Greater rather than less security provided by electronic cards

On December 24, 2019, for the first time, the Ontario Labour Relations Board in Toronto and York Region Labour Council,permitted the use of electronic membership evidence for a representation vote. The displacement application for certification was brought by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers) under the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the "Act"). Before the votes could be counted, the Board had required submissions as to whether the proof of membership requirement – normally satisfied by the presentation of physical membership cards – could in this instance be satisfied by electronic evidence of membership instead. Given the method used to obtain that evidence in this case, the Board concluded that the evidence could be used.

The Board noted that their Rules of Procedures were silent on this particular issue, merely requiring that proof of membership needed to be submitted, without specifying its form. The Rules provided that “‘membership evidence’ includes written and signed evidence that an employee is a member of a trade union or has applied to become a member”, but that did not preclude the possibility of such evidence being electronic.

The Board relied heavily on the security features of the electronic membership evidence in this case as part of its reason for allowing it. These features, the decision notes at para 13, included that:

1. The United Steelworkers’ (“USW”) electronic membership cards were created using Adobe Sign software. The electronic cards are identical to the USW’s physical membership cards and contain the same fields to be completed by an applicant for membership.
2. The USW’s Organizing Coordinator, Darlene Jalbert (the “Organizer”), provided each applicant for membership with a hyperlink to a blank membership card.
3. The applicant for membership opened the hyperlink, sent to them by the Organizer, which directed them to the blank membership card webpage.
4. The applicant for membership filled in the mandatory fields (i.e. company name, date, email address, and signature).v
5. The applicant for membership signed the electronic membership card using the Adobe “draw” function using either a mouse on non-touch screen devices or their finger or stylus on touch-screen devices.
6. Once the mandatory fields were filled in and the electronic membership card had been signed, the applicant for membership received an automatically generated email with a request to confirm his or her identity. The applicant for membership verified his or her identity by clicking on the hyperlink contained therein.
7. After the applicant for membership’s identity was verified, the Organizer received an automatically generated email with the signed electronic membership card. The email contained a hyperlink for the Organizer to counter-sign the electronic membership card. The Organizer counter-signed the electronic membership cards using the same process described in paragraph v above.
8. Once the electronic membership card was signed by the Organizer, both the Organizer and the applicant for membership received an email with the fully completed and signed electronic membership card.
9. Signed electronic membership cards are encrypted and cannot be modified. The Adobe Sign system generates a unique transaction ID for each electronic membership card that provides for a digital certification of authenticity. This certificate of authenticity can be viewed by opening a copy of the signed PDF in Adobe Reader or Adobe Acrobat.

The Board noted that this was arguably stronger protections than would be provided by physical cards, since they provide the same information (e.g. name of individual, employer name, date and contact details), but unlike a paper membership card, the electronic membership card is encrypted and cannot be modified, and there is a certificate of authenticity and an “audit trail”.

The Board also noted that the use of electronic membership evidence was not opposed in this case, and it was possible that they could reach a different decision in future in a case where there was such opposition. However, they also concluded by observing that:

21 The acceptance of electronic membership evidence should come as no surprise to the labour relations community as this Board continues to take steps that embrace technology in furtherance of the purposes of the Act… While each technological advancement carries its own risks, it has been the Board’s experience that the enhanced accessibility and efficiencies outweigh these risks.