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.

6th Circuit: Refusal to consider race unduly burdens minorities in collecge admissions

In a decision that makes one stop and wonder, 6th Circuit in Coalition to Defend Affirmative v. Regents of the University of Michigan has come it with quite the opinion.

The 6th Circuit panel has held that Michigan's Proposal 2, that ended affirmative action in Universities by refusing to allow the race of an applicant to be considered is an undue burden on minorities by not allowing their race to be considered in college admissions.

Orwell would be proud.

Proposal 2 targets a program [affirmative action] that
“inures primarily to the benefit of the minority” and reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities....We therefore find that the race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities and that Proposal 2, insofar as it prohibits consideration of applicants’ race in admissions decisions, has a “racial focus.”

Under this analysis, affirmative action can necessarily never end as its absence will end a program that benefits minorities. Affirmative action is a one-way ratchet according to this panel of the Sixth Circuit.

The court then heads way off into left field and holds that the ending of affirmative action reorders the political process in a manner that unduly burdens minorities because it prevent public university boards from using affirmative action without arranging for a change in the constitution to permit such racial discrimination.

By amending Michigan’s Constitution to prohibit university admissions units from utilizing race-conscious admissions policies, proponents of Proposal 2 thus removed the authority to institute racially-focused policies from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution.

Constitutionally enshrining a non-discrimination policy on the basis of race is, according to the court, discriminatory.

I know this decisions is heavily outcome-determinative [both judges were Clinton appointees, the one dissent on the panel was a G.W. Bush appointee), but did the judges draft this tautological and fallacious reasoning with a straight face?

Expect this one to go to the 6th Circuit en-banc and most probably to the Supreme Court.