Card check takes away the rights of employees to participate in a secret ballot in a free and fair election to decide whether to be represented by a union. The PRO Act’s version of card check gives unions two bites at the apple when trying to organize a workplace. Should they fail to gain enough votes in an initial, secret ballot election, the PRO Act would make it easier for unions to organize by disputing the election results and claiming the employer wrongfully interfered. The legislation would require the employer to prove it did not wrongfully interfere in an election, and if it could not, card check could be used to elect and certify the union. Here is the language in the PRO Act that would establish card check in these instances:
In any case in which a majority of the valid votes cast in a unit appropriate for purposes of collective bargaining have not been cast in favor of representation by the labor organization and the [National Labor Relations] Board determines that the [secret ballot] election should be set aside because the employer has committed a violation of this Act or otherwise interfered with a fair election, and the employer has not demonstrated that the violation or other interference is unlikely to have affected the outcome of the election, the Board shall, without ordering a new election, certify the labor organization as the representative of the employees in such unit and issue an order requiring the employer to bargain with the labor organization […] if, at any time during the period beginning one year preceding the date of the commencement of the election and ending on the date upon which the Board makes the determination of a violation or other interference, a majority of the employees in the bargaining unit have signed authorizations designating the labor organization as their collective bargaining representative.
The PRO Act appears to establish a presumption where the employer has to prove that they did not wrongfully interfere and influence an election. In other words, the burden of proof falls on employers to prove a negative: that they did not interfere in the election. Since there are myriad ways an election could be interfered with, it may require significant effort to demonstrate that none of these possibilities occurred. If the employer cannot show that they did not wrongfully interfere, the NLRB can force a union on private sector employees and employers if the union can gather enough signature cards.
But signatures on cards are not the same as a secret ballot. The right to be free from intimidation and to vote one’s conscience in a voting booth is a bedrock principal of American democracy, and workers should not be stripped of this right in union certification elections.