The last several years have seen significant decisions benefiting unions announced around Labor Day. This year was no different. There was the more easily satisfied joint employer test and a decision allowing dues checkoff provisions in a union contract to survive the expiration of that contract. (More on that development coming soon!)
Add to these a new guidance memorandum (pdf) from the NLRB’s General Counsel (GC). In the “quickie” or “ambush” election rulemaking, the NLRB directed the GC to issue guidance on whether electronic signatures should be accepted for the showing of interest required of a union. This showing of interest is the threshold demonstration of support a union needs in order to get a secret ballot election.
The GC, in a memorandum released to the public earlier this month, has concluded that electronic signatures will be accepted. An electronic signature must provide a Regional Director with “prima facie evidence (1) that an employee has electronically signed a document purporting to state the employee’s views regarding union representation and (2) that the petitioner has accurately transmitted that document to the region.” In such cases, the electronic signatures are presumed to be valid.
The guidance goes on to establish detailed requirements for electronic submissions, and to suggest some examples of acceptable submissions. For those with a particular interest, you should refer to pp. 6-7 of the guidance, and pay particular attention to the footnotes.
In a number of respects, the requirements imposed on electronic signatures exceed those imposed on non-electronic signatures. The GC acknowledges this, and explains that the additional safeguards are not hard to satisfy, and allow an employee who “did not intend” to electronically sign a document to make that fact known.
To be sure, the new rule applies in all instances in which a showing of interest is necessary. For example, it applies to the showing that an employee seeking decertification of a union must make to initiate the NLRB’s election processes. But, since unions file the vast majority of petitions with the NLRB, and have the resources to establish e-signature processes, unions are the parties most likely to benefit from the new rule.
For the labor professional, the development is yet another addition to the growing list of procedures surrounding union organizing that have changed. Whether it leads to a new approach to union organizing is yet to be seen. And whether the GC’s guidelines will be sufficient to deter or detect fraud or forgery is certainly open to question. One thing is for certain, however, electronic signatures on union authorization cards now have a clear role in the NLRB’s election procedures.