Unfair Labor Practice

Question 1

What is the concept of Unfair Labor Practice?

Answer 1

Unfair Labor Practice violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interest of both labor and management including the right to bargain collectively or otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations (Art. 258, Labor Code)

Question 2

What are the elements of an unfair labor practice?

Answer 2

1) There is an employee-employer relationship between the offender and the offended;
2) the act done is expressly defined in the Code as an unfair labor practice.

Question 3

Define Interference.

Answer 3

It is the interference with, restrain or coerce employees in the exercise of their right to self-organization.

Question 4

Define Yellow Dog Condition.

Answer 4

It is a condition of employment that a person or employee shall not join a labor organization or shall withdraw from to which he belongs.

Question 5

Define Contracting Out

Answer 5

It means contracting out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self-organization.

Question 6

What is Company Unionism

Answer 6

It is to initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial and other support to it or its organizers or supporters.

Question 7

What constitutes Discrimination for or against union membership?

Answer 7

It includes discrimination as to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership of any labor organization.

Question 8

What is discrimination because of testimony?

Answer 8

There is discrimination because of testimony when an employee is dismissed, discharged or otherwise prejudiced or discriminated for having given or is about to give testimony under this Code.

Question 9

When is Paid Negotiation?

Answer 9

When there is payment of negotiation or attorney’s fees for the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute.

Question 10

How does the prohibition on unfair labor practice affects the employer in the management of his business?

Answer 10

The law on “unfair labor practice” is not intended to deprive the employer of his fundamental right to prescribe and enforce such rules as he honestly believes is necessary to the proper, productive and profitable operation of his business. Nor are his rights of selection and discharge of his employees wrested from him by the Act. The only condition imposed upon this control is that it must not be exercised so as to effect a violation of the law and its several prohibitions.

Question 11

What is the nature of Transfer of Personnel and how it must be done to avoid the charge of Unfair Labor Practice?

Answer 11

Unless there are instances which directly point to interference by the company with the employee’s rights to self-organization, the transfer of an employee should be considered as within the bounds allowed by law like when despite his transfer to a lower position, his original rank and salary remained undiminished. Similarly, the management does not commit unfair labor practice if it exercises the option given to it in the CBA to retire an employee who either has rendered 25 years of service or reached the age of 60.

Question 12

The union alleged that the promotion of one of their members to a managerial position was prompted by a desire to deprive them of the membership of the promoted employee.

Answer 12

It is the company’s prerogative to promote its employees to managerial positions. Managerial positions are offices which can only be held by persons who have the trust of the corporation and its officers. They should not be prevented from doing so. A promotion which is manifestly beneficial to an employee should not give rise to a gratuitous speculation that such a promotion was made simply to deprive the union of the membership of the promoted employee.

Question 13

Your client, the employer wants to interrogate members of the union. As the lawyer of the employer, what will you advise him so as not to be charged with unfair labor practice due to interference?

Answer 13

I will advise my client that he must communicate with the employee the purpose of the questioning, assure him that no reprisal would take place and obtain his participation on a voluntary basis. In addition, questioning must also occur in a context free from employer hostility to union organization and must not itself coercive in nature.
Persistent interrogation of employees to elicit information as to what had happened at union meetings and the identity of the active union employees was held violative of organizational rights of employees.

Question 14

Can Unfair Labor Practice be committed against an employee even before the union is registered?

Answer 14

Yes. Under Article 259, of the Labor Code of the Philippines, “to interfere with, restrain, or coerce employees in their exercise of the right to self-organization” is an unfair labor practice on the part of the employer. Paragraph (d) of said Article also considers it an unfair labor practice for an employer “ to initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it.”

Question 15

What is the so called “Totality of Conduct” Doctrine of the Employers?

Answer 15

Expressions of opinion by an employer, though innocent in themselves, frequently held to be culpable because of the circumstances under which they are uttered, the history of the particular employer’s labor relations or anti union bias or because of their connection with an established collateral plan of coercion and interference.

Question 16

What is the test of interference or coercion?

Answer 16

When the conduct reasonably tends to interfere with the free exercise of employee’s right. It is NOT NECESSARY that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is REASONABLE INFERENCE that the anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining.

Question 17

When is a lockout amounts to a ULP?

Answer 17

The evidence must be established that the purpose was to interfere with the employees exercise of their rights. P

Question 18

In Unfair Labor Practice, the dismissal must be entirely and exclusively be motivated by union activities. Yes or no.

Answer 18

No. To constitute Unfair Labor Practice, the dismissal need not ENTIRELY and EXCLUSIVELY motivated by the union activities or affiliations. It is enough that the discrimination is a CONTRIBUTING FACTOR. If the basic inspiration for the act of the employer is derived from the affiliation or activities of the union, the former’s assignment of another reason, no matter how seemingly valid is unavailing.

Question 19

An employer justified the cessation of corporate operations was the alleged business losses.

Answer 19

The employer should present a clear and convincing evidence of imminent economic or business reversals as a form of affirmative defense in the proceedings before the labor arbiter or under justifiable circumstances, even on appeal with the NLRC.

Question 20

When does the doctrine of “Successor-Employer” apply?

Answer 20

a) if the “new” company is engaging in the same business as the closed company or department; or
b) is owned by the same people, and the closure is calculated to defeat the worker’s organizational right.

The closure may be declared a subterfuge and the doctrine of successor employer will be applied. The new company will be treated as a continuation or successor of the one that closed. if such is the case, the separated employees will have to be employed in the new firm because in the first place they should not have been separated at all.

Question 21

Is contracting out a ULP?

Answer 21

No. Contracting out per se is not ULP. It is the ill-intention that makes it so. An employer’s contracting out of work is itself an unfair labor practice where it is motivated by a desire to prevent his employees from organizing or selecting a collective bargaining representative, rid himself of union men or escape his statutory duty to bargain collectively with his employee’s bargaining representative.

Question 22

When contracting out allowed and not ULP?

Answer 22

The employer is not guilty of unfair labor practice in contracting work out of business reasons such as decline in business, the inadequacy of his equipment and the need to reduce cost, even if the employer’s estimate of his cost is based on a PROJECTED INCREASE ATTRIBUTABLE TO UNIONIZATION.

Question 23

What is required before an employer implements a job contracting out?

Answer 23

The employer has the duty to consult the union before implementing a job contracting out that would last for 6 months or more. The company can determine in its business judgment whether it should contract out the performance of some of its work for as long as the employer is motivated by good faith, and the contracting out must not have been the result of malicious or arbitrary action.

Question 24

What is a Run away shop?

Answer 24

1) it is an industrial plant moved by its owners from one location to another to escape labor union regulation and state laws;
2) a plant removed to a new location in order to discriminate against employees of the old plant because of their union activities.

Run away shop refers to business relocation animated by anti-union animus. Sameness of business is not reason enough to show run-away shop to pierce the veil of separate entity.

Question 25

What is a Union Security Clause?

Answer 25

It is a form of encouragement of union membership by requiring membership in the union so that an employee may retain his job and the union existence may be assured. CBA stipulations intended to enforce union membership are generally called union security clause. It is a form of compulsory union membership the objective is to assure continued existence of the union.

Question 26

Are union security clauses form of discrimination?

Answer 26

Yes. There is discrimination favoring unionism. It is a valid kind of “discrimination.” The employer is not guilty of unfair labor practice if it merely complies in good faith with the request of the certified union for the dismissal of the employees expelled pursuant to union security clause in collective bargaining agreements.

Question 27

What is the legal basis of Union Security Clauses?

Answer 27

Article 259 ( e) states,“Nothing in this Code or any other law shall stop the parties from requiring membership in a recognized bargaining agent as a condition of employment.”

Question 28

Define Closed Shop

Answer 28

A closed-shop agreement is one whereby an employer binds himself to hire only members of the contracting union who must continue to remain members in good standing to keep their jobs.

Question 29

Define Union Shop

Answer 29

Non-members may be hired, but TO RETAIN employment must become union members after a CERTAIN period. The requirement applies to present and future employees.

Question 30

Define “Maintenance of Membership Shop”

Answer 30

No employee is compelled to join a union, but all present and future members must, as a condition of employment, remain IN GOOD STANDING in the union.

Question 31

Define “Agency Shop”

Answer 31

An agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. This is directed against “free rider” employees who benefit from union activities without contributing financially to union support.

Question 32

Define “Modified Union Shop”

Answer 32

Employees who are not union members at the time of the signing of the contract need not join the union, but all workers hired thereafter must join.

Question 33

Define “Exclusive Bargaining Shop”

Answer 33

The union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not.

Question 34

What is “Bargaining for Members Only?”

Answer 34

The union is recognized as the bargaining agent ONLY FOR ITS OWN MEMBERS.

Question 35

What is “Open Shop?”

Answer 35

Open Shop. It is an arrangement which does not require union membership as a condition for employment.

Question 36

How to categorize a dismissal based on the application of Union Security Clause?

Answer 36

Union Security Clause in collective bargaining agreements, if freely and voluntarily entered into, are valid and binding. Thus, the dismissal of the employee by the company pursuant to a labor union’s demand in accordance with the union security agreement does not constitute unfair labor practice.

Question 37

Are employees bound by the union security clause in the CBA even if they are unaware of the closed-shop provision in the CBA?

Answer 37

Yes. Neither ignorance nor their dissatisfaction with its terms and conditions would justify breach thereof of the formation by them of a union of their own. This is so because a union member who is employed under an agreement between the union and his employer is bound by the provisions thereof since it is a joint and several contract of the members of the union entered into by the union as their agent. (Villar vs. Inciong, 121 SCRA 444)

Question 38

Does the union security clause be considered a restriction on the right of an employee to self-organization?

Answer 38

Yes. The provision on union security clause is an indirect restriction on the right of the employee to self-organization. It is a solemn pronouncement of a policy that while an employee is given the right to join a labor organization, such right should only be asserted in a manner that will not spell the destruction of the same organization. The law requires loyalty to the union on the part of its members in order to obtain to the full extent of its cohesion and integrity. There is nothing improper in the disputed provisions of the collective bargaining agreement entered into between the parties.

Question 39

What is the requirement in order to validly dismiss an employee due to a Closed-Shop Clause?

Answer 39

There should be a clear and unequivocal statement that the loss of the status of a member of good standing in the union shall be a cause for dismissal.

Question 40

The Union Security Clause in the CBA provided that the employer shall have in its employ and continue to employ members in good standing of the union and it will not employ nor hire any new employee or laborer unless he is a member of good standing in the union. Does the clause reflect a closed-shop agreement?

Answer 40

No. The reason is that it does not expressly and unequivocably require membership in the union as a condition for continuance of employment. The terms “employ” as well as “have in its employ” cannot be read as requiring the employer to retain the service only of members of union in good standing. Union shop, as well as closed shop provisions, should be strictly construed against the existence of union shop. (Confederated Sons of Labor vs. Anakan Lumber Company, G.R. No. L-12503, April 29, 1960)

Question 41

Petitioner Union officers were expelled by the federation for allegedly committing acts of disloyalty and/or acts inimical to the interest of ULGWP and in violation of its Constitution and By-Laws. Upon demand of the federation, the company terminated the petitioners without conducting a separate and independent investigation. Respondent company did not inquire into the cause of the expulsion and whether or not the federation had sufficient grounds to effect the same. Relying merely upon the federation’s allegations, respondent company terminated petitioners from employment when a separate inquiry could have revealed if the federation

Answer 41

While it is true that the issue of expulsion of local union officers is originally between the local union and the federation, hence, intra-union in character, the issue was later on converted into a termination dispute when the company dismissed the petitioners from work without the benefit of separate notice and hearing. As a matter of fact, the records reveal that the termination was effective on the same day that the termination notice was served on the petitioners. Thus, notwithstanding the fact that the dismissal was at the instance of the federation and that it undertook to hold the company free from any liability resulting from such dismissal, the company may still be held liable if it was remiss in its duty to accord the would be dismissed employees the right to be heard on the matter.

Question 42

Who shall pay wages and fringe benefits in case a union member is illegally dismissed due to union security clause?

Answer 42

The Union itself. The employer would not have compelled the employee to go on forced leave were it not for the union’s insistence and demand to the extent that because of the failure of the employer to dismiss the employee as requested, the union filed a notice of strike on the issue of unfair labor practice. Moreover, under the collective bargaining agreement between the union and the employer, the union holds the company free and blameless from any liabilities that may arise should the employee question the dismissal.

Question 43

Who are exempted from compulsory membership covered by a closed-shop clause in the CBA?

Answer 43

1) Religious Objectors. These are members of a religious sect that prohibits membership in a labor union. Their exemption is protected by RA No. 3350 as explained under Article 252;
2) Members of Minority Unions. These are also exempted from compulsory membership in the majority union which is the bargaining agent. It is well-settled in this jurisdiction that, in the absence of a manifest intent to the contrary, “closed-shop” provisions in a collective bargaining agreement apply only to persons to be hired or to employees who are not yet members of any labor organizations and that said provisions of the agreement are not applicable to those already in the service at the time of its execution.
3) Confidential employees are outside the bargaining unit being represented by the bargaining union. To those employee therefore, the CBA itself does not apply.
4) Employees expressly excluded from the CBA stipulation. In the U.S. “Right-to-Work” laws exist in some states. Such a law substantially provides that employees are not to be required to join a union as a condition of receiving or retaining a job. It declares unlawful any agreement which conflicts with the policy that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor organization.

Question 44

What is an Agency Fee?

Answer 44

The employees who are benefitting from the CBA because they are part of the bargaining unit, without being members of the bargaining union, may be required to pay an agency fee. The collection of agency fee in an amount equivalent to union dues and fees is recognized in Article 259 ( e). A written authorization from the non-union employee is not required. The employee’s acceptance of benefits from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union’s entitlement thereto.

Question 45

What is the requisite before an employee be dismissed by the employer because of disloyalty to the union based under a Union Security Clause?

Answer 45

In Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos,[50] the Court said: “While respondent company may validly dismiss the employees expelled by the union for disloyalty under the union security clause of the collective bargaining agreement upon recommendation of the union, this dismissal should not be done hastily and summarily thereby eroding the employees’ right to due process, self-organization and security of tenure.”

Question 46

Is questioning the handling of union funds, the negotiation and conclusion of the CBA an attack against union officers?

Answer 46

No. Under Article 250 of the Labor Code (formerly Article 241) cited by the petitioner and which lists down the rights and conditions of membership in a labor organization, it is her right to be informed of what is going on within the union, especially in the handling of union funds, the negotiation and conclusion of the CBA, in labor education, and in all the rights and obligations of union members under existing laws.

Question 47

What is the Philippine Competition Act and how does it affect the provisions on union security clauses?

Answer 47

In relation to union security clauses, the law provides for the following: “This Act shall not apply to the combinations or activities of workers and employers nor to agreements or arrangements with their respective employers when such combinations, activities, agreements, or arrangements are designed solely to facilitate collective bargaining in respect to conditions of employment.”

Question 48

Why the employer’s reprisal against the right to testify by an employee is an Unfair Labor Practice?

Answer 48

It is ULP because it violates the right to engage in concerted activity. A right included in the right to self-organize. Concerted activity does not always require a number of people acting in unison. An employee acting alone in pursuing a group interest may be said to be doing a concerted activity which the employer may not curtail.

Question 49

Does the retaliation against the right of the workers to testify applies to an employer who retaliates against an employee who refused to testify in favor of the employer?

Answer 49

Yes. The pivotal question in any case where unfair labor practice on the part of the employer is alleged is whether or not the employer has exerted pressure, in the form of restraint, interference, or coercion against his employees right to institute concerted action for better terms and conditions of employment. Without doubt, the act of compelling employees to sign an instrument indicating that the employer observed labor standards provisions of law when he might have not, together with the act of terminating or coercing those who refuse to cooperate with the employer’s scheme, constitutes unfair labor practice.

Question 50

Why “Paid Negotiation” is an Unfair Labor Practice?

Answer 50

Self-organization and collective bargaining are treasured rights of the workers. It is akin to an under the table deal in utter betrayal of the member’s trust.

Question 51

Why violation of CBA is a ground for Unfair Labor Practice?

Answer 51

After the CBA is concluded, the implementation follows. Implementation is still part of the bargaining process which rests on the parties’ “duty to bargain.” The duty to bargain requires good faith and good faith implies observance of what has been agreed upon.

Question 52

What is the remedy of Unfair Labor Practice?

Answer 52

An order requiring the offender to cease and desist from such unfair labor practice and take such affirmative action as to effect the policies of the act including reinstatement and payment of backwages.

Question 53

What is the requirement to support a cease and desist order?

Answer 53

The record must show that the restrained misconduct was an issue in the case. That there was a finding of fact of said misconduct and such finding of fact was supported by evidence.

Question 54

When is there an Affirmative Order?

Answer 54

There is an affirmative order if the respondent employer reinstates the said employee with back pay from the date of discrimination. The order may usually direct the full reinstatement of the discharged employees to their substantially equivalent position without prejudice to their seniority and other rights and privileges.

Question 55

Define “Disestablishment.”

Answer 55

It refers to an order directing the employer to withdraw recognition from the dominated labor union and to disestablish the same. The order shall comprehend the withdrawal of recognition of such labor organization as the employee’s bargaining agent and a bona fide and sufficient communication to the employees of such withdrawal of recognition of such organization by the employer.

Question 56

Is the rule against splitting a cause of action applicable in ULP cases?

Answer 56

Yes. When a labor union accuses an employer of acts of unfair labor practice allegedly committed during a given period of time, the charges should include all acts of unfair labor practice committed against any and all members of the union during that period. The union should not, upon the dismissal of charges first preferred be allowed to split its cause of action and harass the employer with subsequent charges, based upon acts committed during the same period of time. (Dionela vs. Court of Appeals, G.R. L-18334, August 31, 1963)

Question 57

What are Unfair Labor Practice Committed by Labor Organizations?

Answer 57

1) to restrain or coerce employees in the exercise of the right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to acquisition or retention of membership;
2) to cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership is made available to other members;
3) To violate the duty or to refuse to bargain collectively with the employer, provided it is the representative of the employees;
4) to cause or to attempt to cause an employer to pay or deliver or agree to pay and deliver any money or things in value, in the nature of an exaction, for services not performed or not to be performed including the demand for fee for union registration;
5) to ask for or accept negotiations or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute.

Question 58

Who shall be held criminally liable for an act of Unfair Labor Practice by a Labor Organization?

Answer 58

Only the officers, members of the governing boards, representatives or agents or members of labor associations or organizations who ACTUALLY PARTICIPATED IN, AUTHORIZED or RATIFIED unfair labor practices shall be held criminally liable.

Question 59

Can the Labor Union be guilty of ULP because of its interference of the exercise of self-organization?

Answer 59

No. Interference by a labor organization is not ULP. A labor organization may interfere in the employee’s right to self-organization as long as the interference DOES NOT AMOUNT TO RESTRAINT OR COERCION. Interference by a labor organization is not ULP because interfering the right to organize is in itself a function of self-organizing.

Question 60

Is coercion by a union to an employee to participate in a strike a ULP?

Answer 60

Yes. Art. 260 is violated by a union’s restraining or coercing an employee in the exercise of his right to refuse to participate in or recognize a strike. Similarly, a violation is committed when a union threatens employees with bodily harm in order to force them to strike.

Question 61

Salunga resigned from the union out of disappointment over the inaction of union officials on his grievances and their alleged illegal disbursement of union funds. As soon as Salunga resigned, the union requested the company to dismiss Salunga pursuant to the closed-shop provision of the CBA. Salunga, upon learning that his service to the company would be terminated, tried to revoke or withdraw his resignation. But the union denied the withdrawal and instead reiterated its request to the company to implement the closed-shop agreement i.e. to dismiss Salunga. Hesitantly, the company finally acceded to the union’s demand. Salunga complained of illegal dismissal.

Answer 61

It is well-settled that labor unions are not entitled to arbitrarily exclude qualified applicants for membership and a closed-shop provision would not justify the employer in discharging or a union in insisting upon the discharge of an employee who the union refuses to admit membership without reasonable ground therefor.

Question 62

Melba Beloncio, assistant head waitress was expelled from the Manila Mandarin Employees Union for act inimical to the interest of the union. The charge against Melba arose from her emotional remark to a waiter who happened to be a union steward. “Wala akong tiwala sa Union ninyo.” She made the remark in heated discussion when she urged the other waiter to adopt a better attitude toward his work. Told of the incident, the union demanded Melba’s dismissal from employment on the basis of the union security clause in the collective bargaining agreement. The Hotel acceded by placing her on forced leave. Melba filed a complaint for unfair labor practice and illegal dismissal against the union and the Manila Mandarin Hotel.

Answer 62

Union Security Clauses are also governed by law and by principles of justice, fair play and legality. Union Security Clauses cannot be used by union officials against an employer, much less their own members, except with a high sense of responsibility, fairness, prudence and judiciousness.

Question 63

Petitioners were members who were expelled by their union for disloyalty because they allegedly joined NAFLU, another federation. Because of their expulsion, they were dismissed by the corporation upon the union’s demand. Both the labor arbiter and the NLRC found the union security clause in the CBA valid and considered the termination of the members justified. However, the members claimed that their expulsion from the union and the consequent dismissal had no factual basis, because they did not affiliate with the NAFLU. They denounced the connivance between the company and the union.

Answer 63

The employees were denied due process. There was no impartial tribunal or body vested with authority to conduct disciplinary proceeding under the constitution and by-laws and the complainants were not furnished notice of the charge against them nor timely notices of the hearing on the same. Petitioners had no idea that they were charged with disloyalty. The proceedings violated the rule of fair play. The Board of Directors of the union acted as prosecutor, investigator and judge at the same time. Employees are entitled to due process before they are expelled from the union on the charge of disloyalty. (Rance et. al. vs. NLRC and Polybag Manufacturing Corp. et. al. G.R. No. 68147, June 30, 1988)

Question 64

How can a union commit a ULP by its refusal to bargain?

Answer 64

ULP under Article 260( c ) is intended to insure that unions approach the bargaining table with the same attitude of willingness to agree as the law requires of management. A union violates its duty to bargain collectively by entering negotiations with a fixed purpose of not reaching an agreement or signing a contract.

Question 65

What is “Featherbedding” and Make Work Arrangements?

Answer 65

Featherbedding is a term given to employee practices which create or spread employment by “unnecessarily maintaining or increasing the number of employees used, or the amount of time consumed, to work on a particular job. In spite of employee assertions that these so-called featherbedding or make work practices are directly related to job security, or health and safety, most courts at common law found these practices to be economically wasteful and without legitimate employee justifications.