May 24, 2016
In what appears to be a case of first instance in Canada, the BC Labour Relations Board has concluded that a union may utilize membership cards containing electronic signatures to demonstrate employee support in applying for certification.
In Working Enterprises Consulting & Benefits Services Ltd., the BC Board was faced with an application for certification that relied on electronically-signed membership cards. In addition to the electronic cards themselves, the Board was also provided with an “audit trail” that indicated the dates and times at which the cards were created, emailed to the recipient, viewed by the recipient, signed by the recipient, and emailed back to the union organizer. The audit trail further indicated the IP addresses of the computer or other device that was used at each step of the signature process. In accepting the electronically-signed membership cards as valid membership evidence, the Board stated expressly that in future applications for certification based on electronically-signed cards it would expect a similar audit trail and demonstration of the reliability and authenticity of the date and signature of the cards.
Interestingly, the Board declined to accept one of the electronic membership cards submitted by the union. Employees signing the cards electronically had been given the option to use a “draw function” for signature (i.e. using a finger or stylus to physically sign as though signing on paper) or a “type function” (i.e. entering a name by typing). One card that had been “signed” using the type function was rejected by the Board with the comment, “it is no different than a pen and paper printed block signature”.
Notably, the application for certification was not opposed by the employer in question, and no challenge to the electronically-signed cards was made. The BC Board referred to this fact as “significant”, commenting that from the audit trail evidence it appeared the electronic membership cards had been sent to and signed by employees during working hours and, in some cases, transmitted using the employer’s email system.
This decision confirms that unions may, with appropriate measures, rely upon electronically-signed membership cards as evidence of employee support. In the result, union organizing campaigns may be more difficult to detect in the future, when physical card signing is not occurring. Further, employers should be aware of the potential for misuse of company computers, servers, and systems for such purposes.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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