NLRB General Counsel Sets Rules for Electronic Signatures Used to Support a Showing of Interest for Union Elections | Practical Law

NLRB General Counsel Sets Rules for Electronic Signatures Used to Support a Showing of Interest for Union Elections | Practical Law

The General Counsel for the National Labor Relations Board (NLRB) released Guidance Memorandum on Electronic Signatures to Support a Showing of Interest (Memorandum GC 15-08), in which he held that effective immediately, parties may submit electronic signatures in support of a showing of interest for union elections if certain requirements are met.

NLRB General Counsel Sets Rules for Electronic Signatures Used to Support a Showing of Interest for Union Elections

by Practical Law Labor & Employment
Published on 09 Sep 2015 • USA (National/Federal)
The General Counsel for the National Labor Relations Board (NLRB) released Guidance Memorandum on Electronic Signatures to Support a Showing of Interest (Memorandum GC 15-08), in which he held that effective immediately, parties may submit electronic signatures in support of a showing of interest for union elections if certain requirements are met.
On December 15, 2014, the panel (Board) heading the NLRB's election and judicial functions adopted a final rule, effective April 14, 2015, that modified the NLRB's representation case procedures. In the rulemaking process, the Board solicited comments on whether the proposed regulations should expressly permit or proscribe the use of electronic signatures to support a showing of interest (NLRB Representation Case Procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014)).
The Board:
  • Concluded that its regulations permit using electronic signatures to support a union's showing of interest.
  • Noted that Congress had manifested its intention that the Board "accept and use electronic forms and signatures, when practicable, including when there is a cost-effective way of ensuring the authenticity of the electronic form and electronic signature given the sensitivity of the activity at issue, here the showing of interest" (79 Fed. Reg. at 74330).
  • Requested that the General Counsel:
    • answer whether, when, and how electronic signatures can practicably be accepted; and
    • draft formal guidance on these issues.
    (79 Fed. Reg at 74331.)
On September 1, 2015, the NLRB General Counsel, released the requested formal guidance (NLRB Gen. Counsel Mem. 15-8, Electronic Signatures to Support a Showing of Interest, (Sept. 1, 2015)) (Memorandum GC 15-08). The General Counsel concluded that:
  • The evidentiary standards that the NLRB has traditionally applied to handwritten signatures apply equally to electronic signatures.
  • It is practicable to accept electronic signatures in support of a showing of interest if the NLRB's traditional evidentiary standards are satisfied.
  • Effective immediately, parties may submit electronic signatures in support of a showing of interest. However, the signatures will only be accepted and used to calculate percentages related to sufficiency of a showing of interest if certain requirements necessary for establishing authenticity and investigating allegations of fraud or forgery are met.
The NLRB will require that:
  • Submissions supported by electronic signature must contain:
    • the signer's name, telephone number and email address or other known contact information (for example his social media account);
    • the language or terms the signer has agreed to;
    • the date the electronic signature was submitted; and
    • the name of the employer.
  • A party submitting electronic digital signatures must submit a declaration:
    • identifying what electronic signature technology was used and explaining how its controls ensure that the electronic signature is that of the signatory employee and that she herself signed the document; and
    • that the electronically transmitted information regarding what and when the employees signed is the same information seen and signed by the employees.
  • If the electronic signature technology being used does not support digital signatures that enable a verification declaration, the submitting party must submit evidence that, after the electronic signature was obtained, the submitting party promptly transmitted a confirmation transmission:
    • stating and confirming all the required information; and
    • sent to an individual account provided by the signer.
  • Submissions with sensitive personal identifiers such as dates of birth or social security numbers will be returned to the petitioner and will not be accepted until the personal identifiers are redacted.
The General Counsel further noted that:
  • The requirements for the NLRB to accept electronic signatures are more stringent than what is currently required for non-electronic signatures; however, the required contact information (email address, phone number or other social media account):
    • is easy to obtain electronically from the signer; and
    • will enable the NLRB to promptly investigate any alleged forgery or fraud.
  • Receipt of the confirmation transmission will alert an employee who did not actually intend to sign the document, the employee can then alert the NLRB, the employer, the union or others that he did not electronically sign a showing of interest.
  • Parties are not required to submit electronic signatures in support of their showing of interest and can continue to submit written signatures on paper for all or part of their showing of interest.

Practical Implications

Memorandum GC 15-08 continues the line of NLRB actions in recent years to permit unions to more quickly and covertly organize workers and make the NLRB's election processes easier and more expedient for unions. Among the various changes in NLRB procedure and Board substantive law, this change should not be an employer's top worry. However, the natural concern as electronic signatures backed by email addresses and social media handles replace old safeguards (for example, comparisons of handwritten signatures of employees on union authorization cards against their signatures on personnel file documents) will be whether the this will encourage the unscrupulous among unions to engage in fraud. It is unclear how employers will be able to sustain, or NLRB agents be able to adequately investigate, suspicions of fraudulent electronic signatures or fraud in the inducement of signatures.