An Election Is Not an Election When the Government Decides It Does Not Count

CREDIT: geraldshields11 via Wiki Creative Commons.

When is an election not an election? When the government decides the election doesn’t count.

If that sounds undemocratic and awful to you, consider a new piece of legislation in Congress with the wildly misleading name the Protecting the Right to Organize Act (PRO Act). Get a load of this bit of legislative malpractice:


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.

So, under this proposed legislation, in a case where the union lost the unionization election. A majority of the voters there did not want the union representing them. And the union predictably charges “interference,” as it does almost every time things don’t go its way. If the NLRB buys that, the Board is instructed not to order a new election but to overturn the results of the previous one and impose unionization anyway. And does the employer have any recourse? Not much of one.

As F. Vincent Vernuccio remarks in his new report [PDF] on the PRO Act for the Mackinac Center, “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.”


Proving a negative is logically and practically very difficult, but if the PRO ACT passes and employers can’t pull off that trick then the majority of their workers who voted against unionization are going to be so out of luck. Because the government says their election didn’t count and won’t allow them a new one.

If you think this is a good idea, I don’t know what to say to you.

The bill has 216 current cosponsors including Republicans Brian K. Fitzpatrick of Pennsylvania and Christopher H. Smith of New Jersey. Why two Republicans would support this undemocratic proposal is beyond me.


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