How American Labor Law Denies a Quarter of the Workforce Collective Bargaining Rights

The right to organize and bargain collectively under the protection of law is the bedrock upon which workers are able to form or join a labor union. American labor law has not kept pace with the changing nature and face of the modern workplace and increasingly excludes more and more workers from this legal protection. Increasing numbers of employees have a supervisory aspect or capacity of their work. More and more immigrants join the workforce, especially in the agricultural sector, and more people have been classified as independent contractors, whether by choice or by an employer’s decision. As these changes take place, American labor law denies these workers their legally-protected right to form unions and collectively bargain by either defining workers as not employees or by expressly excluding them.

This report provides an accurate, up-to-date analysis of the number and type of workers without collective bargaining rights, as well as recent trends in the workforce and legal rulings that have impacted that number. There are 140.5 million people in the civilian workforce. Our research found that of these employees, 33.5 million, or 23.8%, have no rights under the NLRA or any other labor law: no legally-protected right to join or form a union, no legally-protected right to bargain collectively for their wages and conditions of work, and therefore, effectively no freedom of association in the workplace.

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In these tough economic times, workers need more opportunities to get ahead – that’s why unions matter and why workers across the country are seeking to form them today. Since 2003, more than half a million Americans formed unions through majority sign-up, an efficient, fair and democratic union organizing process where employers recognize unions if a majority of employees demonstrate their desire to form one.¹

In May 2005, NCLR announced that it would not hold its 2006 Annual Conference in Los Angeles because the workers needed its help. Janet Murguia, NCLR Presidnet and CEO, explained, “It would be inconsistent with who we are and what we do as an organization to hold a large event in the city while these negotiations are under way. We hope that these labor issues will be resolved in a way which serves the needs of the workers and the industry. When that happens, we’d be delighted to investigate the possibility of returning.”

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As a close ally of working people and their unions, the Sierra Club was aware that a labor dispute might erupt at one of its conference hotels in 2005. To avoid a potential collision with the Summit, the organization insisted on language in their hotel contract that would allow them to withdraw their booking without a financial penalty if the dispute had not been resolved.

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Immigrants are particularly vulnerable to unscrupulous employers who use the threat of deportation to force workers to accept poor and unsafe work conditions, low wages, and little to no benefits. But everybody’s got a right—a universal human right—to fair wages and a safe working environment. Maria and Gerrardo, Salvadoran immigrants who came to this country to make a better life for their families, share their stories of why fighting for a union is worth the struggle.

> Read their story.
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For the first time in more than four decades, a majority of Americans working in the private sector no longer receive health care coverage from their employers.  And those that do receive coverage are being forced to pay for an increasing share of it out of their own pockets.  Moreover, as the gap between the coverage between union and non-union workers grows, the competitive advantage of the non-union sector is growing with it - giving non-union employers greater incentive to fight organizing drives.

We examined the positions of 2004 Presidential candidates George W. Bush and John Kerry.  Check out our table of where they stand on workers' rights.

On March 7, 2003, hours after auto maintenance service workers employed by U-Haul in Nevada filed a petition to hold a union representation election, U-Haul fired four workers—Jorge Garcia, Salvador Campos, Johnny DeGuzman, and Jesus Jacobo.  Of the thousands of U-Haul employees nationwide, only a handful of them are represented by unions.  And it appears that U-Haul intends to stay essentially union-free:  In little over a year since the auto maintenance service employees began their union organizing drive to gain better wages and fair treatment on the job, U-Haul fired 39 workers and closed down one facility in Nevada.

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This report provides an in-depth look at workers fighting for the right to form unions in Florida's nursing home industry. Findings indicate that workers face widespread and systematic violations of their legal and human rights, and show the need for labor law reform.

» Download the report (PDF: 24 pages, 316 KB)

"I'm a terrific employee…yet I'm always insecure.  I feel I will have security now."

The organizing effort at U-Haul "gave us common ground. Even though in a certain way we're all different…what brought us together was that we had a common struggle."

"Legal obstacles tilt the playing field so steeply against workers' freedom of association that the United States is in violation of international human rights standards for workers." Human Rights Watch Executive Director Kenneth Roth

“We have a real voice at Cingular now. We will have disagreements with the company, but with CWA we are secure in knowing that we have the right to disagree without consequences.” 

“Imagine if this was the experience for all workers in America. It could and it should be this straightforward for men and women to have a free and fair choice to form a union and work in partnership with their employer to make it a success.” 

"We not only believe it's the fair thing to do, we also believe it's the right thing to do for our employees, our health plan members, and also our business."

"Employees represented by the union coalition are committed to a high-performance vision...workers want to perform and do the best job that they can."

According to new numbers released by American Rights at Work, 33.5 million people—24% of the workforce—have no legally-protected right to form a union. This is an embarrassing number for an advanced democracy like ours. As a Human Rights Watch report noted, large exclusions of workers from the protections of the National Labor Relations Act (NLRA) “run counter to international human rights standards compelling broad protection of workers' freedom of association.”

Why are so many workers without the right to organize? The NLRA excludes several classes of workers, including public employees, agricultural workers, and independent contractors, and many states have failed to pass laws extending coverage to these employees. Additionally, decisions by the Bush Labor Board have excluded employees with minimal supervisory duties, disabled janitors, graduate student assistants, newspaper carriers, and other categories of workers from the law’s protections. And employers are increasingly misclassifying their employees as independent contractors, denying them the right to form unions and gain other employment law protections.

The anti-union Employee Freedom Action Committee is spending millions to run advertisements depicting majority sign-up as a new, off-the-wall, and anti-democratic process that, if the Employee Free Choice Act passes, will allow unions to intimidate employees into joining.

Yet new research by American Rights at Work reveals that with little fanfare, more than half a million Americans have already formed unions through majority sign-up since 2003. In fact, majority sign-up is now more commonly used than the National Labor Relations Board election process—no surprise given that research has found it to be less coercive.