(1) any employer who terminates an employee during a union election campaign is presumed to have terminated the employee illegally. in other words, the employer must bear the burden of establishing that it had a legitimate and legal reason for firing the person. (currently the union has the burden even though the employer controls all employment records and can basically give any excuse it wants to justify a termination)
(2) if the NLRB concludes that an employer terminated someone illegally during an election campaign or in retaliation for their activities during a campaign, the employee must be awarded treble damages. in other words, the illegally fired employee would be entitled to reinstatement, plus three times his or her lost income (currently the penalty is reinstatement plus lost income)
(3) the penalty for an employer's illegal surveillance, illegal electioneering, threats of retaliation, or other illegal activity during a union election campaign will be punitive damages equal to 1% of the employer's net worth (currently the penalty is the employer has to hang up a poster promising not to do it again. yes, i'm serious)
the reason unions are trying so hard to avoid the NLRB election process when they try to organize a company is because the penalties for illegal conduct under the NLRA are so toothless.
after a union files an election petition, spying on the employees to find out who the organizers are, then firing them, and then threatening the remaining employees to get them to vote against the union is blatantly illegal, but it also makes good business sense. by the time the NLRB gets around to ruling on the illegal conduct, the election will be long over and any penalties the company has to pay will be much cheaper than the higher wages and benefits they would probably have to pay if the election campaign succeeds. a secret ballot election looks good on paper, but in practice the penalties for employer misconduct are so paltry, they actually constitute an incentive for employers to break the law.
what's really surprising about this effort to outlaw card checks as a method of organizing is that an employer is not required to agree to abide by a card check. if a union tells them that they have signed cards from a majority of employees, the employer can choose whether to voluntarily recognize the union, or insist upon an NLRB election. this proposed legislation is actually taking a choice away from businesses. hopefully, it won't go anywhere.
