As part of the Ambush Election rules that went into effect in April 2015, the NLRB approved accepting electronic signatures to support union petitions. Previously, workers interested in a union had to sign either a signature list or a paper union card. Most cards collected more information (see example below) but all that was required by the NLRB was a signature and the date the list/card was signed.
All signatures on the cards/lists are presumed valid and if a company disagreed with any of the signatures that were submitted, it would have to submit evidence to show that the list was altered by forgery or fraud. Proof could include comparing signatures to employer’s records, taking affidavits from the petitioner, and questioning employees who were on the list.
New rules approve use of electronic signatures
On September 1, 2015, the Office of the General Counsel of the NLRB issued a Memorandum with guidelines on how electronic signatures could be used instead of the usual authorization card or list. The Memorandum said that the NRLB is moving toward electronic submission because it has been charged by Congress to “accept and use electronic forms and signatures, when practicable – i.e., when there is a cost-effective way of ensuring the authenticity of the electronic form and electronic signature”.
The current regulations for approving an election will continue to apply in that at least 30% of the bargaining unit must show interest. In addition, evidence must be supplied that proves that the employee has electronically signed the document, and that the petitioner has accurately transmitted the document to the Region. In cases where there is question as to the validity of the electronically submitted signatures, the same investigation will apply as that for paper and pencil submissions and may include taking affidavits from the petitioner and the individual employees to authenticate electronic signature.
The General Counsel of the NLRB believes that applying the long-standing current procedures for verification of signatures to the electronic signatures “will not pose either significant costs or risks to the public or to the Agency”. He goes on to state that adding electronic signature possibilities will benefit the public because: “(1) the showing of interest is easier to read and confirms the identity of the signer; (2) the methodology is convenient and consistent with how many members of the public operate today in various aspects of their lives – electronic signature pads for credit or debit purchase, on-line banking, on-line purchases, and electronic filing of taxes; and (3) employee who desires to sign an authorization card or signature list may do so in a private setting.”
Additional information required for electronic signatures
There is additional information for electronic signatures that is not required on the union authorization card/list. An electronic “signature” must include:
- The signer’s name;
- The signer’s e-mail address or other known contact information such as Twitter/Facebook/Tumblr account;
- The signer’s telephone number;
- What the signer is agreeing to (i.e., the signer wishes to be represented by the union for purposes of collective bargaining);
- The date the electronic signature was submitted; and
- The name of the employer of the employee.
There are several ways electronic signatures may be gathered. The UFCW has already created a web form which includes an area where the employee may actually create an electronic version of the signature using a finger or mouse to “sign” (see below).
There are also web forms where the employee fills out the required information. After the employee clicks submit, the employee receives a confirmation communication via e-mail, social media account, or text (see below).
It’s important to note that employees can indicate authorization simply by replying to an e-mail message which solicits their information and support.
After the union has gathered the required 30% of interest and is ready to submit the “signatures” to the NLRB, the union must include a declaration identifying what technology was used to gather the signatures and how the union is making sure that the employees are truly the ones who signed the form. If the union uses the form without the electronic signature (or an email exchange has taken place), the union must submit evidence that the union sent a message confirming all of the information submitted by the employee.
Concerns about electronic submission of signatures
Despite the General Counsel’s argument to the contrary, there is a much greater potential for fraud and forgery with the use of electronic signatures. An employee may even mistakenly submit his or her authorization by not reading all of the fine print on a website form or replying to an e-mail thinking he or she is merely requesting more information. Recent decisions by the NLRB allow employees to use a company computer system for organizing purposes. This will certainly encourage unions and their supporters to conduct their card-signing drives via the company’s own computer system.
The need to be alert
In the past, a company could be alerted to possible union organizing when authorization cards were handed out on their property. Now, with electronic submissions, management will not have this advance notice and may be blindsided when the election petition arrives.
Here at Wessels Sherman we are suggesting a simple three-step approach:
- Someone in your organization understands and is responsible for Wessels Sherman’s ABC’s of Staying Union Free;
- Your front-line supervisors are trained on the issue of union organizing, they know what to look for, and they are not afraid of it;
- You have a simple one-page union-free action plan.
