Guidance Memorandum on Electronic Signatures to Support a Showing of Interest

OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 15-08 (Revised)

October 26, 2015

TO:

All Regional Directors, Officers-in-Charge,

and Resident Officers

FROM:

Richard F. Griffin, Jr., General Counsel

SUBJECT:

Guidance Memorandum on Electronic Signatures to Support a Showing of

Interest

On December 15, 2014, the Board adopted a final rule1 that became effective on April

14, 2015 and modified in certain respects the procedures applicable to the processing of

representation cases. As part of this rulemaking, the Board solicited comments on the question

of whether the proposed regulations should expressly permit or proscribe the use of electronic

signatures to support a showing of interest. The Board determined that its regulations as

currently written are sufficient to permit the use of electronic signatures in this context. 79 Fed.

Reg at 74331. The Board further concluded that Congress had manifested its intention “that

Federal agencies, including the Board, accept and use electronic forms and signatures, when

practicable—i.e., 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.” Id. at 74330. The Board charged me with the responsibility to “determine whether,

when, and how electronic signatures can practicably be accepted” and to “issue guidance on the

matter.” Id. at 74331.

As is reflected in the guidelines which follow, I have determined that the evidentiary

standards that the Board has traditionally applied to handwritten signatures apply equally to

electronic signatures2 and that it is practicable to accept electronic signatures in support of a

showing of interest if the Board’s traditional evidentiary standards are satisfied.

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matter.” Id. at 74331.

As is reflected in the guidelines which follow, I have determined that the evidentiary

standards that the Board has traditionally applied to handwritten signatures apply equally to

electronic signatures2 and that it is practicable to accept electronic signatures in support of a

showing of interest if the Board’s traditional evidentiary standards are satisfied.

I.

CURRENT BOARD REGULATION OF THE SHOWING OF INTEREST

The Final Rule does not alter the legal principles that the Board has long followed in

administering its showing of interest requirements. Rather, the Board charged the General

Counsel with determining whether the established internal administrative processes to deal with

allegations of forgery and fraud in the submission of handwritten authorization cards or petitions

set forth in its Representational Casehandling Manual (CHM) §11028-11029 would similarly

apply in connection with electronic signatures. 79 Fed. Reg. at 74331. I conclude that these

established principles and processes constitute an appropriate framework for evaluating whether

the Board’s traditional requirements can be adapted to accommodate Congress’ strong policy

preference for the use and acceptance of electronic signatures whenever practicable.

1 79 Fed. Reg. at 74308.

2 For the purpose of this memorandum, a “signature” can include various forms of electronic identification,

including email exchanges or internet/intranet sign-up methods.

requirements can be adapted to accommodate Congress’ strong policy

preference for the use and acceptance of electronic signatures whenever practicable.

1 79 Fed. Reg. at 74308.

2 For the purpose of this memorandum, a “signature” can include various forms of electronic identification,

including email exchanges or internet/intranet sign-up methods.

A.

Purpose of the Showing of Interest

The Board’s showing of interest requirement constitutes an important safeguard against

the potential for misuse of election procedures and waste of Agency resources. A petitioning

party must provide evidence showing that the petition has the support of at least 30 percent of the

bargaining unit before an election will be held. Id. at 74421; see also id. at 74470. CHM §11020

explains that the purpose of the demonstration of an adequate showing of interest on the part of

labor organizations and individual petitioners that initiate or seek to participate in an

Representation case is to determine whether the conduct of an election serves a useful purpose

under the statute, i.e., whether there is sufficient employee interest to warrant the expenditure of

the Agency’s time, effort, and resources in conducting an election. CHM §11021 notes that this

inquiry is purely an administrative matter, which prevents parties with little or no stake in a

bargaining unit from abusing the Agency’s machinery and interfering with the normal

administration of the Act.

B.

Current Requirements for a Showing of Interest

CHM §11022 provides that the showing of interest can take a number of forms. In RC,

RD, and RM cases, the union can submit authorization cards or a list of signatures designating

the union as the signers’ agent for collective-bargaining purposes or evidence from its records as

to the individuals who are members of the union

ation of the Act.

B.

Current Requirements for a Showing of Interest

CHM §11022 provides that the showing of interest can take a number of forms. In RC,

RD, and RM cases, the union can submit authorization cards or a list of signatures designating

the union as the signers’ agent for collective-bargaining purposes or evidence from its records as

to the individuals who are members of the union. A petitioner in an RD case may submit cards or a

signature list indicating that the employees signing the showing no longer wish to be represented by

the union or authorize the petitioner to file a decertification petition. Similarly, CHM §11506.5

permits for signature lists to support showings of interest in a UD petition. The employer’s showing

of interest in an RM case can consist of proof of a demand for recognition made by one or more labor

organizations or evidence of objective considerations relating to an incumbent labor organization’s

continued majority status.

The current requirements do not mandate that the cards or lists contain employee job

classifications or contact information such as home address, email address, phone number, and

job titles. However, authorization cards usually contain such information, along with the name

of the employer. Signature lists, in addition to a statement about representation, often contain

only the printed name, which is sometimes difficult to read, a signature, and a date.

The date on which the showing of interest signatures was obtained must be established.

If a card or signature list is undated, the party submitting the showing may establish the date by

affidavit. CHM §11027.3. If the signing date cannot be established, the card will not be counted

for showing of interest percentage purposes.

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ich is sometimes difficult to read, a signature, and a date.

The date on which the showing of interest signatures was obtained must be established.

If a card or signature list is undated, the party submitting the showing may establish the date by

affidavit. CHM §11027.3. If the signing date cannot be established, the card will not be counted

for showing of interest percentage purposes.

C.

Current Procedures For Determining The Authenticity Of

Handwritten Signatures In Support Of A Showing Of Interest

The Board, with court approval, has long held that the showing of interest is a matter for

administrative determination and is not litigable by the parties. See, e.g., O. D. Jennings & Co.,

68 NLRB 516; 518 (1946); Super Valu, Inc., 181 NLRB 698, 698-699 (1970). Accord NLRB v.

Metro-Truck Body, Inc., 613 F.2d 746, 750 (9th Cir. 1979) (collecting cases). Among other

things, this policy enables the Board expeditiously to determine whether representation

proceedings are warranted and to do so in a manner that, to the maximum extent possible,

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preserves the secrecy of individual employees’ views with respect to union representation.

Kearney & Trecker Corp. v. NLRB, 209 F.2d 782, 787-88 (7th Cir. 1953). Nevertheless, within

these limitations, the Board’s procedures provide recourse for parties to submit evidence

impugning the validity of the showing of interest and, by this means, to secure dismissal of the

petition if the Board, after its administrative investigation, concludes that the showing of interest

is of questionable authenticity. See, e.g., Columbia Broad. Sys., Inc. (Bridgeport, Conn.), 125

NLRB 1161 (1959).

The handwritten signatures submitted by parties in support of a showing of interest are

presumed to be valid unless called into question by the presence of objective evidence. CHM §

11027.1. Long experience has shown that authentication disputes rarely arise

showing of interest

is of questionable authenticity. See, e.g., Columbia Broad. Sys., Inc. (Bridgeport, Conn.), 125

NLRB 1161 (1959).

The handwritten signatures submitted by parties in support of a showing of interest are

presumed to be valid unless called into question by the presence of objective evidence. CHM §

11027.1. Long experience has shown that authentication disputes rarely arise. See Perdue

Farms, Inc., 328 NLRB 909 (1999) and Globe Iron Foundry, 112 NLRB 1200 (1955) (Board

dismissed petitions in light of forged showing of interest). Under CHM §§ 11028.1 and 11029.1,

if a party timely presents credible supporting evidence that the showing of interest may have

been invalidated by forgery or fraud, the Regional Director will first conduct an initial

investigation of those allegations. Should supporting evidence give reasonable cause to believe

that the showing of interest may be invalid, Board policy calls for the Regional Director to

conduct a further administrative investigation using a variety of tools. As explained in CHM §

11029.1, “[t]he investigation may include, but need not be limited to, attempts to obtain

affidavits from the person or persons responsible for securing and submitting the showing,

signature comparisons, preferably against the employer’s records, and the questioning of persons

purported to have been signatories.”

The Agency takes allegations of forged or altered documents seriously. That concern

goes beyond the question of whether a particular representation petition should be dismissed on

the grounds that the showing of interest is of questionable authenticity. Rather, where the

Region has found merit to an allegation of forgery, CHM § 11029.3 provides that the Region

should report the results of its investigation to the Division of Operations-Management, which, if

it agrees as to the merits, should report the matter to the Office of the United States Attorney,

which has jurisdiction to prosecute. See 18 U.S.C. § 1621; 18 U.S.C. § 1001; Brogan v

y. Rather, where the

Region has found merit to an allegation of forgery, CHM § 11029.3 provides that the Region

should report the results of its investigation to the Division of Operations-Management, which, if

it agrees as to the merits, should report the matter to the Office of the United States Attorney,

which has jurisdiction to prosecute. See 18 U.S.C. § 1621; 18 U.S.C. § 1001; Brogan v. United

States, 522 U.S. 398 (1998) (union official prosecuted under 18 U.S.C. § 1001 for falsely

testifying to a federal agent). See also Multimatic Products, Inc., 288 N.L.R.B. 1279, 1279 n.2,

1337 & n.77 (1988) (allegation of union’s fraudulent back dating of authorization cards referred

for prosecution by the Board).

II.

APPLICATION OF THE BOARD’S TRADITIONAL SHOWING OF INTEREST

STANDARDS TO ELECTRONIC SIGNATURES IS A PRACTICABLE AND

COST-EFFECTIVE MEANS OF ENSURING THE AUTHENTICITY OF THE

ELECTRONIC FORM

Based on the foregoing, under the Board’s existing evidentiary standards, handwritten

signatures submitted in support of a showing of interest are presumed to be valid; however, if

plausible contrary evidence is uncovered, the matter is administratively investigated. Disputes

about the validity of handwritten signatures turn on the Board’s evaluation of (1) documentary

evidence purporting to express the views of an employee with respect to representation, (2)

testimony and other evidence from the petitioner attesting to the fact that the documentary

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evidence was secured from the purported signatory and accurately transmitted to the Board, and

ated. Disputes

about the validity of handwritten signatures turn on the Board’s evaluation of (1) documentary

evidence purporting to express the views of an employee with respect to representation, (2)

testimony and other evidence from the petitioner attesting to the fact that the documentary

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evidence was secured from the purported signatory and accurately transmitted to the Board, and

(3) testimony from the purported signatory confirming the authenticity of the document.

These existing standards are the touchstone for determining whether a showing of interest

can be supported through the use of electronic signatures, along with traditional handwritten

signatures. As the Board recognized in the Final Rule, Congress has encouraged agencies to

make electronic signature options available to the public. As set forth above, the Office of

Management and Budget has suggested that a decision to reject the electronic signature option is

justifiable only where “there is no reasonably cost-effective combination of technologies and

management controls that can be used to operate the transaction and sufficiently minimize the

risk of significant harm.’’ 79 Fed. Reg. at 74330 (quoting OMB Guidance, 65 FR at 25512). The

existing evidentiary standards that the Board has traditionally used in resolving authentication

disputes are a proven and cost-effective means of minimizing the risk of fraud in submitting a

showing of interest. Plainly, methods of filing electronic signatures that satisfy those same

evidentiary standards are practicable and ought to be available to the public

Guidance, 65 FR at 25512). The

existing evidentiary standards that the Board has traditionally used in resolving authentication

disputes are a proven and cost-effective means of minimizing the risk of fraud in submitting a

showing of interest. Plainly, methods of filing electronic signatures that satisfy those same

evidentiary standards are practicable and ought to be available to the public.

For these reasons, I have concluded that Regional Directors should accept electronic

signatures as a means to support a showing of interest where, as with handwritten signatures, the

electronic signature method chosen by the party provides the 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. As is the law now with respect to handwritten

signatures, the documents submitted by the parties are presumed to be valid.

If plausible evidence is submitted in a timely fashion that gives the Regional Director

reasonable cause to conclude that the showing of interest may be of questionable authenticity,

then the Regional Director should conduct a further administrative investigation. As with

investigations of handwritten signatures, that investigation may include taking affidavits both

from the petitioner and from individual employees regarding the authenticity of their electronic

signatures.

I have concluded that the manner of submitting electronic signatures that we describe

below, as verified, if necessary, by the Agency’s long-standing procedures to investigate

allegations of fraud or forgery, allow for a cost-effective means of utilizing and verifying

electronic signatures. The Board’s traditional procedures have met the test of time and applying

them to electronic signatures will not pose either significant costs or risks to the public or to the

Agency

cribe

below, as verified, if necessary, by the Agency’s long-standing procedures to investigate

allegations of fraud or forgery, allow for a cost-effective means of utilizing and verifying

electronic signatures. The Board’s traditional procedures have met the test of time and applying

them to electronic signatures will not pose either significant costs or risks to the public or to the

Agency. And as Congress anticipated in encouraging agencies to embrace this new technology

wherever feasible, making this technology available will benefit the public. The potential

benefits of implementation include that: (1) the showing of interest is easier to read and confirms

the identity of the signer; (2) the methodology is convenient and consistent with how many

members of the public operate today in various aspects of their lives -- electronic signature pads

for credit or debit purchases, on-line banking, on-line purchases, and electronic filing of taxes;

and (3) employees who desire to sign an authorization card or signature list may do so in a

private setting.

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III.

GUIDANCE ON IMPLEMENTATION

A. Requirements for Acceptance of Electronic Signatures

I have determined that an acceptable submission supported by electronic signature in

support of a showing of interest must have the following elements to establish its authenticity

and provide a mechanism for the Agency to investigate allegations of forgery or fraud where

appropriate.

1. Submissions supported by electronic signature must contain the following:

a. the signer’s name;

b. the signer’s email address or other known contact information (e.g., social

media account);

c. the signer’s telephone number;

d. the language to which the signer has agreed (e.g., that the signer wishes to

be represented by ABC Union for purposes of collective bargaining or no

longer wishes to be represented by ABC Union for purposes of collective

bargaining);

e. the date the electronic signature was submitted; and,

f

other known contact information (e.g., social

media account);

c. the signer’s telephone number;

d. the language to which the signer has agreed (e.g., that the signer wishes to

be represented by ABC Union for purposes of collective bargaining or no

longer wishes to be represented by ABC Union for purposes of collective

bargaining);

e. the date the electronic signature was submitted; and,

f. the name of the employer of the employee.3

2. A party submitting either electronic or digital signatures must submit a

declaration (1) identifying what electronic or digital signature technology was

used and explaining how its controls ensure: (i) that the electronic or digital

signature is that of the signatory employee, and (ii) that the employee herself

signed the document; and (2) that the electronically transmitted information

regarding what and when the employees signed is the same information seen and

signed by the employees.4

3 If an employee fails to name the petitioned-for employer in his/her electronic submission, then, at the time

that the showing of interest is provided to the Agency, the petitioner shall attest, in writing, that the employee

is currently employed by the petitioned-for employer.

4 For example, a party submitting a simple electronic signature could submit a declaration explaining that

electronic signatures were collected through a website set up by the organizers, and asserting that the

organizers believe that the employee herself signed the showing of interest because the employee submitted

her contact information to the website, and because the organizers sent a Confirmation Transmission as

described in Paragraph III (A)(3) below. For illustrative purposes only, see Example 1, attached to this

Memorandum

ted through a website set up by the organizers, and asserting that the

organizers believe that the employee herself signed the showing of interest because the employee submitted

her contact information to the website, and because the organizers sent a Confirmation Transmission as

described in Paragraph III (A)(3) below. For illustrative purposes only, see Example 1, attached to this

Memorandum. Similarly, a party submitting showings of interest collected via email could submit a

declaration explaining that the submitter knows the showing was signed because the text of the email contains

evidence that the employee acted with the intent to sign the showing of interest, and that the submitting party

believes the employee herself signed the showing of interest because (1) the email was sent from an address

known to be used by the employee and (2) because the organizers sent a Confirmation Transmission as

described in Paragraph III(A)(3) below. See Example 2.

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3. When the electronic signature technology being used does not support digital

signatures that can be independently verified by a third party as in the example in

the second paragraph of n.4, above, the submitting party must submit evidence

that, after the electronic signature was obtained, the submitting party promptly

transmitted a communication stating and confirming all the information listed in

1a through 1f above (the “Confirmation Transmission”).

a. The Confirmation Transmission must be sent to an individual account

(i.e., email address, text message via mobile phone, social media account,

etc.) provided by the signer.5

b. If any responses to the Confirmation Transmission are received by the

time of submission to the NLRB of the showing of interest to support a

petition, those responses must also be provided to the NLRB.

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n”).

a. The Confirmation Transmission must be sent to an individual account

(i.e., email address, text message via mobile phone, social media account,

etc.) provided by the signer.5

b. If any responses to the Confirmation Transmission are received by the

time of submission to the NLRB of the showing of interest to support a

petition, those responses must also be provided to the NLRB.

4. Submissions supported by electronic signature may include other information

such as work location, classification, home address, and additional telephone

numbers, but may not contain dates of birth, social security numbers, or other

sensitive personal identifiers. Submissions with sensitive personal identifiers will

not be accepted and will be returned to the petitioner. They will not be accepted

until personal identifiers are redacted.

I recognize that the requirements set forth above are more stringent than what is currently

required for non-electronic signatures. Presently, signature lists are not required to contain any

personal contact information. However, the 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 forgery or fraud, where appropriate.6 Moreover, the

Confirmation Transmission will allow an employee, who receives the notification but did not

actually intend to sign the document, with the means to alert the Agency, the employer, a union,

or others that he or she did not, in fact, electronically sign a showing of interest.

Additionally, a party using digital signature technology based on public key infrastructure (“PKI”) could

submit a declaration identifying this technology

an employee, who receives the notification but did not

actually intend to sign the document, with the means to alert the Agency, the employer, a union,

or others that he or she did not, in fact, electronically sign a showing of interest.

Additionally, a party using digital signature technology based on public key infrastructure (“PKI”) could

submit a declaration identifying this technology. Because commercially available PKI solutions allow for

identity verification by an independent third party, a submitting party can rely on PKI technology when

asserting that it knows that the electronic signature is that of the signatory employee, that the employee herself

signed the document, and that what is being submitted is the same information seen and signed by the

employee. Therefore, if these solutions are used, the Confirmation Transmission described in Paragraph III

(A)(3) need not be sent.

5 For illustrative purposes only, a sample Confirmation Transmission to support an RC and RD petition are

attached to this memorandum as Examples 3 and 4, respectively.

6 As is now the case with handwritten signatures, an electronic signature submitted in support of a showing of

interest that meets the requirements set forth herein will be presumed to be valid absent sufficient probative

evidence warranting an investigation of possible fraud. Mere speculation or assertions of fraud are not now,

and will not in the future, be sufficient to cause the Agency to investigate.

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erein will be presumed to be valid absent sufficient probative

evidence warranting an investigation of possible fraud. Mere speculation or assertions of fraud are not now,

and will not in the future, be sufficient to cause the Agency to investigate.

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I believe that these additional requirements for electronic signatures should reassure those

who expressed reservations about acceptance of electronic signatures, that the Agency takes

seriously their concerns and is committed to ensuring the integrity of the process. I further stress

that parties will not be 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. However, when parties choose to submit electronic signatures, it is important that the

public, employees, and other parties have confidence in the process and in the NLRB’s ability to

investigate potential forgery or fraud, when appropriate.

B. Effective Date

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 the requirements set forth above are met.

C. How to Submit the Electronic Signature to the NLRB

If you wish to submit an electronic signature in support of a showing of interest, your

submission must provide the information required in Section III A, above.

The information you have establishing electronic signatures could be in different forms.

For example, it could be an email sent soliciting information and support to which the signer

replied or it could be a copy of a webpage soliciting information along with a spreadsheet

showing data received after the electronic signer clicked a “Submit” button

information required in Section III A, above.

The information you have establishing electronic signatures could be in different forms.

For example, it could be an email sent soliciting information and support to which the signer

replied or it could be a copy of a webpage soliciting information along with a spreadsheet

showing data received after the electronic signer clicked a “Submit” button. Like other showing

of interest submissions, these documents may be E-Filed. However, since these documents do

not have actual signatures, such that there are no “original cards,” further documents do not have

to be submitted unless the NLRB requests them.

If you have any questions regarding this memorandum, please contact Assistant

General Counsel Aaron Karsh at (202) 273-3828 or Deputy Assistant to the General Counsel

Dolores Boda at (202) 273-2887, both in the Division of Operations-Management.

/s/

R.F.G.

Release to the Public

Attachments

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