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 The notice of discharge was rescinded, and the parties coexisted until December of 1967, when Joftes filed Civil Action 3271-67 against Rabbi Kaufman.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.
Central to the legal arguments of defendants is the collective bargaining agreement between B'nai B'rith and the Staff Association. Article VII of that agreement provides in part:
(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.
(2) * * *