The National Labor Relations Board (“NLRB”) has decided to allow a union to present electronic evidence of employee authorization in support of a request for a secret ballot election in the private sector. This move may make it even easier for a union to gather support and raises many concerns about how employees use computers (including the employer’s) to show their support with just a few clicks.
Authorization Cards – Handwritten Signatures
For decades, the most common way for a union to request the NLRB to conduct a secret ballot election for representation was to gather signed authorization cards from employees and submit them to the NLRB along with a petition for election. The NLRB would schedule an election if at least 30 percent of the employees in the requested unit signed the cards. The NLRB’s process was purely administrative, and employers generally had no effective way to challenge the authenticity of the cards. The signatures were presumed to be valid unless there was objective evidence of fraud or forgery.
Authorization Cards – Electronic Signatures
On September 1, 2015, the NLRB’s General Counsel announced its new policy on acceptance of electronic signatures, effective immediately. In summary, the policy provides that submissions supported by electronic signature must contain:
- 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 to which the signer has agreed (e.g., that the signer wishes to be represented by ABC Union for purposes of collective bargaining);
- The date the electronic signature was submitted; and
- The name of the employer of the employee.
Protections to Prevent Fraud and Forgery
The new policy does include some protections to ensure that the electronic signatures are real. For example, the union must declare what technology was used and how it ensures the authenticity of the signature. If the technology used doesn’t support digital signatures, the union must submit evidence that it confirmed the information through a confirmation transmission back to the signer. Finally, submissions supported by electronic signature may include other information such as work location, classification, home address and additional telephone numbers but may not contain dates of birth, social security numbers or other sensitive personal identifiers. Submissions with sensitive personal identifiers will not be accepted until personal identifiers are redacted.
The information establishing electronic signatures can be in different forms. For example, it could be an email sent soliciting information and support to which the signer replied or it could be a copy of a webpage soliciting information along with a spreadsheet showing data received after the electronic signer clicked a submit button.
The requirements of the new policy are actually more stringent than what is currently required for non-electronic signatures. Presently, signature lists are not required to contain any personal contact information. Requiring personal contact information will allow the NLRB to follow up if there are any questions of authenticity. Further, the confirmation transmission requirement will equip an employee who receives the notification but did not actually intend to sign the document with the means to alert the NLRB, the employer, a union or others that he or she did not, in fact, electronically sign an authorization.
Some Concerns for Private Employers
In the past, employers often first became aware of union organizing when they discovered that authorization cards were being distributed on their property. Now, with the union’s ability to submit electronic signatures, that early heads-up may not happen. An employer could then be totally surprised when an election petition arrives. Given the so-called quickie election process, it could be too late to have the employer’s side be heard, all the more reason to constantly be on top of human resources issues and apply Management 101 techniques on a daily basis throughout the organization.
Recent rulings by the NLRB allowing employee use of employer computer systems for organizing purposes are bound to encourage unions and their supporters to conduct their card-signing drives via the employer’s own computer system. This could lead to unfair labor practices if the employer takes adverse action against employees for using the employer’s system in a way that the law allows.
Finally, employees who go to a union’s website or respond to a union’s or a supporter’s email may unknowingly be signing an authorization if the fine print is not carefully examined.
All-in-all, this new policy is sure to challenge employers.