Wednesday, August 3, 2011

6th Circuit strikes back against union’s self-help protest

When does a union protest turn from lawful, protected conduct to unlawful harassment? A case decided yesterday by the 6th Circuit provides some guidance.

Pulte Homes, Inc. v. Laborers’ International Union of N. Am. (6th Cir. 8/2/11) [pdf] starts out like any ordinary dispute between an employer and a union over the termination of a union-supporting employee. The union filed an unfair labor practice charge with the NLRB, claiming that Pulte fired the employee because he wore a pro-union shirt, and not because of the poor performance alleged by the company.

Not content with letting the NLRB process the termination, the union took matters into its own hands. It used a paid auto-dialing service to bombard Pulte’s sales offices and three of its executives with thousands of protest phone calls, jamming access to Pulte’s voicemail system and preventing its customers from reaching the company. It also urged its members, through a posting on its website, to “fight back” by sending emails to specific Pulte executives. The members’ compliance overloaded Pulte’s email system. Many of the communications included threats and obscene language. The “protest” resulted in Pulte temporarily shuttering its operations.

The 6th Circuit took issue with these tactics, and permitted Pulte to proceed with its claim against the union that the phone calls and emails constituted an unlawful “transmission” under the Computer Fraud and Abuse Act. The CFAA makes it unlawful to “knowingly cause the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.” The court concluded that the union’s onslaught of emails and voice mails, plausibly designed to disrupt Pulte’s business by bogging down its systems, met this definition.

What is the moral of this story, no matter the side of the table on which you sit? Courts hate self-help. If you have a legal remedy available, use it. Don’t take matters into your own hands. More often than not, you’ll be doing more harm than good.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or