July 22, 2019

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NLRB General Counsel Gives Unions an Early Labor Day Present: Electronic Based Union Organizing Standard Impacting all Employers

On September 1, 2015, the National Labor Relations Board General Counsel issued a memo to all NLRB filed employees instructing them to accept e-mail exchanges and various “internet/intranet sign-up methods” to support a union organizing petition instead of the traditional authorization cards used for the last 60 years.

Before the NLRB will conduct an election regarding whether employees will be represented by a union, the NLRB must verify that at least 30 percent of the voting unit desires such representation. This “showing of interest” has always been proven by the signed and dated authorization cards union organizers obtained from the employees. The signature was necessary to ensure the employee, and not someone acting on their behalf or fraudulently, desired such representation. The date on the card was critical to ensuring the desire for representation was current.

The use of electronic signatures will allow employees simply to email their desire or click a box on a web page rather than consider and sign an authorization card. To be valid, the electronic submission simply needs to have (a) the signer’s name; (b) the signer’s email address or other known contact information, such as a social media account in the event the employee uses Twitter to “Tweet” his or her signature; (c) the signer’s telephone number; (d) language signifying that the employee desires the union’s representation; (e) the date; (f) the employee and employer name.

The ease and secrecy of such efforts will greatly reduce the time employers have to respond to such efforts by educating their employees on the pros and cons of such a choice. Coupled with the new shorter election rules and the NLRB’s new joint employer standard, unions have much to celebrate this Labor Day. One benefit unions presumably won’t like is that employees can similarly use this new form of evidence to support a decertification petition.

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About this Author

Jeremy M. Brenner, Labor Law Attorney, Armstrong Teasdale Law firm

Jeremy Brenner, a member of Armstrong Teasdale’s Employment & Labor and Non-Compete/Trade Secrets practice groups, combines his experience and education in human resources and law to provide clients with a unique perspective on the challenges they face in the workplace. In addition to providing guidance, he is both a trial attorney and a certified mediator who is trained to assist parties in amicably resolving disputes without resorting to the time and expense of traditional litigation.

Robert A Kaiser, Employment, Labor, Attorney, Armstrong Teasdale, Law firm

Bob Kaiser is a member of the Employment and Labor practice group representing emerging and mature businesses in labor and personnel-related disputes. Because employment and labor laws and regulations continue to evolve, he deftly guides management in creating “fences” and boundaries to assess risks and decrease litigation.

A portion of Bob’s practice includes traditional labor law, a focus he has had for more than 25 years. For small- to mid-sized organizations, he handles labor union relations such as union avoidance, collective bargaining, elections, strikes, picketing and other...

Bradley M. Bakker, Employment, Labor, Attorney, Armstrong Teasdale, Law Firm

Bradley Bakker is an experienced employment and labor litigator whose clients include public and private companies as well as educational institutions. He defends employers in state and federal courts and before the Equal Employment Opportunity Commission and other administrative bodies.

Daniel K. O'Toole, Litigation Attorney, Armstrong Teasdale Law Firm

Dan O’Toole, a respected leader and trial strategist, heads Armstrong Teasdale’s Litigation practice group and is a key member of the firm’s executive and management committees.

In his practice, Dan defends employers against a broad range of complaints and threats of legal action involving workplace situations. Because of his background and achievements in employment and labor law, Dan has been recognized repeatedly by Chambers USA, The Best Lawyers in America, Super Lawyers and for the last several years was included as one of the “Top 50”...