Reading for Discussion 2.1 Topic: Read and Comment Labor Law Is Broken, Economist Says By Steven Greenhouse In a new paper, Richard B. Freeman, a labor economist at Harvard, said he had some \"harsh and impolitic\" news for the National Labor Relations Act on its 75th anniversary. He declared that the law \"has become an anachronism irrelevant for most workers and firms.\" Mr. Freeman released his paper in Washington on Thursday at a symposium that marked the anniversary of the New Deal law - often known as the Wagner Act - that gave American workers a federally protected right to form unions. He called his paper \"What Can We Learn from N.L.R.A. to Create Labor Law for the 21st Century?\" Mr. Freeman, one of the nation's foremost labor economists, wrote that the act was passed to replace the costly unionization fights of yesteryear - often involving strikes, lockouts, violent confrontations with \"a 'laboratory conditions' elections process for ascertaining workers' attitudes toward union representation that would be free from employer pressures or dishonest statements by employers or unions.\" He said unionization elections in the private-sector \"have turned into massive employer campaigns against unions.\" That, he wrote, is a major reason the percentage of private-sector workers in unions has fallen to 7 percent, down from nearly 40 percent in the 1950s. He argued that the penalties in the National Labor Relations Act were weak and \"have failed to deter firms from illegal actions to prevent unionization.\" He wrote that in the early 1950s firms fired about 0.5 workers for every 100 workers who voted in N.L.R.B. elections, but in the 1980s and early 1990s, firms \"fired 4.5 workers for every 100 union voters,\" with that percentage dropping slightly in recent years. \"Far from a laboratory conditions experiment in democracy,\" he wrote, \"the N.L.R.B. process turned into the same costly fight between unions and firms that union organizing was before the act, albeit in a different venue with different weapons.\" He wrote that the N.L.R.B. process has \"failed to make it easy or natural for workers who want union representation to achieve this goal.\" He noted that there was a 20 to 30 percent gap between the percentage of workers who said they wanted union representation and those who had unions - the largest gap among advanced English-speaking countries. Professor Freeman pointed to one study that found that unions found it so hard to organize workers under the N.L.R.B. process that around 80 percent of new organizing in the late 1980s and 1990s occurred outside that process. This usually happened among government employees who were not covered by the National Labor Relations Act, or by private-sector unions that mounted pressure campaigns to persuade employers to accept unions through the card check process - under which unions are recognized when a majority of workers sign cards favoring a union. Professor Freeman said it was hardly surprising that the percentage of public-sector workers in unions was five times as high as the percentage of private-sector workers. One big reason for this, he wrote, is that private-sector employers \"have sizable monetary incentives to oppose unionism,\" and the penalties that N.L.R.B. \"has at its disposal are too limited to offset these incentives.\" He noted that government officials, unlike corporate officials, have generally not fought unionization because \"they have little to gain and much to lose from fighting unions.\" \"Unions,\" he added \"are an important ally in helping politicians and public-sector management convince voters to increase taxes or borrow money through bonds for schools, police or other public goods.\" For instance, if a company illegally fires the three employee leaders of a unionization drive, the law requires the company to pay back pay, minus whatever earnings the workers had after being fired. The law does not call for fines or punitive damages for such firings. Mr. Freeman pointed to a case involving a unionization effort at Yale-New Haven Hospital, where an independent arbitrator ruled in 2007 that the hospital had violated an agreement calling for both sides to respect principles aimed at guaranteeing a fair election. The arbitrator wrote that the workers \" were threatened with more onerous working conditions and even loss of their jobs if the union were selected.\" She said the workers were victimized and ordered the hospital to pay the 1,700 workers a total $2.2 million - the amount the hospital had paid to antiunion consultants. She also ordered the hospital to repay the union its $2.3 million in organizing expenses. Professor Freeman noted that this $4.5 million penalty, which was ordered outside the National Labor Relations Act, was 20 percent more than the $3.6 million that the labor board awards on average each year to all workers nationwide for all back pay for being retaliated against for supporting a union. He cited a paper by Morris M. Kleiner and David Weil stating that \"the Act for decades has been ineffective in curbing behaviors that are antithetical to its fundamental aims.\" Professor Freeman wrote that \"the failure of the N.L.R.A. process to meet the needs of workers and firms moved the U.S. close to the union-free world that many opponents of trade unions have long desired.\" He suggested that if unions were stronger, the United States might not have the highest income inequality in the developed world or stagnant real earnings for all but the highest paid. He also said that if unions were stronger, a liberal coalition \"would presumably have greater countervailing power\" to Wall Street and have helped push through stronger financial reforms. In conclusion, Professor Freeman had four recommendations. He called for strengthening the penalties against illegal actions by management and unions, recommending penalties against individual managers or union leaders who break the law. Second, he said labor laws should be amended to protect supervisors from being fired or punished if they want to remain neutral or silent and not have to express their firm's anti-union views during an organizing drive. Third, he called for early voting at neutral venues instead of having unionization elections held at the work site on a single day. Borrowing from an idea of Benjamin Sachs, a professor at Harvard Law School, he wrote that the idea resembled early voting in regular elections. The labor board could set up a polling place where workers could vote at any time during the organizing drive or could set up a confidential mail-in procedure. He said this \"should reduce intimidation or pressure from management or union activists on workers to vote for against union representation by allowing employees to vote outside the confines of the workplace at a time of their own choosing.\" Many corporations oppose a more rapid electoral process, arguing that it would not give them adequate time to communicate their case against unions. Lastly, Professor Freeman recommends an idea that union leaders hate allowing employers to set up employee committees that address not just productivity, but also issues that deal with workers' well-being, like hours or pace of work. \"Throughout the advanced world works councils perform this function, usually with members elected by employees, independent of collective bargaining,\" he wrote. He added that \"American employers who want their workers to have some representation at their workplace that falls short of collective bargaining\" should be able to do so without having to break the law. He said that a similar system in Canada works well. He noted that many American employers were already doing this even though the law bans it. Moreover, it would help give unionless workers more of a voice on the job. But unions oppose this idea, asserting that it could lead to management-dominated committees and could convince many workers that they do not need a union. The symposium was cosponsored by the National Labor Relations Board and George Washington University