The opinion of the court was delivered by: GESELL
These two libel actions arise out of the circumstances surrounding the dismissal of plaintiff Saul Joftes from his position as an officer of B'nai B'rith, Inc. In Civil Action No. 3271-67, Joftes sues Rabbi Jay Kaufman, Executive Vice-President of B'nai B'rith, for allegedly libelous statements made in two letters of January 6 and February 20, 1967. In Civil Action No. 216-69, Joftes sues B'nai B'rith and its President, Dr. William A. Wexler, for similar statements made in a letter of February 14, 1968. Excessive discovery has been conducted in each case. Oral argument was heard on defendant's motion for summary judgment in 3271-67, and the parties were invited to submit affidavits concerning the extent of publication of the letters. Defendants in 216-69 have since also moved for summary judgment, and as the two cases arise on similar facts and involve common questions of law, the Court will deal with them in a single Memorandum.
Though the background of these cases is as complicated as might be expected where the precipitating event was a falling out among formerly close associates in an enterprise of international scope and political significance, the relevant facts may be briefly stated.
Saul Joftes was until January of 1967 the Director General of the B'nai B'rith International Council, working under Rabbi Kaufman and President Wexler, among others. In late 1966, Rabbi Kaufman, in consultation with other officers of the organization, decided for various reasons to terminate the employment of Joftes. When efforts to secure his resignation proved unsuccessful, Rabbi Kaufman informed Joftes that he was discharged, and dictated to his secretary a letter confirming this fact. The letter, dated January 6, 1967, stated that "The cause of your separation is your lack of capacity and competence to handle the position of Secretary-General," and detailed three general areas in which Joftes' superiors were dissatisfied with his performance. Accompanying this personal letter was a memorandum also addressed to Joftes, urging that he resign rather than accept involuntary dismissal.
Upon being handed this letter and memorandum, Joftes consulted with Albert Z. Elkes, President of the B'nai B'rith Headquarters Staff Association, a union of which Joftes was a member. Elkes communicated to the officers of the organization that Joftes had invoked the grievance procedures of the collective bargaining agreement, and requested a bill of particulars in support of the dismissal for cause. In the course of handling the Joftes matter, Rabbi Kaufman on February 20 dictated and sent to Joftes a "supplemental notice" of discharge, stating in part: "In addition to the causes for termination based on incompetence of a continuing nature as stated in the above letter, you are dismissed from employment on the further grounds of malfeasance, misfeasance and nonfeasance."
After this letter had been sent to Joftes, the parties again sought to resolve the dispute short of utilizing the grievance machinery, and in March of 1967 reached a seemingly acceptable compromise. Joftes was to continue his employment with B'nai B'rith in the position of Director of Research, at the same salary. The notice of discharge was rescinded, and the parties coexisted until December of 1967, when Joftes filed Civil Action 3271-67 against Rabbi Kaufman. This event precipitated Joftes' final discharge from the organization, which this time was communicated to him by President Wexler in a letter of January 5, 1968. Joftes shortly thereafter made a written demand upon Joseph Sklover, Comptroller of B'nai B'rith, for sums claiming to be due him under his contract. (This dispute later became the subject of Civil Action No. 2561-68 in which severance pay was awarded to Joftes and the award affirmed on appeal.) In response to this demand, Wexler dictated a letter dated February 14, 1968, which has become the subject of Civil Action 216-69. The allegedly libelous portion of this letter is as follows: "* * * your dismissal dated January 5, 1968, was by reason of misconduct constituting 'malfeasance, misfeasance, and nonfeasance. * * *'"
Affidavits submitted by defendants establish that Rabbi Kaufman's letters of January 6 and February 20, 1967, were published only to the following persons: Miss Edith Miller, Kaufman's secretary who typed the letters after they were dictated to her; President Wexler; Albert Elkes, President of the Staff Association; Maurice Weinstein, Chairman of the B'nai B'rith International Council and hence Joftes' immediate superior in the organization; Joseph Sklover, Comptroller of B'nai B'rith; and various attorneys associated with the firm which is counsel to defendant in these cases. President Wexler's letter of February 14, 1968, was published to these same persons with the exception of Elkes and Weinstein; and also to Mrs. Hannah Sinauer, secretary to Wexler, who was shown a copy to enable her to respond to a subpoena served upon her by Joftes in one of the lawsuits brought by him. This letter was also seen by plaintiff's wife, who opened the letter mailed to Joftes at his home address.
(1) A regular employee may be dismissed from employment only on the grounds of malfeasance, misfeasance, nonfeasance (including imcompetence of a continuing nature), or gross personal misconduct not connected with his official duties but of such a nature as to make his continuing employment a detriment to the purposes of B'nai B'rith.
d. In all cases, the notice of dismissal or evaluation shall be in writing.
Article XVIII of the agreement establishes a grievance procedure by which an employee may contest his dismissal, provided he invokes the procedure within one week of his receipt of written notice of discharge.
Defendant contends that the existence of this agreement bars any action by Joftes based on the three letters in question. It is argued first that Joftes consented to the publication of each letter by virtue of his membership in the union whose agreement with B'nai B'rith required written notice of dismissal for cause; second, that under federal labor law the grievance procedure specified in the agreement is the exclusive remedy for any cause of action based on a notice of discharge; ...