In what is likely to be a boon for unions conducting organizing campaigns, the BC Labour Relations Board has recognized, for the first time, that electronic signatures on union cards may be sufficient to satisfy the strict requirements of section 3 of the Labour Relations Regulation. The Board did emphasize, however, that unions seeking to rely on electronic signatures are obliged to provide a detailed audit trail – including even tendering the electronic device of the union organizer used to solicit and receive the electronic signatures – if they wish the Board to approve their application.
To put the issue in context, section 3 of the Labour Relations Regulation, in conjunction with section 18 of the Labour Relations Code, requires unions making an application for certification to provide the Labour Relations Board with sufficient union membership cards that:
a. Were signed by a member of the proposed bargaining unit and were dated at the time of signature;
b. Contained a statement that, to paraphrase, notes the union will use the employee’s membership to apply for certification; and
c. Were signed within 90 days of the application for certification being filed.
There are three obvious problems posed by electronic signatures in meeting these requirements. First is ensuring the authenticity of the signatures. Second is ensuring that each union card was dated at the same time as it was signed. Third is ensuring that each union card was signed within 90 days of the date of the application.
In Working Enterprises Consulting & Benefits Service Ltd. v. United Food and Commercial Workers International Union, Local 1518 BCLRB No. B67/2016, the Union managed to address each of these problems through the use of commercially available software – Adobe E-Sign. The software allowed the preparation in electronic form of precisely the same content as the Union’s hard copy membership card, meeting the content requirements of section 18. In addition, the software would not allow the employee to submit the electronic card without having first recorded their name, signature and the date, addressing the need to ensure that cards were not post-dated by the union.
Finally and, from the Board’s perspective, crucially, the software allowed the employee to sign the electronic membership card on their phone or tablet using a stylus or their finger to write their actual signature, the same as using a pen on paper. It also kept an extremely detailed audit record or “paper trail” that was sent with the card to the Union organizer. This included the IP address information of both the organizer and the employee, the date and time when the organizer sent the electronic card for signature, and the dates and times when the employee viewed the electronic card, signed the card, and sent back the completed card to the organizer.
Emphasizing the importance of each of these elements to the success of an application, the Board rejected one electronic card that had been signed with a “type function” (that is, with the employee typing their name in the signature section rather than actually writing their true signature with a stylus or their finger). The Board also noted that:
“[A]t present, [the Board] will expect trade union applicants to identify the audit trail for obtaining electronic signatures when their applications are filed, and the attendance of the trade union organizer with the device that originally received the electronic cards will be required.”
Finally, the Board cautioned against unions using the employer’s email system to send or receive electronic membership cards due to the risk of complaints about confidentiality and employees signing membership cards on company time that could scupper an otherwise legitimate application for certification.
Employers facing an electronic organizing campaign should be careful to insist on all of the stringent requirements the Board outlined in this case being met. But if those requirements are met, employers will no longer be able to challenge a certification application on the basis of electronic signatures alone.
Questions in relation to this article are welcome to be directed to Donald Jordan, Q.C.