As we reported earlier, on December 15, 2014, the National Labor Relations Board (NLRB) adopted a Final Rule that modified its processing of representation cases. See, 79 Fed. Reg. at 74308. As part of this rule, the NLRB determined that its regulations permitted the use of electronic signatures to support a showing of interest in representation proceedings. This rule became effective on April 14, 2015. The NLRB’s General Counsel recently issued guidelines, Memorandum GC 15-08, regarding this rule that determine when and how electronic signatures can be accepted by the NLRB.Traditionally, a petitioning party in NLRB representation cases must provide evidence showing that the petition has the support of at least 30% of the employees in a bargaining unit before an election will be held. In order to establish this showing of interest, unions could submit either authorization cards or a list of signatures designating the union as the signers’ agent for collective bargaining purposes. These cards and lists were only required to contain a statement of representation, a signature, and the date of the signature. The NLRB General Counsel noted that these requirements still apply to the submission of handwritten authorization cards and lists of signatures, which will continue to be accepted by the NLRB.However, under the new requirements, submissions supported by electronic signature to establish a showing of interest must contain the following information:
- The signer’s name;
- The signer’s email address or other known contact information (e.g., social media account);
- The signer’s telephone number;
- The language the signer agreed to (e.g., that the signer wishes to be represented by the union for collective bargaining purposes);
- The date the electronic signature was submitted; and
- The name of the employer of the employee.
In addition to these requirements, the party submitting the electronic signatures must also submit a declaration identifying what technology was used to obtain the signatures, and how its controls ensure that (1) the electronic signature is that of the signatory employee, and (2) the employee herself signed the document. The declaration also must identify that the electronically transmitted information regarding what the employee signed, and when the employee signed, was actually the same information seen and signed by the employee. If the signature technology used does not lend itself to this type of verification, the party must submit evidence that, after the electronic signature was obtained, the party promptly transmitted a communication to the employee confirming all of the information contained in paragraphs (a) through (f) above. The NLRB General Counsel recognized that these requirements are more stringent than what is currently required for non-electronic signatures. He concluded, however, that the contact information required (email address, phone number, or other social media account) is easy to obtain, will enable the NLRB to promptly investigate forgery or fraud, and will allow an employee who did not actually intend to sign the document with the means to alert the NLRB, the employer, the union or others that she did not, in fact, electronically sign a showing of interest. It is readily apparent that there is a much greater potential for fraud, forgery, and mistaken signatures with the use of electronic signatures. Yet, despite these concerns, if the above-noted requirements are satisfied, the electronic signatures will be presumed to be valid by the NLRB.