UNFAIR LABOR PRACTICESSource: The Labor Code with comments and cases, Volumes II-A and II-B, 2013 edition, Cesario Alvero Azucena, Jr.Prepared by: FLORLEANE A. SACARESCONCEPT

Article 247. Concept of unfair labor practice and procedure for prosecution thereof. Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and 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.

Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided.

Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision.

Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.

No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. (As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989).

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1. CONCEPT OF UNFAIR LABOR PRACTICE

The major aim of labor relations policy is industrial democracy whose realization is most felt in free collective bargaining or negotiation over terms and conditions of employment. But for bargaining negotiation to be true and meaningful, the employees, first of all, must organize themselves. Because self-organization is a prerequisitethe lifebloodof industrial democracy, the right to self-organize has been enshrined in the Constitution, and any act intended to weaken or defeat the right is regarded by law as an offense. The offense is technically called unfair labor practice (ULP). Literally, it does not mean an unfair practice by labor but a practice unfair to labor, although the offender may either be an employer or a labor organization.

The victim of the offense is not just the workers as a body and the well-meaning employers who value industrial peace, but the State as well. Thus, the attack to this constitutional right is considered a crime which therefore carries both civil and criminal liabilities.

The commission of an unfair labor practice is an offense against a public right or interest and should be prosecuted in the same manner as a public offense. ULP VS EMPLOYERS VIOLATION OF ITS CONTRACTUAL OBLIGATION ULP: involves violations of a public right or policy, to be prosecuted like criminal offenses BREACH OF OBLIGATION: only a contractual breach to be redressed like an ordinary contract or obligation.

1.1 Elements

1. there is employer-employee relationship between the offender and the offended;

The first element is required because ULP is negation of, a counteraction to, the right to organize which is available only to employees in relation to their employer. No organizational right can be negated or assailed if employer-employee relationship is absent in the first place.

2. the act done is expressly defined in the Code as an act of unfair labor practice.

The second element is that the act done is prohibited by the Code, specifically in Articles 248 and 261 for an employer and Article 249 for a labor organization. Art. 212(k) emphatically defines unfair labor practice as any unfair labor practice as expressly defined in this Code. Art. 261 amplifies Art. 248(i) by stating that violation of a CBA is unfair labor practice only if the violation is gross in character.

The prohibited acts, it should be stressed, are all related to the workers self-organizational right and to the observance of a collective bargaining agreement (CBA). EXCEPTION: Art. 248(f) referring to dismissing or prejudicing an employee giving testimony under this Code [regardless of the subject of the testimony].

NOTE: NOT EVERY UNFAIR ACT IS UNFAIR LABOR PRACTICE ULP has technical meaning because it is a labor relations concept with a statutory definition. It refers only to acts opposed to workers right to organize. Without that element, the act, no matter how unfair, is not unfair labor practice as legally defined.

2. PROSECUTION OF U.L.P.

Two aspects:

a. CIVIL

b. CRIMINAL

Under Art. 247 ULP has civil as well as criminal aspects. The civil aspect may include liability for damages and these may be passed upon by a labor arbiter.

To prosecute ULP as criminal offense is not possible until after finality of judgment in the labor case, finding that the respondent indeed committed unfair labor practice. But such judgment will not serve as evidence of ULP in the criminal case; the criminal charge must be proved independently from the labor case. Moreover, while only substantial evidence is required in labor case in the NLRC, proof beyond reasonable doubt is needed to convict in the criminal case of ULP.

JURISDITION: The criminal charge

Under Art. 228 falls under the concurrent jurisdiction of the Municipal or Regional Trial Court. The same article defines the penalty of fine and/ or imprisonment.

Xxx Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas Pambansa Bilang 70)Under Art. 289, the penalty shall be imposed upon the guilty officers of a corporation, partnership, association or entity. If the ULP is committed by a labor organization the parties liable are those mentioned in Art. 249.

Article 289.Who are liable when committed by other than natural person.If the offense is committed by a corporation, trust, firm, partnership, association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity.The offense prescribes in one year. (Art. 290)All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from accrual of such unfair labor practice; otherwise, they shall be forever barred.________

UNFAIR LABOR PRACTICES OF EMPLOYERS

Article 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice:

(a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;

(b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall with-draw from one to which he belongs;

(c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization;

(d) 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 or its organizers or supporters;

(e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;

(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;

(g) To violate the duty to bargain collectively as prescribed by this Code;

(h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or

(i) To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981).

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1. CONDITIONS PRECEDENT TO U.L.P. CHARGE

Before an employee may be considered aggrieved by an alleged unfair labor practice (ULP) by an employer, it must be demonstrated, firstly, that the injured party comes within the definition of employee as that term is defined by the Code, and secondly, the act charged as ULP must fall under the prohibition of Art. 248 (acts of the employer) or 249 (acts of the union).

Nonetheless, specific denomination of the act is not necessary to prosecute ULP. In resolving the question of whether or not an employer committed the act charged in the complaint, it is of no consequence, either as a matter of procedure or of substantive law, how the act is denominatedwhether as a restraint, interference or coercion, or a discriminatory discharge, or as a refusal to bargain, or even as a combination of any or all of these. For however the employers conduct may be characterized, what is important is that it constituted an unfair labor practice.2. ILO CONVENTION NO. 98

Article 1

1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

2. Such protection shall apply more particularly in respect of acts calculated to--

(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

Article 2

1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration.

2. In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article.

3. NO U.L.P.: ILLUSTRATIVE INSTANCES OF VALID EXERCISE OF MANAGEMENT RIGHTS

The law on unfair labor practices is not intended to deprive employers of their fundamental right to prescribe and enforce such rules as they honestly believe to be necessary to the proper, productive and profitable operation of their 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 Act and its several prohibitions.3.1 Personnel Movements

As a rule, it is the prerogative of the company to promote, transfer or even demote its employees to other positions when the interests of the company reasonably demand it.

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.

3.2 Acceptance of Mass Resignation

Acceptance of a voluntary resignation is not ULP. In a Philippine Airlines case the court said that the pilots "protest retirement/resignation" was not a concerted activity which was protected by law. They did not assume the status of strikers.

4. DETERMINATION OF VALIDITY

Necessarily, determining the validity of an employers act involves an appraisal of his motives.The attendant circumstances, the history of employer's past conduct and like considerations, coupled with an intimate connection between the employer's action and the union affiliations or activities of the particular employee or employees taken as a whole raise a suspicion as to the motivation for the employer's action, the failure of the employer to ascribe a valid reason therefor may justify an inference that his unexplained conduct in respect of the particular employee or employees was inspired by the latter's union membership or activities.

While the presence of this mere suspicion neither takes the place of evidence that the employer's conduct was improperly motivated nor dispenses with the requirement of proof of the fact, such suspicion, when coupled with other facts which in themselves, might have been inadequate to support an adverse finding against the employer, may suffice to sustain a finding that the employer's action violated the prohibition of the Act.

5. FIRST U.L.P.: INTERFERENCE (ART. 248[a])

Interrogation

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 as violative of organizational rights of employees.

Prohibiting Organizing Activities

A rule prohibiting solicitation of union membership in company property is unlawful if it applies to non-working time as well as to working time.

Espionage and Surveillance

One form of pressure which some over-eager employers sometimes use is the practice of spying upon employees. When an employer engages in surveillance or takes steps leading his employees to believe it is going on, a violation results because the employees come under threat of economic coercion or retaliation for their union activities.

Employers Expression of Opinion; Totality of Conduct Doctrine

The doctrine holds that the culpability of employers remarks was to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.

(1) Letter to individual employeesIt is an act of interference for the employer to send a letter to all employees notifying them to return to work at a time specified therein, otherwise new employees would be engaged to perform their jobs. Individual solicitation of the employees or visiting their homes, with the employer or his representative urging the employees to cease union activity or cease striking, constitutes unfair labor practice. (2) Strike-breakingWhen the respondent company offered reinstatement and attempted to "bribe" the strikers with "comfortable cots," "free coffee and occasional movies," "overtime" pay for "work performed in excess of eight hours," and "arrangements" for their families, so they would abandon the strike and return to work, they were guilty of strike-breaking and/or union-busting and, consequently, of unfair labor practice.

(2) Acts violative of right to organize the offer of a Christmas bonus to all "loyal" employees of a company shortly after the making of a request by the union to bargain; wage increases given for the purpose of mollifying employees after the employer has refused to bargain with the union, or for the purpose of inducing striking employees to return to work; the employer's promises of benefits in return for the strikers' abandonment of their strike in support of their union

(3) Test of interference or coercionThe test of whether an employer has interfered with and coerced employees :

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 a reasonable inference that anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining.

(5) The totality of conduct doctrinethe letters of the company president to the individual strikers should not be considered by themselves alone but should be read in the light of the preceding and subsequent circumstances.

Mass Layoff Amounting to U.L.P.

An employer which closed its business to put an end to a unions activities, and which made no effort to allow the employees attempt to exercise their right to self-organization and collective bargaining, and even threatening the employees that they would lose their jobs if they did not cease affiliation with the union, commits unfair labor practice.

Successor Employer; Piercing the Corporate Veil

Closure is likewise not legal and the employees cannot be separated if, in fact, there is no closure because the closed department or company reappeared although under a new name. If the new company is, for instance, engaging in the same business as the closed company or department, or is owned by the same people, and the closure is calculated to defeat the workers organizational right, then, the closure may be declared a subterfuge and the doctrine of successor employer will be applied, that is, the new company will be treated as a continuation or successor of the one that closed. If such be 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.

The successor employer ruling is an enforcement of the legal recourse called piercing the veil of corporate entity.

6. SECOND U.L.P.: YELLOW DOG CONDITION (ART. 248[b])

Contract provisions whereby an employee agrees that during the period of his employment he will not become a member of a labor union. (1) a representation by the employee that he is not a member of a labor union; (2) a promise by the employee not to join a labor union; (3) a promise by the employee that, upon joining a labor union, he will quit his employment.

7. THIRD U.L.P.: CONTRACTING OUT (ART. 248[c])

Contracting out itself, is not ULP; it is the ill intention that makes it so.

An employers contracting out of work is itself an unfair labor practice where motivated by a desire to prevent his employees from organizing and selecting a collective bargaining representative, rid himself of union men, or escape his statutory duty to bargain collectively with his employees bargaining representative.

Runaway Shop

. A runaway shop is defined as an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws, but the term is also used to describe a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities. Runaway shop refers to business relocation animated by anti-union animus. Mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock of a corporation is not of itself sufficient ground for disregarding the separate corporate personality.

This fiction of corporate entity can only be disregarded in certain cases such as when it is used to defeat public convenience, justify wrong, protect fraud, or defend crime. To disregard said separate juridical personality of a corporation, the wrongdoing must be clearly and convincingly established.

8. FOURTH U.L.P.: COMPANY-DOMINATION OF UNION (ART. 248[d])

Domination of a labor union usually manifests in the following forms:

(a) Initiation of the company union idea.

(1) outright formation by the employer or his representatives; (2) employee formation on outright demand or influence by employer; and (3) managerially motivated formation by employees.

(b) Financial support to the union. An employer commits unfair labor practice if he defrays the union expenses or pays the attorneys fees to the attorney who drafted the constitution and by-laws of the union.

(c) Employer encouragement and assistance. Immediately granting the union exclusive recognition as a bargaining agent without determining whether the union represents the majority of employees is an illegal form of assistance amounting to unfair labor practice.

(d) Supervisory assistance. This takes the form of soliciting membership, permitting union activities during working time or coercing employees to join the union by threats of dismissal or demotion.

A labor union is company-dominated where it appears that key officials of the company have been forcing employees belonging to a rival labor union to join the former under pain of dismissal should they refuse to do so.9. FIFTH U.L.P.: DISCRIMINATION (ART. 248[e])

What the law prohibits is discrimination to encourage or discourage membership in a labor organization. Where the purpose is to influence the union activity of employees, the discrimination is unlawful. Under the Industrial Peace Act, to constitute an unfair labor practice, the discrimination committed by the employer must be in regard to the "hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." Discouraging membership in a labor organization includes not only discouraging adhesion to union membership but also discouraging participation in union activities such as legitimate strike.

Discrimination in Bonus Allocation or Salary Adjustments

There is unfair and unjust discrimination in the granting of salary adjustments where the evidence shows that (a) the management paid the employees of the unionized branch; (b) where the salary adjustments were granted to employees of one of its nonunionized branches although it was losing in its operations; and(c) the total salary adjustments given every ten of its unionized employees would not even equal the salary adjustments given one employee in the nonunionized branch.

Discrimination in Layoff or Dismissal

Even where business conditions justified a layoff of employees, unfair labor practices in the form of discriminatory dismissal were found where only unionists were permanently dismissed while nonunionists were not.

Indirect Discrimination

It is a well settled rule of law that what is prohibited to be done directly shall not be allowed to be accomplished indirectly.

Thus, the following acts have been held unfair labor practices: (1) the dismissal of a laborer in account of union activities of his brother; (2) the discharge of an employee due to the union activities of the wife; and (3) the discharge of a wife due to the union activities of the husband.

TEST of Discrimination

If the discharge is actually motivated by a lawful reason, the fact that the employee is engaged in union activities at the time will not lie against the employer and prevent him from the exercise of his business judgment to discharge an employee for cause.

Where circumstances establish a discriminatory motive on the part of the employer, the assignment of a just cause will be unavailing. If it can be established that the true and basic inspiration for the employers act is derived from the employees union affiliations or activities, the assignment by the employer of another reason, whatever its semblance of validity, is unavailing.

An interference that the discharge of an employee was motivated by his union activity must be based upon evidence, direct or circumstantial, not upon mere suspicion.

Constructive Discharge

Where the employer prohibits employees from exercising their rights under the Act, on pain of discharge, and the employee quits as a result of the prohibition, a constructive discharge occurs, which may be remedies in an unfair labor practice proceeding.

Discharge Due to Union Activity, A Question of Fact

The question of whether an employee was discharged because of his union activities is essentially a question of fact as to which the findings of the Court of Industrial Relations are conclusive and binding if supported by substantial evidence considering the record as a whole. This is so because the Industrial Court is governed by the rule of substantial evidence, rather than by the rule of preponderance of evidence as in any ordinary civil cases. EXCEPTION TO DISCRIMINATION:

Valid Discrimination: Union Security Clause

There is a form of encouragement of union membership which is not considered ULP. 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 employees expelled from the union pursuant to the union security clause in the collective bargaining agreement.

KINDS of Union Security Agreements

Closed-shop: Only union members can be hired by the company and they must remain as union members to retain employment in the company.

Union Shop: Nonmembers may be hired, but to retain employment must become union members after a certain period. The requirement applies to present and future employees.

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

Maintenance of Membership Shop: No employee is compelled to join the union, but all present or future members must, as a condition of employment, remain in good standing in the union.

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

Bargaining for Members Only: The union is recognized as the bargaining agent only for its own members

Agency Shop: An agreement whereby employees must either join the union or pay the union as exclusive bargaining agent a sum equal to that paid by the members. This is directed against free rider employees who benefits from union activities without contributing financially to union support. It prevents situation where non-union members enrich themselves at the expense of union members. Another term for agency shop agreement is maintenance of treasury shop.

The above variations are opposite of open shop, an arrangement which does not require union membership as a condition of employment.

Validity of Closed-Shop Agreement

It is the policy of the State to promote unionism to enable the workers to negotiate with management on the same level and with more persuasiveness than if they were to individually and independently bargain for the improvement of their respective conditions. To this end, the Constitution guarantees to them the rights "to self-organization, collective bargaining and negotiations and peaceful concerted actions including the right to strike in accordance with law." A closed-shop agreement is an agreement 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. By holding out to loyal members a promise of employment in the closed-shop, it welds group solidarity. It is a very effective form of union security agreement.Advantages and Disadvantages of Closed-Shop Agreement

A closed-shop agreement is advantageous because it

a. Increases the strength and bargaining power of labor organizations.

b. Prevents non-union workers from sharing in the benefits of the unions activities without also sharing its obligations.

c. Prevents the weakening of labor organizations by discrimination against union members.

d. Eliminates the lowering of standards caused by competition with non-union workers.

e. Enables labor organizations effectively to enforce collective agreements.

f. Facilitates the collection of dues and the enforcement of union rules.

g. Creates harmonious relations between the employer and employee.

But it is disadvantageous as it

a. Results in monopolistic domination of employment by labor organizations.

b. Interferes with the freedom of contract and personal liberty of the individual worker.

c. Compels employers to discharge all non-union workers regardless of efficiency, length of service, etc.

d. Facilitates the use of labor organizations by unscrupulous union leaders for the purpose of extortion, restraint of trade, etc.

e. Denies to non-union workers equal opportunity for employment.

f. Enables union to charge exorbitant dues and initiation fees.

Valid Dismissal Because of Application of Union Security Clause

Union security clauses in collective bargaining agreements, if freely and voluntarily entered into, are valid and binding. Corollary, dismissals pursuant to union security clauses are valid and legal subject only to the requirement of due process, that is, notice and hearing prior to dismissal. Even if the union members were unaware of the closed-shop stipulation in the CBA, they were bound by it. 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.

Dismissal Pursuant to Closed-Shop Clause Must Clearly Appear in Contract

In order to validly dismiss an employee by force of the union security clause, 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.

To Whom Not Applicable

All employees in the bargaining unit covered by a closed-shop agreement are subject to its terms, except the following: (1) any employee who at the time the closed-shop agreement takes effect is a bona fide member of religious organization which prohibits its members from joining labor unions on religious grounds; (2) employees already in the service and already members of a labor union or unions other than the majority union at the time the closed-shop agreement took effect; (3) Confidential employees who are excluded from the rank-and-file bargaining unit; and (4) employees excluded from the closed-shop by express terms of the agreement.

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 organization" and that said provisions of the agreement are not applicable to those already in the service at the time of its execution. To hold that the employees in a company who are members of a minority union may be compelled to disaffiliate from their union and join the majority or contracting union, would render nugatory the right of all employees to self organization and to form, join or assist labor organizations of their own choosing, a right guaranteed by the Industrial Peace Act (sec. 3, Rep. Act No. 875) as well as by the Constitution (Art. III, sec. 1[6]).

10. SIXTH U.L.P.: DISCRIMINATION BECAUSE OF TESTIMONY (ART. 248[f])

The law protects not only the employees right to form, join, or assist labor organizations but also their right to testify on matters covered by the Code. If this right is not protected, the right to self-organization will be indirectly defeated because the employees will fear their employers reprisal. shields the workers right to self-organization from indirect assault by the employer. Thus, it is ULP to dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code.

Refusal to Testify

scheme of inducing his employees to sign an affidavit absolving him from possible violations of the Labor Code taints with evident bad faith and deliberate malice petitioner's summary termination from employment. 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 employee's 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. 11. SEVENTH U.L.P.: VIOLATION OF THE DUTY TO BARGAIN (ART. 248[g])Four Forms of ULP in Bargaining

(1) failure to meet and convene; (2) evading the mandatory subjects of bargaining; (3) bad faith in bargaining, including failure or refusal to execute the collective agreement, if requested; and (4) gross violation of the CBA.

FIRST U.L.P. IN BARGAINING: FAILURE OR REFUSAL TO MEET AND CONVENE

To bargain in good faith, an employer must not only meet and confer with the union which represents his employees, but also must recognize the union for the purpose of collective bargaining. Since a collective bargaining agreement does not define all the rights and obligations of the employer and his employees, negotiation of grievances is part and parcel of the bargaining process.

Do Economic Exigencies Justify Refusal to Bargain?

An employer has been held not guilty of a refusal to bargain by adamantly rejecting the unions economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate.

Acts not Deemed Refusal to Bargain

The duty to bargain is not violated by:

(1) adoption of an adamant bargaining position in good faith, particularly when the company is operating at a loss;

(2) refusal to bargain over demands for commission of unfair labor practices;

(3) refusal to bargain during period of illegal strike.

If a union engages in an illegal strike, the employer has no obligation to bargain until he is notified that the illegal strike has been terminated.

Where, pursuant to an honest doubt, the employer has demanded additional proof or acquisition of an official certification of bargaining agency, there is no obligation or duty on the employers part to enter into negotiations until the demanded proof is presented pending the certification proceedings, unless it can be established that the demand lacks in good faith and is intended as an obstruction to negotiations.

Neither is the duty to bargain violated where:

(1) there is no request for bargaining;

(2) the union seeks recognition for an inappropriately large unit;

(3) the union seeks to represent some persons who are excluded from the Act;

(4) the rank-and-file unit includes supervisors or inappropriate otherwise;

(5) the demand for recognition and bargaining is made within the year following a certification election in which the clear choice was no union and no ad interim significant change has taken place in the unit;

(6) the union makes unlawful bargaining demands.

Non-reply to Proposal; CBA Imposed on Employer

A companys refusal to make counter proposal if considered in relation to the entire bargaining process, may indicate bad faith and this is especially true where the Unions request for a counter proposal is left unanswered. Moreover, the Court added in the same case that it is not obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the other. But an erring party should not be tolerated and allowed with impunity to resort to schemes feigning negotiations by going through empty gestures.

SECOND U.L.P. IN BARGAINING: EVADING THE MANDATORY SUBJECTS

It is the obligation of the employer and the employees representative to bargain with each other with respect to wages, hours, and other terms and conditions of employment. ( must materially or significantly affect the terms or conditions of employment.

The employers duty to bargain is limited to the mandatory bargaining subjects; as to other matters, he is free to bargain or not to bargain.

Wages and Employment Conditions

The term wages, as used in 29 USCS Sec. 158(d), has been held to include not only compensation but also other emoluments of value furnished by the employer to his employees. WAGE

refers to remuneration or earnings, however designated, capable of being expressed in terms of money, etc.

Since the passage of the Taft-Hartley Act, the National Labor Relations Board has held that industrial pensions, group insurance, and merit increases all are matters about which employers must bargain collectively.

The following are examples of matters considered as mandatory subjects of bargaining:

(1) Wages and other types of compensation, including merit increases;

(2) Working hours and working days, including work shifts;

(3) Vacations and holidays;

(4) Bonuses;

(5) Pensions and retirement plans;

(6) Seniority;

(7) Transfer;

(8) Lay-offs;

(9) Employee workloads;

(10) Work rules and regulations;

(11) Rent of company houses;

(12) Union security arrangements.

Wage Agreement; Solomonic Approach

not the best method of resolving a wage dispute.

Merely finding the midway point between the demands of the company and the union, and "splitting the difference" is a simplistic solution that fails to recognize that the parties may already be at the limits of the wage levels they can afford. It may lead to the danger too that neither of the parties will engage in principled bargaining; the company may keep its position artificially low while the union presents an artificially high position, on the fear that a "Solomonic" solution cannot be avoided. Thus, rather than encourage agreement, a "middle ground approach" instead promotes a "play safe" attitude that leads to more deadlocks than to successfully negotiated CBAs.Workloads and Work Rules

Employer rules concerning coffee breaks, lunch periods, smoking, employee discipline, and dress are also mandatory subjects of bargaining, as are plant safety rules and general regulations.

Company rules relating to safety and work practices come within the meaning of the phrase other terms and conditions of employmentCode of Conduct

Work rules and regulations are commonly compiled into a booklet usually called Code of Discipline or Code of Conduct. Such dos and donts for employees of the enterprise are work rules, forming part of terms and conditions of employmentArbitration, Strike-Vote, or No-Strike Clause

An employer may lawfully bargain to an impasse over his proposal that the collective bargaining agreement include an arbitration clause or a no-strike clause which prohibits the employees from striking during the life of the agreement.No-Lockout Clause; Clause Fixing Contractual Term

An employers statutory duty to bargain requires him to negotiate over the unions proposal that their agreement include a clause binding him not to lock out the employees. An employers refusal to bargaining over the duration of the contract to be entered into is also an unfair labor practice.

No Duty to Agree Even on Mandatory Subjects

Where the subject of the dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in good faith. The duty to bargain does not obligate a party to make concessions or yield a position fairly held. Hence, an employers adamant insistence on a bargaining position is not necessarily a refusal to bargain in good faith.

Even if the negotiating party thumbs down the other partys proposals, there is no violation of the duty to bargainhence, no ULPas long as the negative reply can be explained in good faith.

Non-mandatory Subjects

An employer cannot insist, to the point of creating a bargaining impasse, on the inclusion of a provision outside the scope of the statutory bargaining subjects, even if he acts in good faith. A bargaining impasse may be reached over a non-mandatory bargaining subject although that subject is not the sole cause for the parties failure to agree. When a subject under discussion is not mandatory, it may be discussed if both parties agree, but a strike or lockout may not be used to compel a negotiation or agreement.

Bargaining to the Point of Impasse: Not necessarily Bad Faith

The adamant insistence on a bargaining position to the point where the negotiations reach an impasse does not establish bad faith. Stated in another way, the ruling means that bargaining to the point of deadlock may or may not amount to bargaining in bad faith depending on whether the insistence refers to a mandatory or a non-mandatory subject of bargaining.

The reason is that the duty to bargain requires meeting and convening on terms and conditions of employment but does not require assent to the other partys proposals.

Over a non-mandatory subject, on the other hand, a party may not insist on bargaining to the point of impasse, otherwise his insistence can be construed as bargaining in bad faith. It may be construed as evasion of the duty to bargain; such evasion is ULP.

What the rulings forbid is the posture of making settlement on a non-mandatory subject a precondition to the discussion or settlement of a mandatory subject. When Is There Deadlock or Impasse?

A bargaining impasse over an issue exists where good faith bargaining on the part of the parties has failed to resolve the issue and there are no definite plans for further efforts to break the deadlock.

Impasse, presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in an agreement between the parties. In the NLRBs view, whether a bargaining impasse exists is a matter of judgment dependent on such factors as the bargaining history, the parties good faith in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, and the contemporaneous understanding of the parties as to the state of negotiations.

Duty to Bargain When There Is Deadlock or Impasse

Deadlock does not mean the end of bargaining. It signals rather the need to continue the bargaining with the assistance of a third party as conciliator or arbitrator whose first aim is to get the parties back to the negotiating table and help them craft a win-win solution.THIRD U.L.P. IN BARGAINING: BAD FAITH.Bargaining requires a sincere effort to reach agreement, although it does not require agreement itself. Moreover, the duty to bargain does not end with the negotiation of the agreement.

Determination of Good Faith

A fair criterion of good faith in collective bargaining requires that the parties involved deal with each other with open and fair mind and sincerely endeavor to overcome obstacles or difficulties existing between them to the end that employment relations may be established and obstruction to the free flow of commerce prevented. When Can Bargaining in Bad Faith Occur?

But if one will be charged with bargaining in bad faith, the charge should be raised while the bargaining is in progress. When the bargaining is finished and the CBA has been executed voluntarily by the parties, a charge of bargaining in bad faith is too late and untenable.

With the execution of the CBA, bad faith bargaining can no longer be imputed upon any of the parties thereto. All provisions in the CBA are supposed to have been jointly and voluntarily incorporated therein by the parties. The CBA is proof enough that private respondent exerted "reasonable effort at good faith bargaining."

INSTANCES of Bad Faith: Delay of, or Imposing Time Limit on, Negotiations

An unwarranted delay in negotiations may be evidence of bad faith on the part of the employer. HoweverThe National Labor Relations Board of the United States reported that lack of good faith is indicated where the employer engages in unfair labor practices while bargaining with the union; where it engages in dilatory tactics during negotiations; or where it institutes a wage cut by unilateral action and without consulting the majority representative.

Nonetheless, the prior adjudication of bad faith on an earlier occasion is not itself substantial evidence of present bad faith.

As the Court held in the case of Kiok Loy v. NLRC, 141 SCRA 179, 186 (1986), the company's refusal to make counter-proposal to the union's proposed CBA is an indication of its bad faith.

Surface bargaining which means a sophisticated pretense in the form of apparent bargaining, does not satisfy the statutory duty to bargain. The duty is not discharged by merely meeting together or simply manifesting a willingness to talk. It requires more than a willingness to enter upon a sterile discussion of union-management differences. Collective bargaining is not simply an occasion for purely formal meetings between management and labor while each maintains an attitude of take it or leave it, but presupposes a desire to reach an ultimate agreement to enter into a collective bargaining contract. Repeated shifts in position and attitude on the part of an employer whenever a tentative agreement is reached are evidence of a refusal to bargain collectively in good faith. It has also been held that an employer cannot reject a unions acceptance of the employers counter offer on the ground that the union had earlier rejected the offer.

Inflexible Demands; Strike Amid Negotiation

Boulwarism; Take-It-or-Leave-It Bargaining

A Company would use its local management personnel on the desires of the work force on the type and level of benefits; these were then translated into specific proposals, whose cost and effectiveness were researched in order to determine an attractive bargaining offer within the Company's means; the Company then attempted to "sell" its proposals to its employees and the general public through a publicity campaign in plant newspapers, bulletins, letters, television and radio announcements and personal contacts. Central tenets of "the Boulware approach" is that the "product" or "firm, fair offer" must be marketed vigorously to the "consumers" or employees, to convince them that the Company, and not the Union, is their true representative.

The aim, in a word, was to deal with the Union through the employees, rather than with the employees through the Union.

FOURTH U.L.P. IN BARGAINING: GROSS VIOLATION OF THE CONTRACT

At this stage, the negotiations are over; the document has been signed, sealed, and delivered. Implementation should follow. But at this stage the collective bargaining process is not yet over, and the duty to bargain is still operative because such duty further requires faithful adherence to the contractual provisions. Violation of the contract amounts to ULP, if the violation is gross.

EIGHT U.L.P.: PAID NEGOTIATION (ART. 248[h])

Self-organization and collective bargaining are treasured rights of workers. The law zealously shields them from corruption. It is a punishable act of ULP for the employer to pay the union or any of its officers or agents any negotiation fee or attorneys fee as part of settlement in collective bargaining or any labor dispute. To do so is not unlawful.

13. NINTH U.L.P.: VIOLATION OF THE CBA (ART. 248[i])After a CBA is concluded, its implementation follows. Implementation is still part of the bargaining process which, it should be recalled, rests on the parties duty to bargain. The duty to bargain, it should also be recalled, requires good faith. And good faith implies faithful observance of what has been agreed upon. It logically follows that noncompliance with the agreement is non-observance of good faith in bargaining; therefore, the noncompliance amounts to ULP.

14. RELIEF IN U.L.P. CASES

Cease and Desist Order

To support a cease and desist order, 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. The Court is not authorized to issue blank cease and desist orders, but must confine its injunction orders to specific act or acts which are related to past misconduct. A cease and desist order is not invalidated because the act complained of was voluntarily discontinued prior to or during the course of the proceedings. But if the act complained of happened so long a time that there is no longer any threat or probability of a recurrence, a cease and desist order will not be justified.

Affirmative Order

The Court does not only have the power to issue negative or prohibitive orders but also affirmative or positive orders.

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.

Order to Bargain; Mandated CBA

Likewise, when an employer has failed or refused to bargain with the proper bargaining agent of his employees, the Court may, in addition to the usual cease and desist orders, issue an affirmative order to compel the respondent to bargain with the bargaining agent.

Disestablishment

Where the employer had initiated, dominated or assisted in or interfered with the formation or establishment of any labor organization or contributed financial or other support to it, the Court may issue, in addition to a cease and desist order, an order directing the employer to withdraw all recognition from the dominated labor union and to disestablish the same.

15. U.L.P. NOT SUBJECT TO COMPROMISE

The relation between capital and labor are not merely contractual. They are so impressed with the public interest that labor contracts must yield to the common good.

16. U.L.P. IN A GIVEN PERIOD SHOULD BE INCLUDED IN SINGLE CHARGE

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 the 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.17. EMPLOYERS RESPONSIBILITY FOR U.L.P. ACTS BY SUBORDINATE OFFICIALS

Knowledge by the employer of the employees improper acts: Where it was established that the employer was aware of the employees wrongdoing, his failure to prevent continuation of the course of conduct or his failure to renounce any connection or affinity therewith, invited the imputation of fault and responsibility to the employer.

Continuity of improper conduct by employee: A single utterance by a supervisory employee, whether improvident or deliberate on the employees part, was not ordinarily and n absence of proof of actual authority held to be sufficient to convict an employer of an unfair labor practice; however, continued, repeated or widespread activities by such supervisory employee in affront of the rights of the body of employees was deemed ample justification for ascribing knowledge and blame to the employer.

Employers past policy and attitude: It has been held that, among other things, the similarity between the past attitude or policy of the employer and that of the offending supervisory employee might, in certain cases, be indicative of a concert of effort between the two.SUMMARY:

9 ULP ACTS OF EMPLOYER under Art. 248 are: (1) Interference;

(2) yellow dog contract;

(3) contracting out;

(4) company unionism;

(5) discrimination;

(6) discrimination because of testimony;

(7) violation of duty to bargaining (4 instances);(8) paid negotiation; and (9) violation of CBA.________

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

Article 249. Unfair labor practices of labor organizations. - It shall be unfair labor practice for a labor organization, its officers, agents or representatives:

(a) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;

(b) 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 or continuation of membership is made available to other members;

(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees;

(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations;

(e) To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or

(f) To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981).

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1. RESTRAINT OR COERCION BY LABOR ORGANIZATION; INTERFERENCE BY UNION IS NOT ULP

A labor organization commits ULP when it restrains or coerces employees in their right to self-organization. But interference is left out. This deliberate omission is the equivalent of license of labor organization to engage in those practices which, at the hands of an employer, would constitute actionable unfair labor practices by way of interference. In other words, a labor organization may interfere in the employees 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 in the exercise of the right to organize is itself a function of self-organizing.

1. COERCIONThe provision is violated by a unions restraining or coercing an employee in the exercise of his right to refuse to participate in or recognize a strike. 2. UNION-INDUCED DISCRIMINATION

The law forbids as ULP union attempts to cause an employer to grant advantages for union members over non-members, for union members in good standing over suspended or expelled members, for union members over permit holders, for members of the union executive board over more senior employees, for members of one union over members of another union, or for members of one local over members of another local.

The forbidden discrimination may refer to terms of hiring or firing, in layoff, in seniority, or in benefits.3. REFUSAL TO BARGAIN

ULP under Art. 249(c) is intended to insure that unions approach the bargaining table with the same attitude of willingness to agree as the Act 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.

4. FEATHERBEDDING AND MAKE-WORK ARRANGEMENTS

Featherbedding is the name 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.