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Lawler, John J

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Lawler, John J.

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Testimony of John J. Lawler Before the Commission on the Future of Worker-Management Relations

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Federal Publications Key Workplace Documents 
February 1994 
Testimony of John J. Lawler Before the Commission on the 
Future of Worker-Management Relations 
John J. Lawler 
University of Illinois at Urbana-Champaign 
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Testimony of John J. Lawler Before the Commission on the Future of Worker-
Management Relations 
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Lawler, J. J. (1994). Testimony of John J. Lawler before the Commission on the Future of Worker-
Management Relations. Retrieved [insert date], from Cornell University, School of Industrial and Labor 
Relations site: http://digitalcommons.ilr.cornell.edu/key_workplace/354/ 
This testimony is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/key_workplace/354 
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IV»ARTIN P CATHERWOOD ! IBRABV 
NEW i i i K J U i n i U C H l i y i 
INDUSTRIAL AND LABOR RELATIONS 
Testimony of John J. Lawler 
Institute of Labor and industrial Relations 
University of Illinois at Urbana-Champaign 
Before the 
Commission on the Future of Worker-Management Relations 
February 24,1994 
In 1990, I published a book dealing with union organizing efforts and 
employer responses.'' Part of that book involved an extensive review and 
evaluation of prior empirical research dealing with the impact of employer and 
union strategies and tactics before, during, and after organizing efforts. My 
testimony today will focus on what the evidence contained in this research 
indicates regarding the consequences of various forms of employer opposition 
for union success, both in organizing new bargaining units and in securing initial 
contracts. I have updated my earlier work, taking into account research 
published since 1990.2 
My analysis here reflects the work of more than fifty scholarly studies 
published since the mid-1970s, when research on this topic began in earnest. 
The group of studies upon which I base my analysis is fairly comprehensive. 
Most of these studies have been published in peer-reviewed academic journals. 
I think the peer review process is especially noteworthy here, as it underscores 
the credibility of the research upon which my observations are based. Another 
important point is that, unlike anecdotal evidence, most of the studies in this set 
utilized sophisticated statistical methods to isolate the impact of campaign 
strategies and tactics from other influences, such as changing economic 
conditions and work force demographics. 
My testimony will focus on what are among the most significant, and 
controversial, issues concerning employer opposition to unionization: 
• the use of NLRB procedures to gain strategic advantage in 
representation elections; 
• representation election delays; 
• the commission of unfair labor practices by employers during and after 
representation elections; 
• employer use of labor relations consultants. 
I will deal with each of these topics in turn. 
^Lawler, John J. (1990). Unionization and Deunionization: Strategy, Tactics, and Outcomes. Columbia, 
SC: University of South Carolina Press. 
interested parties may contact the author to receive a copy of this paper (Institute of Labor and Industrial 
Relations, University of Illinois, 504 East Armory, Champaign, EL 61820). 
Procedural Maneuvering 
Both employers and unions may raise any number of issues at various points 
before and after a representation election. While challenges, say, to the 
composition of an election unit or a party's conduct during an campaign may 
reflect legitimate concerns, there is every reason to believe that parties utilize 
challenges and objections in strategic ways to influence the outcomes of 
representation cases. Any reading of the many articles and books authored by 
union avoidance specialists quickly reveals the extent to which employers are 
advised to engage in procedural maneuvering. One indicator of this activity has 
been the substantial shift away from consent elections under NLRB election 
procedures to so-called stipulated and directed elections. The parties have 
much greater latitude to raise objections and pursue appeals in the latter 
election formats. The shift away from consent elections is largely the 
consequence of employer action; indeed, union avoidance specialists almost 
always recommend that employers move for stipulated or directed elections. 
Numerous studies have examined the impact of the type of election case on 
the likelihood of union victory in elections. Although there some exceptions, 
almost all of these studies have shown that election type has a pronounced 
impact on election outcomes. Unions have a much better chance of winning in 
consent elections than in either stipulated or directed elections. Other things 
equal, unions garner around an 8%-10% higher share of the vote in consent 
elections and have perhaps a 10% higher victory rate. Thus, the clear 
preponderance of evidence here indicates that an important employer union 
avoidance tactic, one that very much seems to circumvent public policy, 
undercuts union organizing effectiveness. 
Election Delays 
The period between the filing of a petition for an election and the holding of 
the election has climbed substantially over the past thirty years. This is partly 
the result in the shift away from consent election procedures. However, under 
non-consent procedures, employers may engage in efforts to draw the 
certification process out even longer. As with election format, delaying the 
election is often promoted by union avoidance specialists as an important tactic 
for defeating unions. 
Various studies have shown a significant reduction in the likelihood of union 
success the greater election delays, even after controlling for other factors. One 
study suggests, for example, that every month an election is delayed, the union's 
chance of victory declines by about 1%. There is, however, some conflicting 
evidence on this, so that the findings in this area are not quite as strong as in the 
case of procedural maneuvering. 
Unfair Labor Practices 
It has been well documented that the number of unfair labor practice charges 
brought against employers, especially alleged violations of Section 8(a)(3) of the 
National Labor Relations Act, have risen dramatically of the past twenty to thirty 
years. Moreover, the proportion of such charges found to be meritorious has, if 
anything, also risen somewhat. There has been a lively debate as to whether 
this increase in the incidence of unfair labor practices has resulted in a reduced 
likelihood of unions securing representation rights. Here, the evidence is less 
conclusive in certain respects than in the case of either procedural maneuvering 
or election delays. 
Research has concerned both the likelihood of unions winning certification 
elections and the ability of unions, once certified, to secure initial contracts. In 
the case of initial contracts, I think research studies, while limited in number, 
provide considerable evidence that employer unfair labor practices, committed 
both during and after election campaigns, reduce the likelihood of initial 
contracts being successfully negotiated. This includes both violations of Section 
8(a)(5) (refusal to bargain) and Section 8(a)(3) (employment discrimination). In 
the case of election outcomes, the evidence is somewhat more mixed. Some 
studies have shown a strong, deleterious impact on union victory rates, while 
others find little relationship. I would note that studies that have looked at the 
outcomes of specific elections, rather than use highly aggregated data, have 
generally shown stronger unfair labor practice effects. I believ& these findings 
are somewhat more persuasive. 
Labor Relations Consultants 
Labor relations consultants provide a variety of services to clients, ranging 
from legal advice and related attorney services to security guards and private 
investigators. While not questioning the legitimate role of management 
attorneys and other types of consultants during organizing efforts, serious 
concerns have been raised regarding the unethical and illegal activities 
seemingly promoted by a significant number of the union avoidance specialists 
who have been dubbed "union busters." Most of the studies that have examined 
the effects of consultants have found some significant negative impact on the 
probability of union victory where labor relations consultants were utilized by 
employers. As these studies only examine the presence or absence of 
consultant involvement in campaigns, it is not possible to discern the 
mechanisms by which consultants impact outcomes, only that they do seem to 
provide management with a real advantage in election campaigns. 


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