A recent National Labor Relations Board Memorandum, 15-08, has changed the manner in which unions obtain their required “showing of interest.” The General Counsel issued a memorandum which states, “effective immediately, parties may submit electronic signatures in support of a showing of interest.” This has modified the process in which a union election petition must be supported by a “showing of interest” of at least 30 percent of the employees. Historically, interest was shown by employees signing an “authorization card”, which was typically a pocket-sized card stating that the employee wished to be represented by a union for purposes of collective bargaining. Under the new rule, there is no longer a need for actual signatures.
Many different forms of “electronic signatures” will now be accepted by the NLRB, including, but not limited to, email exchanges, internet sign-up forms, and the like. The “electronic signatures” must include the signer’s name, email address or social media account, telephone number, the actual authorizing language to which the employee assents, the date of the submission and the name of the employer.
This new rule is closely tied to the NLRB’s new “ambush” election rules that were enacted in April of 2015. Those rules accelerated the speed of the election process, and for the first time permitted electronic filing and service of petitions. In July 2015 the U.S. District Court for the District of Columbia rejected a legal challenge to the “ambush” rules brought by the Chamber of Commerce of the United States of America, amongst others.
The Plaintiffs challenged the following provisions:
The requirement that the employer file a written “statement of position” before the pre-election hearing is scheduled to begin, detailing its position on a range of issues, or risk waiving its ability to litigate those issues at the hearing.
The provision permitting regional directors to decline to take evidence on or litigate individuals’ eligibility to vote or be included in an appropriate unit during the pre-election hearing.
The provision stating that once the pre-election hearing has been held, the regional director shall schedule the election for the earliest date practicable.
The requirement that within two business days after the direction of election, the employer must provide a voter list to the regional director and the union containing contact information of all employees, including personal e-mail addresses and cellular phone numbers.
The elimination of parties’ ability to stipulate to mandatory post-election board review through a stipulated election agreement.
These decisions allowing unions to organize electronically creates an alternative to traditional authorization card signing drives that is exponentially faster, very low cost, and more under the radar than ever. A union may now be able to effectively solicit all of an employer’s employees before the employer has any opportunity to respond.
In another recent case, Purple Communications, the NLRB held that employees who have been granted access to computer email systems must be permitted to use those systems for union organizing activity when on non-working time.
The bottom line is that employers should utilize a proactive approach in ensuring positive employee relations, training of supervisors and managers, and maintaining a happy workforce. PMP anticipates that in 2016 the unions will aggressively seek to organize workers as never before. These recent NLRB developments will make it that much easier. By doing nothing to audit your company’s vulnerability, you will be assisting the union in organizing your workforce.
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