Friday, August 19, 2011

Union Status Doesn't Permit Violations Of The CFAA With Impunity

The Sixth Circuit in Pulte Homes Inc. v. Laborers' International Union of North America held that Union status provided no protection from civil claims for its committing illegal activity that violated the Computer Fraud and Abuse Act.

The illegal acts arose from the union's activites after a union member was fired:

Pulte Homes, Inc.'s (Pulte['s] ) complaint stems from an employment dispute. Pulte alleges that in September 2009 it fired a construction crew member, Roberto Baltierra, for misconduct and poor performance. Shortly thereafter, the Laborers' International Union of North America (LIUNA) began mounting a national corporate campaign against Pulte—using both legal and allegedly illegal tactics—in order to damage Pulte's goodwill and relationships with its employees, customers, and vendors.

Just days after Pulte dismissed Baltierra, LIUNA filed an unfair-labor-practice charge with the National Labor Relations Board (NLRB). LIUNA claimed that Pulte actually fired Baltierra because he wore a LIUNA t-shirt to work, and that Pulte also terminated seven other crew members in retaliation for their supporting the union. Pulte maintains that it never terminated any of these seven additional employees.

Not content with its NLRB charge, LIUNA also began using an allegedly illegal strategy: it bombarded Pulte's sales offices and three of its executives with thousands of phone calls and e-mails. To generate a high volume of calls, LIUNA both hired an auto-dialing service and requested its members to call Pulte. It also encouraged its members, through postings on its website, to “fight back” by using LIUNA's server to send e-mails to specific Pulte executives. Most of the calls and e-mails concerned Pulte's purported unfair labor practices, though some communications included threats and obscene language.

Yet it was the volume of the communications, and not their content, that injured Pulte. The calls clogged access to Pulte's voicemail system, prevented its customers from reaching its sales offices and representatives, and even forced one Pulte employee to turn off her business cell phone. The e-mails wreaked more havoc: they overloaded Pulte's system, which limits the number of e-mails in an inbox; and this, in turn, stalled normal business operations because Pulte's employees could not access business-related e-mails or send e-mails to customers and vendors.

Pulte, after demanding the abusive actions stopped then sued the union for violating the CFAA among other claims.

The district court held that it was preempted from deciding the claims due its reasoning "that it lacked jurisdiction under the Norris–LaGuardia Act (NLGA) to issue a preliminary injunction because the suit involves a labor dispute and LIUNA's campaign attempts to publicize that dispute."

The Sixth Circuit reversed this decision and held there was jurisdiction for the CFAA claim, and it was not preempted because it was an independent federal claim that could be acted upon regardless of the fact of a labor dispute.

Unfortunately, Pulte failed to meet the requirements of the NLGA in its request for an injunction, and the case was remanded by the Sixth Circuit with Pulte able to continue to pursue the Union for its violations of the CFAA.

In short, email and voicemail bombing are not protected labor activites.

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