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United States General Accounting Office: 
GAO 

Report to Congressional Requesters, U.S. Senate: 

September 2002: 

Collective Bargaining Rights: 

Information on the Number of Workers with and without Bargaining 
Rights: 

GAO-02-835: 

Contents: 

Letter: 

Results in Brief: 

Three-Quarters of U.S. Workers Have Collective Bargaining Rights: 

Over 32 Million Workers Do Not Have Collective Bargaining Rights: 

Percentage of Total Labor Force with Bargaining Rights Likely Increased 
Since 1959: 

Two Recent Supreme Court Cases Could Affect Gains in Coverage over the 
Last 40 Years: 

Appendix I: Methodology: 

Overall Approach: 

Legal Review: 

Definition of Bargaining Rights: 

Workforce Estimations and Analysis: 

Tables: 

Table 1: Number of Workers Receiving Collective Bargaining Rights from 
1959 through February 2001: 

Table 2: Net Effects of Changes in Excluded Groups on Percent of the 
Labor Force That Has Bargaining Rights, 1959 and 2001: 

Table 3: Minimum Annual Dollar Sales Volumes for Coverage under NLRA: 

Table 4: Definitions of Supervisory Leveling Factors, 1997 NCS: 

Table 5: Comparison of NLRA Definitions of Private Sector Excluded 
Groups and Those Used in GAO’s Quantitative Estimates: 

Table 6: Census Level Estimates of the Foreign-Born Population by 
Migrant Status in 2000: 

Table 7: Estimates of Residual Foreign-Born by Age: 

Figures: 

Figure 1: Private Sector Collective Bargaining Coverage and Key Groups 
with No Rights, February 2001: 

Figure 2: Comparison of Number of Workers with Collective Bargaining 
Rights with Total Number of Workers, by Industry, February 2001: 

Figure 3: Percent of Work Force That Has Collective Bargaining Rights 
and Percent Who Are Independent Contractors by Private Sector Industry, 
February 2001: 

Figure 4: Percentage of Workers Affected by the Board’s Dollar Sales 
Volume Standards, by Industry, February 2001: 

Abbreviations: 

AFSCME: American Federation of State, County, and Municipal Employees: 

BLS: Bureau of Labor Statistics: 

CES: Current Employment Statistics Survey: 

CPS: Current Population Survey: 

INS: Immigration and Naturalization Service: 

IRCA: Immigration Reform and Control Act of 1986: 

NCS: National Compensation Survey: 

NLRA: National Labor Relations Act: 

SBA: Small Business Administration: 

SIC: Standard Industry Classification: 

SOC: Standard Occupational Classification: 

USDA: U.S. Department of Agriculture: 

[End of section] 

United States General Accounting Office: 
Washington, DC 20548: 

September 13, 2002: 

The Honorable Edward M. Kennedy: 
Chairman: 
Committee on Health, Education, Labor, and Pensions: 
United States Senate: 

The Honorable Paul Wellstone: 
Chairman: 
Subcommittee on Employment, Safety and Training: 
Committee on Health, Education, Labor, and Pensions: 
United States Senate: 

In 1935, the federal National Labor Relations Act (NLRA), [Footnote 1] 
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 [Footnote 2] 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 [Footnote 3]—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. 

Results in Brief: 

We estimate that about three-quarters of the civilian workforce—or about
103 million of the approximate 135 million people in the labor force as 
of February 2001—had some form of collective bargaining rights from
federal, state, or local statutes. Among the 115 million private sector
workers, about 78 percent had bargaining rights, mostly from coverage
under the NLRA. Coverage varied among industries, being the highest
(90 percent) for the 20.4 million workers in the manufacturing sector. 
In general, coverage in the private sector was higher than that in the 
public sector, where about 66 percent of 20 million government workers 
had some form of collective bargaining rights, most often under state 
or local statutes. 

In contrast, about 32 million civilian workers were without collective
bargaining rights under any law, either federal or state. The largest 
groups without rights were about 8.5 million independent contractors; 
5.5 million employees of certain small businesses; 10.2 million 
supervisory/managerial employees (including 8.6 million first-line 
supervisors); 6.9 million federal, state and local government workers; 
approximately 532,000 domestic workers; and 357,000 agricultural 
workers. 

Our analysis of available data suggests that the proportion 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 NLRA. However, other federal, state, and local laws have
extended rights to some workers in the groups excluded from the NLRA,
providing bargaining rights to about 14.5 million workers, primarily
nonprofit health care workers; federal, state, and local government
workers; and agricultural workers. In addition, because of inflation, 
there has likely been a decline in the proportion of the labor force 
employed in small businesses with annual dollar sales volumes too small 
to be under the Board’s jurisdiction. While other excluded groups like 
managers and supervisors may have increased in size, it is unlikely 
that their growth was sufficiently large to offset the gains in the 
number of workers obtaining rights. [Footnote 4] 

Under two recent Supreme Court cases affecting 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, an excluded group under 
the NLRA, 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. The Board has not yet 
devised alternative tests in response to the decision, and given the 
case-by-case determination required by the Court, we are unable to 
estimate the number of employees that could potentially be deemed 
supervisors as a result of this decision. 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. While 
the Court did not exclude undocumented alien workers from protection 
under the NLRA, per se, it prohibited the Board from awarding back pay 
to these undocumented alien workers whose rights had been violated, 
stating that this remedy would conflict with federal immigration law. 
Since back pay is one of the major remedies available to workers for a 
violation of their rights, the Court’s decision effectively diminishes 
the bargaining rights of such workers under the NLRA. Undocumented 
alien workers potentially affected by the Hoffman decision are 
estimated to number about 5.5 million. 

Background: 

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. [Footnote 5] 
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 [Footnote 6] and the Landrum-Griffin Act in 1959 
[Footnote 7] 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. 
[Footnote 8] 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. 

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. [Footnote 9] These 
workers constituted about 77 percent of the 135 million people in the 
civilian workforce. [Footnote 10] 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. 

Private Sector Coverage Varies by Industry while Public Sector Coverage
Varies by State: 

Nearly an estimated 90 million private sector workers had collective
bargaining rights, about 78 percent of all persons who worked for 
private employers. [Footnote 11] (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. 

Figure 1: Private Sector Collective Bargaining Coverage and Key Groups 
with No Rights, February 2001: 

[See PDF for image] 

This figure is a pie-chart, depicting the following data: 

Bargaining coverage: 78%; 
Excluded groups: 22%; including: 
Supervisors: 9%; 
Independent contractors: 7%; 
Small business employees: 5%; 
Agricultural workers: 0.5%; 
Domestic workers: 0.3%. 

Source: GAO’s analysis of February 2001 CPS Supplement, the 1997 
Economic Census, and the 1997 Bureau of Labor Statistics National 
Compensation Survey. 

[End of figure] 

Figure 2: Comparison of Number of Workers with Collective Bargaining 
Rights with Total Number of Workers, by Industry, February 2001: 

[See PDF for image] 

This figure is a vertical combination bar graph illustrating a 
comparison of number of workers with collective bargaining rights with
the total number of workers, by industry, February 2001. The vertical 
axis of the graph represents total labor force in industry (in 
millions). The horizontal axis of the graph represents ten industries. 
The following data is depicted, with numbers approximated from the 
graph: 

Industry: Agriculture/Fish forestry; 
Number of workers with collective bargaining rights: 1; 
Number of workers without collective bargaining rights: 1; 
Total: 2. 

Industry: Mining; 
Number of workers with collective bargaining rights: 1; 
Number of workers without collective bargaining rights: 0; 
Total: 1. 

Industry: Construction; 
Number of workers with collective bargaining rights: 6; 
Number of workers without collective bargaining rights: 3; 
Total: 9. 

Industry: Manufacturing; 
Number of workers with collective bargaining rights: 18; 
Number of workers without collective bargaining rights: 2; 
Total: 20. 

Industry: Transportation/Utility; 
Number of workers with collective bargaining rights: 6; 
Number of workers without collective bargaining rights: 1; 
Total: 7. 

Industry: Wholesale trade; 
Number of workers with collective bargaining rights: 4.5; 
Number of workers without collective bargaining rights: 0.5; 
Total: 5. 

Industry: Retail trade; 
Number of workers with collective bargaining rights: 17; 
Number of workers without collective bargaining rights: 5; 
Total: 22. 

Industry: Finance/Real Estate; 
Number of workers with collective bargaining rights: 6; 
Number of workers without collective bargaining rights: 3; 
Total: 1. 

Industry: Services; 
Number of workers with collective bargaining rights: 29; 
Number of workers without collective bargaining rights: 9; 
Total: 38. 

Industry: Government employees; 
Number of workers with collective bargaining rights: 11; 
Number of workers without collective bargaining rights: 7; 
Total: 18. 

Source: GAO’s analysis of February 2001 CPS Supplement. 

[End of figure] 

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.) 

Private Sector Coverage Varies by Industry while Public Sector Coverage
Varies by State: 

Nearly an estimated 90 million private sector workers had collective
bargaining rights, about 78 percent of all persons who worked for 
private employers. [Footnote 11] (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. 

Figure 1: Private Sector Collective Bargaining Coverage and Key Groups 
with No Rights, February 2001: 

[See PDF for image] 

This figure is a pie-chart, depicting the following data: 

Bargaining overage: 78%; 
Excluded groups: 22%, including the following: 
Supervisors: 9%; 
Independent contractors: 7%; 
Small business employees: 5%; 
Agricultural workers: 0.5%; 
Domestic workers: 0.3%. 

Source: GAO’s analysis of February 2001 CPS Supplement, the 1997 
Economic Census, and the 1997 Bureau of Labor Statistics National 
Compensation Survey. 

[End of figure] 

Figure 2: Comparison of Number of Workers with Collective Bargaining 
Rights with Total Number of Workers, by Industry, February 2001: 

[See PDF for image] 
This figure is a multiple vertical bar graph illustrating a comparison 
of number of workers with collective bargaining rights with the total 
number of workers, by industry, February 2001. The vertical axis of the 
graph represents percent of industry from 0 to 100. The horizontal axis 
of the graph represents nine industries. The following data is 
depicted, with percent values approximated from the graphical 
representation: 

Industry: Agriculture/Fish forestry; 
Industry workforce that are independent contractors: 22%; 
Work force that has collective bargaining rights: 42%. 

Industry: Mining; 
Industry workforce that are independent contractors: 5%; 
Work force that has collective bargaining rights: 82%. 

Industry: Construction; 
Industry workforce that are independent contractors: 18%; 
Work force that has collective bargaining rights: 68%. 

Industry: Manufacturing; 
Industry workforce that are independent contractors: 2%; 
Work force that has collective bargaining rights: 86%. 

Industry: Transportation/Utility; 
Industry workforce that are independent contractors: 6%; 
Work force that has collective bargaining rights: 80%. 

Industry: Wholesale trade; 
Industry workforce that are independent contractors: 5%; 
Work force that has collective bargaining rights: 82%. 

Industry: Retail trade; 
Industry workforce that are independent contractors: 4%; 
Work force that has collective bargaining rights: 75%. 

Industry: Financial/Real Estate; 
Industry workforce that are independent contractors: 8%; 
Work force that has collective bargaining rights: 68%. 

Industry: Services; 
Industry workforce that are independent contractors: 9%; 
Work force that has collective bargaining rights: 75%. 

Source: GAO’s analysis of February 2001 CPS Supplement and the 1997 
National Compensation Survey. 

[End of figure] 

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, [Footnote 12] 12 
states essentially do not have any laws for collective bargaining among 
state and local employees. [Footnote 13] 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. [Footnote 14] 

Bargaining Rights Conferred under Other Laws Are Not Identical to Those 
under the NLRA: 

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, 
[Footnote 15] 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, [Footnote 16] 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, [Footnote 17] many states [Footnote 18] 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). 

Over 32 Million Workers Do Not Have Collective Bargaining Rights: 

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, [Footnote 19] 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. [Footnote 20] 

About 7 Percent of Private Workforce Were Independent Contractors, Not 
Employees: 

About 7 percent (8.5 million) of all private sector workers classified
themselves as independent contractors [Footnote 21] 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, [Footnote 22] 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. [Footnote 23] 

About 5 Percent of Private Sector Workers Employed by Firms Too Small 
for Board Jurisdiction: 

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. [Footnote 24] 

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.) 

Supervisors and Managers Are the Largest Group of Employees without 
Collective Bargaining Rights: 

We estimate that about 10.2 million [Footnote 25] (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. [Footnote 26] 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. [Footnote 27] 
In 1947, the Taft-Hartley amendments to the NLRA specifically excluded 
supervisors from coverage of the NLRA. [Footnote 28] The Board and the 
courts continue to interpret the act as excluding managers. 

Over One-Half Million Employees Excluded as Domestic Workers: 

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. [Footnote 29] 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. 

About 357,000 Agricultural Workers Excluded from Bargaining Rights: 

In 1935, the NLRA excluded any individual employed as an “agricultural
laborer.” [Footnote 30] 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.” [Footnote 31] 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. 

About 6.9 Million Public Employees Do Not Have Bargaining Rights: 

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. [Footnote 32] 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 [Footnote 33] 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. 

Percentage of Total Labor Force with Bargaining Rights Likely Increased
Since 1959: 

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. [Footnote 34] 

About 14.5 Million Workers Gained Bargaining Rights Since Last Major 
Exclusion in 1959: 

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.) 

Table 1: Number of Workers Receiving Collective Bargaining Rights from 
1959 through February 2001: 

Years bargaining rights received: 1959-2001; 
Worker group affected: State and local government workers; 
Number of workers: About 10,000,000[A]. 

Years bargaining rights received: 1978; 
Worker group affected: Federal workers; 
Number of workers: 1,500,000. 

Years bargaining rights received: 1970[B]; 
Worker group affected: Postal workers; 
Number of workers: 700,000. 

Years bargaining rights received: 1972-1997; 
Worker group affected: Agricultural workers; 
Number of workers: 360,000. 

Years bargaining rights received: 1974; 
Worker group affected: Nonprofit health care workers; 
Number of workers: 1,900,000. 

Years bargaining rights received: Total; 
Number of workers: About 14,500,000. 

[A] A few states did confer collective bargaining rights to certain 
groups of public employees prior to 1959. 

[B] Postal Reorganization Act, 39 U.S.C. 1001, provided collective 
bargaining rights to postal workers. 

Source: GAO’s analysis, analysis of the February 2001 CPS Supplement 
and Draft Comprehensive Transformation Plan, U.S. Postal Service, 
October 1, 2001. 

[End of table] 

Net Increase Likely since 1959, Even with Growth in Some Major Excluded
Groups: 

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. [Footnote 35] 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.) 

Table 2: Net Effects of Changes in Excluded Groups on Percent of the 
Labor Force That Has Bargaining Rights, 1959 and 2001: 

Excluded group: Public employees; 
Trend: About 12.2 million public employees have gained bargaining 
rights since 1959.[A] 
Approximate percentage point change in labor force with bargaining 
rights since 1959: +9. 

Excluded group: Employees of small businesses excluded under Board 
jurisdiction standards; 
Trend: The number of workers affected by the Board's small business 
jurisdiction exclusion was about 4 percent of the total civilian labor 
force in 2001. The annual sales volumes required by the minimum 
standards for the Board’s jurisdiction over a business have not been 
adjusted for inflation since 1959. For example, the current Board 
standard for retail employers of $500,000 annual sales would be about 
$3 million in 2001, if adjusted for inflation. In 2001, about one-third 
of all retail employees (over 7 million) worked for firms with annual
sales under $3 million, while only about 12 percent (about 2.6 million) 
work for firms with annual sales less than $500,000.[B] We assume no 
change in the percentage of the labor force excluded under these 
standards between 1959 and 2001, a conservative assumption. 
Approximate percentage point change in labor force with bargaining 
rights since 1959: 0. 

Excluded group: Independent contractors; 
Trend: Comparable data on independent contractors for 1959 and 2001 are 
not available.[C] We assume, conservatively, that the 6.5 percent of 
the 2001 total civilian labor force who were independent contractors 
had more than doubled since 1959, increasing 3.5 percentage points. 
Approximate percentage point change in labor force with bargaining 
rights since 1959: -3.5. 

Excluded group: Managers and supervisors; 
Trend: Although some evidence suggests that private sector managers and
supervisors may have grown in number and as a share of the total 
civilian labor force over this period, little data are available on 
these groups for 1959 and 2001.[D] We assume that the 7.5 percent of 
the 2001 total civilian labor force who were managers and supervisors 
had more than doubled since 1959, increasing 4 percentage points.
Approximate percentage point change in labor force with bargaining 
rights since 1959: -4. 

Excluded group: Agricultural workers and domestic workers; 
Trend: Domestic workers were a small proportion of the labor force in 
1959 and 2001. Virtually no agricultural workers had statutory 
bargaining rights in 1959 while about half of those workers had such 
rights in 2001. This would increase the percentage of the total labor 
force in 2001 that had bargaining rights. We assume, conservatively, 
that there was no change in the relative size of either group as a 
percent of the labor force since 1959. 
Approximate percentage point change in labor force with bargaining 
rights since 1959: 0. 

Net effect since 1959: +1.5%. 

[A] A few states did confer bargaining rights to certain groups of 
public employees prior to 1959. Data are unavailable to estimate the 
number of public employees in these states with rights prior to 1959.
The percentage of the nonfarm civilian labor force that the public 
employees in these states comprised in 2001 was 0.5 percent, and we 
apply this same percentage to 1959. 

[B] It is possible that industry shifts in the economy towards sectors 
where businesses are typically of smaller size could have led to a 
relative increase in the number of employees below the dollar limit and 
thus an increase in the number of employees without rights. Although, 
on balance, the sixfold increase in inflation since 1959 more than 
likely resulted in a net increase in the number of employees in smaller 
businesses with bargaining rights; we assumed no change in the relative 
size of this exclusion between 1959 and 2001. 

[C] However, data on independent contractors suggests that this group 
exhibited no growth between 1995 and 2001. U.S. General Accounting 
Office, Contingent Workers: Income and Benefits Lag Behind Those in 
Rest of Workforce, GAO-00-76, June 30, 2000, Washington, D.C. 

[D] Available evidence suggests that while managers and supervisors 
have increased significantly as a percentage of the labor force, they 
have not increased at the levels necessary to reduce the percent of the 
labor force that has collective bargaining rights. A recent Department 
of Labor study found that the percentage of supervisors in the services 
sector increased from 8.6 to 12.8 percent between 1969 and 1999, about 
a 67 percent increase. In retail trade, the percentage of supervisors 
increased from 7.5 to 12.0 percent between 1959 and 1999, a 63 percent 
increase. See U.S. Department of Labor, The “New Economy” and Its 
Impact on Executive, Administrative and Professional Exemptions to the
Fair Labor Standards Act (January 2001). 

Source: GAO’s analysis of Bureau of Labor Statistics National 
Employment, Hours and Earnings data, 1959 and 2001. 

[End of table] 

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. 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. 

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. 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. [Footnote 36] 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. [Footnote 37] 

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. [Footnote 38] 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. 

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. [Footnote 39] 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 [Footnote 40] 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. [Footnote 41] 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. [Footnote 42] We were unable, 
however, to disaggregate this number by industry. 

As agreed with office, unless you publicly announce the contents of this
report earlier, we plan no further distribution until 30 days from the 
report date. At that time we will send copies of this report to the 
chairman, members and general counsel of the National Labor Relations 
Board, the Secretary of Labor, and other interested parties. In 
addition, the report will be available at no charge on the GAO Web site 
at [hyperlink, http://www.gao.gov]. 

If you or your staff should have any questions, please call me at
(202) 512-9889. The major contributors to this report are Charles A
Jeszeck, Assistant Director, who can be reached at (202) 512-7036;
Nancy Peters, Analyst in Charge; Kara Kramer, Analyst; and Tom Beall,
Paula Bonin, Mark Ramage, and Joan Vogel. 

Signed by: 

Robert E. Robertson: 
Director, Education, Workforce and Income Security Issues: 

[End of section] 

Appendix I: Methodology: 

Overall Approach: 

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. 

Legal Review: 

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. 

Definition of Bargaining Rights: 

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. Footnote 43] These are key elements of the rights 
granted under the NLRA. [Footnote 44] 

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. 

Workforce Estimations and Analysis: 

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. [Footnote 45] 

Self-employed Persons and Independent Contractors: 

Using CPS data, we first subtracted out sole proprietors or the “self-
employeds” [Footnote 46] —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. 

Employees of Small Businesses with Annual Dollar Sales Volumes Below 
the Board Jurisdictional Limit Standards: 

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. [Footnote 47] (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. [Footnote 48] We did not attempt 
to estimate those Board jurisdictional standards that did not specify 
an annual dollar sales volume. 

Table 3: Minimum Annual Dollar Sales Volumes for Coverage under NLRA: 

Industry/economic activity: Nonretail industries; 
Minimum annual sales volume for NLRA jurisdiction: $50,000. 

Industry/economic activity: Retail; 
Minimum annual sales volume for NLRA jurisdiction: $500,000. 

Industry/economic activity: Office buildings and shopping centers; 
Minimum annual sales volume for NLRA jurisdiction: $100,000. 

Industry/economic activity: Public utilities; 
Minimum annual sales volume for NLRA jurisdiction: $250,000. 

Industry/economic activity: Newspapers; 
Minimum annual sales volume for NLRA jurisdiction: $200,000. 

Industry/economic activity: Radio and TV stations; 
Minimum annual sales volume for NLRA jurisdiction: $100,000. 

Industry/economic activity: Hotels, motels, apartments, and 
condominiums; 
Minimum annual sales volume for NLRA jurisdiction: $500,000. 

Industry/economic activity: National defense enterprises; 
Minimum annual sales volume for NLRA jurisdiction: Substantial impact 
on national defense, irrespective of whether other standards are met. 

Industry/economic activity: Employer association; 
Minimum annual sales volume for NLRA jurisdiction: If any member meets 
other jurisdictional standards or the combined operations of all 
members meet any such standard. 

Industry/economic activity: Single employer engaged in multiple 
enterprises; 
Minimum annual sales volume for NLRA jurisdiction: Overall operations 
meet any standard. 

Industry/economic activity: Instrumentalities links and channels of 
interstate commerce; 
Minimum annual sales volume for NLRA jurisdiction: $50,000. 

Industry/economic activity: Other transit systems[A]; 
Minimum annual sales volume for NLRA jurisdiction: $250,000; 

Industry/economic activity: Restaurants and country clubs; 
Minimum annual sales volume for NLRA jurisdiction: $500,000. 

[A] Local and suburban transit, interurban highway passenger 
transportation, and transportation utilities. The Board also extends 
NLRA jurisdiction to secondary employers involved in labor disputes. 

Source: Hardin, P. (1992). Developing Labor Law: The Board, the Courts, 
and the National Labor Relations Act. Bureau of National Affairs. 

[End of table] 

Figure 4: Percentage of Workers Affected by the Board’s Dollar Sales 
Volume Standards, by Industry, February 2001: 

[See PDF for image] 

This figure is a vertical bar graph illustrating the percentage of 
workers affected by the board’s dollar sales volume standards, by 
industry, February 2001. The vertical axis of the graph represents 
percent of industry workforce from 0 to 14. The horizontal axis of the 
graph represents six industries. The following data is depicted, with 
approximate percentages as illustrated in the graph: 

Industry: Construction
Percent of industry workforce: 1%; 
Number of workers: 80,862. 

Industry: Transportation/Utility; 
Percent of industry workforce: 1.5%; 
Number of workers: 122,491. 

Industry: Retail trade; 
Percent of industry workforce: 12%; 
Number of workers: 2,652,123. 

Industry: Services; 
Percent of industry workforce: 4%; 
Number of workers: 1,594,191. 

Industry: Finance/Real Estate; 
Percent of industry workforce: 11%; 
Number of workers: 988,854. 

Industry: Industry total; 
Percent of industry workforce: 4.5%; 
Number of workers: 115,024,759. 

Note: The Agriculture/Fish/Forestry, Mining, Manufacturing, and 
Wholesale Trade industries all had less than 1 percent of their workers 
excluded by the Board’s jurisdictional standards. The numbers in
the chart refer to the estimated number of workers affected by the 
Board’s jurisdictional standards in February 2001. 

Source: GAO’s analysis of February 2001 CPS Supplement, 2000 Economic 
Census, and the 1997 NCS. 

[End of figure] 

Supervisors/Managers: 

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). [Footnote 49] 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.) 

Table 4: Definitions of Supervisory Leveling Factors, 1997 NCS: 

Level: Team leader, group leader, or lead worker[A]; 
Definition: Employee sets pace of work for the group and shows other
workers in the group how to perform assigned tasks. He or she performs 
the same work as the group in addition to lead duties. 

Level: First line supervisor; 
Definition: Directs staff through face-to-face meetings. Organizational
structure is not complex, and internal and administrative procedures 
are simple. Performing the same work as subordinates is not the 
principal duty. 

Level: Second line supervisor; 
Definition: Directs staff through intermediate supervisors. Internal
procedures and administrative controls are formal. Organization 
structure is complex and is divided into subordinate groups that may 
differ from each other as to subject matter and function. 

Level: Third line supervisor; 
Definition: Directs staff through two or more subordinate supervisory
levels with several subdivisions at each level. Programs are usually 
interlocked on a direct and continuing basis with other organization 
segments, requiring constant attention to extensive formal 
coordination, clearances, and procedural controls. 

Note: An additional leveling factor is no supervisory responsibilities. 
This category would include line workers. 

[A] Team leaders, group leaders, or lead workers are considered in the 
NCS as representing nonsupervisory positions. Based on the NCS, there 
are approximately 3.4 million private sector fulltime employees who 
would fall into the “team leader” category, including 1.7 million team 
leaders in professional and technical occupations. Team leaders include 
employees in professional and technical occupations who may exercise 
considerable independent judgment. Professional and technical 
occupations have a much higher percentage of team leaders than first 
line supervisors; examples of these occupations would include 
registered and licensed practical nurses, computer systems analysts, 
and computer scientists. 

Source: James Smith, Supervisory Duties and the National Compensation 
Survey, Compensation and Working Conditions, Spring 2000. 

[End of table] 

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. [Footnote 50] 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 
workerbased 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. 

Domestic Workers: 

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. [Footnote 51] 

Agricultural Workers: 

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. [Footnote 52] 10 
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 [Footnote 
53] or (2) private employer labor relation acts without exclusion of 
agricultural workers, [Footnote 54] 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. 

Public Employees: 

Although the NLRA excludes public employees from coverage, many public 
employees have rights under other laws. [Footnote 55] To estimate the 
number of state and local public employees with rights, we used data 
from the 2000 Census Annual Survey of Government Employment, [Footnote 
56] 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. 
[Footnote 57] 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. [Footnote 58] We then adjusted for those 
agencies, for example, the Central Intelligence Agency, who have been
exempted from bargaining rights. [Footnote 59] 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. [Footnote 
60] 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. [Footnote 61] 

Definitional Differences Between the CPS, NCS, and NLRA: 

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. 

Table 5: Comparison of NLRA Definitions of Private Sector Excluded 
Groups and Those Used in GAO’s Quantitative Estimates: 

Excluded group: Independent contractor; 
NLRA definition: An independent contractor relationship is determined 
by applying the common law agency test and considering all incidents of 
the individual’s relationship to the employing entity. See NLRB v. 
United Insurance Co. of America, 390 U.S. 254 (1968); Roadway Package 
System, Inc., 326 N.L.R.B. 842 (1998); and Dial-a-Mattress Operating
Corp., 326 N.R.L.B. 884 (1998). 
Definition Used in quantitative estimates: Wage and salary workers or 
self-employed in the CPS who answered affirmatively to the question, 
“Last week, were you working as an independent contractor, an 
independent consultant, or a free-lance worker? That is, someone who 
obtains customers on their own to provide a product or service.” 

Excluded group: Supervisor/manager; 
NLRA definition: A supervisor is one who has the authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, 
promote, discharge, assign, reward, or discipline other employees or 
responsibly to direct them, or to adjust their grievances, or 
effectively to recommend such action, if ...such authority is not 
merely of a routine or clerical nature, but requires the use of 
independent judgment. 29 U.S.C. § 152(11). A managerial employee is one 
who formulates and effectuates management policies by expressing and
making operative the decisions of their employer, who exercises 
discretion within, or even independently of, established employer 
policy, and who is aligned with management. NLRB v. Yeshiva University, 
444 U.S. 672 (1980). 
Definition Used in quantitative estimates: First, second and third-line 
supervisors as defined in table 4. 

Excluded group: Domestic worker; 
NLRA definition: A domestic worker is one whose employment falls
within the commonly accepted meaning of the term “domestic servant.” 
Ankh Services, Inc., 243 NLRB 478 (1979); 29 U.S.C. § 152(3). 
Definition Used in quantitative estimates: Employees in SOC codes 403: 
laundry/ironers, 404: cooks, 406: child-care providers, and 407: 
cleaner/servant/housekeeper, employed in SIC code 761, personal 
service/private household. 

Excluded group: Agricultural worker; 
NLRA definition: An agricultural worker is one who engages in farming 
in all its branches, including the cultivation and tillage of the soil, 
dairying, the production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities, the raising of livestock, 
bees, fur-bearing animals, or poultry, and any practices (including any 
forestry or lumbering operations) performed by a farmer or on a farm as 
an incident to or in conjunction with such farming operations, 
including preparation for market, delivery to storage or to market or to
carriers for transportation to market. National Labor Relations Board 
Appropriation Act, 60 Stat. 698, ch. 672, Title IV (1947), referring to 
the Fair Labor Standards Act, 27 U.S.C. § 203(f). 
Definition Used in quantitative estimates: “Hired hands” defined as SOC 
Codes 475: managers, farms, excluding horticultural; 476: managers, 
horticultural specialty farms; 477: supervisors, farm workers; 479: 
general farm workers; 484: general nursery workers. 

Excluded group: Employees of certain small businesses; 
NLRA definition: See table 3; 
Definition Used in quantitative estimates: Same annual sales dollar 
volume. 

Source: GAO legal analysis and definitions from selected datasets. 

[End of table] 

Estimation of the Number of Undocumented Alien Workers: 

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. 
[Footnote 62] 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. [Footnote 63] 

Table 6: Census Level Estimates of the Foreign-Born Population by 
Migrant Status in 2000: 

Migrant status: Foreign-born population; 
Number: 31,098,945. 

Migrant status: Legal immigrants; 
Number: 21,612,023. 

Migrant status: Temporary immigrants; 
Number: 781,507. 

Migrant status: Residual foreign-born; 
Number: 8,705,419[A] 

[A] The residual foreign-born estimate also includes people in quasi-
legal status who are awaiting action on their legal migration requests. 

Source: J. Gregory Robinson. ESCAP II: Demographic Analysis Results 
(2001). U.S. Census Bureau. 

[End of table] 

Table 7: Estimates of Residual Foreign-Born by Age: 

Age of work eligible: 18-29; 
Total number of persons in that age group: 3,483,802. 

Age of work eligible: 30-49; 
Total number of persons in that age group: 2,605,123. 

Age of work eligible: 50+; 
Total number of persons in that age group: 627,538. 

Age of work eligible: 50-64; 
Total number of persons in that age group: 407,613. 

Age of work eligible: Total; 
Total number of persons in that age group: 7,124,076. 

Note: The number of persons in each age group includes persons of all 
races. 

Source: Costanzo, J., Davis, C., Caribert, I., Goodkind, D., and 
Ramirez, R. Estimating the Residual Foreign Born Population in 1990 and 
2000. U.S. Census, Population Division. May 2002. 

[End of table] 

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. [Footnote 64] 

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. 
[Footnote 65] 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. [Footnote 66] On 
balance, the 77-percent estimate appears to represent a reasonable 
approach. 

Estimates of the Percentage of the Labor Force with Collective 
Bargaining Rights Based on “Jobs” Data: 

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. [Footnote 67] 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, [Footnote 
68] 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. [Footnote 
69] 

Reliability of Workforce Estimates: 

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. [Footnote 70] 

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 [Footnote 71] 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. [Footnote 72] 

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. 

State Labor Relations Laws: 

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. [Footnote 73] 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. [Footnote 74] 
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. 

[73] The states with a state labor relations act are Colorado, 
Connecticut, Hawaii, Kansas, Massachusetts, Michigan, Minnesota, New 
Jersey, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, 
South Dakota, Utah, Vermont, West Virginia, and Wisconsin. 

[74] State labor relations laws covering agricultural laborers are 
Colorado, Connecticut, Michigan, Minnesota, and Wisconsin. Wisconsin’s 
labor relations law covers domestic servants. State labor relations 
laws covering supervisors are Connecticut, Kansas, Massachusetts, New 
Jersey, New York, Pennsylvania, Rhode Island, and Utah. State labor 
relations laws covering independent contractors: are Connecticut, 
Kansas, Massachusetts, Michigan, Minnesota, New Jersey, New York, 
Pennsylvania, Rhode Island, South Dakota, and Utah. Those states 
covering employees of small businesses are Colorado, Connecticut, 
Kansas, Massachusetts, Michigan, Minnesota, New Jersey, New York, North 
Dakota, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, 
Vermont, West Virginia, and Wisconsin. 

[End of section] 

Footnotes: 

[1] 29 U.S.C. 151 et seq. 

[2] For this report, we consider statutes as providing “collective 
bargaining rights” if they not only permit individuals to join together 
and form unions, but also require employers to recognize employee 
organizations and to “bargain in good faith.” Note that having 
collective bargaining rights does not necessarily imply the exercise of 
those rights through union membership or other forms of collective 
action. Although not statutes, in several instances we included workers 
who received rights through gubernatorial executive 

[3] National Labor Relations Board v. Kentucky River Community Care, 
Inc., 532 U.S. 706 (2001) and Hoffman Plastic Compounds, Inc. v. 
National Labor Relations Board, 122 S.Ct. 1275 (2002). 

[4] For specifics on our methodology, see app. I. 

[5] Back pay is monetary compensation, including interest, for the 
wages lost because of the violation. 

[6] Labor-Management Relations Act, ch. 120, 61 Stat. 136 (1947). 

[7] Labor-Management Reporting and Disclosure Act of 1959, P.L. 86-257 
(1959). 

[8] Other groups of excluded employees include workers who are 
employees of a parent or a spouse, U.S. employees of international 
organizations like the World Bank, confidential assistants of labor 
relations managers, and lay teachers at religious schools. Because we 
were unable to accurately estimate the numbers of these workers in the 
total workforce using a national database, we have not included these 
groups in our estimates. However, we believe that the numbers of 
workers in these groups to be small, particularly in relation to the 
total workforce, and thus would not have a major impact on our overall 
estimates. 

[9] This estimate is for the entire workforce and includes workers who 
were both the employed and unemployed. For those workers who were 
unemployed, we determined whether they had rights or not on the basis 
of their most recent primary job. 

[10] In February 2001, the total workforce of full-time and part-time 
workers included about 141 million people aged 16 and above. From this 
total, we subtracted about 5.8 million people we classified as “self 
employeds”—those self-employed who were not independent contractors— 
resulting in a workforce of about 135 million people. (See app. I.) 

[11] An alternative methodology to counting the number of workers with 
rights would be to count the number of jobs covered by these laws. When 
we compared our CPS estimates with those from the job-based Current 
Employment Statistics survey, we found little difference in the 
percentage of the nonagricultural labor force with collective bargaining
rights. (See app. I.) 

[12] The 26 states are Alaska, California, Connecticut, Delaware, 
Florida, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, 
Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, 
Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Vermont, 
Washington, and Wisconsin. Delaware has an employer “opt-in” provision 
for local government employees in cities and towns with fewer than 100 
employees. As with the NLRA, the state laws that provide collective 
bargaining rights to public employees often exclude various groups of 
employees (e.g., many states expressly exclude management officials) 
from coverage. 

[13] Twelve states do not have collective bargaining laws for public 
employees. They are Alabama, Arizona, Arkansas, Colorado, Louisiana, 
Mississippi, New Mexico, North Carolina, South Carolina, Texas, 
Virginia, and West Virginia. In addition, Texas prohibits collective 
bargaining for most groups of public employees. However, firefighters 
and police may bargain in jurisdictions with approval from a majority 
of voters. 

[14] These states are Georgia, Indiana, Idaho, Kansas, Kentucky, 
Maryland, Missouri, Nevada, North Dakota, Oklahoma, Tennessee, and 
Wyoming. Three of these states, Indiana, Kentucky and Missouri, extend 
collective bargaining rights to certain public employees through an 
executive order from the governor. Many public employees may be covered 
by local laws, for example, in Maryland they do not have a 
comprehensive law covering all public employees. All state employees 
are covered under state labor laws, but state statutes cover local 
employees only in certain counties. Local governments in Maryland may 
have their own ordinances giving local public employees collective 
bargaining rights, but these ordinances do not exist in every county. 

[15] 45 U.S.C. 151-188. Employees covered by the Railway Labor Act are 
excluded from the provisions of the NLRA. 29 U.S.C. 152(3). 

[16] A secondary boycott is an organized refusal to purchase the 
products of, do business with, or perform services for (such as deliver 
goods) a company that is doing business with another company where the 
employees are on strike or in a labor dispute. 

[17] According to the American Federation of State, County, and 
Municipal Employees, a union that represents 1.3 million public 
employees, 11 states provide the right to strike to some public 
employees. 

[18] Twenty-one states and the District of Columbia have such 
provisions. In many cases, mandatory binding arbitration serves as a 
“quid pro quo” for the prohibition of strikes by public employees. 

[19] These 532,000 domestic workers do not include an additional 
126,000 domestic workers who classify themselves as independent 
contractors. 

[20] It is likely that some of these workers, particularly the 
employees of certain small businesses, have bargaining rights under 
state labor relations statutes. Eighteen states have state labor 
relations acts or “little Wagner Acts,” modeled after the federal NLRA, 
and although many exclude the same groups as under the NLRA, some do 
not expressly exclude agricultural workers, supervisors, or independent 
contractors and only one excludes employees of small businesses. (See 
app. I.) Except for agricultural workers, we did not have sufficient 
information to determine the number of workers affected by these 
statutes. 

[21] Using the February 2001CPS Supplement, we first subtracted the 
sole proprietors or self-employeds— those people identifying themselves 
as self-employed but not an independent contractor—from the labor 
force. For our group of independent contractors, we counted all persons 
who identified themselves as self-employed and as independent 
contractors or who were wage/salary workers and independent 
contractors. Independent contractors are defined 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 to 
be 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. 

[22] However, according to the act, this shall not include any 
individual employed as an agricultural laborer or in the domestic 
service of any family or person in his or her home or in any individual 
employed by his or her parent or spouse. 

[23] To do this, the Board has considered factors such as a worker’s 
autonomy to perform work and where the work is being performed. See 
National Labor Relations Board v. United Insurance Co. of America, 390 
U.S. 254 (1968). 

[24] Since 1950, the Board has held that its jurisdiction does not 
extend to labor disputes involving certain small businesses. Requiring 
a “pronounced impact” on interstate commerce before it asserts federal 
jurisdiction, the Board set minimum standards for specific types of 
employers, generally stated in terms of a yearly sales volume. In 1959,
however, the Landrum-Griffin amendments to the NLRA upheld the Board’s 
interpretation of its jurisdictional thresholds, but limited such 
exclusions to the standards in effect as of August 1, 1959. Our 
analysis extended only to those industries with a specified dollar sales
volume. (See app. I.) 

[25] The 10.2 million estimate is based on 1997 NCS calculations on 
full-time employees. To the extent that part-time employees are also 
supervisors, the total number of employees in this group is 
underestimated. In addition, some managers and supervisors had already 
been excluded when we corrected for employees in those firms deemed too 
small for Board jurisdiction. We do not include them here to avoid 
double counting. (See app. I.) 

[26] In keeping with the 1997 NCS definitions, we define first-line 
supervisor as one who directs staff through face-to-face meetings and 
where performing the same work as subordinates is not the principal 
duty. Consistent with the NCS, we define second line supervisors as one 
who directs staff through intermediate supervisors. See James Smith,
Supervisory Duties and the National Compensation Survey, in 
Compensation and Working Conditions, Spring 2000, and appendix I. 

[27] The Supreme Court’s holding in Packard Motor Car Co. v. NLRB, 330 
U.S. 485 (1947) that general foremen (supervisors and managers) were 
entitled as a class to bargaining rights under the NLRA served to spur 
the subsequent enactment of Taft-Hartley, which specifically excluded 
supervisors from coverage. 

[28] 29 U.S.C. 152(11). 

[29] However, in California, the state labor code provides workers the 
right to organize into unions, and it has been held to apply to 
employees in a private household. See Annenberg v. Southern California 
District Council of Laborers and its Affiliated Local 1184, 38 Cal. 
App. 3d 637 (1974). We did not incorporate this or other state 
exceptions into our domestic worker estimate. 

[30] Subsequently, the definition of agricultural laborer was expanded 
to include not only crop workers but also workers who work on a farm in 
practices incidental to farming, such as packing produce for shipment 
from the farm. Because the number of workers matching the secondary 
definition is not available using national survey data, we limited our 
analysis of laborers to agricultural workers who work with crops and 
livestock. Thus, we may be overestimating the percentage of 
agricultural workers who have collective bargaining rights. 

[31] Our data are based on February 2001 employment levels. For most 
agricultural commodities, February represents the annual employment 
“trough.” Employment in agriculture fluctuates significantly over the 
year and, in 2001, had an annual monthly average of about 745,000 
individuals employed as agricultural laborers. 

[32] Among the major agencies not covered include: the Federal Bureau 
of Investigation, the Central Intelligence Agency, the National 
Security Agency, the Tennessee Valley Authority, and the U.S. Secret 
Service. 5 U.S.C. 7103(a)(3). 

[33] 5 U.S.C. 7101. 

[34] We chose 1959 because it was the last year when major 
comprehensive amendments were made to the NLRA and when the Board 
jurisdiction standards were last revised. However, it may be that this 
analysis is sensitive to the comparison dates used. As one expert has
pointed out, while the percentage of workers with bargaining rights has 
likely increased between 1959 and 2001, this might not be true, for 
example, for the period 1981 to 2001. By 1981, nonprofit health care 
workers and some agricultural workers had already gained rights, and 
major increases in public sector rights had also occurred. This would 
leave less growth to balance out any increase in excluded groups like 
independent contractors or supervisors. The early 1980s are considered 
an important period by some industrial experts because it heralded the 
economic restructuring of a number of key industries and a shift in the 
industrial relations policies of many employers. However, data were not 
available to address this concern. 

[35] Regarding trends in private sector bargaining rights alone, 
increases in workers with rights in agriculture and health care and the 
effects of inflation on the Board’s small business jurisdiction 
standards must be counterbalanced by increases in the percentage of the 
workforce that are independent contractors, supervisors, or managers. 
Data limitations, however, preclude a definitive answer. 

[36] While the Court clearly rejected the Board’s approach in these 
cases, the Court pointed out that it falls within the Board’s 
discretion to determine, within reason, what scope of discretion 
qualifies as independent so as to deem the employee a supervisor. 

[37] In considering the potential reach of this decision, it is 
important to note that the decision requires a change in how the Board 
will determine supervisory status for that group of employees who 
exercise “…ordinary professional or technical judgment in directing
less-skilled employees to deliver services in accordance with employer-
specified standards.” 

[38] In a recent case, the Board applied a revised test, in accordance 
with Kentucky River, to determine supervisory status of certain tugboat 
pilots. Reversing an earlier decision, the Board found that these 
pilots exercised independent judgment in carrying out supervisory 
functions and thus were supervisors under the act. See American 
Commercial Barge Line Company et al., 337 N.L.R.B. 168 (2002). 

[39] An undocumented alien worker is a non-U.S. citizen present in the 
United States in violation of the U.S. immigration laws, e.g., a person 
who entered the United States without being inspected by an Immigration 
officer or a non-U.S. citizen who entered legally but overstays or 
violates his or her immigration status. 

[40] The Board stated that the employer’s reinstatement of the 
discharged workers is dependent upon the employer demonstrating 
appropriate documentation of eligibility for U.S. employment as 
required under the Immigration Reform and Control Act of 1986. See 
A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995). 

[41] This estimate also includes persons in “quasi-legal” status, 
persons who cannot be conclusively determined as being in the country 
legally or illegally. (See app. I.) 

[42] We derived our 77-percent estimate for NLRA coverage from our 
total private sector coverage estimate of 78 percent and correcting for 
coverage under the Railway Labor Act. (See app. I for further details.) 

[43] This definition would exclude laws that only provide that parties 
“meet and confer.” 

[44] This report does not assess the adequacy of the rights granted 
under the NLRA, in terms of fostering collective bargaining nor to how 
it compares with any international standards on collective bargaining 
or workers rights, nor the degree to which those rights are protected. 

[45] The excluded groups we did not estimate include religious 
organization employees, employees of international organizations, 
children or spouses employed by parents or spouses, and student 
employees. Not estimating these excluded groups will tend to overstate 
the percentage of the labor force with bargaining rights. Employees 
covered by the Railway Labor Act and employees of nonprofit healthcare 
providers and educational institutions and are included in our 
estimates. 

[46] The sequencing of our analysis was an important consideration so 
that we could avoid potential double counting and potential 
overestimation of workers in particular excluded groups. We first 
subtracted the self-employeds and independent contractors out of the 
total labor force. We then calculated the number of employees excluded 
by the Board’s jurisdictional standards on business size, then managers 
and supervisors and other groups. 

[47] We applied the percentages derived from the 1997 SBA data to our 
2001 CPS industry workforce estimates. To the extent that the 
distribution of small businesses across industries has changed 
demonstrably over the time interval, we may not have an accurate 
estimate of the number of workers excluded by these standards in 2001. 
However, SBA officials believe that the industrial distribution of 
small businesses changes very slowly over time so this should not be a 
major problem. 

[48] The total number of employees excluded under the Board’s 
jurisdictional standards also includes supervisors and managers in 
those firms; these employees would still be excluded from NLRA coverage 
even if there were no Board jurisdictional limits. Assuming that the
percent of supervisors in these small businesses was the same as our 
estimate for the labor force as a whole, about 9 percent or about 
500,000 employees in these excluded small businesses would be excluded 
under NLRA’s supervisor/manager exclusion. 

[49] BLS collects data for the NCS from more than 16,000 
establishments, weighted to represent more than 335,000 establishments 
employing almost 67 million workers. When an establishment is first 
surveyed, specific jobs are selected through a sampling procedure
and then classified to an appropriate occupation. The work level of the 
particular job is established by assessing the duties and 
responsibilities of the job according to the survey’s nine generic 
leveling factors: (1) knowledge, (2) supervision received, (3) 
guidelines, (4) complexity, (5) scope and effect, (6) personal 
contacts, (7) purpose of contacts, (8) physical demands, and (9) work 
environment. Each factor contains a number of levels, and every level 
has an associated description and point value. See James Smith, 
Supervisory Duties and the National Compensation Survey, Compensation 
and Working Conditions, Spring 2000. 

[50] The Railway Labor Act has a different definition of supervisor 
than the NLRA. For those industries covered by the Railway Labor Act, 
we defined supervisors as second-level supervisors and managers as 
third-level supervisors. 

[51] Because of sampling limitations, we did not correct our estimated 
number of domestic workers by subtracting those domestic workers, for 
example, those in California, who might have rights under other laws. 
Making such a correction would slightly increase the percentage of the 
labor force that has collective bargaining rights. 

[52] USDA conducted its research using the CPS as a basis to define 
agricultural workers and also uses the National Agricultural 
Statistical Survey to estimate and describe this population. We chose 
USDA’s definition because it is derived from a 12-month data filing
method to calculate the number of agricultural workers in the United 
States so that we would be able to separate the number of agricultural 
workers in February to correspond with our data. See J. Runyan, USDA, 
(2001), which also includes annual demographic and geographic averages 
of these workers. 

[53] These states are Arizona, California, Oregon, Kansas, and Maine. 

[54] These states are Hawaii, Massachusetts, New Jersey, Wisconsin, and 
Kansas. 

[55] Prior to 1995, the Board declined jurisdiction over employers 
whose employees worked under a contract with a government entity, i.e., 
an entity not covered by the NLRA, where the employer/contractor lacked 
control over the essential terms and conditions of employment. See Res-
Care, Inc., 280 N.L.R.B. 670 (1986). The Board no longer limits its 
jurisdiction in this way. Management Training Corporation, 317 N.L.R.B. 
1355 (1995). In this report, such workers are treated as private sector 
employees. 

[56] The U.S. Census Annual Survey of Government Employment provides 
data on full-time and part-time government employment. The survey 
reports on hours worked and payroll statistics by type of government 
(state, county, city, township, special district, school district) and 
by government function (elementary and secondary education, higher
education, police protection, fire protection, financial 
administration, other government administration, judicial and legal, 
highways, public welfare, solid waste management, sewerage, parks and 
recreation, health, hospitals, water supply, electric power, gas supply,
transit, natural resources, correction, libraries, air transportation, 
water transport and terminals, other education, state liquor stores, 
social insurance administration, and housing and community 
development). See The U.S. Census Annual Survey of Government 
Employment 2001. 

[57] For purposes of enumeration, we counted as having collective 
bargaining rights those public employees in three states who obtained 
rights meeting our definitional criteria from a gubernatorial executive 
order, rather than a statute. In those states with collective 
bargaining laws that include an “opt-in” provision, we also counted as 
having rights those employees who received rights from public employers 
who actually opted to provide those rights. 

[58] Federal Civilian Workforce Statistics: Employment and Trends as of 
March 2001, U.S. Office of Personnel Management, OMSCE-OW1-05-01, May 
2001. 

[59] We assumed this estimate to be about 15 percent of the federal 
workforce. However, we did not review all federal agencies to identify 
those workers who are exempted. Furthermore, for some of these 
agencies, like the National Security Agency, the employment levels are 
unavailable. See Federal Civilian Workforce Statistics: Employment and 
Trends as of March 2001, U.S. Office of Personnel Management, OMSOE-OW1-
05-01, May 2001, note on p. 7. 

[60] This estimate from the CPDF was 12.6 percent. 

[61] This estimate was 10.8 percent. See Draft Comprehensive 
Transformation Plan, U.S. Postal Service, October 1, 2001, p. 19. 

[62] This residual foreign-born population is not an estimate of the 
number of unauthorized immigrants. This estimate also includes people 
who are here legally but are not yet included in the official estimates 
of legal migrants and refugees. Because the method was derived from a 
residual methodology, any limitations in the methods or in the 
measurement of other migration components are reflected in the residual 
number. For a discussion of issues in estimating undocumented alien 
workers see Lindsay Lowell and Robert Suro (2002). How Many 
Undocumented? The Numbers Behind the U.S.-Mexico Migration Talks. The 
Pew Hispanic Center. Bean, F., R. Corona, R. Tuiran, K. Woodrow-Lafield 
and J. Van Hook. (2001). Circular, Invisible, and Ambiguous Migrants: 
Components of Difference in Estimates of the Number of Unauthorized 
Mexican Migrants in the United States. Demography 38:411-422. Passel, 
Jeffrey S., Estimates of Undocumented Immigrants Living in the United 
States: 2000, The Urban Institute. August 2001. 

[63] The Census estimates the quasi-legal migrant population to be 
approximately 1.7 million. This estimate includes refugees (who have 
not yet adjusted status) and asylum applicants (awaiting claim 
adjudication) (200,000 and 400,000, respectively), migrants deported 
during the decade (200,000), and population legalizing (adjusting 
status) during the decade (900,000). 

[64] We also assumed that this group continuously replaces itself by 
new quasi-legal immigrants of similar characteristics who are awaiting 
legal action on their migration requests so it would not affect our 
estimates of the total work eligible population. 

[65] Using the CPS Supplement, there were approximately 1.3 million 
workers in the airline and railway industries, or about 1 percent of 
the civilian labor force, in 2001. 

[66] We also assumed a labor force participation rate (the total of the 
employed and unemployed) for undocumented alien workers of 100 percent. 
While data are not available to estimate the labor force participation 
rate of undocumented workers, it is likely to be quite high. 

[67] For example, a worker who was primarily an independent contractor 
but who also worked at a covered job secondarily would not be counted 
under our methodology. 

[68] The CES survey is an establishment payroll survey administered to 
a monthly sample of nearly 400,000 business establishments nationwide. 
The primary statistics derived from the survey are monthly estimates of 
employment, hours, and earnings for the nation, states, and major 
metropolitan areas. 

[69] While the number of nonfarm private sector workers was about 90 
percent of comparable CES figures, the percentage of the labor force 
with bargaining rights in the CPS was about 1 percent point higher (83 
percent of nonfarm workers in the private sector had rights in the CPS 
compared with 82 percent in the CES). 

[70] For extensive discussion of survey errors and their evaluation, 
see The Office of Management and Budget’s Statistical Policy Working 
Paper 31: Measuring and Reporting Sources of Error in Surveys, June 
2001. 

[71] Technical Note in Occupational Compensation Survey: Occupational 
Wages in the United States, 1997, Bureau of Labor Statistics, U.S. 
Department of Labor, Revised September 1999. 

[72] While there are no widely accepted methodologies for combining 
sampling errors associated with estimates derived from multiple data 
sources, we believe that this nonparametric approach is a reasonable 
method to use for approximating bounds around our national estimates. 

[End of section] 

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