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. It also created an agency called the National Labor Relations Board (Board) to administer and enforce the act. 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. Three-Quarters of U.S. Workers Have Collective Bargaining Rights

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. However, other federal, state, or local statutes cover some private sector workers as well as those public workers who currently have rights. Federal, state, and local government workers were excluded from the NLRA in 1935. Since 1959, federal, state, and local laws have extended rights to some of the groups excluded under the NLRA’s coverage. 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. Two Recent Supreme Court Cases Could Affect Gains in Coverage over the Last 40 Years

Under two recent Supreme Court rulings, some workers currently with bargaining rights may either lose bargaining rights or have their rights diminished. 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. Kentucky River Requires a Determination of Supervisory Status on a Case-by-Case Basis

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. About 5.5 Million Undocumented Alien Workers Have Rights Diminished

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 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.
What GAO Found

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.