out of a labor dispute, it will then be necessary to decide whether plaintiff must meet New York Times standards because he is a public figure. As the Fifth Circuit held in Miller v. Transamerican Press, 621 F.2d 721, 724 (1980), the decision whether plaintiff is a "public figure" should be made in the early stages of the litigation.

In this Circuit, a libel plaintiff is a limited purpose or "vortex" public figure if (1) there is a public controversy that people are discussing and that affects more than its immediate participants, (2) the plaintiff has more than a trivial role in the controversy, and (3) the alleged libel is germane to plaintiff's participation in the controversy. Trotter v. Jack Anderson Enterprises, 818 F.2d 431, 433-434 (5th Cir. 1987). The test, which is one of law for the Court to apply, id. at 433; Rebozo v. Washington Post Co., 637 F.2d 375, 379 (5th Cir. 1981), is plainly met here.

First, there can be no question that the position of the Teamsters union in society, the use (or abuse) of the significant power enjoyed by the Teamsters, and the intra-union struggle over the union's future, have been and continue to be matters of substantial public interest and public discussion. The record evidence, summarized in the statement of facts above, shows the substantial public attention paid for many years to the problems of violence, repression, and abuse of power in the Teamsters Union generally, and in Local 745 specifically. Both Local 745 and its leadership have repeatedly gained public attention, as reflected in media coverage, administrative proceedings and litigation, and even criminal investigations over the years. And the 1991 Teamster election, the RICO litigation from which that election arose, and the hopes for new directions for the Teamsters resulting from the reform victory in the election, have all been matters of substantial public interest.

Moreover, the undisputed facts show that Stone has had a major role in these matters. As the leader of Teamsters Local 745, as well as the Texas Conference, he is a labor leader of considerable public importance, as he himself readily acknowledges. The unions he runs represent almost 50,000 employees, he controls a huge pot of political campaign funds, see Thompson v. Evening Star, 394 F.2d 774 (D.C. Cir. 1968) (candidates' backers are public figures), he is a major lobbyist on issues of interest to unions, and, in many ways, he constantly appeals to the public for support for union goals. Indeed, as a member of the Texas Employment Commission Advisory Council from 1989 to 1993, Stone was arguably a public official; at the very least, this post adds to his public importance in the labor area, making him subject to New York Times standards.

For good or for ill, Stone is a leading figure because of his unique style of leadership and the strength and importance of the union entities he heads. Because of this importance, as well as because of past allegations of misconduct, Local 745 been the center of attention from both the media and government agencies for many years, both before and after Stone became its leader.

Simply by accepting this position of importance, plaintiff "voluntarily engaged in a course that was bound to invite attention and comment." Rosanova v. Playboy Enterprises, 580 F.2d 859, 861 (5th Cir. 1978). Even Stone has admitted that his position was one that invited public interest in, and criticism of, his conduct. Nov. Dep., at 40, and Exhibit 3, page 5, ¶ (b) (arguing for personal jurisdiction because he is so important that "any document critical of Plaintiff . . . is likely to be of great interest").

Under Miller v. Transamerican Press, 621 F.2d 721, 724 (5th Cir. 1980), a vice-president of the IBT and director of the Southern Conference was deemed a public figure solely by reason of his union positions. Even without regard for the particulars in the record about Local 745 and the Texas Teamsters, Stone's position as principal officer of a union is itself sufficient to make him a public figure for the purpose of comments about his activities in that position. In every libel case that we have found brought by an officer of a union or other organization of workers, complaining about criticisms directed to union issues, the plaintiff was treated as a public figure.(10)

Plaintiffs in many of these cases were officers less important than Stone, but they were still public figures. Such rulings are correct because union leaders, although not public officials, enjoy significant quasi-governmental power -- the exclusive power to represent all employees in a bargaining unit, regardless of those employees' consent. J.I. Case Co. v. NLRB, 321 U.S. 332 (1944). Union leaders have vast discretion, comparable to that of a public official, to decide which rights and claims should be pressed and which should be traded away. ALPA v. O'Neill, 112 S.Ct. 1127, 1135 (1991). With that power comes responsibility, and the public has a significant interest in determining whether this power has been abused. See I NLRB, Legislative History of the LMRDA 401-403, 764-765 (1959) (public interest in union abuses shows need for legislation). Thus, just as public officials and candidates for public office are held subject to New York Times standard of actual malice when they sue for libel, without regard to the special importance of the offices that they hold or seek, so union officers are properly held to be public figures per se, at least for purposes of comment on their union activities, without regard to the importance of the particular unions in which they hold office.

Finally, while running for IBT office, Stone traveled throughout the South, holding his performance in office up for public comment. He sought press coverage for his campaign and disseminated millions of pieces of campaign propaganda. And after the election, he continued to campaign all over the country against what he sees as misdirection for the IBT as a whole, becoming, as he put it in a different case, "an outspoken critic" of the Carey administration. Just as a candidate for public office is deemed to be a legitimate subject of criticism under New York Times to the same extent as he would be if elected, Patriot Co. v. Roy, 401 U.S. 265, 271 (1971); Ocala Star-Banner v. Damron, 401 U.S. 295, 299 (1971), Stone's candidacy for higher union offices also support application of the New York Times standard as if he had been elected to IBT or Southern Conference office. Because these elections would have put Stone in the same posts as "Dusty" Miller held when the Fifth Circuit held that he was a public figure, 621 F.2d at 724, Stone is necessarily a limited purpose public figure, at the very least.

Two Texas cases show how easily Stone meets the standard for being a public figure. In A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 83-84 (Tex. App. -- Ft. Worth 1982), Rayzor became a limited purpose public figure by calling up public officials to support an ousted university president; the suit was over press coverage critical of his calls. In Einhorn v. LaChance, 823 S.W.2d 405 (Tex. App. - Houston 1st Dist. 1992), plaintiffs formed a workers' group, testified before a Senate subcommittee, filed an NLRB charge, and started a publication; only after some libelous statements were made did the media pay them any attention, but still they were held to have thrust themselves into the vortex of a public issue. Similarly, in this Court's most recent public figure case, Chevalier v. Animal Rehab. Ctr., 839 F. Supp. 1224 (N.D. Tex. 1993), Chevalier became a public figure by keeping rare animals, which attracted the interest of animal rights groups that issued press releases and otherwise urged their members to complain to a state agency about the plaintiff. The authorities investigated Chevalier, but took no action against him, and the suit was over statements in the press releases that brought Chevalier to public notice. Stone's status as a public figure, by virtue of his union positions, campaigns for higher union office, involvement in political campaigns and lobbying, and leadership of Old Guard opposition to the Carey administration, is surely a fortiori from cases like these where the controversies and public interest in those controversies were far more ephemeral than is the case here.

To be sure, plaintiff suffers a major misconception common to those who believe that they have been maligned -- he wants to invite attention when he has positive news to convey, but shut it off when he has something to hide. According to Stone, the reception given the media depends on whether their attention is invited on the particular occasion, and whether the media send friendly reporters or "that one that had the black eye, what the hell is his name, . . . that arrogant son-of-a-bitch" whose unfavorable coverage resulted in a libel suit. SMF 52. Thus, he glories in the physical attacks on television cameramen who tried to cover dissent within Local 745, while emphasizing that favorable press is always welcome. Id. But Stone, like others who operate in the public eye, must take the good with the bad. Having invited public attention, he must meet the standards for a public figure when he seeks to stifle criticism by using the courts to sue for libel.

The third factor is also satisfied because the Letter arises out of the very matters that make Stone a limited purpose public figure. It commented on the on-going debate within the Teamsters over the union's future, and pointed to Stone's local -- the very entity that he had held up as a model to be emulated nationwide -- as an example of the need for continued public support for intra-union reform efforts. Because these are the very reasons why Stone is a public figure, the third and final factor is present here, and Stone should be required to prove by clear and convincing evidence that the Letter was published with actual malice. Anderson v. Liberty Lobby, 477 U.S. 242, 255-256 (1986).

CONCLUSION

The motion for summary judgment should be granted on "labor dispute" grounds, and the action should be dismissed because plaintiff cannot show actual damages. In any event, on "labor dispute" or "public figure" grounds, plaintiff should be required to prove actual malice by clear and convincing evidence.

Respectfully submitted,
 
 

Paul Alan Levy (DC Bar 946400)

Alan B. Morrison (DC Bar 073114)

Public Citizen Litigation Group
 
 
 

Steven B. Thorpe (Texas Bar 05420500)

Thorpe & Hatcher
 
 

Of counsel:

Barbara Harvey

Attorneys for Defendants

April 19, 1994

1. A full statement of the evidentiary basis for the facts stated here, with detailed citations to the record, appears in the Statement of Material Facts in the accompanying motion. We refer to the relevant paragraphs with the abbreviation "SMF ¶ --".

2. In Stone's words, "The hell with the worker, it's the union. The union, that's all we need to worry about." August 1993 meeting, 4:28????.

3. Claims of influence over state judges are a constant refrain at Local 745 membership meetings. SMF 26-27. See also March 1991 Videotape, at 59 (as state controller, Bullock "fixed" some problems for union involving "illegal" conduct).

4. Local 745 tried to persuade employees at more than two dozen companies to choose it as their bargaining representative between August 1992 and December 1993. SMF 32. This data is derived from videotapes of union meetings during that period. Plaintiff will make other records on organizing campaigns available on May 16, pursuant to court order. We will then file a more complete list.

5. Stone's reacted to this charge with contempt -- he said he didn't recognize this legal right, and he didn't care what laws were passed, he still wouldn't recognize it. The local was, however, held jointly liable for almost $24,000 in back pay. SMF 44.

6. "Hell, I love to see my name in Convoy-Dispatch, because it shows I'm doing my damn job." SMF 70-71.

7. Stone takes a different view of union dissent. He believes that expression of disagreement is permitted only if it is done inside the union hall, but not when done, on the CB radio, or otherwise where non-members may hear it. E.g., 8/93 VID, 4:30; 4:32:45; 12/93 VID, 2:33:45; Levy Affidavit, Exh. B, Tr. at 7 lines 17-26.

8. Abrams v. Carrier Corp., 434 F.2d 1234, 1254 (2d Cir. 1970) (dictum); NLRB v. Tanner Motor Livery, 419 F.2d 216, 221 and n.6 (9th Cir. 1969) (dictum); Jean v. Dugan, 814 F. Supp. 1401, 1410 (N.D. Ind. 1993); Henry v. Air Traffic Specialists, 144 LRRM 2889, 2894 (D. Md. 1993); Rodonich v. Laborers Local 95, 115 LRRM 2482, 2490 (S.D.N.Y. 1983); Brett v. Sohio Constr. Co., 518 F. Supp. 698, 706 (D. Alaska 1981); Dazzo v. UAW Local 259, 448 F. Supp. 799, 802 (E.D.N.Y. 1978); Batson v. Shiflett, 602 A.2d 1191, 1208 (Md. 1992); Sheeran v. Colpo, 460 A.2d 522, 524 (Del. Spr. 1983); Warren v. Herndon, 115 Cal. App. 3d 141, 147, 171 Cal. Rptr. 220, 223 (1981); Ross v. Duke, 116 Ariz. 298, 300, 569 P.2d 240, 242 (App. 1977); Beruan v. French, 56 Cal. App. 3d 825, 828-829, 128 Cal. Rptr. 869, 871 (1976); McIntyre v. Bakers for Democratic Union, 54 A.D.2d 872, 388 N.Y.S.2d 587, 588 (1976); Henderson v. Teamsters Local 313, 90 Wash.2d 666, 585 P.2d 147, 150-151 (1978); Lang v. Poffenbarger, 31 Ohio App.2d 239, 287 N.E.2d 827, 828 (1972); McKinnon v. Smith, 52 Misc.2d 349, 275 N.Y.S.2d 900, 903-904 (Sup. Ct.), aff'd, 300 N.Y.S.2d 520 (1969). See also Sheet Metal Workers v. Carter, 133 Ga. App. 872, 212 S.E.2d 645, 647 (1975) (unspecified tort of injury to reputation). The Fifth Circuit, although citing Linn in dictum about intra-union speech, did not expressly state that its standards would apply. Machinists Fulton Lodge v. Nix, 415 F.2d 212, 219 n.17 (1969).

9. Plaintiff concedes that he has sought no medical attention, and consumed no palliatives, to ease his mind. Dec. Dep. Exhibit 18, Answer to Interrogatory No. 56. Plaintiff has also stated that he enjoys being criticized by the TDU newspaper. Similarly, during his deposition, he reported conversations with others about the Letter as consisting primarily of unanimous agreement that the Letter was TDU "B-S." Feb. Dep. at 229, 230, 249, 251.

10. Miller, supra; Carey v. Hume, 492 F.2d 631, 634 n.3 (D.C. Cir. 1974) (general counsel of Mine Workers); Henry v. Air Traffic Specialists, 144 LRRM 2889, 2890 n.3 (D. Md. 1993) (1700-member union); Bussie v. Larson, 501 F. Supp. 1107 (M.D. La. 1980) (head of Louisiana AFL-CIO); Einhorn v. LaChance, 823 S.W.2d 405 (Tex. App. - Houston [1st Dist.] 1992) (organizers of group of pilots); Savitsky v. Shenandoah Valley Pub. Corp., 389 Pa. Super. 176, 566 A.2d 901 (1989) (member, district executive board); Lins v. Evening News Ass'n, 342 N.W.2d 573, 579-580 (Mich. App. 1983) (head of Teamster local); Korbar v. Hite, 43 Ill. App.3d 636, 357 N.E.2d 135, 139 (1976) (head of Steelworkers local credit union). See also NAGE v. Central Broadcasting Corp., 379 Mass. 220, 396 N.E.2d 996, 1002 n.12 (1979) (union is limited purpose public figure).