The complainant wishes to be anonymous. The complainant alleges that an email sent to all KPFA members on August 15, 2019 violated the fair campaign rule #6 which prevents libel and slander against a candidate or candidates. The email was sent by the United for Independent Radio campaign slate. The complainant alleges that the message to all KPFA members was libelous or slanderous towards all of the candidates on the opposing slate, which goes by the name Rescue Pacifica. The email, a copy of which was provided with the complaint, said:
“Opponents say the paid staff local union, CWA Local 9415, prevented unpaid staff from getting union representation. Fact: This is an anti-union division promoting lie. The National Labor Relations Act only covers employees, by law unpaid people are not eligible for union coverage.”
The complainant alleges the above statement is libelous or slanderous because the National Labor Relations Board did not prohibit the inclusion of unpaid staff in 1997 when they were excluded by the CWA Local 9415 and because unpaid staff were not getting union representation but instead were losing representation they already had from the previous bargaining unit with the UE. The complainant alleges the use of the term “anti-union” is intended to damage the reputations of their opposing candidates.
Discussion: The complainant alleges a violation of Rule #6. Rule #6 says:
The Foundation and stations will not allow the expression of libelous or slanderous statements about candidates through any of its resources, whether on-air, web sites, or otherwise.
As we have stated several times in adjudicated complaints, the definition of libel and slander is as follows:
The action or crime of making a false spoken statement damaging to a person’s reputation.
So the question is whether the statement “Opponents say the paid staff local union, CWA Local 9415, prevented unpaid staff from getting union representation. Fact: This is an anti-union division promoting lie. The National Labor Relations Act only covers employees, by law unpaid people are not eligible for union coverage” is a) false and b) damaging to a candidate or candidates reputation.
On the first prong of falsity, it is unquestionably true that the National Labor Relations Act did not prevent the inclusion of unpaid staff in KPFA’s CWA bargaining unit in 1997 when the CWA unit was formed. The NLRB did not make such a ruling until 1999 which is two years after the bargaining unit was formed. So, unquestionably, whatever caused the 1997 exclusion of the unpaid staff from the bargaining unit at its time of formation in 1997 , it was not the National Labor Relations Board.
Therefore, the libel and slander complaint succeeds on the first prong of falseness.
On the second prong of whether or not the statement is damaging to a candidate or candidate’s reputation. The complainant alleges that the use of two terms, possibly three, are intended to damage the reputations of the candidates running on the opposing slate. The first term is “divisive”, the second is “anti-union”, the third is “lie”.
To take these one by one.
While the word “divisive” is arguably not a compliment, its use is fairly common in election rhetoric and can be characterized as an opinion statement for why voters should vote for this slate and not that one. It is fairly difficult and probably beyond the scope of the election rules to assign absolute veracity or falsity to an accusation that 8 people are divisive or not. It is a matter in the eye of the beholder.
The use of the word “anti-union” is a statement with considerably less ambiguity. To state that people are “anti-union” is a statement that requires proof of activities that have a negative impact on the formation or the operations of a union. The accurate recitation of the historical events that happened in 1997, which is that KPFA switched from a UE bargaining unit that included the unpaid staff to a CWA bargaining unit that did not include the unpaid staff, is not anti-union. Whether or not CWA “prevented” or simply “did not choose” to include the unpaid staff is probably a discussable item, but it is clear that such a decision was made and that it was not subject to an NLRB prohibition at the time as the authors claim inaccurately. Therefore, the claim that their opponents are “anti-union” is not tethered to any actual evidence of anti-union activities and can fairly be considered a slur that is intended to damage the reputations of the opposing candidates.
The use of the word “lie” similarly is dependent on the demonstration of an actual lie. The falsity present in the statement is the presentation that at the time the CWA bargaining unit was formulated the NLRB prohibited the inclusion of unpaid staff in the bargaining unit. That is not true, or as one would need to say here, it is a lie. So the use of the word lie to refer to opponents when in fact the lie is contained in their own statement, also renders the use of term “lie” as an untethered slur intended to damage the reputations of the opposing candidates.
Ruling: The complainant’s allegation of libel and slander has merit. The identified statement made in the United for Independent Radio election mailing is false. The use of the terms anti-union and lie are intended to damage the reputations of the candidates from the opposing slate on false grounds. The NES finds that the United for Independent Radio slate slandered their opposition as anti-union on false grounds in one of their campaign mailings.
Remedy: The question of remedy is difficult here on a number of fronts. Firstly, the fair elections complaint came in 7 weeks after the offending email was sent, and a week before the conclusion of the 8 week voting period. Secondly, the chaos caused by the WBAI shut down required excessive attention to be paid by the NES to attempting to verify WBAI member credentials when WBAI’s donor databases were no longer available for verification. Thirdly, the violation is a serious one, as libel and slander are a significant election violation, not a minor one. So we will enforce two remedies, both of which will have to be applied post-election since the polls are now closed and thus the impact of the slander on voter decisions has already happened.
The author of the offending language is unknown, but since the offending email went out under the banner of United for Independent Radio, that website is required to issue a correction on the front page of their website at unitedforindependentradio.com, above the fold and in a conspicuous and easily readable font.
The correction statement is as follows:
In 1997 when the CWA bargaining unit was formed at KPFA-FM, there was no prohibition of unpaid staff membership in a bargaining unit in effect from the National Labor Relations Board. Our statement that such a rule was in effect at the time in our email of August 15th was false as was the statement that our opponents were “anti-union” or telling a “lie”. We regret the error.
The slate is also required to send out the correction text via email to all email addresses on their affiliated email lists, including the following lists: savekpfa, unitedforindependentradio, kpfa-watch, and pacifica radiowaves.
Failure to follow these instructions within 48 hours of notification will lead to further sanctions, up to and including, disqualification of one or more candidates affiliated with the United for Independent Radio slate.