*

The Honorable James G. Carr, Senior United States District Judge for the Northern District of

Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0200p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

PULTE HOMES, INC., a Michigan Corporation,

 Plaintiff-Appellant,

v.

LABORERS’ INTERNATIONAL UNION OF

NORTH AMERICA; TERENCE M. O’SULLIVAN;

RANDY MAYHEW,

Defendants-Appellees.

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Nos. 09-2245; 10-1673

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 09-13638—Lawrence P. Zatkoff, District Judge.

Argued: December 9, 2010

Decided and Filed: August 2, 2011 

Before: BOGGS and COOK, Circuit Judges; CARR, District Judge.*

_________________

COUNSEL

ARGUED: John F. Birmingham, Jr., FOLEY & LARDNER LLP, Detroit, Michigan,

for Appellant. Terrance G. Reed, LANKFORD & REED, PLLC, Alexandria, Virginia,

for Appellees. ON BRIEF: John F. Birmingham, Jr., Larry S. Perlman, Jennifer L.

Neumann, FOLEY & LARDNER LLP, Detroit, Michigan, for Appellant. Terrance G.

Reed, LANKFORD & REED, PLLC, Alexandria, Virginia, Christopher P. Legghio,

LEGGHIO & ISRAEL, Royal Oak, Michigan, for Appellees.

1
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 2

_________________

OPINION

_________________

COOK, Circuit Judge. Plaintiff, an active and successful home builder, sued a

national labor union and two of its officers for orchestrating an onslaught on the

company’s phone and e-mail systems. Plaintiff appeals two orders in this combined

appeal: (1) the order denying its motion for a preliminary injunction and (2) the order

granting Defendants’ motion to dismiss. We affirm in part and reverse in part.

I.

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.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 3

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.

Four days after LIUNA started its phone and e-mail blitz, Pulte’s general counsel

contacted LIUNA. He requested, among other things, that LIUNA stop the attack

because it prevented Pulte’s employees from doing their jobs. When the calls and emails continued, Pulte filed this suit alleging several state-law torts and violations of the

Federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, a statute that both

criminalizes certain computer-fraud crimes and creates a civil cause of action.

When it filed suit, Pulte simultaneously moved to preliminarily enjoin LIUNA’s

phone and e-mail campaign. The district court denied Pulte’s motion, holding 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. See 29 U.S.C. §§ 101, 104. Pulte appealed.

Despite Pulte’s interlocutory appeal, the parties’ legal battles raged on. The

general counsel of the NLRB, acting on LIUNA’s earlier charge, sued Pulte for unfair

labor practices. LIUNA then moved to dismiss Pulte’s federal complaint on two

grounds: failure to state a claim; and labor preemption under both San Diego Building

Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236 (1959)

(“Garmon preemption”), and Lodge 76, International Association of Machinists v.

Wisconsin Employment Relations Commission, 427 U.S. 132 (1976) (“Machinists

preemption”). Rather than address preemption, the district court (1) held that Pulte

failed to state a claim under the CFAA, (2) withheld leave to amend, (3) declined to

exercise supplemental jurisdiction over Pulte’s state-law claims, and (4) dismissed the
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 4

entire suit with prejudice. Pulte appealed this decision as well, and we granted its

motion to consolidate the two appeals.

We address the following issues: (A) preemption, (B) the sufficiency of Pulte’s

CFAA allegations, (C) Pulte’s request for leave to amend, and (D) its motion for a

preliminary injunction.

II.

A.

We tackle first one of LIUNA’s alternative grounds for affirming the district

court’s judgment—that Garmon preemption bars Pulte’s CFAA claims—because it

questions our subject-matter jurisdiction. See Trollinger v. Tyson Foods, Inc., 370 F.3d

602, 607–10 (6th Cir. 2004).

Garmon strips courts of jurisdiction over conduct “arguably subject” to section

7 or section 8 of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 157–58, and

requires them to “defer to the exclusive competence of the National Labor Relations

Board.” Trollinger, 370 F.3d at 609 (internal quotation marks and citation omitted).

Sections 7 and 8 of the NLRA together protect certain labor practices and prohibit

others, thus forcing courts to relinquish jurisdiction to the NLRB when a suit involves

an “arguably protected” or “arguably prohibited” labor practice. Id. at 608–09. 

An exception to this general rule—the independent-federal-remedy

exception—nevertheless allows federal courts to “decide labor law questions that emerge

as collateral issues in suits brought under independent federal remedies.” Id. at 609

(internal quotation marks and citation omitted). Our decision in Trollinger aptly

illustrates the exception and demonstrates why it saves Pulte’s CFAA claims—even if,

as LIUNA contends, section 8(c) of the NLRA arguably protects its phone and e-mail

campaign. See 29 U.S.C. § 158(c) (prohibiting injunctions against noncoercive labor

speech).
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 5

In Trollinger, the plaintiffs brought civil RICO claims against their former

employer and alleged, as the RICO predicate, that the employer depressed hourly wages

by knowingly hiring undocumented illegal immigrants in violation of section 274 of the

Immigration and Nationality Act (INA). 370 F.3d at 606–07, 611. The defendantemployer argued that Garmon deprived the district court of jurisdiction because the

plaintiffs’ wage-related RICO claims were arguably subject to the NLRA. Id. at 607,

611. We held, however, that the independent-federal-remedy exception preserved the

district court’s jurisdiction because the plaintiffs could prove that the employer violated

section 274 of the INA without ever having to establish a violation of the NLRA. Id. at

611.

The exception compels the same result here. The CFAA provisions upon which

Pulte relies prohibit knowingly transmitting information that damages a computer,

18 U.S.C. § 1030(a)(5)(A), and intentionally accessing a computer without

authorization, id. § 1030(a)(5)(B), (C). Like section 274 of the INA, these provisions

forbid conduct wholly unrelated to the labor laws, thus allowing Pulte to prove—without

implicating the NLRA—that LIUNA’s calls and e-mails violated the CFAA. See

Trollinger, 370 F.3d at 611. And neither the prospect of LIUNA defending itself here

by arguing that its campaign qualifies as protected activity nor the possibility of either

party filing prohibited-conduct charges with the NLRB—which LIUNA already has

done—removes potential NLRA issues from the collateral-issue category. See id. As

a result, Garmon preemption does not preclude Pulte’s CFAA claims.

LIUNA also asks us to affirm the dismissal of Pulte’s CFAA claims under the

Machinists preemption doctrine, which forbids both states and the NLRB from

“regulat[ing] conduct that Congress intended be unregulated because left to be controlled

by the free play of economic forces.” Chamber of Commerce of the U.S. v. Brown, 554

U.S. 60, 65 (2008) (internal quotation marks and citation omitted). But, as Pulte

observes, LIUNA cites not a single case where a court applied the Machinists

preemption doctrine to bar a federal rather than a state claim. And we see no reason to

create such a precedent now.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 6

B.

Having satisfied ourselves of subject-matter jurisdiction, we next address the

dismissal of Pulte’s CFAA claims under Federal Rule of Civil Procedure 12(b)(6). The

district court held that Pulte failed to state either (1) a “transmission” claim, see 18

U.S.C. § 1030(a)(5)(A), or (2) an “access” claim, see id. § 1030(a)(5)(B), (C). We

review its decision de novo, Louisville/Jefferson Cnty. Metro Gov’t v. Hotels.com, L.P.,

590 F.3d 381, 384 (6th Cir. 2009), asking whether the complaint “contain[s] sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face,”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citation

omitted).

1.

To state a transmission claim, a plaintiff must allege that the defendant

“knowingly cause[d] the transmission of a program, information, code, or command, and

as a result of such conduct, intentionally cause[d] damage without authorization, to a

protected computer.” 18 U.S.C. § 1030(a)(5)(A). We assume, because it is not disputed,

that LIUNA’s communications constitute “transmissions,” see id., and that Pulte’s phone

and e-mail systems qualify as “protected computers,” see id. § 1030(e)(2). According

to LIUNA and the district court, however, Pulte fails to allege that LIUNA “intentionally

caused damage.” We address damages and intent—in that order—and conclude that

Pulte properly alleges both.

a.

Pulte describes the effects of LIUNA’s conduct at length in its complaint.

Summarized, the calls impeded access to voicemail, prevented Pulte’s customers from

reaching its sales offices and representatives, and forced an employee to turn off her cell

phone. And LIUNA’s e-mails—which overloaded Pulte’s system—curtailed normal

business operations because Pulte’s employees could not access and respond to e-mails.

The parties dispute whether this constitutes damage under the CFAA.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 7

To understand “damage,” we consult both the statutory text and ordinary usage.

Under the CFAA, “any impairment to the integrity or availability of data, a program, a

system, or information” qualifies as “damage.” Id. § 1030(e)(8). Because the statute

includes no definition for three key terms—“impairment,” “integrity,” and

“availability”—we look to the ordinary meanings of these words. See United States v.

Plavcak, 411 F.3d 655, 660–61 (6th Cir. 2005). “Impairment” means a “deterioration”

or an “injurious lessening or weakening.” 7 Oxford English Dictionary 696 (2d ed.

1989) [hereinafter OED]. The definition of “integrity” includes an “uncorrupted

condition,” an “original perfect state,” and “soundness.” Id. at 1066. And “availability”

is the “capability of being employed or made use of.” 1 OED, supra, at 812. Applying

these ordinary usages, we conclude that a transmission that weakens a sound computer

system—or, similarly, one that diminishes a plaintiff’s ability to use data or a

system—causes damage.

LIUNA’s barrage of calls and e-mails allegedly did just that. At a minimum,

according to the complaint’s well-pled allegations, the transmissions diminished Pulte’s

ability to use its systems and data because they prevented Pulte from receiving at least

some calls and accessing or sending at least some e-mails. Cf. Czech v. Wall St. on

Demand, Inc., 674 F. Supp. 2d 1102, 1117–18 (D. Minn. 2009) (dismissing a CFAA

transmission claim because the plaintiff failed to allege that the defendant’s text

messages stopped her from receiving or sending any calls or text messages).

The diminished-ability concept that we endorse here is not novel: several district

courts have already adopted it. See, e.g., Condux Int’l, Inc. v. Haugum, Civil No. 08-

4824 ADM/JSM, 2008 WL 5244818, at *8 (D. Minn. Dec. 15, 2008) (“The ‘damage’

contemplated by subsection (a)(5)(A)(i) requires some diminution in the completeness

or useability of data or information on a computer system.” (internal quotation marks

and citation omitted)); Becker v. Toca, Civil Action No. 07-7202, 2008 WL 4443050,

at *5 (E.D. La. Sept. 26, 2008) (“Error messages and slow processing constitute

impairments to the integrity or availability of data.”); Am. Online, Inc. v. Nat’l Health

Care Disc., Inc., 121 F. Supp. 2d 1255, 1274 (N.D. Iowa 2000) (“[W]hen a large volume
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 8

of [unsolicited bulk e-mail] causes slowdowns or diminishes the capacity of AOL to

serve its customers, an ‘impairment’ has occurred to the ‘availability’ of AOL’s

‘system.’”).

Moreover, our interpretation comports with two decisions from sister circuits.

The Third Circuit sustained a transmission conviction where the defendant “admitted

that in using the direct e-mailing method and sending thousands of e-mails to one inbox,

the targeted inbox would flood with e-mails and thus impair the user’s ability to access

his other ‘good’ e-mails.” United States v. Carlson, 209 F. App’x 181, 185 (3d Cir.

2006). And the Seventh Circuit, in United States v. Mitra, upheld the defendant’s

transmission conviction because he impaired the availability of an emergency

communication system when “[d]ata that [he] sent interfered with the way the computer

allocated communications to the other 19 [radio] channels and stopped the flow of

information among public-safety officers.” 405 F.3d 492, 494 (7th Cir. 2005). That

these decisions involve criminal prosecutions is irrelevant. See Leocal v. Ashcroft, 543

U.S. 1, 11 n.8 (2004) (“[W]e must interpret [a] statute consistently, whether we

encounter its application in a criminal or noncriminal context . . . .”). In both cases, the

government proved beyond a reasonable doubt that the transmissions impaired the

availability of the computer equipment; here, Pulte adequately alleges that result.

Because Pulte alleges that the transmissions diminished its ability to send and

receive calls and e-mails, it accordingly alleges an impairment to the integrity or

availability of its data and systems—i.e., statutory damage.

b.

Damage alone, however, is not enough for a transmission claim. A defendant

must also cause that damage with the requisite intent.

The district court found Pulte’s intent allegations deficient: it dismissed Pulte’s

claim because Pulte failed to allege that LIUNA knew its calls and e-mails would harm

Pulte’s computer systems. See Pulte Homes, Inc. v. Laborers’ Int’l Union, No. 09-

13638, 2010 WL 1923814, at *3 (E.D. Mich. May 12, 2010) (“Plaintiff did not inform
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 9

Defendants that their conduct was harmful to any of Plaintiff’s computer systems.”). In

other words, Pulte made no allegation that LIUNA fully grasped the actual consequences

of its e-mail campaign. This is too high a standard.

The transmission subsection prohibits causing damage “intentionally.” 18 U.S.C.

§ 1030(a)(5)(A). We turn, again, to ordinary usage because the CFAA does not define

the term. To act “intentionally” commonly means to act “on purpose”—i.e., with a

purpose or objective. 7 OED, supra, at 1080. The Third Circuit, for example, sustained

a CFAA transmission conviction where the jury instructions provided that “[a] person

acts intentionally when what happens was the defendant’s conscious objective.”

Carlson, 209 F. App’x at 184–85 (internal quotation marks and citation omitted). Thus,

to satisfy its pleading burden, Pulte must allege that LIUNA acted with the conscious

purpose of causing damage (in a statutory sense) to Pulte’s computer system—a standard

that does not require perfect knowledge.

Pulte met its burden. The following allegations illustrate LIUNA’s objective to

cause damage: (1) LIUNA instructed its members to send thousands of e-mails to three

specific Pulte executives; (2) many of these e-mails came from LIUNA’s server;

(3) LIUNA encouraged its members to “fight back” after Pulte terminated several

employees; (4) LIUNA used an auto-dialing service to generate a high volume of calls;

and (5) some of the messages included threats and obscenity. And although Pulte

appears to use an idiosyncratic e-mail system, it is plausible LIUNA understood the

likely effects of its actions—that sending transmissions at such an incredible volume

would slow down Pulte’s computer operations. LIUNA’s rhetoric of “fighting back,”

in particular, suggests that such a slow-down was at least one of its objectives. The

complaint thus sufficiently alleges that LIUNA—motivated by its anger about Pulte’s

labor practices—intended to hurt Pulte’s business by damaging its computer systems.

LIUNA attempts—but fails—to justify its conduct. Though it maintains that the

calls and e-mails are “fully consistent with an ongoing, lawful, organizing campaign”

through which it “is attempting [only] to organize Pulte employees,” LIUNA offers no

explanation of how targeting Pulte’s executives and sales offices—rather than employees
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 10

eligible for recruitment—advances its campaign. And an equally, if not more, plausible

explanation is that LIUNA intended to disrupt Pulte’s business by bogging down its

computer systems. Rule 12(b)(6) demands nothing more. See Iqbal, 129 S. Ct. at 1949.

c.

In sum, because Pulte’s complaint alleges that LIUNA “intentionally caused

damage,” we reinstate its CFAA transmission claim. See 18 U.S.C. § 1030(a)(5)(A).

We also reverse the dismissal of its state-law claims and remand to the district court with

instructions to determine whether it may exercise jurisdiction over those claims. See

Mills v. City of Barbourville, 389 F.3d 568, 581 (6th Cir. 2004) (reversing the dismissal

of state-law claims for lack of jurisdiction and remanding to district court to determine

whether it should exercise supplemental jurisdiction).

2.

Though Pulte’s transmission claim passes Rule 12(b)(6), we agree with the

district court that its access claim does not.

Our path to this conclusion, however, departs from the district court’s. See Angel

v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002) (“[W]e are free to affirm . . . on any basis

supported by the record.”). To state an access claim, a plaintiff must allege, among other

things, that the defendant “intentionally accesse[d] a protected computer without

authorization.” 18 U.S.C. § 1030(a)(5)(B), (C). The district court held that Pulte failed

to allege “access.” We need not decide whether LIUNA’s calls and e-mails accessed

Pulte’s computers because, even if they did, Pulte does not allege access “without

authorization.”

Because Congress left the interpretation of “without authorization” to the courts,

we again start with ordinary usage. The plain meaning of “authorization” is “[t]he

conferment of legality; . . . sanction.” 1 OED, supra, at 798. Commonly understood,

then, a defendant who accesses a computer “without authorization” does so without

sanction or permission. See LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132–33

(9th Cir. 2009).
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 11

In addition, comparing the phrase “without authorization” to another, somewhat

similar phrase in the CFAA further informs the proper interpretation. The CFAA

criminalizes both accessing a computer “without authorization” and “exceeding

authorized access” to a computer. E.g., 18 U.S.C. § 1030(a)(1). Despite some

similarities in phrasing, we must, if possible, give meaning to both prohibitions. See

Daniel v. Cantrell, 375 F.3d 377, 383 (6th Cir. 2004) (“We avoid interpretations of a

statute which would render portions of it superfluous.”); cf. Int’l Airport Ctrs., L.L.C. v.

Citrin, 440 F.3d 418, 420 (7th Cir. 2006) (observing that “[t]he difference . . . is paper

thin”). We can.

Unlike the phrase “without authorization,” the CFAA helpfully defines “exceeds

authorized access” as “access[ing] a computer with authorization and . . . us[ing] such

access to obtain or alter information in the computer that the accesser is not entitled so

to obtain or alter.” 18 U.S.C. § 1030(e)(6). Under this definition, “an individual who

is authorized to use a computer for certain purposes but goes beyond those limitations

. . . has ‘exceed[ed] authorized access.’” LVRC Holdings LLC, 581 F.3d at 1133 (second

alteration in original) (emphasis added). In contrast, “a person who uses a computer

‘without authorization’ has no rights, limited or otherwise, to access the computer in

question.” Id. (emphasis added); accord Lockheed Martin Corp. v. Speed, No. 6:05-CV1580-ORL-31, 2006 WL 2683058, at *5 (M.D. Fla. Aug. 1, 2006) (observing that

individuals “without authorization” have “no permission to access whatsoever”).

We ask, then, whether LIUNA had any right to call Pulte’s offices and e-mail its

executives. It did—and LIUNA’s methods of communication demonstrate why.

LIUNA used unprotected public communications systems, which defeats Pulte’s

allegation that LIUNA accessed its computers “without authorization.” Pulte allows all

members of the public to contact its offices and executives: it does not allege, for

example, that LIUNA, or anyone else, needs a password or code to call or e-mail its

business. Rather, like an unprotected website, Pulte’s phone and e-mail systems “[were]

open to the public, so [LIUNA] was authorized to use [them].” See Citrin, 440 F.3d at

420. And though Pulte complains of the number, frequency, and content of the
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 12

communications, it does not even allege that one or several calls or e-mails would have

been unauthorized. Its complaint thus amounts—at most—to an allegation that LIUNA

exceeded its authorized access.

Because Pulte does not allege that LIUNA possessed no right to contact Pulte’s

offices and its executives, it fails to satisfy one of the elements—access “without

authorization”—of its claim. See 18 U.S.C. § 1030(a)(5)(B), (C).

C.

Pulte next asserts that the district court should have granted it leave to amend

under Federal Rule of Civil Procedure 15(a). We have two options for our standard of

review: (1) abuse of discretion, the general standard when a court denies a motion for

leave to amend; or (2) de novo, the standard when a court denies leave to amend

“because the amended pleading would not withstand a motion to dismiss.” PR

Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir. 2004), abrogated on other

grounds by Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323–25 (2011), as

recognized in Frank v. Dana Corp., — F.3d —, No. 09–4233, 2011 WL 202717, at *5

(6th Cir. May 25, 2011). Here, rather than filing a motion for leave to amend, Pulte

buried its request in a footnote in its brief opposing the motion to dismiss; and the

district court, in its order dismissing the complaint with prejudice, did not explain why

it withheld leave to amend. The lesser standard, abuse of discretion, therefore applies.

See id.

We cannot say that the district court abused its discretion in withholding leave

to amend. Pulte had already amended its complaint once; it then failed to file a proper

motion justifying another amendment; and it never moved to alter or amend the district

court’s judgment. Given this series of events, the district court acted within its

discretion, and Pulte may not amend its access claim on remand. See id. at 699.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 13

D.

Finally, Pulte faults the district court for concluding that it lacked jurisdiction to

issue a preliminary injunction because LIUNA’s calls and e-mails constitute protected

publicity and assembly under subsections 4(e) and (f) of the NLGA. See 29 U.S.C.

§ 104(e), (f). 

When a party appeals the denial of a preliminary injunction, we ask whether the

district court abused its discretion—by, for example, applying an incorrect legal

standard, misapplying the correct one, or relying on clearly erroneous facts. Allied Sys.

Ltd. v. Teamsters Nat’l Auto. Transporters Indus. Negotiating Comm., Local Union 327,

179 F.3d 982, 985–86 (6th Cir. 1999). We therefore review the district court’s legal

conclusions de novo and its factual determinations for clear error. Grand Trunk W. R.R.

Inc. v. Bhd. of Maint. of Way Emps. Div., 497 F.3d 568, 571 (6th Cir. 2007). We agree

with the district court that it lacked jurisdiction to issue the injunction, but our rationale

differs: we rely instead on section 8 of the NLGA. See 29 U.S.C. § 108.

If a lawsuit involves or grows out of a “labor dispute,” the NLGA deprives a

court of jurisdiction to issue a preliminary injunction “except in a strict conformity with

the provisions” of the NLGA. Id. § 101. Among the NLGA’s rigid rules are several

procedural safeguards. See id. §§ 107–09; see also Lukens Steel Co. v. United

Steelworkers, 989 F.2d 668, 676 (3d Cir. 1993) (describing §§ 107–09 as “procedural

requirements”). For example, before a preliminary injunction issues, the district court

must hold an evidentiary hearing and make findings of fact, and the plaintiff must post

a bond. 29 U.S.C. § 107. Because the district court here held that Pulte’s complaint

springs from a labor dispute—a holding that Pulte refrains from challenging on

appeal—the NLGA’s procedural requirements apply. Pulte, however, failed to comply

with one of these safeguards: section 8 of the NLGA.

Section 8 prohibits a court from granting an injunction “to any complainant . . .

who has failed to make every reasonable effort to settle [a labor] dispute . . . by

negotiation.” Id. § 108. Where the litigants agree on the complainant’s attempts to settle

the dispute, “it is solely a legal question whether those efforts constitute ‘every
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 14

reasonable effort.’” Grand Trunk, 497 F.3d at 572. Pulte’s settlement efforts—devoid

of any attempt to confer with LIUNA’s attorneys before filing suit—fail the everyreasonable-effort test and thus prevent resort to injunctive remedies.

The events leading up to this suit moved swiftly. Pulte fired Baltierra on

September 4, prompting the September 9 onset of LIUNA’s communications deluge.

Four days later—on Sunday, September 13—Pulte’s general counsel faxed and

overnighted a cease-and-desist letter to LIUNA, in which Pulte demanded that LIUNA

stop encouraging the calls and e-mails and that it “use every means available to [it] to

put an end to this activity.” The letter cautioned that Pulte intended to seek injunctive

relief unless LIUNA “promptly provide[d] . . . adequate assurances that this conduct will

cease immediately.” When the calls and e-mails did not stop by the morning of Tuesday,

September 15, Pulte filed this suit.

Pulte made little to no effort to settle. It transmitted the cease-and-desist letter

on a Sunday, did not specify a time to respond, did not offer LIUNA an opportunity to

negotiate, and filed suit less than forty-eight hours after sending the letter without even

confirming that LIUNA received the letter. This is not “every reasonable effort” to settle

the dispute.

Rather than defend the reasonableness of its settlement efforts, Pulte asks us to

absolve it of its section 8 obligations, offering two justifications for doing so. First,

LIUNA is not the bargaining representative for Pulte’s employees; and second, LIUNA’s

calls and e-mails included violent threats and destroyed Pulte’s computer system.

Neither of these arguments excuses non-compliance with section 8.

As to its bargaining-representative argument, Pulte misconstrues the only case

upon which it relies, Grace Co. v. Williams, 20 F. Supp. 263 (W.D. Mo. 1937). Grace

Co. did not hold, as Pulte contends, “that an employer has no obligation under [section

8 of the NLGA] to negotiate with a union that is not the bargaining representative of its

employees.” Rather, Grace Co. carved out an exception to the NLGA’s everyreasonable-effort requirement where requiring an employer to negotiate with a nonrepresentative union would force the employer to violate its duties under the Wagner
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 15

Act—a situation not present here. See id. at 267; see also San Antonio Cmty. Hosp. v.

S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233, 1238 (9th Cir. 1997) (applying

section 8 to a picketing dispute between a hospital and a union even though the union

did not represent the hospital’s employees). Pulte, overlooking the rationale for the

bargaining-representative exception, unfairly broadens Grace Co.’s holding.

Pulte’s violence-and-destruction argument also misses the mark. Citing two

decisions in which courts enjoined brawls between members of competing unions, Pulte

contends that section 8 does not apply in cases involving violence, threats of violence,

or destruction of property. See Cater Const. Co. v. Nischwitz, 111 F.2d 971, 977 (7th

Cir. 1940); J. B. Michael & Co. v. Iron Workers Local No. 782, 173 F. Supp. 319, 326

(W.D. Ky. 1959). But Pulte does not allege that LIUNA committed any violent acts.

Cf. J. B. Michael & Co., 173 F. Supp. at 323 (finding that defendants threw rocks, used

pick handles and iron bars as clubs, broke automobile windshields, brandished pistols,

and inflicted a head injury requiring twenty stitches). And while some callers cautioned

Pulte’s employees that they would “rot in hell,” and other callers threatened to “come

down” to Pulte’s offices and “find out who [the employee] is” and “what [his or her]

problem is,” these unidentified callers did not threaten violence. Cf. Cater Const. Co.,

111 F.2d at 974–75 (issuing injunction where union’s representative told employer that

“there would be a fight” and “a lot of heads busted” if employer did not hire union’s

members (internal quotation marks omitted)). What remains is an allegation of

nonviolent, albeit harassing, business disruption: that LIUNA’s members clogged

Pulte’s communications systems simply by clicking a mouse and dialing a phone

number. Yet Pulte cites no cases in which business disruption, unaccompanied by

violence, relieves a complainant of its pre-injunction obligation to negotiate.

Pulte proffers one final, unpersuasive reason for reversing the district court. It

argues that the NLGA does not foreclose injunctive relief under the CFAA—a more

specific, later-enacted statute. The CFAA, however, regulates computer crimes rather

than labor activity. And the NLGA’s “ban on federal injunctions is not lifted” simply

because a union’s nonviolent conduct violates “some other nonlabor statute.” Crowe &
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborers’ Int’l Union, et al. Page 16

Assocs., Inc. v. Bricklayers & Masons Union Local No. 2 (In re Crowe & Assocs., Inc.),

713 F.2d 211, 214 (6th Cir. 1983) (internal quotation marks and citation omitted); see

also Triangle Constr. & Maint. Corp. v. Our V. I. Labor Union, 425 F.3d 938, 944–45

(11th Cir. 2005) (“[T]he [NLGA] does not prevent courts from issuing injunctions to

enforce positive duties imposed by other federal labor statutes.” (emphasis added)

(internal quotation marks and citation omitted)). Regardless of the CFAA’s specificity

and date of enactment, its injunctive provisions afford Pulte no refuge.

Because Pulte failed to comply with section 8 of the NLGA, the district court

lacked jurisdiction to issue the injunction—even if LIUNA’s calls and e-mails fall short

of protected publicity and assembly, see 29 U.S.C. § 104(e), (f), and even if Pulte

satisfied the section 7 evidentiary requirements, see id. § 107. 

III.

For these reasons, we affirm in part and reverse in part the order dismissing

Pulte’s complaint, affirm the denial of the preliminary injunction, and remand for

proceedings consistent with this opinion.