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