Labor Relations 3: Unfair Labor Practices

Art. 247. Concept of Unfair Labor Practice and Procedure for Prosecution Thereof Unfair Labor practices violate the constitutional right of workers to self-organization and 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 labormanagement relations. Consequently, ULP 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 exercise by the President or 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 ULP, which may include claims for actual, moral or exemplary and other forms of damages, attorneys fees and affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The LArbiters shall give utmost priority to the hearing and resolution of all cases involving ULP. They shall resolve such cases within 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 proceedings, the running of the period for prescription of the criminal offense 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 herein set forth. A major aim of labor relations is industrial democracy whose realization is most felt in free collective bargaining.

ULP is a practice unfair to Labor, not unfair practice by labor. Victim of the offense: workers, well-meaning employers and the State. ULP is a crime that carries both civil and criminal liabilities.

Elements: 1. Employer-employee relationship because ULP is a negation of the right to organize which is available only to employees against their employer. 2. The act done is expressly defined as an ULP. The prohibited acts, except for that of dismissing an employee for giving testimony, are all related to the workers right to self-organization. Not every unfair act is ULP (ex. Partnership, nepotism) A prejudice to public interest is not required in order for ULP charges to prosper. Prosecution of ULP as a criminal offense is not possible until after finality of judgment in the labor case, finding that the respondent committed ULP. Art. 288: criminal charge - concurrent jurisdiction of the MTC and RTC. Offense prescribes in one year.

248. Unfair Labor Practice of Employers. It shall be unlawful for an employer to commit any of the following unfair labor practices: a. To interfere with or 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 withdraw 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 right 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 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 condition of employment, except those employees who are already members of another union at the time of signing of the collective bargaining agreement. Employees of an appropriate collective 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 CBA. Provided, that the individual authorization required under 242, (o) of this Code shall not apply to the nonmembers of the CBagent; 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; 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 ULP shall be held criminally liable.

Taft-Harley amendments to balance interests of labor and capital.

ILO Convention: Article 1.1: yellow dog contracts, company organizations and dismissal due to joining a union are sanctioned. Management does not lose its prerogatives (promote, transfer or demote employees when the interests of the company demand it, promote to managerial positions) Good faith is not a defense in ULP. Acceptance of mass resignation is not ULP. Wise and Co. vs. Wise Employees Union: grant of profit-sharing benefits to non-union members: when done in good faith and employees are classified in the CBA, not ULP. Phil. Graphic Arts vs. NLRC: forced leaves done in the interest of saving the company in good faith not ULP. Employers do not commit ULP if they discharge employees who engage in a slowdown; employees have no right to continue working on their own terms while rejecting the standards set by their employer. o More so if discharge of some was made as an example to others. Test of validity of employers actions: where the attendant circumstances, the history of the employers past conduct, coupled with an intimate connection between the employers action and the union activities of the employees as a whole.

First ULP: Interference Intimidation even if only on one occasion is ULP. Dabuet vs. Roche: Ee expressed grievance through a letter. Company manager called the writer of the letter stupid. Filed case for grave slander, dismissed on grounds of breach of trust. ULP? Yes. Interrogation regarding what happened in union activities: yes o Participation must be voluntary, no reprisals, and purpose of questioning must be communicated. Even before union exists or is registered? Yes, the right to self-organization is impaired.

Condition precedent relationship

to

ULP:

Employer-employee

Historical evid of the link: Initially no US law allowing unions. Clayton Act in 1914 o Yellow dog contracts a s a reaction to Clayton Act o Injunctions to enforce them NIRA (National Industry Recovery Act) o Declared unconstitutional later. NIRA (National Industrial Relations Act) -

Rule prohibiting solicitation of union membership in company premises is unlawful if it applies to non-working time as well as to working time. ULP to discharge a supervisor for his refusal to commit ULP. ULP not subject to compromise (EG Gochangco Workers Union vs. NLRC) Espionage and surveillance: ULP o Using one or a group of employees to use their acces to quarters and affairs for espionage. o The apprehension caused is ULP; immaterial if the information was not used. Announcement of benefits prior to representation election designed to induce voting against union: yes Totality of Conduct Doctrine: the culpability of employers actions are to be taken not as a single instance, but in the context of collateral circumstances. o Expressions in the mouth of one employer may be ULP in the mouth of a more hostile employer. o Insular Life: letters to individual employees, promise of coffee and movies: ULP Mass layoff amounting to ULP: if done to camouflage the fact that it has been making profits, ULP (Madrigal vs. Zamora) Lockout or closure: the evidence must establish that such action was done to defeat the rights of employees to self-organization. o Honest closing of ones plant is not violation of the act. o Allegations may be proven by circumstantial evidence. o Rule: it is unlawful for the employer to threaten its employees without moving or shutting down the plant as a result of their union affiliation. Sale in bad faith: yes (Moncada Bijon vs. Moncada Union, Cruz v. PAFLU) o A purchaser of an enterprise is presumed to be aware of the labormanagement situation in the firm he bought. o Successor employer, piercing the corporate veil: chen the old company

reappers under a new name, there can be no closure of the old company (successor employer doctrine) o Corporate veil: may be pierced when: Justifies wrong Defeats public convenience Protects or defends a crime Organized merely as a conduit of another corporation The mere fact that one or more corporations are owned or controlled by the same or single stockholder is not sufficient ground for disregarding the veil of corporate personalities.

2nd ULP: Yellow Dog Contracts Three provisions: 1. Representation by employee that he is not a member of the labor union 2. Promise by employee not to join labor union. 3. Promise that he will quit employment upon joining a union.

3rd ULP: Contracting out Contracting out in itself is not ULP; it is the intention that makes it so. o Prevent employees from organizing o Rid Er of union members o Escape his duty to bargain collectively If for business reasons, not ULP. o Decline in business o Need to reduce cost, even if based on projected increase attributable to unionization Shell Union vs. Shell case: Shell contracted out guards in violation of CBA allegedly as part of its management prerogatives: ULP Runaway shop: ULP o Industrial plant moved from one place to another to escape union labor regulations or laws, or to discriminate against employees in the old plant for their union activities. o There must be anti-union animus.

4th ULP: company domination of union Usual forms: Initiation of the company union idea: o Ouitright formation by Er or his representatives o Ee formation on demand by Er o Magaerially motivated Ee formation Financial support to the union: Ee defrays the costs of attorney who drafted the Constitution and by-laws of the union or defrays union expenses. Employer management and assistance: immediate grant of recognition as bargaining agent without determining if union represents majority of Ee Supervisory assistance: soliciting membership, permitting union activities during working time or coercing employees to join the union by threats of dismissal or demotion.

Indirect Discrimination: dismissal of the brother, wife, etc. of an employee who is to give testimony against the employer.

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 there is discriminatory motive on the part of Er, just cause will be unavailing.

Constructive discharge: where the Er prohibits Ee from exercising their rights under the Act, on pain of discharge, and the Ee resigns as an effect of the prohibition (ULP). Discharge due to union activities is a question of fact.

5th ULP: Discrimination What is outlawed is discrimination to encourage or discourage membership in a labor organization. o Includes discouraging participation in union activities. Discrimination in bonus/salary adjustments: o Management pays non-unionized branch more than the unionized branch employees o Gross inadequacy in bonuses/adjustments Discrimination in layoff: where only unionists were permanently dismissed Discrimination in Regularization: not being given permanent status because of their union affiliation Discrimination by blacklisting: generally, blacklists are privileged communication, and unless the info in the blacklist is libelous or slanderously transmitted, no cause of action o Blacklist: list of persons marked out for special avoidance, antagonism or enmity on the part of those who prepare the list, or those among them who it is intended to circulate.

Valid discrimination: UNION SECURITY CLAUSE Union security clause: requires membership in the union so that an employee may retain his job, and the unioons security to be assured. There is discrimination, but it favors unionism, so it is valid. Er is not guilty of ULP if he merely complies in good faith with the union security clause in the CBA.

Kinds of union security agreements: 1. Closed shop: only union members can be hired by the company and they must remain as union members to retain employment in the company. 2. Union shop: nonmembers may be hired, but to retain employment must become union members after a certain members. Applies to present and future employees. 3. Modified union Shop: employees who are not members at the time of signing the contract need not join, but employees hired after must join. 4. Maintenance of membership shop: no employee is compelled to join the union, but all present and future members must remain in good standing as a condition of employment.

5. Exclusive bargaining shop: union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not. 6. Bargaining for members only: union is recognized as bargaining agent only for its own members. 7. Agency shop: 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. Aka maintenance of treasury shop. All of the above are opposites of open shop: arrangement which does not require union membership. Validity of closed-shop: not a restriction of the right of freedom of association; policy of the State to promote unionism. Advantages of closed shop agreement: 1. Increases the strength and bargaining power 2. Prevents non-union members from free-riding 3. Prevents weakening of labor organizations by discrimination against union members 4. Eliminates lowering of standards competition with non-union members 5. Enables effective enforcements of CBAs 6. Facilitates collection of dues 7. Creates harmonious relations between the employer and ee. caused by

e. Enables union to charge exorbitant dues and fees. There must be a clear and unequivocal statement that the loss of status of a member of good standing in the union shall be a cause for dismissal. The clause should not be extended beyond the explicit coverage of the terms. Due process must be afforded the employee prior to his dismissal, lest the termination be illegal. o Notice and hearing prior to termionation o If illegally dismissed and employer is in good faith (compliance with USC, labor union will pay wages and fringe benefits

Closed shop: to whom not applicable 1. Employees who are bona fide members of religious organizations that prohibit its members from joining religious organizations on religious grounds. 2. Employees already in the service and members of a labor union/s other than the majority union at the time the agreement took effect 3. Confidential employees excluded from the rank-andfile unit 4. Those expressly excluded

Agency fee: written authorization from employee not required prior to imposition.

Disadvantages: a. Monopolistic domination b. Interferes with freedom of contract and personal liberty of the worker c. Compels discharge of non-union workers despite efficiency d. Facilitates use of labor organizations by unscrupulous leaders for extortion, restraint of trade, etc. e. Denies to nonunion workers equal opportunity for employment 6th ULP: Discrimination due to testimony Indirectly defeats the right to self-organization. Applies also to where employee refused to testify in favor of employer.

Relates 118 to 248: 118 speaks of retaliation due to the giving of testimony regarding failure of the employer to provide labor standards benefits. Relate to 128: enforcement-visitorial function of DOLE A strike may be traced to a labor standards violation (lab stand > testimony> ULP> strike)

8th ULP: paid negotiation Protection against corruption Payment of attorneys fees reprehensible.

is

ethically

Employers responsibility for ULP acts by subordinates: where the violations were traceable to the employer, either by authorization or ratification, Er is liable. Considerations: 1. Knowledge by the employer of the employees acts. 2. Continuity of improper conduct by employee. 3. Employers past policy and attitude.

9th ULP: CBA violation After the CBA is concluded, its implementation follows. Implementation is still part of the bargaining process. Duty to bargain requires good faith. Violation must be gross, though.

RELIEF IN ULP CASES: 1. Cease and desist order: Requires prior cease and desist order Court not authorized to issue cease and desist orders, but must confine injunction to past conduct. Cease and desist order not invalidated if act complained of was terminated during proceedings. If act took place such a long time ago and there is no possibility of recurrence, it will not lie.

ULP of Labor Organizations: Art. 249. It shall be ULP for a labor organization, its officers or agents/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 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 negotiations or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute. f. To violate a collective bargaining agreement. 1st ULP: Interference is left out, because if done by a lbor organization, it is not ULp as long as it does not amount to restraint or coercion.

2. Affirmative Order: positive order, opposite of cease and desist order. Example: reinstatement with wages and no loss of seniority rights.

3. Order to Bargain, mandated CBA: when employer fails or refuses to bargain, court may order him to do so. 4. Disestablishment: where employer has initiated, dominated or interfered with the formation of the labor organization, court will order withdrawal of all recognition and disestablishment of the same. Technical form of disestablishment is not important.

ULP not subject to compromise: due to public policy considerations in the labor contract. Exception (just one instance ever): where the agreement voluntary ULP charges during a given period should be included in one charge; else, cause of action is barred (parang compulsory counterclaim).

Ex. Union security clause, bargaining unit, persuasion employees to join a strike.

petition without

to dislodge coercion of

2nd ULP: discrimination may be in hiring, firing, layoff or seniority benefits. Arbitrary use of union security clause is an example. It is not disloyalty to ask help from another union

3rd ULP: refusal to bargain Intended to insure that unions approach the bargaining table with the same attitude of willingness. A union violates its duty to bargain collectively by entering negotiations with a fixed purpose of not reaching an agreement or signing a contract.

4th ULP: featherbedding and make-work arrangements Featherbedding: practices which spread or create employment by unnecessarily maintaining or increasing the number of employees used, or the amount of time consumed, to work on a particular job.

5th ULP: CBA deal with employer