Labor law reform at the federal level remains a vital objective, and many of the ideas set forth by Voos and the Hirsches are valuable and appropriate. Comprehensive labor law reform such as I advocated prior to my appointment as chairman of the NLRB should be enacted, but the political realities make it unlikely that this will happen. Meanwhile, other administrative NLRB deficiencies that became apparent in the 1990s must be part of the ultimate package. State legislation and the abandonment of preemption as Freeman has advocated should be rejected because it will leave the most vulnerable workers more vulnerable and the idea's analytical underpinnings are flawed in numerous respects.

As I have read and listened to the papers presented here, I have the recurring thought that I have seen this movie before. It all began in 1961, my first year of labor law practice; I was serving as assistant general counsel of the United Auto Workers in Detroit when the decline of the labor movement, after reaching its zenith in 1955, was first noted (see Barkin 1961; Gould 1962; Raskin 1961). In the 1970s the role of the law became more obvious as some employers began to exploit more frequently administrative loopholes in the National Labor Relations Act (NLRA), which both produced delay and also tended to dissipate employee interest in and support for the collective bargaining process. Labor law reform actually passed in the House of Representatives but did not become law because of the filibuster in the Senate.

Again, the issue was addressed in the 1980s (Weiler 1983). The inadequacy of remedies under the statute and its inability to provide anything comparable to antitrust law, for instance, and its provision for treble damages—first discussed in the 1960s—became more of a problem as both the Supreme Court and the NLRB circumscribed the available remedies under the Act.

In the 1990s the issue of labor law reform again reached the halls of Congress only to, yet again, die aborning (Gould 1993). The discussion continued and the result was the same. Now, in 2006, the issue is once again before us with reform advocates generally conceding that labor law reform has little potential to become reality and that a shift in the composition of the Congress as well as the White House is a necessary first step to achieve change. (As the Carter White House experience of the 1970s demonstrates, it is only a first step.)

Labor law reform, however, is just as necessary now as it was in the past. I think that Professor Paula Voos is right to say that reversal of the exclusion of both professionals and lower-level statutory supervisors as well as the judge-made managerial exclusion should be part of the reform effort. As she has noted, collective bargaining for professionals and higher-level managerial people as well as lower-echelon supervisors exists in Europe and the industrialized world. I agree with her views that a need to enhance loyalty is not inconsistent with the opportunity to engage in collective bargaining—all employees owe their employers loyalty, yet their own interests dictate representation at the bargaining table. My addendum to the Voos paper is to say that it is particularly ironic that professionals, specifically designated by the statute as covered by it, are frequently excluded because of the autonomy they enjoy—an autonomy that is frequently and properly promoted as necessary to reduce differences and enhance cooperation between labor and management.

Beyond Professor Voos's recommendations, others, such as many of those propounded by the Professors Hirsch, both father and son, are appropriate as well. Such changes should address the limited nature of remedies, the delays inherent in the administrative process, enhancement of the Board's authority to obtain injunctions in connection with unfair employer labor practices as well as those committed by unions, and changes in the law relating to strike replacements as well as successorship obligations (Gould 1993). Some part of reform could be accomplished by the Board itself by interpreting the Act, as I believe it should and could, to permit prerecognition collective bargaining conditioned upon ratification by a majority of employees through a secret ballot election, or authorization cards, or reliance upon authorization cards by a neutral third party subsequent to the agreement itself. This would permit the parties and employees to make intelligent choices based upon the union's willingness to make concessions with regard to job flexibility and the employer's offer of employment security. They—labor unions, employers, and employees—would know what could be realized at the bargaining table because it would have been already delivered. (Of course, it is unlikely that the current Bush Board will allow such bargaining to take place.)

But my tenure as chairman of the National Labor Relations Board in the 1990s made it clear to me that other changes are needed as well. Important and valuable scholarly work by Professor G. Calvin Mackenzie of Colby College (Mackenzie 1998) as well as Professor Mathew M. Bodah of the University of Rhode Island (Bodah 2001, 1999) are valuable in understanding the politicization of the Board and the consequent difficulties in getting Board members to produce decisions—any kind of decision—in a hostile political environment (Gould 2000). I wrote about what the ideas of both Professors Mackenzie and Bodah meant for the internal processes of the National Labor Relations Board while I was its chairman in the 1990s (Gould 1999). I commend the work of Mackenzie and Bodah to you, the attendees, and members of the Labor and Employment Relations Association as a prerequisite to understanding why I think it is important to bar the reappointment of NLRB presidential appointees so that they can more effectively do their job without fear of political consequences or retribution. The current situation, where those hostile to the National Labor Relations Act control the Congress, induces a state of case production paralysis by Washington "insiders" and thus requires a chairman to be "abrasive" and willing to engage in disputes with members of his own party as well as "ruffling the feathers of big business.... [The role of the Chairman is] . . . not to create sweetness and light" (Editorial Desk 2005). If Board Members understand that, like Cincimnatus, they must return to their distant homes at the conclusion of their term, they can write and produce with less inhibition.

The law reform paper that gives me the most concern is that presented by Professor Richard Freeman of Harvard University, especially his view that organized labor could improve its prospects and more employees could be represented by unions if the states were allowed to experiment with their own legislation and preemption was abandoned. Of course, if state legislation will accomplish this objective, it is extremely unlikely that this Con-gress—or even a Democratic Congress—will abandon preemption for this purpose. I sometimes think that there is a disconnect between the academic world and that of realpolitik in Washington! Even more unrealistic is the idea that minimum standards could be applied through federal legislation and the states could move beyond them to enact laws providing for rights and benefits above such standards.

Moreover, I am extremely wary about a number of other aspects of the Freeman reasoning. In the first place, in the absence of minimum standards, which are unlikely to be enacted, states like Mississippi would take us to the bottom in a new era of deregulation, which will prove harmful to employees in those states, whatever the enhanced rights in states such as New York, California, and Wisconsin (Gould 1985). Southern and rural states that have enacted, for instance, right to work legislation, are likely to race to the bottom of union density and employment conditions. The overall result may be good for workers in the industrialized north and organized labor, but it will be bad or worse for workers in much of the south. In short, I think the proposal will expose the most vulnerable to even more harm than is the case under federal law today.

But there is a more fundamental objection to the Freeman idea. It proceeds upon the assumption that if state legislation can prevail, the public employee experience will be replicated and favorable laws will produce more unionization. I think this is one of the great misunderstandings inherent in the Freeman proposals. When I was chairman of the Board, many in the ranks of labor said we were not doing our job because the rate of unionization was not increasing. But, putting aside the limits of law generally, and particularly this National Labor Relations Act, there are many factors responsible for union difficulties, for instance: (1) union lethargy in the organizing arena; (2) globalization as manifested by employer relocation to countries or areas with unfavorable labor rights and conditions, and foreign competition that has been visited upon manufacturing industries that have been strongholds for unionization; (3) deregulation in the heavily represented transportation industries like trucking, airlines, and even railroads; (4) the changing nature of the employment relationship—particularly the advent of undocumented workers who have been especially difficult to protect since the Supreme Court reversed our decisions, which provided undocumented employees with back pay when violations of the statute were committed against them;¹ (5) the shift in employment toward service industries where employers oppose unions more tenaciously, in part, because it is more difficult to absorb increased labor costs through technological innovation, thus requiring them to absorb such costs through either reduced profits or through imposition upon the public; and (6) the union wage premium (Flanagan 1987; Porter 2006). Thus, it is difficult to see any necessary correlation between union density and successful recruitment of new members and the law, given the complexity and number of factors involved. Even if Congress and the president adopted a new labor law more hospitable to union organizational activity or there was a return to a Clinton NLRB, there is no necessary nexus between this and union organizational prospects.

Another weakness in the Freeman analysis lies in the fact that proø collective bargaining public employee labor laws and greater union organizing success are not necessarily related. Is it the more favorable collective bargaining environment that produces a more pro-organizational activity public employee labor law, or is it the opposite, as Freeman contends? There appears to be little or no evidence one way or another.

Even if there were such evidence, could union success in the public sector translate to the private sector? After all, it is well known that public employers are less likely to exhibit hostility toward union organizational activity because the mayor or governor would like public employee union support. That is why Governor Pete Wilson in 1998 and Governor Arnold Schwarzenegger in 2005 supported referenda in California that would have excluded the unions from the political process. Mayors and governors are unlikely to be as influenced by union campaigns in the private sector and are more likely to stand aside and let the parties have it out with one another. A subsidiary point Professor Freeman appears to make is that the state contracting laws declared unconstitutional by the United States Supreme Court will help the unions in the industrialized north recruit more members. But as he readily concedes, no evidence for this proposition exists at this juncture either.

Finally, the Freeman thesis relies upon the fact that Canadian labor law is provincial law and that union density is superior in Canada to the United States. But just as the public sector cannot be easily compared to the private sector in the United States, so also Canada cannot be easily compared to the United States. Canada has an entirely different culture and environment, which have produced more union recognition and better labor laws. (Do not forget that the original Canadian labor law of the 1940s replicated American labor law—it is generally recognized now that provincial laws provide both more effective remedies and expedited process, which do not exist in the United States.) But the fundamental difference between the two countries is the above-referenced environment.

I think that the best approach in the United States is at the level of federal law. Calls for state legislation or deregulation or partial deregulation are, in my view, a siren song that should not distract us from the serious business of comprehensive labor law reform along the lines that I and others have outlined in writings and that I have put forward today. Canadian employers do not possess the individualistic anti-union fervor of their American counterparts.