Labor Relations (Unfair Labor Practice) [Arts. 258 - 260]

 Book V

Labor Relations

Title IV

Labor Organizations

Chapter I

Concept

Art. 258. Concept of unfair labor practice and procedure for prosecution thereof. 

• Violation and Consequences
• violate constitutional right of workers and employees right to self-organization
• inimical to the legitimate interests of both labor and management, including:
• right to bargain collectively 
• deal with each other in an atmosphere of freedom and mutual respect
• disrupt industrial peace 
• hinder the promotion of healthy and stable labor-management relations
• Nature
• violation of the civil rights of both labor and management
• criminal offenses against the State 
• Jurisdiction
• Labor Arbiter
• civil aspects, including claims for:
• actual, moral, exemplary and other forms of damages
• attorney’s fees
• other affirmative relief
• Priority
• priority to the hearing and resolution of all cases involving unfair labor practices
• thirty (30) calendar days from the time they are submitted for decision
• Double Recovery
• Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.
• Criminal Prosecution
• No criminal prosecution may be instituted without a final judgment finding that an unfair labor practice was committed
• During the pendency, the running of the period of prescription of the criminal offense shall be considered interrupted:
• 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.
  

Notes

• Unfair labor practice (ULP) as an offense of an employer needs two elements:
1. employer-employee relationship exists between the offender and the offended; and
2. the act done is expressly defined in the Code as unfair labor practice. 
• The first element is required because ULP is a negation of the right to organize, a right exercisable only by employees in relation to their employer. 
• The second element is that the act done is prohibited by the Code, specifically in Article 259 for an employer and Article 260 for a labor organization. 
• ULP, in other words, has a technical, limited meaning. 
• It refers to acts opposed to the right to organize or to engage in lawful concerted activities for collective bargaining or for the workers' mutual aid and protection.
• It has to be related to the right to self-organization and to the observance of the CBA, 
• Without that element, the act, no matter how unfair, is not unfair labor practice as legally defined. 

Suggested Questions

Q: What are the primary elements of Unfair Labor Practice? 

• The following are the primary elements of Unfair Labor Practice: 
1. Existing employer-employee relationship between the offender and the offended party; and 
2. The act done, which is expressly defined in the Code as unfair labor practice. 

Q: If there is an allegation of Unfair Labor Practice, how and before whom should the employees file the complaint? Explain the procedure for its administrative, civil and criminal aspects. 

• If there is an allegation of Unfair Labor Practice, the employee must file the complaint in the:
• Labor Arbiter – for the administrative and civil aspects 
• Regular Court – for the criminal aspects 
• The Labor Arbiter shall resolve all cases involving unfair labor practices within thirty (30) calendar days from submission for decision. 
• The recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. However, the final judgment in the administrative proceedings shall not bind the criminal aspect of the case.

Chapter II

Unfair Labor Practice of Employers

Art. 258. Unfair labor practices of employers.

• Unfair Labor Practices by Employers
1. Interference and Coercion
• interfere with, restrain or coerce employees in the exercise of their right to self-organization
2. Employment condition requirement
• require as a condition of employment not to join a labor organization or shall withdraw from one to which he belong
3. Contracting out
• contract out services or functions being performed by union members when interfering with their rights to self-organization
4. Interfere with Labor Organization
• initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including giving support to organizers or supporters
5. Discrimination
• in regard to:
• wages
• hours of work 
• other terms and conditions of employment
• in order to encourage or discourage membership 
• Requiring membership in a recognized collective bargaining agent as a condition for employment is allowed, except:
• employees who are already members of another union at the time of the signing of the collective bargaining agreement
• Non-members may be assessed a reasonable fee if such non-union members accept the benefits under the collective bargaining agreement
• individual authorization required shall not apply
6. Dismissal
• dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code
7. Violation of Duty
• violate the duty to bargain collectively
8. Payment of Settlement Fees
• pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute
9. Violate CBA
• violate a collective bargaining agreement.
• Criminally Liable
• only the:
• officers and agents of 
• corporations
• associations
• partnerships 
• who have actually:
• participated in unfair labor practices
• authorized unfair labor practices
• ratified unfair labor practices

ULP, A Matter of Facts and Evidence

• Any allegation of unfair labor practice has to be proved by facts and evidence. Necessarily, determining the validity of an employer's act involves an appraisal of the motives. 

Interference, Restraint, or Coercion

• It is of the broadest scope.
• Interference, restraint or coercion by the employer may constitute ULP even when it is committed before the employees' union is formally registered.
• The law protects formation and not only existence of unions. 

Totality of Conduct Doctrine

• The "totality of conduct doctrine" holds that the culpability of an employer's remarks is to be evaluated not only on the basis of their implications, but against the background of collateral circumstances. 
• Under this doctrine, expressions of opinion by an employer, though innocent in themselves, frequently are held to be culpable or objectionable because of the circumstances under which they are uttered.

Closure; "Successor Employer" Doctrine

• Where the sale of a business enterprise was attended with bad faith, there is no need to consider the applicability of the rule that labor contracts, being in personam, are not enforceable against the transferee. 
• Closure is not legal and the employees cannot be separated if there is no closure because the "closed" department or company reappeared under a new name. 
• If the "new" or take-over company is, for instance, engaging in the same business as that of 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. 
• Under this doctrine, the new company will be treated as a continuation or successor of the "new" firm because in the first place they should not have been separated at all. 

Piercing the Corporate Veil

• This means that the legal fiction that the corporation has a legal personality separate from that of the stockholders will be disregarded if the separateness of personalities is being used to escape corporate obligations. 
• The corporate veil will be lifted, so to speak, and the people covered by the veil will be identified and exposed, and be made answerable for the corporate liabilities.

Run-away Shop

• A "run-away shop" as ULP is defined as an industrial plant moved by its owners from one location to another to escape union labor regulations, or state laws. 
• 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.
• It is one wherein the employer moves its business to another location or it temporarily closes its business for anti-union purposes. 
• A "run-away shop' in this sense is a relocation motivated by anti-union animus rather than business reasons.

"Yellow Dog" Contract

• The "yellow dog" contract is a promise exacted from workers or prospective employees that they will not belong to, or form, a union during their employment.
• Unless the promise is given:
• the worker will not be hired, or
• if already hired, will lose his job.
• The act of obtaining the promise is considered ULP.

Subcontracting

• Contracting work out by an employer is an unfair labor practice when it is motivated by a desire to prevent his employees from organizing and selecting a collective bargaining representative. 
• The motive is:
• to rid himself of union men, or 
• to escape his statutory duty to bargain collectively with his employees' bargaining representative.
• An employer is not guilty of an unfair labor practice in contracting work out for business reasons, as:
• a decline in business
• the inadequacy of equipment, or 
• the need to reduce cost, even if the employer's estimate of his cost is based on a projected increase attributable to unionization.

Company-Domination of Union

• It usually manifests in the following forms:
• Initiation of the company union idea.
• This may further occur in three styles: 
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.
• Financial support to the union.
• An employer commits unfair labor practice if he defrays the union expenses or pays the fees of the attorney who drafted the union's constitution and by-laws.
• 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.
• 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. 

Discrimination

• What the law prohibits under this Article is discrimination to encourage or discourage membership in a labor organization. Thus, where the purpose is to influence the union activity of employees, the discrimination is unlawful. 
• But discrimination is not the same as differentiation or classification. 

Valid Discrimination; Union Security Clause

• "Union security" clause is a term applied to any form of agreement within CBA which imposes upon employees the obligation to acquire or retain union membership, at the expense of their employment if they fail to do so.
• The objective is to assure continued existence of the union through enforced membership. 
• It is discrimination favoring unionism; it is a valid kind of discrimination. 
• Kinds:
• "Union shop" clause 
• allows employment of non-union members but compels membership after some period of time since hiring. 
• "MM" or maintenance of membership 
• authorizes a union to demand employment termination of one that ceases being a member. 
• "Agency shop" 
• does not compel membership but requires payment of a certain fee usually equal to a member's dues. 
• "Closed shop"
• bars the hiring of non-union members
• most prized by unions
• Exempted members:
1. any employee who at the time the "closed shop" agreement takes effect is a bona bona fide member of a religious organization which prohibits its members from joining labor unions on religious grounds; 
2. employees already in the service and already members of a union other than the majority at the time the "closed-shop" agreement took effect; and
3. employees excluded from the "closed shop" by express terms of the agreement.
• Confidential employees, are necessarily outside the coverage of the union security clause.
• Union security shop arrangements are binding even if the employees are not aware of such agreement.
• Union shop, like closed-shop stipulation, should be strictly construed.
• Furthermore, the employer must observe due process. 
• The employee must be informed of the charges against him and to have reasonable opportunity to present his side in a controversy with either the company or his union, is not wiped away by a union security clause or a union shop clause in a CBA.
• A union security clause is subject to the application of the law on "freedom period." 
• During this period, union members may move over to other unions.

Retaliation

• Employer's motive is immaterial.
• The employer may or may not have been motivated by an anti-union attitude, in fact, there may be no union at all; or the employee's testimony may or may not be true and may or may not relate to union matters. 
• The ULP act there consists in the employer's retaliation against the employee, regardless of the employer's purpose and regardless of the nature or subject matter of the employee's testimony.

Suggested Questions

Q: What are the nine unfair labor practices committed by employers under art 259 of the Labor Code? Briefly explain each and briefly explain an illustrative case, if applicable, per practice. 

The following are the unfair labor practices committed by employers:

1. Interference, Restraint and Coercion 
• It occurs when an employer interferes with, restrains or coerces employees in the exercise of their right to self-organization.
• Illustrative case: An employer who dismissed employees who are planning to form a labor organization. 
2. “Yellow Dog” Condition
• It occurs when an employer requires as a condition of employment not to join a labor organization or to withdraw his membership from one. 
• Illustrative case: An employer who rejected an applicant who refused to withdraw his membership from a labor organization. 
3. Contracting Out
• It occurs when an employer contracts out services or which are performed by union members who are exercising their rights to self-organization.
• Illustrative case: An employer who hired contract workers to replace employees who are engaging in a strike. 
4. Company-Domination of Union 
• It occurs when an employer interferes with the formation or administration of any labor organization, including giving support. 
• Illustrative case: An employer who motivated employees to form a union by giving them incentives. 
5. Discrimination
• It occurs when an employer discriminates in regard to labor standards and terms and conditions of employment to encourage or discourage membership
• Illustrative case: An employer who gave salary increase to non-union members employees on the sole account of them being non-union members.
6. Retaliation
• It occurs when an employer discriminates against an employee for having giving testimony under this Code. 
• Illustrative case: An employer who dismissed an employee who testified against the unfair labor practices in the company. 
7. Violation of Duty 
• It occurs when an employer violates the duty to bargain collectively.
• Illustrative case: An employer who refused to observe good faith in bargaining by not participating in the deliberation of agreement. 
8. Paid Settlement
• It occurs when an employer pays negotiation or attorney’s fees to the union to settle of any issue in collective bargaining. 
• Illustrative case: An employer who paid the union members in as part of the settlement in a dispute. 
9. Violation of the CBA
• It occurs when an employer violates the duty a collective bargaining agreement.
• Illustrative case: An employer who failed to comply with the provision in a CBA against changes in working conditions of the employees.

Q: What is the totality of conduct doctrine?

The totality of conduct doctrine provides that an employer’s remarks about unionization may not constitute to Unfair Labor Practice based only on their implications, but the circumstances under which they are uttered must also be considered.

Q: How do you determine the validity of an exercise of a management right vis a vis unfair labor practices?

It is the prerogative of management to regulate, according to its discretion and judgment, all aspects of employment. However, anti-unionism is one of the potent limitations to the so-called management prerogatives.

Any allegation of unfair labor practice has to be proved by facts and evidence. Necessarily, determining the validity of an employer's act involves an appraisal of the motives. 

Q: What is a runaway shop? 

A run-away shop is a relocation of an industrial plant in order to evade union regulations or labor laws, or to discriminate employees because of their union activities. A run-away shop is a relocation with motivations of anti-union intention. 

Q: What is the successor-employer doctrine?

A successor-employer doctrine provides that when a sale of company is with bad faith, and the new company engages in the same business and owned by the same people, the new company will be considered as the continuation or successor of the former company as if there was no closure at all. 

Q: What is the test of employer discrimination as a form of ULP?

The test of employer discrimination is the establishment of the underlying reason to establish the discrimination. The act of the employer must be motivated by bad faith and unlawful reason in order to be discriminatory. 

Q: Enumerate kinds of Union security arrangements? Briefly explain each. 

The following are the kinds of Union security arrangements: 

1. Union Shop 
• It permits hiring non-union members but mandates membership after a certain duration of employment.
2. Maintenance of membership 
• It grants the union the authority to request the termination of employment for individuals who cease their membership. 
3. Agency Shop
• It does not enforce compulsory membership but requires fee equivalent to a member's dues.
4. Closed Shop 
• It prohibits hiring of non-union members. 

Q: Who are exempted from compulsory coverage of a closed shop clause in a CBA? Briefly describe each exempted group. 

The following are exempted from compulsory coverage of a closed shop clause in a CBA: 

1. Bona fide members of a religious organization
• These are employees who faithfully adheres to the teachings of their religions which prohibits affiliation with unions. 
2. Employees already in the service and already members of a union 
• These are employees who are already members of a union at the time the closed shop clause was implemented.
3. Confidential Employees 
• These are employees who act in confidential capacity and have access to confidential matters of the management. 
4. Excluded by express terms of agreement 
• These are employees who are expressly excluded from the closed shop clause.

Q: Differentiate Article 118 with Article 259 (f) of the Labor Code. 

Both Article 118 and 259(f) prohibits retaliation from an employee who has testified or to is to testify for alleged discrepancies in employment. 

Article 118 provides that it shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding limited only to matters pertaining to wages.

The scope of Article 259(f) is wider. The bare fact that the employer dismisses or otherwise discriminates against an employee simply because the employee is testifying is enough to constitute a ULP act. The ULP act there consists in the employer's retaliation against the employee, regardless of the employer's purpose and regardless of the nature or subject matter of the employee's testimony.

Unfair Labor Practice of Labor Organizations

Art. 260

Art. 260. Unfair labor practices of labor organizations.

• Unfair Labor Practices by Labor Organization
1. Restraint and Coercion
• restrain or coerce employees in the exercise of their right to self-organization
• however, a labor organization may have its own rules with respect to the acquisition or retention of membership
2. Discrimination
• discrimination against an employee to whom membership in such organization has been denied 
• 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
3. Violation of Duty
• violate the duty, or 
• refuse to bargain collectively with the employer, 
• provided it is the representative of the employees
4. Exaction of Employer
• 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
5. Accept Settlement
• ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute
6. Violate CBA
• violate a collective bargaining agreement.
• Criminally Liable
• only the:
• governing boards of labor associations or organizations 
• representatives of labor associations or organizations 
• agents of labor associations or organizations 
• members of labor associations or organizations 
• who have actually:
• participated in unfair labor practices
• authorized unfair labor practices
• ratified unfair labor practices

ULP by Labor Organization

• A union violates the law when, to restrain or coerce non-strikers from working during a strike:
• it assaults or threatens to assault them
• threatens them with loss of their jobs
• blocks their ingress to and egress from the plant
• damages non-strikers' automobiles or forces them off the highway
• physically prevents them from working
• sabotages the employer's property in their presence, thereby creating a general atmosphere of fear of violence and threatening the non-striker's jobs.
• 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.
• The member-union relationship is fiduciary in nature. It arises out of two factors: 
1. the degree of dependence of the individual employee on the union organization;
2. the comprehensive power vested in the union with respect to the individual.

Featherbedding

• "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.
• "Featherbedding" is metaphor for "make-work" schemes.

Sweetheart Contract

• It is a ULP for a labor organization to ask for or accept negotiation or attorney's fees from the employer in settling a bargaining issue or a dispute. 
• A "sweetheart contract" is a CBA that does not substantially improve the employees' wages and benefits. 
• It is a sweet deal between the employer and the union bargainers or union dealers. 

Suggested Questions

Q: What are the unfair labor practices of labor organizations? Briefly explain each.

The following are the unfair labor practices of labor organizations: 

1. Restraint and Coercion 
• It occurs when a labor organization restrains or coerces employees in the exercise of their right to self-organization. 
2. Discrimination
• It occurs when a labor organization discriminates against an employee denied of membership or whose membership was terminated on any ground other than the usual.
3. Violation of Duty
• It occurs when a labor organization violates the duty to bargain collectively with the employer. 
4. Exaction of Employer
• It occurs when a labor organization exacts money from employer for services which are not to be performed. 
5. Accepting Settlement
• It occurs when a labor organization accepts negotiation or attorney’s fees from employers to settle any issue.
6. Violation of CBA 
• It occurs when a labor organization violates a collective bargaining agreement

Q: Explain the Interboro Doctrine. 

A rule applied in labor-law cases to determine whether a single employee acting alone is nonetheless engaging in concerted activity protected under the National Labor Relations Act. 

This doctrine states that if an individual employee honestly and reasonably believes they have a right under a collective bargaining agreement (CBA) and asserts that right, even if their belief is incorrect, their action is considered "concerted activity" protected by the NLRA.