Increasingly, unions are using social media sites like Facebook and Twitter to communicate with their members. In this environment, contractors would be well-served to understand (1) what the union is communicating to members via social media and (2) when and how to respond. Nevertheless, as outlined below, there are both legal and practical issues that must be considered before a contractor decides to respond to union communications via social media.
Use Publicly-Available Sites Only
Attempting to “hack” a password-protected social media site or obtain access to a closed Facebook group by creating a fake identity may constitute unlawful “surveillance” under the National Labor Relations Act (NLRA) and may be unlawful under federal privacy laws, such as the Computer Fraud and Abuse Act.
That said, publicly-available websites – such as the Union’s public-facing Facebook page or Twitter feed – are generally fair game for information. Further, information that employees voluntarily provide to management is generally OK as long as it was not obtained via threats or coercion.
Avoid “Direct Dealing”
Because the Union is the exclusive bargaining representative of employees, the employer can violate the NLRA if it deals directly with an employee concerning the employee’s terms and conditions of employment instead of dealing with the union.
In responding to the Union’s communications on social media, contractors should be careful to avoid direct dealing. The principle is that, once the union has been lawfully certified or recognized as the representative of the employees, the employer must bargain with the union concerning mandatory subjects of bargaining, and cannot bargain with employees regarding such matters.
Here are some examples of unlawful direct dealing:
- “The Union is saying that safety and wages are the most important issues to you. What two issues are most important to you and the rest of the crew in these negotiations?”
- “The Union is right that, at the last negotiations session, the contractors proposed increases of 2% in the first year, 2% in the second year, and 2% in the third year. We’re planning to increase our proposal to 2.5%, 2.5%, and 2.5% at the next meeting. You wouldn’t vote to strike with this on the table, would you?”
- “The Union is saying that you want to go out on strike. What do you and the other employees think about going on strike?”
The employer does have a First Amendment right to communicate truthful information, but that conduct cannot be seen as undermining the union or attempting to bargain around the union. For example, while the employer can provide copies of what was proposed to the union during bargaining, it can’t be seen as trying to bargain directly with employees or provide copies of proposals that have not been made to the union.
When Should Contractors Speak Up?
Deciding when and whether to respond to information posted on the Union’s social media sites is important. Responding to every social media post could result in a drawn-out “tit for tat” that can result in increased tension between the contractor and management or a loss of interest by employees.
The following issues should be considered when analyzing whether to respond to a particular communication from the union:
- Do you need to “correct the record”?
- Is the Union “controlling the narrative” and selectively informing employees of your proposals?
- Will your communication needlessly aggravate the union?
- Is it better to “keep things at the table”?
Once you’ve considered these issues, you may find it appropriate to respond to the Union’s social media communications. Contractors can communicate via their own social media site or, more likely, via email or in-person meeting with employees. Group meetings are preferred because they are less likely to be viewed as improper.
As you can see, there are both legal and practical concerns with responding to communications from the union on its social media sites. Contractors should use caution before responding, but, being mindful of the issues outlined above, contractors should feel comfortable responding to union communications in a manner that is consistent with the advice above.