Client Bulletin #565

On September 1, 2015, the National Labor Relations Board General Counsel, Richard F. Griffin, Jr., issued Memorandum GC 15-08, "Guidance Memorandum on Electronic Signatures to Support a Showing of Interest." In the memorandum, the General Counsel directs Regional Offices of the Board to begin accepting electronic signatures for the required "showings of interest" in support of election petitions. Unions can be expected to respond in short order by using emailed electronic authorization cards and social media "sign ups" in the initial stages of organizing campaigns.

According to the General Counsel, the Board charged him with determining "whether, when, and how" electronic signatures would be practicable for employees to indicate their showing of interest for or against representation to support election petitions to the Board and "to issue guidance on the matter." The Board requires at least a 30 percent showing of interest for a representation or decertification petition and concluded in its December 15, 2014 rulemaking that its current election regulations permit the use of electronic signatures. As a general rule, the Board presumes that signatures in support of a showing of interest are authentic and valid unless there is objective evidence otherwise. The Board views the showing of interest as purely an administrative matter within the sole discretion of the Board and largely outside of legal challenge by interested parties.

General Counsel Griffin has now answered the Board's charge to him with guidance that the Board will accept electronic signatures effective immediately, provided certain requirements are satisfied when electronic signatures are submitted. To be accepted by the Board, the electronic signatures must be accompanied by the signer's name, email address or other known contact information (e.g., social media account address), telephone number, authorization language agreed upon by the signer, the date of signature, and name of the employer. In addition, the submitted information cannot contain the signer's birth date or social security number. A union submitting electronic signatures must submit a declaration identifying the technology used and how its controls ensure the identity of the signing person and what the person signing agreed to.

How application of this guidance works out in "real world" practice remains to be seen. For example, what happens if the employer is listed incorrectly or an email address is wrong? But, bottom line, what is not actually a "signature" is going to be treated by the Board Regional Offices as a signature. A mere check in a box or an email from an unknown source will likely suffice for a signature. Does the guidance provide any "real world" checks on signature or identity fraud by anyone determined to falsify a signature? Probably not. But that is the case with handwritten signatures too. E-signatures simply make the showing of interest process (whether bona fide or fraudulent) easier and faster, much like the NLRB's "quickie" election rues that went into effect on April 14, 2015. Add a few apps to automate the process and the union's organizing effort is fast, cheap, potentially more secretive, and not readily subject to any challenges, even valid ones intended simply to ensure some minimum level of integrity in the showing of interest process. So the guidance presents a potential game changer. Employers can try to get out in front of the e-signature process with positive employee relations, but that will not be as easy as simply flipping a switch.

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