Who Gets To Unionize?

Last week, the National Labor Relations Board ruled that medical interns and residents at private hospitals were employees–not students–and could therefore form unions. What other types of employees can unionize?

The large majority of them. In 1935, Congress passed the National Labor Relations Act, which gives virtually every private sector employee the right to unionize and bargain collectively. (This is why last week’s decision of the NLRB, which administers the act, affects only private hospitals.) Since 1935, most government employees–whether federal, state, or local–have gained the same rights through other national or state laws. So, only those workers specifically exempted from the NLRA are not guaranteed the ability to unionize. (However, this does not mean that they are prohibited from unionizing–rather, that they cannot seek federal protection if their employer refuses to recognize a union.) They include:

  • Small business employees: The definition of “small business” has not changed since the 1950s. As a result, there are very few companies that still qualify. (For example, a wholesale store would have to have annual sales below $50,000; a retail store, below $500,000; and a law firm, below $200,000.)
  • Managers and supervisors: This group includes anyone with hiring, firing, disciplinary, or compensatory authority over other workers. They are viewed as employers, not employees.
  • Independent contractors: These are people who are hired on an individual, project-by-project basis. They are a growing segment of the workforce, particularly in computer-related fields.
  • Agricultural workers: Because they are seasonal laborers and have a high turnover rate, they were excluded from the law. Only California has granted them unionization privileges.
  • Domestic employees: This group includes maids, butlers, and other live-in household help.

Although most American workers can join unions, a decreasing percentage are doing so. In 1998, only 13.9 percent of the workforce was unionized–down from 20.1 percent in 1983 (the first year comparable statistics were collected). And when government employees are excluded, the percentages are even lower: While 37.5 percent of public workers are unionized, only 9.5 percent of the private sector is.

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