Collective Bargaining Rights: Information on the Number of Workers with and without Bargaining Rights
Published: 2002-09-13T00:00:00

Fast Facts:

Highlights:
section_title: What GAO Found
paragraphs: In 1935, the federal National Labor Relations Act provided U.S. workers the right to bargain over wages, hours, and other terms and conditions of employment with their employers, forming the framework for collective bargaining in the United States. The Act allowed workers to join together to form unions and required that employers recognize certified employee unions and bargain "in good faith." Although the Act applied broadly to "employees," it and subsequent amendments excluded certain groups of workers from its coverage. Three-quarters of the civilian workforce--or 103 million of the 135 million people in the labor force as of February 2001--had some form of collective bargaining rights from federal, state, or local statutes. In contrast, 32 million civilian workers were without collective bargaining rights under any law, either federal and state. The portion of the total labor force with collective bargaining rights has likely increased since 1959. Since 1959, no major group of workers has lost bargaining rights under the Act. However, other federal, state, and local laws have extended rights to some workers in the groups excluded from the Act, providing bargaining rights to 14.5 million workers, primarily nonprofit health care workers; federal, state, and local government workers; and agricultural workers. Under two recent Supreme Court cases affecting National Labor Relations Board decisions, some workers currently with bargaining rights may either lose bargaining rights or have their rights diminished. In the Kentucky River decision, the Supreme Court ruled that the Board should revise its test for determining whether a worker is a supervisor, and excluded group under the Act, finding that the Board's test served to categorically include certain employees as covered under the act. Because any future tests used by the Board to determine whether or not employees are supervisors should be less categorical and more case-specific, the Kentucky River decision could increase the number of employees considered supervisory and thus excluded from coverage under the act. In the case of Hoffman Plastic, the Court reversed the Board's decision to award back pay to an undocumented alien worker who was fired for union activity. Although the Court did not exclude undocumented alien workers from protection under the Act, it prohibited the Board from awarding back pay to these documented alien workers whose rights had been violated, stating that this remedy would conflict with federal immigration law.

section_title: Letter
paragraphs: In 1935, the federal National Labor Relations Act (NLRA), also known as the Wagner Act, provided many U.S. workers the right to bargain over wages, hours, and other terms and conditions of employment with their employers, forming the framework for collective bargaining in the United States. The NLRA not only allowed workers to join together to form unions, but also required that employers recognize certified employee unions and bargain “in good faith.” While the NLRA applied broadly to “employees,” it and subsequent amendments excluded certain groups of workers from its coverage. Since then, other federal, state, and local statutes have provided rights to some persons in these excluded groups.
As Congress reviews the extent that American workers have bargaining rights, you asked us to determine and assess (1) how many workers have statutory collective bargaining rights in the current civilian U.S. workforce, (2) the types and numbers of workers without such rights, (3) how the extent of collective bargaining rights among the workforce may have changed during the past 40 years and (4) the potential impact of two recent Supreme Court decisions—the Kentucky River and Hoffman Plastic cases—on the types and numbers of workers without collective bargaining rights.
To provide you with this information, we reviewed the NLRA of 1935 and subsequent amendments and Supreme Court decisions and National Labor Relations Board (Board) cases with regard to the scope of the act’s coverage. We also identified and reviewed those other federal, state, or local statutes that provide collective bargaining rights to employees. We met with staff, Board members, and the General Counsel of the Board and outside organizations and experts to assist in our review. We then developed a methodology, using data from the February 2001 Current Population Survey (CPS) Supplement collected by the Bureau of the Census and from other data sets, to construct a quantitative estimate of the percentage of the labor force that currently has statutory collective bargaining rights. Our work was conducted between November 2001 and June 2002 in accordance with generally accepted government auditing standards.
subsections: section_title: Background
paragraphs: The NLRA, enacted in 1935, is the cornerstone of labor relations and collective bargaining in the United States, providing the basic framework governing private sector labor-management relations. It provides employees the right to form unions and bargain collectively and requires employers to recognize employee unions that demonstrate support from a majority of employees and to bargain in good faith. The act includes the payment of back pay and the reinstatement of employment as remedies for certain violations of the act. It also created an agency called the National Labor Relations Board (Board) to administer and enforce the act. Subsequently, in 1947, the Taft-Hartley Act and the Landrum-Griffin Act in 1959 amended the NLRA, among other things, to clarify coverage under the NLRA, prohibit certain union activities, and set requirements on union governance. Together, these statutes established the basic policies and procedures under which most private sector collective bargaining still operates today.
Although the NLRA applies in general to all “employees,” certain groups of workers are excluded from its provisions, either by express statutory language in the original act and its amendments or by Board or judicial interpretation. Among the groups of workers excluded from the act are (1) supervisors and managers; (2) independent contractors; (3) employees of certain small businesses; (4) domestic workers; (5) agricultural workers; and (6) federal, state, and local government employees. These categories of excluded workers have been defined through various tests, which the Board can apply to determine coverage of the act. For example, the act sets forth a three-part test for determining supervisory status. Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of 12 listed supervisory functions—hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibility to direct them, to adjust their grievances, or effectively to recommend such action; (2) their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment; and (3) their authority is held in the interest of the employer.
While the NLRA underpins much collective bargaining activity in the United States, other federal, state, and local statutes also provide bargaining rights to many individuals excluded from the NLRA, particularly government workers and agricultural workers. The bargaining rights and procedures under these statutes generally differ from those under the NLRA, with variation in important areas such as what may be bargained for, and how disputes are handled. For example, many state laws covering public employees prohibit the right to strike, while the NLRA does not.
section_title: Three-Quarters of U.S. Workers Have Collective Bargaining Rights
paragraphs: We estimate that about 103 million workers had collective bargaining rights in their primary job in February 2001. These workers constituted about 77 percent of the 135 million people in the civilian workforce. The percentage of workers with bargaining rights varied among industries and between the private and public sector. As certain workers are not covered under the NLRA but rather under various other federal, state, and local statutes, not all workers—particularly agricultural workers and public sector workers—have rights equivalent to those under the NLRA.
subsections: section_title: Private Sector Coverage Varies by Industry while Public Sector Coverage Varies by State
paragraphs: Nearly an estimated 90 million private sector workers had collective bargaining rights, about 78 percent of all persons who worked for private employers. (See fig.1.) The percentage of covered private sector workers varied by industry, with certain industries having coverage below 70 percent—agriculture/forestry, construction, and finance/real estate. Coverage also varied between the private and public sectors, with overall coverage among government workers (about 66 percent of 20 million workers) markedly lower than that among all private sector workers. Figure 2 compares the number of workers with bargaining rights with the total number of workers, by industry.
Coverage varied largely with the proportion of excluded workers across each industry. However, in general, the industries with the lowest coverage rates were also those with a greater proportion of independent contractors. (See fig. 3.)
Among public sector workers, uneven coverage among states led to the relatively low percentage of workers with bargaining rights. While 26 states and the District of Columbia have laws that provide collective bargaining rights to essentially all public employees, 12 states essentially do not have any laws for collective bargaining among state and local employees. The remaining 12 states have laws that provide bargaining rights to specific groups of workers (e.g. state workers, teachers, or firefighters) but not to all state and local government workers.
section_title: Bargaining Rights Conferred under Other Laws Are Not Identical to Those under the NLRA
paragraphs: Among workers with bargaining rights, most are covered by the federal NLRA. However, other federal, state, or local statutes cover some private sector workers as well as those public workers who currently have rights. While some of these statutes provide broader rights than those available under the NLRA, other statutes offer substantially fewer rights than those provided by the NLRA. Although we did not attempt to either catalog or assess the other bargaining statutes, we did outline some of their key differences.
Within the private sector, airline and railroad employees have somewhat different collective bargaining rights than other workers. Airline and railroad employees are covered by the federal Railway Labor Act, a law that predates the NLRA by 9 years. Among other differences, the Railway Labor Act applies to “all subordinate officials,” thereby permitting many supervisory employees to join in collective bargaining.
While agricultural workers are excluded from the NLRA, nine states provide these workers with bargaining rights. However, these statutes vary from the NLRA’s provisions. For example, in Arizona the state agricultural statute has different standards for bargaining unit determination than the NLRA. California also has different standards for bargaining unit determination than the NLRA and allows agricultural workers to use secondary boycotts, actions prohibited under the NLRA.
Within the public sector, where federal, state, and local government workers rely on an array of federal, state, and local statutes for bargaining rights, most workers are prohibited from striking. Although some states allow certain workers the right to strike for at least some employees,many states provide compulsory binding interest arbitration (a procedure unavailable under the NLRA that requires an arbitrator to resolve differences in the event of an unsettled dispute between the union representing the employees and the employer).
section_title: Over 32 Million Workers Do Not Have Collective Bargaining Rights
paragraphs: We estimate that about 32 million workers currently do not have any collective bargaining rights. These workers include over 25 million private sector workers—8.5 million independent contractors, 5.5 million employees of certain small businesses, 10.2 million managers and supervisors (including 8.6 million first-line supervisors), 532,000 domestic workers, and 357,000 agricultural workers. Those groups without rights also include over 6.9 million federal, state, and local government employees. In general, these workers do not have bargaining rights under any federal or state statute.
subsections: section_title: About 7 Percent of Private Workforce Were Independent Contractors, Not Employees
paragraphs: About 7 percent (8.5 million) of all private sector workers classified themselves as independent contractors in February 2001. The percentage of independent contractors in private sector industries varied widely. For example, for the construction sector this figure was 19 percent and for the manufacturing sector it was 1.5 percent. (See fig. 3.) Although the NLRA specified that its provisions applied to employees, it was not until the 1947 Taft-Hartley amendments that “independent contractors” were expressly excluded from the act. Traditionally, the Board and the Supreme Court have looked at the factual circumstances underlying the relationship between the worker and the employer to determine whether the worker is an independent contractor or an employee.
section_title: About 5 Percent of Private Sector Workers Employed by Firms Too Small for Board Jurisdiction
paragraphs: Although the NLRA provides the Board with broad jurisdiction, the Board’s jurisdiction does not extend to retail employers with annual dollar sales volumes less than $500,000 and many non-retail employers with sales volumes less than $50,000. Since the standards were modified in 1958, the annual dollar sales volumes in the standards have remained unchanged.
We estimate in February 2001 that about 5 percent (5.5 million) of private sector workers were employed in firms with dollar sales volumes below the Board’s jurisdictional reach. For most industries, the percentage of employees excluded under these standards is very small—less than 1 percent for mining, construction, and manufacturing. However for retail trade, the $500,000 sales limit excludes about 12 percent of all workers in that industry (about 2.6 million workers). The standards also exclude 11 percent of the workers in the finance/real estate sector (mainly real estate brokers) and 4 percent of service workers. (See app. I.)
section_title: Supervisors and Managers Are the Largest Group of Employees without Collective Bargaining Rights
paragraphs: We estimate that about 10.2 million (including 8.6 million first-line supervisors) of 115 million private sector workers were either first-line supervisors or higher-level managers in February 2001. This group comprised about 9 percent of the total private sector labor force. Although the original NLRA, as enacted in 1935, was silent on the exclusion of supervisors and management officials, early Board rulings interpreted the NLRA as excluding managers from its protections. However, whether supervisors—particularly the first-line supervisors (or the so-called “foremen”)—should be excluded as managerial officials was much debated in the years following the enactment of the NLRA in 1935. In 1947, the Taft-Hartley amendments to the NLRA specifically excluded supervisors from coverage of the NLRA. The Board and the courts continue to interpret the act as excluding managers.
section_title: Over One-Half Million Employees Excluded as Domestic Workers
paragraphs: Domestic workers—“domestic servants” employed by any homeowner or resident of the home in which the services are rendered—have been expressly excluded from NLRA since 1935. Moreover, most if not all states that enacted labor relations acts similar to the NLRA expressly excluded domestic workers. In February 2001, there were about 658,000 domestic workers in private households. However, about 20 percent of these workers were classified as wage employees working as independent contractors. Therefore, in our analysis, these workers were counted as independent contractors, while the remaining 532,000 were considered domestic workers.
section_title: About 357,000 Agricultural Workers Excluded from Bargaining Rights
paragraphs: In 1935, the NLRA excluded any individual employed as an “agricultural laborer.” Due to the federal exclusion of agricultural laborers, nine states have either enacted a separate agricultural labor relations act (Arizona, California, Oregon, and Maine) or did not expressly exclude agricultural workers in a state labor relations act (Hawaii, Massachusetts, New Jersey, and Wisconsin), with one state (Kansas) in both categories. Thus, agricultural workers have obtained some collective bargaining rights under these state statutes. In February 2001, we estimate about 680,000 agricultural workers whose primary job included “any task associated with running or manufacturing a farm.” Approximately 357,000 of these workers resided in a state that had some bargaining rights for agricultural workers. Thus, about one-half of all agricultural workers were without federal or state bargaining rights.
section_title: About 6.9 Million Public Employees Do Not Have Bargaining Rights
paragraphs: We estimate that about 6.9 million federal, state, and local government workers out of about 20 million government workers did not have collective bargaining rights as of February 2001. These include about 900,000 federal employees who are not eligible to collectively bargain either because they are considered management employees or because they work for a noncovered agency. They also include state and local public employees in the 12 states without bargaining rights, and those in the 12 states where only some of the employees have rights. The other 13 million workers have some collective bargaining rights.
Federal, state, and local government workers were excluded from the NLRA in 1935. For many federal employees, the Federal Service Labor Management Relations Statute provides collective bargaining rights, specifically for employees of most executive branch agencies as well as employees of the Library of Congress and the Government Printing Office. In addition, all but 12 states have some collective bargaining rights for at least one group of government worker, and 26 states as well as the District of Columbia have collective bargaining procedures that cover most public employees.
section_title: Percentage of Total Labor Force with Bargaining Rights Likely Increased Since 1959
paragraphs: Our analysis of available data suggests that the proportion of the labor force with statutory collective bargaining rights has likely increased since 1959. Over this period, no major groups of workers have lost collective bargaining rights, and about 14.5 million workers have gained bargaining rights through the enactment of federal, state, and local laws. In addition, the proportion of the labor force employed in small businesses that are excluded from NLRA’s jurisdiction has likely declined, because the standard for determining NLRA’s jurisdiction dollar sales volume has not been corrected for inflation. While some excluded groups like independent contractors, managers, and supervisors may have increased in size, it is unlikely that their growth was sufficient to offset the gains in the number of workers obtaining rights.
subsections: section_title: About 14.5 Million Workers Gained Bargaining Rights Since Last Major Exclusion in 1959
paragraphs: The major categories of workers excluded from the NLRA—managers and supervisors, independent contractors, employees of small businesses affected by the Board’s jurisdiction standards, agricultural workers, domestic workers, government workers, and workers covered by the Railway Labor Act—were all established by 1959. The original 1935 act excluded agricultural workers, domestic workers, government workers, and workers covered by the Railway Labor Act. Subsequently, supervisors and independent contractors were excluded in 1947, and between 1950 and 1959, the Board set size standards for determining which small businesses would be under its jurisdiction based on annual dollar sales volume.
Since 1959, federal, state, and local laws have extended rights to some of the groups excluded under the NLRA’s coverage. Federal laws allowed many federal workers bargaining rights, and added nonprofit health care workers to those covered by the NLRA. State and local statutes provided bargaining rights to many state and local government workers, as well as to many agricultural workers. We estimate that about 14.5 million workers in today’s workforce have bargaining rights as a result of the federal, state, and local laws enacted since 1959. (See table 1.)
section_title: Net Increase Likely since 1959, Even with Growth in Some Major Excluded Groups
paragraphs: Our analysis of available data on the key groups of employees excluded under the NLRA suggests that the extent of collective bargaining rights among the total civilian U.S. workforce has increased since 1959. The number and proportion of public employees and supervisors with bargaining rights increased over this period, and the effects of inflation on the Board’s small business jurisdictional exclusions have likely reduced the number of small business employees excluded from the act. The proportion of the labor force with bargaining rights has increased even with the conservative assumptions that the percentage of the labor force in businesses excluded from the Board’s jurisdiction has not changed since 1959, not correcting for the extension of bargaining rights to nonprofit health care workers. It also assumes that the proportion of the labor force excluded as independent contractors, managers, and supervisors had more than doubled over this period. (See table 2.)
section_title: Two Recent Supreme Court Cases Could Affect Gains in Coverage over the Last 40 Years
paragraphs: Under two recent Supreme Court rulings, some workers currently with bargaining rights may either lose bargaining rights or have their rights diminished. The Kentucky River ruling affected the test that the Board uses to determine supervisory status, a status that can determine coverage of the act and, therefore, bargaining rights. The Court ruled that the Board’s test was inconsistent with the NLRA in that it introduced a categorical restriction on the term “independent judgment,” a key concept in the statutory definition of a supervisor. Because any future tests used by the Board to determine whether or not employees are supervisors should be less categorical and more fact-specific, the Kentucky River decision could have the effect of increasing the number of employees considered supervisory and thus excluded from coverage under the act. Given that the Board has not yet devised alternative tests in response to the opinion, we are unable to estimate the number of employees who could potentially be deemed supervisors as a result of this decision. In the Hoffman Plastic case, the Supreme Court ruled that undocumented alien workers were not eligible for back pay under the NLRA. This case did not exclude undocumented alien workers from coverage of the NLRA; however, because back pay is one of the major remedies available for a violation, this decision diminished the legal bargaining rights available to these workers under the act. We estimate that this group of workers potentially affected by this decision numbers about 5.5 million.
subsections: section_title: Kentucky River Requires a Determination of Supervisory Status on a Case-by-Case Basis
paragraphs: In the Kentucky River case, the Court ruled that the Board should revise its test for determining supervisory status, a status that can determine coverage under the act and, therefore, bargaining rights, for certain groups of employees, in this instance, charge nurses. Specifically, the case focused on the portion of this test that examines whether the nurses’ exercise of supervisory authority is not merely routine, but requires the use of “independent judgment.” A previous line of Board decisions stated that employees did not use independent judgment when they exercised “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards” and thus were not supervisors excluded by the act’s coverage. The Board reasoned, in this line of cases, that judgment informed by professional or technical training or experience is not “independent,” and thus, the employee should not be considered to be a supervisor.
The Court rejected the Board’s test in determining supervisory status and held that for employees involved, the question of supervisory status turns on whether the employee is exercising independent judgment. This determination, according to the Court, must be based solely on the degree of judgment exercised by the employee, not the type of judgment, that is, professional or technical. For this group of employees, the Court would not accept an automatic or categorical finding that they are not supervisors; rather, on a case-by-case basis, the Board must focus solely on the degree of independent judgment that the employee exercises.
Because any future tests used by the Board to determine whether or not certain employees are supervisors should be less categorical and more fact-dependent, the Kentucky River decision could have the effect of increasing the number of employees considered supervisory and thus excluded from coverage under the act. However, given the uncertainty of the Board’s response to the opinion and the fact-intensive nature of the legal tests involved, we are unable to estimate the number of employees who could potentially be deemed supervisors as a result of the Kentucky River case.
section_title: About 5.5 Million Undocumented Alien Workers Have Rights Diminished
paragraphs: The Supreme Court ruling in the Hoffman Plastic case reversed a Board decision awarding back pay, a key remedy under the NLRA, to undocumented alien workers. The case involved a Board decision concerning an employer’s termination of an undocumented alien worker to rid itself of known union supporters, a violation of the act. The Board had ruled that the employer should award back pay and conditional reinstatement and, in doing so, applied the protections and remedies of the act to undocumented alien workers in the same manner as it does to other workers. The Supreme Court reversed this decision and ruled that back pay remedies cannot be awarded to an undocumented alien because such awards are in conflict with the Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful for employees to use fraudulent documents to establish employment.
To remedy a violation of the NLRA, the Board had traditionally found that unlawfully discharged employees were entitled to unconditional reinstatement with back pay to make them whole for any losses they may have suffered because of the unlawful layoffs. The Board maintained that the congressional objective of deterring unauthorized immigration embodied in IRCA and the labor law protections of the NLRA are complementary. Specifically, according to the Board, coverage of undocumented workers by the NLRA furthers IRCA’s goals by helping to both ensure reasonable working conditions by decreasing competition from illegal aliens willing to accept substandard wages and employment conditions and to eliminate economic advantages—and thus incentives— to employers for hiring undocumented workers in preference to American citizens or alien employees working lawfully. The Board, therefore, concluded that awarding back pay effectuates the policies of both IRCA and NLRA.
While the Court acknowledged that the NLRA vests the Board with broad discretion in choosing an appropriate remedy where it has substantiated an unfair labor practice, the Court concluded that awarding back pay to undocumented alien workers lies outside the limits of the Board’s discretion. Although the Court’s decision reinforces the goals of federal immigration policy, it diminishes the legal protections available to undocumented alien immigrant workers under the NLRA. Back pay is an important remedy under the act because it provides an incentive to report law-violating behavior and imposes financial penalties on an employer and job protection for the workers.
Adjusting year 2000 U.S. Census data on the foreign-born population, we estimate a total of 8.7 million undocumented immigrants, of which 7.1 million are between the ages of 18 and 65. Applying an estimate that 77 percent of private sector workers have collective bargaining rights under the NLRA, we calculated that approximately 5.5 million unauthorized immigrants are in the workforce and have collective bargaining rights under the NLRA. We were unable, however, to disaggregate this number by industry.
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section_title: Appendix I: Methodology
paragraphs: Our methodology consists of a review of key statutes, National Labor Relations Board and U.S. Supreme Court decisions, a statistical analysis of several national representative data sets, and discussions with Board staff and officials and organizations that are active and familiar with bargaining rights outside of the National Labor Relations Act of 1935 (NLRA). The organizing concept for the review of key statutes and the statistical analysis was the NLRA (or the Wagner Act). We reviewed the original act and subsequent amendments, and Supreme Court and Board decisions to identify those segments of the labor force that were excluded from coverage under the act. We then conducted a review of other relevant federal, state, and local laws to identify those excluded workers who obtained bargaining rights from other statutes. We consulted with Board staff and representatives of several outside organizations for their technical advice. Once we completed this review, we used a variety of nationally representative data sets to construct a quantitative estimate. Using an estimate of the workforce in February 2001, we subtracted those groups of workers identified as excluded from the NLRA and then added back those groups of workers who obtained bargaining rights from other laws.
subsections: section_title: Legal Review
paragraphs: The NLRA is the central law governing private sector labor management relations in the United States. We reviewed the NLRA and subsequent amendments to identify the key groups of employees who were excluded from coverage under the act. We also reviewed pertinent Supreme Court and Board decisions affecting the act’s scope of coverage. In particular we analyzed Kentucky River and Hoffman Plastic Supreme Court decisions. We identified and reviewed those other federal state and local laws that provided certain bargaining rights to employees excluded from coverage under the NLRA. These include the Railway Labor Act and the Federal Service Labor-Management Relations Statute.
section_title: Definition of Bargaining Rights
paragraphs: An important issue in this analysis is the definition of bargaining rights. There is variation in the rights provided under the NLRA, the Railway Labor Act and the many state and local laws governing collective bargaining. These differences span a host of issues, from the procedures governing representation elections, the right to strike, and binding arbitration, to the scope of bargaining and the remedies for violations. Although the right to strike could be considered part of a “core definition of bargaining rights,” we based our definition on the concepts of union recognition—permitting individuals to join together and form unions and the requirement that employers recognize employee organizations—and “good faith bargaining”—bargaining with intent to reach an agreement.These are key elements of the rights granted under the NLRA.
Different definitions of collective bargaining rights would likely lead to different empirical estimates of the percentage of the labor force that has bargaining rights. However, because of the predominance of the NLRA and the Railway Labor Act in the private sector, most of the differences among laws occur in the public sector. Thus, for many alternative definitions, for example, one based on the right to strike, the change in the percent of the labor force with rights would be largely limited to changes in the number of public employees who had this right.
section_title: Workforce Estimations and Analysis
paragraphs: To develop our quantitative estimates of the number of workers with collective bargaining rights, we started with an estimate of the total labor force and then subtracted those groups of workers we identified as excluded from coverage under the NLRA. We then added back those groups of excluded workers who obtained bargaining rights from other statutes.
For our quantitative estimates, we relied on the February 2001 Current Population Survey (CPS) Supplement collected by the U.S. Bureau of the Census. We used the CPS to estimate the total percentage of workers in the civilian labor force with collective bargaining rights on their primary jobs because it is a nationally representative dataset that also has information available for independent contractors, a key group excluded from coverage under the NLRA. Using the CPS, we adjusted our estimates for six key groups excluded from coverage under the NLRA: (1) supervisors and managers; (2) independent contractors; (3) employees of certain small businesses; (4); domestic workers; (5) agricultural workers; and (6) federal, state, and local government employees. We did not attempt to construct estimates for the other groups excluded under the NLRA, for example, religious organization employees and student employees, because reliable data were not readily available. Because these other groups are small, we believe that their exclusion from our estimates would have only a small effect.
subsections: section_title: Self-employed Persons and Independent Contractors
paragraphs: Using CPS data, we first subtracted out sole proprietors or the “self- employeds”—those persons identifying themselves as self-employed but not independent contractors—from our labor force estimates. Independent contractors are all those who were identified as independent contractors, consultants, and freelance workers in the supplement, regardless of whether they were identified as wage and salary workers or self-employed in the responses to basic CPS labor force status questions. For our group of independent contractors, we added together those persons identifying themselves as being self-employed and independent contractors and those who identified themselves as wage/salary workers and independent contractors and subtracted this total from the total civilian labor force. The CPS defines independent contractors as workers who typically have control and judgment over how contracted services are performed and, therefore, they decide the time and place the work is done, supply their own necessary tools and instruments, and have a risk of financial profit or loss. They also typically perform work that requires a particular skill not ordinarily used in the course of business. About 88 percent of independent contractors were identified as self-employed in the main questionnaire, while 12 percent were identified as wage and salary workers. Conversely, about half of the self-employed were identified as independent contractors. Workers identified as self-employed in the basic CPS are those workers who obtain customers on their own to provide a product or service.
section_title: Employees of Small Businesses with Annual Dollar Sales Volumes Below the Board Jurisdictional Limit Standards
paragraphs: Although the Board has broad jurisdiction under the NLRA, it typically declines jurisdiction over certain small employers with annual dollar sales volumes less than a specified level as well as employers who meet certain other criteria. (See table 3.) However, the CPS does not identify workers by firm size, where size is determined by annual dollar sales volume of the firm. To identify those employees who would be excluded under the Board’s jurisdictional standards, we applied these sales volume standards to 1997 data we obtained from the Small Business Administration (SBA). SBA periodically requests that the Census calculate the number of employees employed by firms with specific dollar sales volumes, by industry classification. We chose the SBA data because this was the only dataset available that categorically separates each industry by volume of sales receipt. We chose data for 1997 because that was the most recent data available that still used the Standard Industrial Classification (SIC) code system of industry classification and thus would be comparable with the classification used in the CPS. The SBA data identifies the number of workers by firms’ annual dollar sales volumes so that we were able to calculate the number of employees with and without bargaining rights according to the Board’s jurisdictional standards. We estimated the exclusionary effect of the Board’s small business jurisdictional standards by calculating a percent of employees in each industry who would be employed by a firm with annual dollar sales below the Board’s standard and thus exempt under the Board’s guidelines. We then applied these industry exclusion percentages to the February 2001 CPS Supplement estimates of the total number of workers in each industry classification, yielding a number of excluded workers for each industry classification.(See fig. 4.) Once we estimated these excluded industry totals, we subtracted them from the CPS labor force total. Summing all of the industry totals provides an estimate of the total number of employees effectively excluded from NLRA coverage by the Board’s jurisdictional standards. We did not attempt to estimate those Board jurisdictional standards that did not specify an annual dollar sales volume.
section_title: Supervisors/Managers
paragraphs: The NLRA also excludes managers and supervisors from coverage. To estimate the percentage of managers and supervisors by industry, we used data from the 1997 Bureau of Labor Statistics’ National Compensation Survey (NCS). The NCS provides recent nationally representative employer-reported data on job duties at the establishment level, permitting the estimation of the number of jobs in a particular industry that are supervisory or managerial in nature. Among the information collected in the job survey is a ranking or leveling factor measuring supervisory duties. This factor is designed to account for the additional responsibilities of supervisors and to indicate the hierarchical level of the positioning of the organization. Using this generic leveling factor, jobs are classified according to their supervisory duties. (See table 4.) .
We obtained NCS-based estimates of the supervisory level percentages for wage and salary employees with full-time status by industry. We then applied these percentages to the CPS full-time workforce estimates by industry to estimate the number of full-time managerial and supervisory employees. We defined supervisors as first-line supervisors and managers as second-line and third-line supervisors.
We assume the industry percentage of supervisors applies to all firms in an industry regardless of size. To avoid double counting, we applied the NCS industry level supervisor percentages to the CPS total labor force estimate of full-time wage and salary workers by industry net of the small business exclusion. To calculate the percentage of workers excluded as managers and supervisors, we divided the total number of full-time supervisors by the total number of private sector employees. To the extent that managers and supervisors are part-time employees, we underestimated the total number of employees in that category, although we believe that this number is small.
The NCS, while it provides reasonable data to estimate the number of supervisors excluded under the NLRA, has several limitations. The NCS data used in this report were collected in 1996 and thus may not completely reflect the hierarchical structure of establishments in 2001. In addition, the NCS data are based on a description of jobs, and while reasonable conceptually, it is not strictly comparable with our worker- based estimates from the CPS. In addition, there were certain occupations that could not be leveled (e.g., musicians), and there are some small groups of jobs that were restricted to a certain level (e.g., personnel managers were restricted to supervisory duties of the first tier or higher). However, we believe that these limitations are probably not large enough to have a significant effect on our estimate.
section_title: Domestic Workers
paragraphs: The NLRA excludes coverage of domestic workers. Using the February 2001 CPS, we estimated the number of domestic workers to be excluded by first focusing on the personal service/private household (SIC 761). Within that SIC, we then defined domestic workers as employees in the following Standard Occupational Classification (SOC) codes: laundry/ironers: 403, cooks 404, child-care providers 406, and cleaner/servant/housekeeper 407. We summed the total number of employees in these SOC codes to estimate the number of those excluded in this category and then subtracted them from the CPS total labor force.
section_title: Agricultural Workers
paragraphs: Using the U.S. Department of Agriculture (USDA) definition for “hired hands,” we estimated all excluded agricultural workers from the CPS estimates for agricultural wage and salary workers. USDA defines hired hands as SOC 475 for managers, farms, excluding horticultural; 476 for managers, horticultural specialty farms; 477 for supervisors, farm workers; 479 for general farm workers; and 484 for general nursery workers. We used these same SOC codes as a definition to exclude agricultural workers from the workforce in the CPS. Because nine states have separate laws that give agricultural laborers bargaining rights with either (1) an agricultural labor act or (2) private employer labor relation acts without exclusion of agricultural workers, we added the estimates of agricultural workers from these states back into the total estimate to account for state and local laws. The estimated number of total agricultural workers in the CPS is likely low because the CPS tends to undercount agricultural workers and February is often the low employment month for many crops. It is unclear how these factors affect our estimate of the number of agricultural workers with collective bargaining rights.
section_title: Public Employees
paragraphs: Although the NLRA excludes public employees from coverage, many public employees have rights under other laws. To estimate the number of state and local public employees with rights, we used data from the 2000 Census Annual Survey of Government Employment, a data source that provides detailed information on state and local government employees. We applied all of the state and local laws that excluded certain occupations from coverage—in many cases police officers, firefighters, and teachers—to estimate a percentage of workers with collective bargaining rights within those occupations. We applied a similar methodology for federal employees. Starting with the CPS estimates for the total number of federal employees, we first subtracted the number of employees in the legislative and judicial branches of government and in the U.S. Postal Service, using their relative shares of federal employment as estimated in using the Federal Civilian Workforce Statistics: Employment and Trends as of March 2001. We then adjusted for those agencies, for example, the Central Intelligence Agency, who have been exempted from bargaining rights. We then calculated the percentage of federal employees who were managers or supervisors using the September 2001 Office or Personnel Management’s Central Personnel Data File (CPDF) and reduced the remainder by the number of exempted manager and supervisors in the executive branch workforce. For postal workers, we applied the percentage of the postal workforce estimated by the U.S. Postal Service to be management employees and then added the remainder back to the number of net non-postal federal workers to obtain a total number of federal employees with bargaining rights.
section_title: Definitional Differences Between the CPS, NCS, and NLRA
paragraphs: While our datasets define many of the employee categories relevant to the NLRA, few of these groups are definitionally identical to those specified in the NLRA. (See table 5.) For example, although we were able to use the NLRA’s definitions to estimate the number of employees excluded by the Board’s small business jurisdictional standards, the definitions of independent contractors, supervisors, and agricultural workers from the datasets that we used are not identical to the NLRA’s definitions. To the extent that the definitions of these groups we use in our datasets operationally diverge from the NLRA, our estimates may not accurately capture the size of the NLRA’s defined groups. However, we believe that there is considerable overlap between the two sets of definitions and that there is no systematic bias that we can identify in using the CPS and other datasets to estimate the NLRA categories.
section_title: Estimation of the Number of Undocumented Alien Workers
paragraphs: We also constructed an estimate of the undocumented alien immigrant population that could have their rights diminished by the Hoffman Plastic decision. To construct this estimate, we used the U.S. Census Bureau’s estimated number of 8.7 million for the residual foreign-born population (see table 6) and adjusted it for a variety of factors. First, to estimate the number of eligible workforce participants, we counted only those above the age of 18 and below 65 in the 8.7 million number, yielding a total of about 7.1 million persons. (See table 6.) We then accounted for the percent that are likely to be covered by collective bargaining rights in the workforce. We apply an estimate of the private sector labor force covered by the NLRA of 77 percent to obtain an estimate of about 5.5 million persons (5,485,538). Although the bulk of this estimate contains undocumented alien workers, it also includes a small group of so-called quasi-legal residents; persons who are in a variety of transitional immigrant categories but at the time do not have explicit legal or illegal status.
There were several limitations to consider when determining the estimate of undocumented alien immigrants due to the characteristics and circumstances of this population. We include the quasi-legal population in the residual foreign-born estimate because it includes people who are waiting for action to be taken on their legal migration requests. We included this group in our total estimate because they were assumed to be illegal at the time they were counted in the Census.
To obtain an estimate of the workers affected by the Hoffman Plastic decision, we assumed that the distribution of undocumented alien workers across industries was identical to that of the total civilian labor force. Our methodology for the entire workforce was conducted in February 2001 while the Census estimates are for the entire year of 2000. In addition, although undocumented alien workers are likely not to be distributed in this manner, it is unclear what their distribution is. For example, undocumented alien workers are probably less likely to be employed in government employment, although they may be more likely to work in small businesses that are exempt from Board jurisdiction and as domestic workers. In addition, we based our assumption that the percentage of private sector workers with collective bargaining rights under the NLRA (77 percent), on our private sector estimate of 78 percent, and then corrected for coverage under the Railway Labor Act. However, there is a high percentage of undocumented alien workers in agriculture, another industry excluded from the NLRA, suggesting that the 77 percent may be an overestimate. On the other hand, undocumented workers may be more likely to be rank and file workers rather than supervisors and thus covered by the NLRA. We also assumed 100 percent Census coverage of the foreign-born population, although, historically, Hispanic populations have been undercounted in the Census, and the majority of undocumented alien immigrants are of Hispanic origin. Such an undercount would imply that our estimate is an undercount as well. However, there is currently no available data on the size of the undercounted population in the Census.On balance, the 77-percent estimate appears to represent a reasonable approach.
section_title: Estimates of the Percentage of the Labor Force with Collective Bargaining Rights Based on “Jobs” Data
paragraphs: We chose to estimate the percentage of the labor force with bargaining rights using data based on persons because bargaining rights is a concept associated with persons and not jobs. However, because some workers are multiple jobholders, it is possible that deciding whether workers have rights on the basis of their primary job could result in discrepant misclassifications. An alternative methodology would be to identify those jobs that would confer rights to individuals. Using the 2001 Current Employment Statistics Survey (CES) that collects information through the survey of employers, we constructed estimates for the percentage of the non-farm non-supervisory, private labor force that would have bargaining rights and then compared the estimates with the CPS. While we found that the CES survey had a total nonfarm private workforce estimate that was somewhat higher than the CPS, our estimates for the percentage of the nonfarm private labor force with bargaining rights were quite close.
section_title: Reliability of Workforce Estimates
paragraphs: Our estimates of workers either having or not having collective bargaining rights are imprecise. For the most part, our final national population estimates are derived from data obtained from different national survey samples of the worker population taken at different times. These surveys are subject to both nonsampling and sampling errors. Nonsampling errors can stem from many sources, such as a failure to sample a segment of the population, inability to obtain information from respondents in the sample, differences in interpretation of a question, or errors made in the collection or processing of the data obtained.
Sampling errors occur because the observations used to develop an estimate are not based on the entire population but rather on one of a number of samples of the same size that could have been selected using the sample design. For any given survey, estimates derived from the different samples would differ from each other. A measure of such variation in samples, known as the standard error or sampling error, can be used to develop a confidence interval around an estimate. The confidence interval establishes an upper and lower bound on the estimate that would encompass the true population value with an expressed degree of probability.
In an effort to partially reflect the imprecision associated with our estimates, we also developed an associated estimate of an upper and lower bound to convey a range in which the true population value was most likely to fall. The estimates that we developed are based on estimates of sampling error only. We did not attempt to assess or account for the various other sources of error in the data sources we used to develop our workforce estimates of eligibility for collective bargaining. For example, we do not know nor can we assess the errors associated with using data referring to different years, based on somewhat different industry classification systems, or being collected from individuals versus establishments.
For our estimates of the following labor segments—independent contractors, domestic workers, agricultural workers, employees of certain small businesses, federal, state and local government employees, and federal, state and local government employees eligible for collective bargaining rights--we produced confidence intervals at the 95-percent level based on standard error estimates provided in the technical documentation for the February 2001 CPS.
Our confidence interval estimates for independent contractors, employees of certain small businesses, and state and local government employees were at or below + 3 percent of the figures reported. Federal employees were at or below + 6 percent of the figures reported. For domestic workers and agricultural workers, our confidence interval estimates were at or below + 15 percent of the figures reported.
We also used February 2001 CPS standard error estimates to calculate the confidence intervals for our estimates of certain labor segments by private sector industries. For all industries, our confidence intervals for estimates of the proportion that are employees of certain small businesses is + 1 percentage point or less. The independent contractor confidence intervals for all industries is + 3 percentage points or less.
For the NCS, which we used to obtain estimates of managers and supervisors in the private sector and the state and local government workforce, there were no available estimates of sampling error for employee estimates. In preparing the NCS data on occupational wages and benefits, BLS only produces measures of sampling error on earnings and not estimates of the number of employees whose job characteristics include supervisory or managerial work factors. Instead, we developed approximate estimates of sampling error using information about the allocation of the NCS sample and applying a conservative assumption of the survey’s design effect.
Our confidence interval estimate for excluded private sector managers and supervisors overall is + 18 percent of the figure reported. For first-line supervisors, our estimated interval is + 21 percent.
The multiple steps and data sources used in our estimation procedures precluded direct computation of confidence intervals for our overall estimates of workers eligible for collective bargaining either nationally or by industry. In an effort to provide some quantified bounds reflecting the imprecision of our national and overall industry estimates, we used mean and variance estimates (by industry) for various components of the overall estimates to approximate the sampling distributions for each of those components. We then used these distributions to simulate how our overall estimate would vary due to sampling.
Our overall bounds estimate for the total civilian workforce, total government workforce, and total private sector workforce eligible for collective bargaining rights is + 3 percent or less. For all industries except mining and construction, our bounds estimates of the proportion that are eligible for bargaining rights is + 6 percentage points or less. For construction, the bound is + 9 percentage points, and for mining it is + 19 percentage points.
section_title: State Labor Relations Laws
paragraphs: Although we made an effort to identify and count those workers who might have rights from laws other than the NLRA, there are some for whom we did not do so. In particular, one group of these employees would be those covered by state private sector labor relations laws (Little Wagner Acts). There are 18 states that have laws that provide collective bargaining rights to some employees who would otherwise be excluded from the federal NLRA. Of these 18 states, 17 states extend coverage to employees of small businesses, 11 states to independent contractors, 8 states include supervisors, 5 to agricultural laborers, and 1 includes domestic servants. Except for agriculture, we did not incorporate the coverage under these state laws into our quantitative estimates and on balance this would lead to an underestimation of the percentage of the labor force with collective bargaining rights.