Effective immediately, the General Counsel for the National Labor Relations Board (“The National Labor Relations Board”) has implemented a procedure permitting unions to obtain and file electronic signatures as part of their so-called “showing of interest” supporting a representation petition. The procedure significantly enhances a union’s ability to obtain from employees they are attempting to organize an objective demonstration of their desire for union representation without ever having to meet with employees face-to-face.
Historically, unions asked employees to sign “authorization cards” in order to satisfy the NLRB’s requirement that they support a petition for a representation election by a showing, from at least 30% of the employees the union seeks to represent, that the employees desire such representation. Signing the cards generally required either face-to-face contact with the union representative at a meeting held away from the work site or circulation of the cards at the employer’s facility by current employees. In order to prevent the employer from mounting a campaign against the union, card signing was usually accomplished in secret through clandestine meetings of small groups of employees.
The new procedure permits unions to organize by obtaining signatures authorizing union representation through purely electronic means. As a practical matter, unions will now have the ability to: distribute literature to employees electronically; engage in on-line dialogue and obtain signatures electronically; and eliminate the need for clandestine meetings at work or away from the facility (i.e., bars or restaurants). Indeed, the NLRB’s decision in Purple Communications that effectively opened an employer’s email system for use in union organizing during an employee’s non-work time, now permits an employee to sign an electronic authorization card or petition using the employer’s own computer network and equipment.
The ramifications of this new procedure are profound. It will make early detection of union campaigns more difficult for employers who are already seriously hampered by the NLRB’s “ambush election rules.” In addition, the NLRB has always deemed the validity of authorization cards to be an administrative matter not subject to resolution by hearing. Despite some protections the General Counsel built into the process, employers will have no reliable way to know whether the electronic signatures the union submitted are valid. Since employees will now have the ability to sign remotely, the potential for abuse of the process is increased and an employer’s ability to detect abuses is diminished.
Until we become better acquainted with how NLRB regional offices will apply this new process in practice, we anticipate significant confusion over the validity of a union’s showing of interest which may raise additional issues requiring the expertise of experienced labor counsel. For the present, the availability of the new procedures should provide additional impetus for employers to remain vigilant in monitoring the work force for any signs of actual or impending union organizing. If you have any questions about electronic signatures or any other labor matter, please do not hesitate to contact Lowenbaum Law’s Labor Team.