When does a union protest turn from
lawful, protected conduct to unlawful harassment? A case decided yesterday by
the 6th Circuit provides some guidance.
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.
Visit the Ohio Employer's Law Blog for more
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