Title VI

2. Labor organization (Article 249, Labor

Code)

UNFAIR LABOR PRACTICES

Q: Who are the victims of the offense ULP?

A: The victim of the offense is not just the workers as
a body and the employers who value industrial peace,
but the State as well.

Chapter 1 CONCEPT
ART. 247. Concept of unfair labor practice and
procedure for prosecution thereof (Labor Code)

NOTE: The attack to this constitutional right is

considered a crime which therefore carries both civil
and criminal liabilities.

Unfair labor practices violate the constitutional

right of workers and employees to selforganization, 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, 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 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 administrative
proceeding, referred to 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.
Q: What are unfair labor practices (ULP)?
A: They are any act intended to weaken or defeat the
right of self-organization. It includes any act 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.
Q: Who may be the offender in ULP?
A: The offender may either be:
1. Employer (Article 248, Labor Code); or

Q: What are the aspects of unfair labor practice

and how is it prosecuted?
A: There are two (2) aspects, namely:
1. Civil; and
2. Criminal
CIVIL CASE

CRIMINAL CASE
A. PERSONS LIABLE

1.

Officers and 1.
agents of
employer or
2. Labor
2.
organization,
officers and
agents

Agents and officers who

participated or authorized or
ratified the act.
Agents, representatives, members
of the government board, including
ordinary members
B. JURISDICTION

-Labor
Arbiters of
the NLRC

-MTC/RTC as the case may be.

C. QUANTUM OF PROOF NEEDED

-substantial
evidence

-beyond reasonable doubt [subject

to prosecution and punishment]

D. PRESCRIPTIVE PERIOD
- one year
from the
accrual of the
ULP act.

- one year from the accrual of the

ULP act, however it will be
suspended once the administrative
case has been filed and would only
continue running once the
administrative case has attained
finality.
Final judgment in the
administrative proceeding finding
that ULP has been committed is a
prerequisite in filing a criminal
case for ULP
NOTE: Final judgment in the
administrative proceedings shall
not be binding in the criminal case
nor shall be considered as an
evidence of guilt but merely as a
proof of compliance of the
requirements prescribed by the
Code.

Q: What are the elements of ULP?

Before an employer or labor organization, as the case
may be, may be said to have committed unfair labor
practices acts, the following ingredients must both
concur:

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1.
2.

there should exist an employer-employee

relationship between the offended party and
the offender; and
the act complained of must be expressly
mentioned and defined in the Labor Code as
constitutive of unfair labor practice. If not
mentioned, there is no ULP.

NOTE: As for the second element, it must be

specifically stated in Arts. 248 and 261 for an
employer and Art. 249 for a labor organization.
Q: What is the nature of ULP?
A:
(1) 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
(2) disrupt industrial peace
(3) hinder the promotion of healthy and stable
labor management relations
(4) violations of the civil rights of both labor and
management but are also criminal offenses
[Art. 247]
Q: What is the purpose of the policy against
ULPs?
A: Protection of right to self-organization and/or
collective bargaining:
1. The employee is not only protected from the
employer but also from labor organizations.
2. Employer is also protected from ULP
committed by a labor organization.
3. The public is also protected because it has an
interest in continuing industrial peace.
Q: Relate Art. 246 (Non-abridgement of right to
self- organization) with the succeeding
provisions on ULP?
A: Art. 246 is the conceptual mother of ULP. It
declares that it is unlawful for any person to restrain,
coerce, discriminate against or unduly interfere with
the right to self-organization
Q: Distinguish ULP and a mere violation of an
employer of its contractual obligation towards
the employee (as discussed in National Labor
Union v. Insular-Yebana Tobacco Corporation)
ULP
Involves violation of
public right or public
policy to be prosecuted
like criminal offenses.

BREACH OF
OBLIGATION
A contractual breach to
be redressed like an
ordinary contract or
obligation

Q: Why is the first element (existence of

employer- employee relationship) required?
A: The first element is required because ULP is a
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 the employer-employee relationship is
absent in the first place.

Q: What is the consequence of the second

element, i.e., the act done is expressly defined
in the Code as an act of ULP?
A: ULP, therefore, has a limited, technical meaning
because it is a labor relations concept with a statutory
definition. It refers only to acts opposed to workers
right to self-organize. Without this element, the act, no
matter how unfair, is not ULP as legally defined.
Q: Without the second element, what act is
probably committed?
A: Stripped of legalese, ULP, when committed by the
employer commonly connotes anti-unionism.
Q: Is prejudice to public interest an element of
ULP?
A: No. A showing of prejudice to public interest is not
a requisite for ULP charges to prosper.
Q: When is violation of the CBA considered as
ULP?
A: Violation of the CBA is considered as ULP when that
violation is gross in character.
Q: Is there an exception to the rule that the
prohibited acts should be related to the
workers right to self- organization and
observance of the CBA? If yes, state the
exception.
A: Yes. The only possible exception is Art. 248 (f)
referring to dismissing or prejudging an employee for
giving testimony, regardless of the subject of the
testimony.
NOTE: Not every unfair act is ULP
Promoting an employee not on the basis of
merits may be a bad human resource management
but does not amount to ULP.
Q: Which regular court has jurisdiction over the
criminal aspect of ULP?
A: Under Art. 288, the criminal charge falls under the
concurrent jurisdiction of the Municipal Trial Court or
Regional Trial Court.
Q: If the offender is a juridical person (such as
corporations), to whom will the penalty be
imposed?
A: The penalty, which is either a fine and/or
imprisonment, 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.
Q: When will the offense of ULP prescribe?
A: The offense prescribes in one year (Art. 290).

CHAPTER II
UNFAIR LABOR PRACTICES OF
EMPLOYERS
Q: What are the ULP acts of an employer under
Art. 248?
A:
1.
Interference
2.
Yellow-dog condition
3.
Contracting out
4.
Company unionism
5.
Discrimination for or against union
membership
6.
Discrimination because of testimony
7.
Violation of duty to bargain

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8.
9.

Paid negotiation
Violation of CBA

Marioano v. Royal Interocean Lines, 1961

Considering that the employees dismissal,
because of charges against the manager is not
connected with or necessarily arising from union
activities, the dismissal did not constitute ULP.
Despite the employees right to selforganization. The employer still retains his
inherent right to discipline his employees,
his normal prerogative to hire or dismiss
them.
Q: Is specific denomination of the act necessary
to prosecute ULP?
A: No. 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 substantive law,
how the act is denominated. What is important is that
it constituted an unfair labor practice

Q: The Code enumerates the acts or categories

of acts of ULP. Is the enumeration exclusive?
A: No. The enumeration does not mean an exhaustive
listing of ULP incidents. The Labor Code does not
undertake the impossible task of specifying in precise
and unmistakable language each incident which
constitutes ULP. It leaves to the court the work of
applying the laws general prohibitory language in
light of infinite combinations of events which may be
charged as violative of its terms.
Q: Does the law on ULP intended to deprive
the employer of his valid exercise of
management rights?
A: No. The law on ULP is not intended to deprive the
employer of his fundamental right to prescribe and
enforce such rules as he honestly believes to be
necessary to the proper, productive, and profitable
operation of his business.
Q: Is intention or innocence an excuse of the
conduct of ULP?
A: No. Where an employer violates the Act and is
found guilty of the commission of ULP, it is no excuse
that his conduct was intentional and innocent.
NOTE: Instances of valid exercise of
management rights

Where despite his transfer to a lower

position, his original rank and salary
remained undiminished.

If the employer exercises the option given to

him in the CBA to retire an employee who
either has rendered 25 years of service or
reached the age of 60.

It is the companys prerogative to promote

its employees to managerial positions.
Q: Is acceptance of mass resignation
constitutive of ULP?
A: Acceptance of a voluntary resignation is not ULP.
When pilots voluntarily terminated their employment
relationship with the company, they cannot claim
that they were dismissed.

Wise and Co., Inc. v. Wise & Co., Inc. Employees

Union, 1989
Facts: A profit sharing scheme was
introduced by the company for its managers
and supervisors who are not members of the
union, hence do not enjoy the benefits of the
CBA. The respondent union wanted to
participate with the scheme but was denied
by the company due to the CBA.
Subsequently the company distributed the
profit sharing to the manager, supervisors
and other nonunion member Ees. As a
result the union filed a notice of strike
alleging ULP. Is the nonextension of the
profit sharing scheme to union members
discriminatory and an ULP?

There can be no discrimination committed by

the employer as the situation of the union
employees is different from that of the nonunion employees.

There can be no discrimination where the

employees concerned are not similarly
Q: Did the employer commit ULP when it
required forced vacation leave to its
employees?
A: No. Where the vacation leave without pay, which
the employer requires employees to take in view of
the economic crisis, is neither malicious, oppressive
nor vindictive.
Miguel Brewery Sales Force Union v.Ople and
SMC, 1989
Issuance of Rules or Policy

Even as the law is solicitous of the welfare of the

employees, it must also protect the right of the
employer to exercise what are clearly
management prerogatives. The free will of
management to conduct its business affairs to
Q: Did the employer commit ULP when it
discharged its employees who engaged in a
slowdown?
A: No. Employees have the right to strike, but they
have no right to continue working on their own terms
while rejecting the standards desired by their
employer. Hence, an employer does not commit an
ULP by discharging employees who engage in
slowdown, even if their object is a pay increase which
is lawful.
Q: How do you determine the validity of an
employers act involves an appraisal of his
motives?
A: Determining the validity of an employers act
involves an appraisal of his motives. It is for the NLRC
to weigh the employers expressed motive in
determining the effect on the employees of
managements otherwise equivocal act.
Q: Are employers required to support his
actions with reason or purpose?
A: The general rule is NO. But, as a matter of
exception, where the attendant circumstances, history
of the employers past conduct and like
considerations, coupled with an intimate connection
between the employers 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 employers action, the failure of
the employer to ascribe a valid reason therefor may

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justify an inference that his unexplained conduct in

respect of the particular employee was inspired by the
latters union membership or activity.

employee union organizers to come within its

premises, in order to solicit employees.
PROHIBITING ORGANIZING ACTIVITIES

A. INTERFERENCE
Outright or unconcealed intimidation is the
most obvious form of interference.
It will support a cease and desist order by
the Board even if done in one occasion.

Q: How is prohibiting organizing activities

considered a ULP?
A: When the solicitation of union membership in
company property is made unlawful to non-working
time as well as to working time.

Instances of interference:
a.Threat of the employer to cut the pay for the
employees
b.Increasing rent of the company houses
c. Closing of plant if they supported the union
d.Employer encouraged the employees to sign a petition
repudiating the union.
Interrogation is also under this act (not ULP per se
but circumstances may make it as such)

Q: Give other instances of unlawful acts to

discourage membership in a labor organization?
A:
1.Dismissal of union members upon their refusal to give
up their membership, under the pretext of
retrenchment due to reduced dollar allocations
2.Refusal over a period of years to give salary
adjustments according to the improved salary
scales in the collective bargaining agreements
3.Dismissal of an old employee allegedly for
insufficiency, on account of her having joined a
union and engaging in union activities.
Q: Are ULP cases subject to compromises?
A: No. In the case CLLG E.G. Gochangco Workers
Union v. NLRC (1988), the Court held that ULP cases
are not, in view of the public interest involved, subject
to compromises.

Q: In order that questioning of an employee

concerning his union activities would not be
deemed coercive, how should it be made?
A: The employer must:
1. Communicate to the employee the purpose of
the questioning,
2. Assure him that no reprisal would take place,
3. Obtain his participation on a voluntary basis,
4. Be free from hostility to union organization,
5. Must not be coercive in nature.
INTERROGATION
Q: Is the act of persistent interrogation of
employees to illicit information as to what had
happened at a union meeting and identity of the
active union employees violative of the
organizational right of the employees.
A: Yes. The act of persistent interrogation of
employees to illicit information as to what had
happened at a union meeting and identity of the
active union employees are held violative of the
organizational right of the employees as enunciated in
the case NLRB v. Associated Naval Architects.

VIOLENCE OR INTIMIDATION
Q: What are examples of violence or
intimidation constituting ULP?
A:
1. Employer unlawfully coerced employees on
the day of representation election;
2. Employer threatened employees favoring the
union with force or violence, as warning them
against getting caught with a union leaflet;
3. Employer threatening the unions recruiter
with bodily harm to surrender the union
affiliation forms;
4. Provoking employees to violate company rules
(fighting within company premises) to create
an apparently lawful cause for their dismissal.

ULP EVEN BEFORE UNION IS REGISTERED

ESPIONAGE AND SURVEILLANCE

Q: Can the management commit ULP while there

was no union yet or before a union is
registered?
A: Yes. Under Art. 248 (a), to interfere with, restrain,
or coerce employees in the exercise of their exercise
of the right to self-organization is an ULP on the part
of the employer. Par. (d) of said Article also considers
it an ULP for an employer to initiate, dominate, assist
or otherwise interfere with the information or
administration of any labor organization, including the
giving of financial or other support to it. In short, an
employer who interfered with the right to selforganization before the union is registered can be held
guilty of ULP.

A rule prohibiting solicitation of union

membership in company is unlawful if it
applies to non-working time as well as to
working time.

Where the majority of the employees live on

the premises of the employer and cannot be
reached by any means or procedures
practically available to union organizers, the
employer may be required to permit non-

Q: As an ULP, how is espionage and surveillance

committed?
A: It consists of using one or a small group of
employees, or other agents, inspired by profit,
opportunism, vengeance or some kindred human
frailty to use his or their access to employees
quarters and affairs for the purpose of spying upon
fellow employees and reporting back to the employer.
ECONOMIC INDUCEMENTS
Q: Is the act of employer of announcing benefits
prior to a representation election violative?
A: Yes, if it is intended to induce the workers to vote
against the union. It is a well-settled rule that while a
representation election is pending, the conferral of
employee benefits for the purpose of inducing the
employees to vote against a union is unlawful.
Employers expression of opinion; TOTALITY OF
CONDUCT DOCTRINE
Q: What is the Totality of Conduct Doctrine or
the principle of determination?
A: The doctrine holds that the culpability of the
employers remarks (expression of opinion) was to be
evaluated not only on the basis of their implications,

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but against the background of and in conjunction with

collateral circumstances.
Q: What are the factors that have to considered
under the doctrine of totality of conduct?
A: Under the doctrine, expressions of opinion by an
employer, though innocent in themselves, frequently
were held to be culpable because of the
circumstances under which they were uttered, the
history of the particular employers labor relations or
anti-unionism bias or because of their connection with
an established collateral plan of coercion or
interference.
Test of interference or coercion- whether the
employer has engaged in conduct which it may
reasonably be said tends to interfere with the free
exercise of employees right.
The Insular Life Assurance Co., Ltd., Employees
Association-ATU, et al. v. The Insular Life
Assurance Co., Ltd., 1971

Letter to individual employees- it is an act

of interference for the employer to send letters
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 ULP.

a.
b.
c.

Strike-breaking- when the employer offered

reinstatement and attempted to bribe the
strikers with comfortable cots, free coffee, and
occasional movies, overtime pay for work
performed in excess of 8 hours, and
arrangements for their families, so they would
abandon the strike and return to work, it was
guilty of strike-breaking and union-busting and
of ULP
Acts violative of right to unionizeOffer of a Christmas bonus to all loyal
employees shortly after the union
requested to bargain with the employer.
Giving of wage increases so as to mollify
the employees after the employer has
refused to bargain with the union.
Promise of benefits in return for strikers
abandonment of their strike, etc.

MASS LAYOFF AMOUNTING TO ULP

Q: Example of mass layoff considered ULP?
A:
1. A companys capital reduction efforts, to
camouflage the fact that it has been making
profits, and to justify the mass-layoff of its
employees especially union members.
2. Fear of the employer that there will be a strike.
NOTE: Dismissal of employees in anticipation of
or future exercise of a constitutionally protected
right (right to strike) is an unwarranted
interference with the rights of workers to self-

organization and to engage in concerted

activities.
LOCKOUT OR CLOSURE AMOUNTING TO ULP
Q: When is lock-out or closure equivalent to
ULP?
A: A lock-out, actual or threatened, as a means of
dissuading the employees from exercising their rights
under the Act is clearly an ULP. However, the evidence
must establish that the purpose thereof was to
interfere with the employees exercise of their rights.
An honest closing of ones plant is not a violation of
the Act. It may be proven by circumstantial evidence.

The rule is that it is unlawful for the employer

to threaten its employees with moving or
shutting down the plant and consequent loss
of employment, as the result of their support
for the union.
SALE IN BAD FAITH

Q: When is sale of the company or business

considered as sale in bad faith?
A: The sale of business enterprise to avoid the legal
consequences of an ULP is necessarily attended with
bad faith and both the vendor and the vendee
continue to be liable to the affected workers. If such
was the case, there is no need to consider the
applicability of the rule that labor contracts being in
personam are not enforceable against the transferee.
The latter is in the position of tort-feasor, having been
a party likewise responsible for the damage inflicted
on the members of the aggrieved union and therefore
cannot justly escape liability.
Assumption Of Obligations By New Company
A successor-in-interest of the vendor becomes
responsible for all the rights and obligations of his
predecessors.
It is irrational to suppose that a purchaser of a
manufacturing enterprise is not aware of the labormanagement situation in the firm he bought.
Q: What is the so-called Successor-in-interest
doctrine?
A: When an employer with an existing CBA is
succeeded by another employer, the successor-ininterest who is a buyer in good faith has no liability to
the employees in continuing employment and the
collective bargaining agreement because these
contracts are in personam.
Q: What are the exceptions to the doctrine?
A:
1. When the
successor-in-interest
expressly assumes the obligation
2. The sale is a device to circumvent obligation
3. The sale or transfer is made in bad faith
SUCCESSOR EMPLOYER; PIERCING THE
CORPORATE VEIL
Q: When will the rule on successor employer
apply?
A: Closure is not legal and the employees cannot be
separated if there is no closure because the closed
department or company reappeared although under a

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new name. If the new company is 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 right to selforganization, the closure may be declared a
subterfuge and the doctrine of successor employer
will apply, i.e., the new company will be treated as a
continuation or successor of the one that closed.
Q: What is the so-called doctrine of piercing
the veil of corporate entity?
A: Under the doctrine of piercing the veil of corporate
entity, the legal fiction that a corporation is an entity
with a juridical personality separate and distinct from
its members or stockholders may be disregarded. In
such cases, the corporation will be considered as a
mere association of persons. The members or
stockholders of the corporation will be considered as
the corporation, that is, liability will attach directly to
the office and stockholders.
Q: When will the doctrine apply?
A: The doctrine will apply when the corporate fiction is
used to defeat public convenience, justify wrong,
protect fraud, or defend crime, or when it is made as a
shield to confuse the legitimate issues or where a
corporation is the mere alter ego or business conduit
of a person, or where the corporation is so organized
and controlled and its affairs are so conducted as to
make it merely an instrumentality, agency, conduit or
adjunct of another corporation.
Q: What facts and circumstances may be
considered to apply the doctrine?
A: As held in the case H. Aronson Co., Inc. v.
Associated Labor Union (1971), the ff. facts and
circumstances may be considered:
1.The capitalization and corporate functions of the
petitioner corporation and the new corporations
are exactly the same.
2.The new corporation started business a day after the
dissolution of the petitioner corporation and
they made use of the office equipment, stores,
and bodegas of the later corporation.
3.The members of the family of the controlling
stockholders hold the same position in the new
corporation that they used to hold in the
previous corporation and, lastly, only the
employees who were non-union members were
hired by the new corporations.
B.

YELLOW-DOG CONDITION

Q: What is a yellow dog condition?

A: It is to require as a condition of employment that a
person or an EE shall not join a labor organization or
shall withdraw from one to which he belongs.
Q: What is a yellow-dog contract?
A: A contract provision whereby an employee agrEEs
that during the period of his employment he will not
become a member of a labor union.
Q: What is a yellow-dog union?
A: It is sometimes known as a company union. It
refers to an employee association calling itself a trade
union but which, in fact, is affiliated covertly or which
is operated openly by an employer.

Q: What are the usual provisions for

employment contracted in the yellow-dog
contract?
A:
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.
The exacting of such written promise was known in
England as signing the document, and in the
United States as the iron clad at first, and after
1917 as the yellow dog contract. Only a yellow dog,
cried the unionists, would sign such a contract.
The term itself has an odious connotation.
Q: Is yellow dog contract valid?
A: No. It is null and void because:
1. It is contrary to public policy for it is tantamou
nt to involuntary servitude.
2. It is entered into without consideration
for EEs in waiving their right to self
organization.
3. EEs are coerced to sign contracts disadvantag
eous to their
family.
NOTE: This is one of the cases of ULP that may be
committed in the absence of an ErEe relationship.
C. CONTRACTING-OUT
Q: What will make this act an ULP?
A: It is the ill intention that makes it so. It is
considered as an ULP when it is 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.
Q: Does it mean that an employer cannot
contract out work?
A: NO. Contracting out services is not ULP per se. It is
ULP only when the following conditions exist:
1. the service contracted- out are being performed
by union members; and
2.such contracting-out interferes with, restrains,
or coerce employees in the exercise of their
right to self-organization.
Q: What may negate employers act of
contracting-out as equivalent to ULP?
A: An employer is not guilty of an ULP in contracting
work out for business reasons such as:
1.
Decline in business
2.
Inadequacy of his equipment
3.
Need to reduce cost
CONTRACTING OUT RESTRICTED BY CBA
Q: How does the CBA restrict contracting out?
A: It is restricted when there is a specific provision on
the CBA regarding security of tenure, even if said
provision is applicable until the lifetime of the CBA.

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Q: Company A contracts out its clerical and

janitorial services. In the negotiations of its
CBA, the union insisted that the company may
no longer engage in contracting out these
types of services, which services the union
claims to be necessary in the company's
business, without prior consultation. Is the
union's stand valid or not? For what
reason(s)?
A: The unions stand is not valid. It is part of
management prerogative to contract out any
work, task, job or project except that it is an ULP to
contract out services or functions performed by
union members when such will interfere with,
restrain or coerce EEs in the exercise of their rights
to selforganization. (Art. 248[c] of the LC). (2001
Bar Question)
RUNAWAY SHOP
Q: What is a runaway shop?
A: A run-away shop 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 the
employees at the old plant because of their union
activities.
Runaway shop refers to business relocation animated
by anti-union animus.
Q: Is sameness of business enough reason to
show runaway shop?
A: No. Sameness of business enough reason to show
runaway shop to pierce the veil of separate corporate
entity.
Q: Does the fact that one or more corporations
are owned and controlled by same or single
stockholder sufficient ground for disregarding
separate corporate personalities?
A: No. The mere fact that one or more corporations
are owned and controlled by the same or single
stockholder is not sufficient ground for disregarding
separate corporate personalities.
Well-settled is the rule that a corporation has a
personality separate and distinct from that of its
officers and stockholders. The 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.
Q: How may an employer legitimately blunt the
effectiveness of an anticipated strike?
A:
1. Stockpiling activities
2. Readjusting contract schedules
3. Transferring work from one plant to
another
D. COMPANY-DOMINATION OF UNION
Q: How is domination of a labor union
manifested?
A:
1. Initiation of the company union idea
a. Outright formation by the employer or his
representatives.

b.

2.
3.
4.

Employee formation on outright demand

or influence by employer.
c. Managerially motivated formation by
employees.
Financial support to the union
Employer encouragement and assistance
Supervisory assistance
a. Soliciting membership
b. Permitting union activities during work
time
c. Coercing employees to join the union by
threats of dismissal or demotion

NOTE: 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; key officials have attended the
election of officers of the former union.
E. DISCRIMINATION
Q: What does the law prohibit with respect to
discrimination?
A: What the law prohibits is discrimination to
encourage or discourage membership in a labor
organization.
NOTE: Discrimination is not the same as
differentiation or classification. It is common
management practice to classify jobs and grant
them varying levels of pay or benefits package.
These are valid differentiations that recognize
differences in job requirements or contributions.
Discouraging membership in a labor
organization includes not only discouraging adhesion
to union membership but also discouraging
participation in union activities such as a legitimate
strike.
Discrimination in different areas:

Discrimination in Work Quota- It was held

that the uneven application of companys
marketing plan is patently an act of
discrimination, considered as ULP.

Discrimination in Bonus Allocation or

Salary Adjustments- there is ULP in the
granting of salary adjustments where the
evidence shows:
a.
The management paid the employees of the
unionized branch.
b.
Where the salary adjustments were granted
to employees of one of its non-unionized
branches although it was losing in its
operations.
c.
The total salary adjustments given every ten
of its unionized employees would not even
equal the salary adjustments given one
employee in the non- unionized branch.

Discrimination in Lay-Off or Dismissal where only unionists were permanently

dismissed while non- unionists were
permanently dismissed while non- unionists
were not.

Discrimination in Regularization - when no

permanent appointments where extended to
member of unions.

Discrimination by blacklisting

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Q: How is blacklist defined?

A: A blacklist has been defined as a list or
persons marked out for special avoidance,
antagonism or enmity on the part of those who
prepare the list, or those among whom it is
intended to circulate.
Q: When is blacklisting considered as ULP?
A: When blacklisting is resorted to by a
combination of employers to prevent
employment of employees for union activities, it
may constitute ULP. It may also give rise to a
right of action for damages by the employees
prejudiced.
Nonetheless, unless the action of then ERs in
combining or in passing communications among
themselves for the purpose of excluding
unwanted workers from employment constitutes
a libel or slander, the excluded EE possesses no
right of action because the employers
community of interest acts both to justify the
combination and to privilege the
communication.

Indirect Discrimination
Q: What is Indirect Discrimination?
A: Art. 248 (f) of the Code provides that it shall
be unfair for an ER to discriminate against an EE
for having filed charges or for having given or
being about to give testimony under the law.
Accordingly, the intent of the legislature is to
assure absolute freedom of the EEs to establish
labor organizations and unions as well as to
proper charges for violations of the labor laws.
NOTE: What is prohibited to be done directly
shall not be allowed to be accomplished
indirectly.
Example of acts which are considered as Unfair
Labor Practice:
1.
Dismissal of a laborer on account of
union activities of his brother;
2.
The discharge of an EE due to the union
activities of the wife; and
3.
The discharge of a wife due to the union
activities of the husband.
Q: What is the test of Discrimination?
A: To determine whether or not a discharge is
discriminatory, it is necessary to establish the
underlying reason for the discharge.
Accordingly, if the discharge is actually
motivated by lawful reason, the fact that the EE
is engaged in union activities at the time will not
lie against the ER and to prevent him from the
exercise of his business judgment to discharge
an EE for cause.
In the case of DC International v. NLRB, a
discharged EE filed a suit, contending that such
discharge was a reprisal for his frequent and
persistent filing and processing of grievances.
On the other hand, the ER contended that the
EE was actually discharged for absenteeism and
lateness based on prior sufficient warnings
against violation of company rules requiring
each EE to give timely notice of inability to
report for work. The Court accordingly held that

more substantial evidence establishes that the

discharge was made with the proper motive.
Accordingly, if it can be established that the true
and basic inspiration for the ERs union
affiliations or activities, the assignment by the
ER of another reason, whatever its semblance of
validity is unavailing. Thus, it has been held that
the facts disclosed that the ERs acts in
discharging the EEs were actually prompted by
the ERs improper interest in the affected EEs
union affiliations and activities, even though the
ER urged that his acts were predicated on
economic necessity, desire to give employment
to more needy persons, lack of work, cessation
of operations, refusal to work overtime, refusal
of non-union EEs to work with union EEs,
seasonal layoff, libelous remarks against the
management and violation of company rules.
Q: What is necessary to prove that the
discharge of an EE was motivated by his
union activity?
A: It must be based on evidence, direct or
circumstantial and not upon mere suspicion.
Q: What is Constructive Discharge? When
does the same occur?
A: Where the ER prohibits EEs from exercising
their rights under the Act, on pain of discharge
and the EE quits as a result of the prohibition, a
constructive discharge occurs.
Accordingly, in NLRB v. Vacuum Platers, the
Court held that an EE was held to be
constructively discharged when she quit her job
because of discriminatory assignment requiring
heavy lifting work which the ER knew she was
physically unable to perform.
Note: The question of whether an EE was
discharged because of his union activities is
essentially a question of fact as to which the
finding of the CIR are conclusive and binding if
supported by substantial evidence. Accordingly,
the CIR is governed by the rule on substantial
evidence rather than by the rule of
preponderance of evidence as in ordinary civil
cases.
Q: Jobo has 3 hotels, the Taal Vista Lodge,
Manila Hotel and the Pines Hotel. Among
the 3, Pines Hotel had more EEs and the
only one with a labor organization (LO).
When the bonus was distributed among
the 3 hotels, Pines Hotel EEs received the
least amount compared to the EEs of
Manila Hotel and Taal Vista Lodge. Did
the company commit ULP?
A: Yes. The sharing of the bonuses is
discriminatory and such constitute ULP. The
Pines Hotel EEs would be receiving fewer
bonuses compared to the EEs of Taal Vista
Lodge and Manila Hotel where neither has a
LO nor does the complainant union has a
member. Taking into account that Pines Hotel
is realizing profit compared to that of Taal Vista.
Same analogy applies in the salary increase.
(Manila Hotel Co. v. Pines Hotel EEs Assn, G.R.
No.L30139, Sep. 28, 1972)

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Q: When can there be a valid

discrimination?
A: The employer is not guilty of ULP 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 CBA.
(Soriano v. Atienza, G.R. No. L68619, Mar. 16,
1989)
Q: What is Union Security Clause?
A: It requires membership in the union so that
an EE may retain his job and the unions
existence is assured.
It is a generic term which is applied to and
comprehends closed shop, union shop,
maintenance of membership, or any
other form of agreement which imposes
upon EEs the obligation to acquire or retain
union membership as a condition affecting
employment.
Accordingly, its purpose is to assure continued
existence of the union. In a sense, it is a valid
kind of discrimination which obliged certain EEs
to join a particular union.
Q: Is notice and hearing required in case
an Ee is dismissed pursuant to a union
security clause?
A: Yes. Although a union security clause in a
CBA may be validly enforced and dismissal
pursuant to thereto may likewise be valid, this
does not erode the fundamental requirement of
due process. The reason behind the
enforcement of union security clauses which is
the sanctity and inviolability of contracts
cannot erode ones right to due process.
Q: What are the kinds of Union Security
Agreements?
A:
1.
Closed-Shop- only union members can
be hired by the company and they must
remain as union members to retain
employment.

Apply only to new hires.

2.
Union-Shop- nonmembers may be
hired, but to retain employment must
become members after a certain period.
3.
Modified Union Shop- EEs who are not
union members at the time of signing of
the contract need not to join the union,
but all workers hired thereafter must
join.
4.
Maintenance of Membership ShopNo EE is compelled to join the union, nut
all present or future members must
remain in god standing in the union as a
condition of employment.
5.
Exclusive Bargaining Shop- the union
is recognized as the exclusive
bargaining agent of all EEs in the
bargaining unit, whether union members
of not.
6.
Bargaining for Members Only- union
is recognized as the bargaining agent
only for its own members.

7.

Agency Shop or Maintenance of

Treasury Shop- an agreement whereby
EEs must either join the union or pay to
the union as exclusive the members.
This is directed against free rider
EEs who benefit from union activities
without contributing financially to union
support.

Q: What is an Open Shop agreement?

A: It is the opposite of the above mentioned; it
an arrangement which does not require union
membership as a condition of employment.
Note: A closed shop is a valid form of union
security. It is not therefore a restriction of the
right of freedom of association guaranteed by
the Constitution.
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.
Correspondingly, the law has sanctioned
stipulations for the union shop and closed shop
as a means of encouraging the workers to join
and support the labor union of their own choice
as their representative in the negotiation of their
demands and the protection of their interests
with respect to the ER.
Therefore, a closed-shop agreement is the most
prized achievement of unionism. It wields up
solidarity and is an effective form of union
security agreement.
Another reason for enforcing such agreement is
the principle of sanctity of inviolability of
contracts. Accordingly, the freedom of EEs to
organize themselves and select their
representative should be subordinated to the
constitutional provision protecting the sanctity
of contracts. We cannot conceive how freedom
to contract (which should be allowed to be
exercised without limitation) should be
subordinated to the freedom of the laborer to
choose the organization they desire to represent
them.
Q: What are the advantages and
disadvantages of Closed-Shop Agreement?
A:
1. It is advantageous because it:
a.
Increases the strength and
bargaining power of LOs;
b.
Prevents non-union workers from
sharing in the benefits of the union
activities without sharing its
obligations;
c.
Prevents the weakening of LOs by
discrimination against union
members;
d.
Eliminates the lowering of standards
caused by the competition with nonunion members;
e.
Enables LOs effectively to enforce
collective agreements;

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f.
g.

2.

Facilitates collection of dues and the

enforcement of union rules; and
Creates harmonious relations
between ER and EE.

NOTE: Although a union security clause in a CBA

may be validly enforced and dismissal pursuant
thereto may likewise be valid, this does not
erode the fundamental requirement of due
process. Accordingly, the sanctity and
inviolability of contracts cannot override ones
right to due process.

It is disadvantageous as it:
Results in monopolistic domination
of employment by the LOs;
b.
Interferes with the freedom of
contract and personal liberty of the
individual worker;
c.
Compels ERs to discharge all nonunion workers regardless of
efficiency, length of service;
d.
Facilitates the use of the LOs for the
purpose of extortion, restraint of
trade, etc;
e.
Denies the non-union workers equal
opportunity for employment;
f.
Enables the union to charge
exorbitant dues and initiation fEEs.

Intra-union dispute, in its character, although

originally between the local union and the
federation was later on converted into a
termination dispute when the company
dismissed the petitioners from work without the
benefit of a separate notice and hearing.

a.

In one case, the respondent company

immediately suspended its EEs and thereafter
effected their dismissal, this is certainly not in
fulfillment of the mandate of due process which
is to afford the EE to be dismissed an
opportunity to be heard (Tropical Hut EEs
Union-CGW, et al. v. Tropical Hut Food Market,
Inc., 1990).
Also, where the ER compelled the EE to go on
forced leave upon recommendation of the union
for the alleged violation by the EE of the closedshop agreement, the NLRC is correct in ordering
the reinstatement of the EE and directed the
union to pay wages and fringe benefits which
the EE failed to receive as a result of her forced
leave and to pay attorneys fEEs.

Nonetheless, in the United States, a clause on

compulsory union membership is being
subjected to effective restrictions. The effect of
these restrictions is to create a form of
compulsory agency shop.
On the other hand, in the Philippines, union
security clauses in collective bargaining
agreements if freely and voluntarily entered into
are valid and binding.
Furthermore, even if the union member were
unaware of the closed-shop stipulation in the
CBA they are bound by it. Accordingly, he 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.
Tanduay Distellery Labor Union v. NLRC 1987
The ER did nothing but to put in force their
agreement when it separated the disaffiliating
union members upon the recommendation of the
union. It is necessary to maintain loyalty and
preserve the integrity of the union. The law
requires loyalty to the union on the part of the
members in order to obtain to the full extent its
cohesion and integrity.
Villar v. Inciong
Although petitioners are entitled to disaffiliation
from the union and to form a new organization of
their union, they must, however, suffer the
consequences of their separation from the union
Nonetheless, there should be a clear and
unequivocal statement that the loss the
status of a member of good standing in the
union shall be a cause for dismissal. Hence,
there must be an express and unequivocal
requirement of membership in the union as a
condition or continuance in the employment.
Thus, a union-shop as with closed-shop
provisions should be strictly construed against
the existence of union shop.

Q: What is the rule when the ER is in good

faith?
A: When the ER dismissed his EEs in the belief
in good faith that such dismissal was required
by the closed- shop provision, he may not be
ordered to pay back compensation to such EEs
although their dismissal is found to be illegal.
Q: To whom is the closed-shop agreement
not applicable?
A: GR: All EEs in the bargaining unit are covered
by a closed-shop agreement and are subject to
its terms.
Exception:
Any EE who at the time of the agreement
takes effect is a bona fide member of
religious organization which prohibits its
members from joining Lobar Unions on
religious grounds;
2.
EEs already in the service and already
members of a labor union other than the
majority union at the time the agreement
takes effect;
3.
Confidential EEs who are excluded from
the rank- and-file bargaining unit; and
4.
EEs excluded by the express terms of the
agreement.
1.

Q: What is the rule regarding Agency Fee?

A: The EEs who are benefiting from the CBA,
without being members of the bargaining union,
may be required to pay an Agency Fee.
Q: Is a written authorization required in
case of an Agency Fee?

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A: No, a written authorization from the nonunion EE is not required. Accordingly, the EEs
acceptance of benefits from a collective
bargaining agreement justifies the deduction of
agency fEEs from his pay and the unions
entitlement thereto.
Q: What is the basis of the agency fee?
A: This is based on quasi-contract that nonunion EEs may not unjustly enrich themselves
by benefiting from employment conditions
negotiated by the bargaining union (Holy Cross
of Davao College, Inc. v. Joaquin, 1996).
Accordingly, the union served as agent of the
EEs and the agency fee is recognition of the
agents efforts. The fee is collectible only from
EEs deriving economic benefits from the unionnegotiated CBA.
Furthermore, since the union is required by law
to act as the bargaining representative of all
EEs, both union and nonunion, within the
bargaining unit, the justification for the clause is
that the nonmember should contribute toward
the cost of collective bargaining and should not
be allowed to benefit from the collective
bargaining process without supporting it
financially. The law does not permit free riders.
F.

DISCRIMINATION BECAUSE OF TESTIMONY

The law protects not only ERs right to form, join,

or assist LOs but also their right to testify on
matters covered by the Code. Subsequently, the
law shields the workers right to self-organization
from indirect assault by the ER.

The ERs reprisal against a testifying EE is ULP

because it violates the right to engage in
concerted activity, a right included in the right to
self-organize. Nonetheless, concerted activity does
not require a number of people acting in unison.

Q: Does the same rule apply too to a situation

where the ER retaliates against an EE who
refused to testify in the favor of the ER?
A: In Mabeza v. NLRC, the act of compelling EEs to
sign an instrument indicating that the ER 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 ERs scheme,
constitutes unfair labor practice.
ART. 118. Retaliatory measures. - 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 under this Title or has testified or is
about to testify in such proceedings.
Art. 248 and 118 are related. Both articles speak of
EEs filing a complaint or giving of testimony although
the latter is limited to wages.
G. VIOLATION OF THE DUTY TO BARGAIN

Q: What is violation of the duty to bargain as a

kind of ULP?
A: This is the act of violating the duty to bargain
collectively as prescribed in the LC.
Q: What are the forms of ULP in bargaining?
A:
1. Failure or refusal to meet and convene
2. Evading the mandatory subject of bargaining
3. Bad faith (BF) bargaining, including failure to
execute the CBA if requested
4. Gross violation of the CBA
Note: A companys refusal to make counterproposal,
if considered in relation to the entire bargaining
process, may indicate BF and this is especially
true where the unions request for a counter proposal
is left unanswered. (Kiok Loy v. NLRC, G.R. No. L
54334, Jan. 22, 1986)
Q: What are the examples of ULP in bargaining?
A:
1. Delaying negotiations by discussing
unrelated matters
2. Refusal to accept request to bargain
3. Rejecting a unions offer to prove its
majority claim
4. Shutdown to avoid bargaining
5. Engaging in surface bargaining
Q: Balmar Farms Ees Association (BFEA) is
affiliated with Associated Labor Union (ALU).
ALU won in the certification election held in
the company. Thus, ALU sent its proposal for a
CBA, but the company refused to act on it
alleging that BEA is the sole and exclusive
bargaining representative and that BFEA
through its president had sent a letter
informing the company of its disaffiliation
with ALU. Is the company guilty of ULP for
refusing to bargain collectively?
A: Yes. ALU is the certified exclusive bargaining
representative after winning the certification
election. The company merely relied on the letter of
disaffiliation by BFEAs president without proof and
consequently refusing to bargain collectively
constitutes ULP. Such refusal by the company to
bargain collectively with the certified exclusive
bargaining representative is a violation of its duty to
collectively bargain which constitutes ULP. (Balmar
Farms v. NLRC, G.R. No.73504, Oct. 15, 1991)
Q: The Kilusang Kabisig, a newlyformed
labor union claiming to represent a majority
of the workers in the Microchip Corp.,
proceeded to present a list of demands to the
management for purposes of collective
bargaining (CB). The Microchips Corp., a
multinational corp.engaged in the production
of computer chips for export, declined to
talk with the union leaders, alleging that
they had not as yet presented any proof of
majority status. The Kilusang Kabisig then
charged Microchip Corp. with ULP, and
declared a "wildcat" strike wherein means of
ingress and egress were blocked and remote
and isolated acts of destruction and violence
were committed. Was the company guilty of
an ULP when it refused to negotiate with
the Kilusang Kabisig?
A: No. It is not an ULP not to bargain with a union
which has not presented any proof of its majority

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status. The LC imposes on an Er the duty to

bargain collectively only with a legitimate labor
organization designated or selected by the majority of
the Ees in an appropriate CB unit. It is not a ULP for
an Er to ask a union requesting to bargain
collectively that such union first show proof of its
being a majority union. (1997 Bar Question)
Q: What is surface bargaining?
A: It is the act of going through the motions of
negotiating without any legal intent to reach an
agreement. It involves the question of whether or not
the Ers conduct demonstrates an unwillingness to
bargain in good faith or is merely hard
bargaining. (Standard Chartered Bank v. Confessor,
G.R. No. 114974, June 16, 2004)
NOTE: Occurs when the Er constantly changes its
position over the agreement.
H.

PAID NEGOTIATION

It is punishable for the ER 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.

I.

VIOLATION OF THE CBA

After the CBA is concluded, implementation
follows. Implementation is still part of bargaining
process.
The duty to bargain requires good faith which
implies faithful observance of what has been
agreed upon.
Such violation must be gross.

Q: What are the reliefs in cases involving ULP?

A:
1. Cease and desist order- this affirmative action
will effectuate the policies of the law including but not
limited to reinstatement of the EE with or without back
pay and including rights of EEs prior to dismissal like
seniority.
Requirements:
1.
Record must show that the restrained
conduct was an issue in the case;
2.
Finding of fact of said misconduct
3.
Filing of fact was supported by evidence.

the EEs bargaining agent and a bona fide and

sufficient communication to the EEs of such
withdrawal of recognition of such organization by the
ER.
Q: Are ULP subject to compromise?
A: No, ULP cases are not subject to compromises.
There relation between capital and labor are not
merely contractual. They are so impressed with public
interest that labor contracts must yield to the common
good.
But in the case of Reformist Union of R.B Liner, Inc. v.
NLRC (1997), the Court affixed the stamp of approval
to a compromise settling a ULP-based strike.
Accordingly, while it did not abandon the rule that ULP
acts are beyond and outside the sphere of
compromises; the agreement in this case was
voluntarily entered into and represents a reasonable
settlement which therefore binds the parties.
Q: Does the law allow splitting of action with
regard to ULP cases?
A: When a labor union accuses an ER of acts of ULP
allegedly committed during a given period of time, the
charges should include all acts of ULP that period.
Hence, the union should not be allowed to split its
cause of action and harass the ER with subsequent
charges.
Q: Are ERs responsible and liable for ULP acts
by subordinate Officials?
A: If violations were traceable back to the ER, either
by way of authorization or ratification, the ER, despite
the fact that he himself was not the actual actor, was
held to be responsible for such violations.
Nonetheless, where the facts in the case made
doubtful the propriety or equity of imputing to the ER
responsibility for the acts of a particular EE, the
following considerations were often employed:
a.

Knowledge by the ER of the EEs

improper acts: the ERs 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 ER.

b.

Continuity of improper conduct by the

EE: Continued, repeated, or widespread
activities by a supervisory EE in affront of the
rights of the body of the EEs was deemed
ample justification for ascribing knowledge
and blame to the ER.

c.

ERs past policy and attitude: Similarity

between the past attitude or policy of the ER
and that of the offending supervisory EE
might, in certain cases, be indicative of a
concert of effort between the two.

2. Affirmative or positive order- the Court may

issue an affirmative order to reinstate the EE which
back pay from the date of the discrimination.
3. Order to bargain- when the ER has failed or
refused to bargain with the proper bargaining unit of
his EEs, the Court may issue an affirmative order to
compel the respondent to bargain with the bargaining
agent.
4. Disestablishment- where the ER had initiated,
dominated, or assisted in or interfered with the
formation or establishment of any LO or contributed
financial or other support to it, the Court may
issue, in addition to the abovementioned remedies, an
order directing the ER to withdraw all recognition from
the dominated labor union and to disestablish the
same.
An order for disestablishment comprehends and
ordains the withdrawal of recognition of such LO as

REQUIREMENTS FOR A VALID TERMINATION BY

THE EMPLOYER OF THE SERVICES OF AN
EMPLOYEE PURSUANT TO A UNION OR CLOSEDSHOP AGREEMENT:
1. The agreement must be expressed in a CLEAR
AND UNEQUIVOCAL way so as not to leave room

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for interpretation because it is a limitation to the

exercise of the right to self-organization.

Any doubt must be resolved against

the existence of a closed-shop agreement.
2. The agreement can only have PROSPECTIVE
APPLICATION and cannot be applied
retroactively.
3. It can only be exercised by giving the
employee his right to DUE PROCESS.
The employer has the right to satisfy
himself that there are sufficient bases for
the request of the union.
The termination of the services of the
employee is not automatic upon the request
of the union.
4. It cannot be applied to employees who are
already MEMBERS OF THE RIVAL UNION or to
the employees based on their religious beliefs.

Chapter III
UNFAIR LABOR PRACTICES OF
LABOR ORGANIZATIONS
Art. 249. Unfair labor practices of labor
organizations. It shall be unfair labor practice
for a labor organization, its officers, agents or
representatives:
1. To restrain or coerce employees in the
exercise of their right to selforganization. However, a labor
organization shall have the right to
prescribe its own rules with respect to
the acquisition or retention of
membership;
2. To cause or attempt to cause an
employer to discriminate against an
employee, including discrimination
against an employee with respect to
whom membership in such organization
has been denied or to terminate an
employee on any ground other than the
usual terms and conditions under which
membership or continuation of
membership is made available to other
members;
3. To violate the duty, or refuse to bargain
collectively with the employer, provided
it is the representative of the
employees;
4. 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;
5. 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
6. 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)
Q: What are the ULP of Labor Organizations?
A: It shall be ULP for a Labor Organization, its officers,
agents or representatives:
1. To restrain or coerce employees in the exercise of
their rights to selforganization. However, a
Labor Organization shall have the right to
prescribe its own rules with respect to the
acquisition or retention of membership;
Q: Is interference by a Labor
Organization an ULP?
A: No, because interference by a LO in the
exercise of the right to organize is itself a
function of self organizing.
Q: What are examples of interference
which does not amount to ULP?
A:
1. Union campaigns for membership even
among members of another union.
2. Filing by a union of a petition to
dislodge an incumbent bargaining union.
3. A bargaining union, through a union
security clause, requires an incoming
employee to join the union.
Q: May a union coerce Ees to join a
strike?
A: No. A union violates the law when, to
restrain or coerce nonstrikers from working
during the strike, it:
1. Assaults or threatens to assault them.
2. Threatens them with the loss of their
jobs.
3. Blocks their ingress to or egress from
the plant.
4. Damages nonstrikers automobiles or
forces them off the highway.
5. Physically preventing them from
working.
6. Sabotages the Ers property in their
presence, thereby creating an
atmosphere of fear or violence.
7. Demonstrates loudly in front of a
nonstrikers residence with signs and
shouts accusing the nonstriker of
scabbing.
8. Holding the non striker up to ridicule.
9. Seeking public condemnation of the
nonstriker.
2. To cause or attempt to cause an Er to
discriminate against an Ee, including
discrimination against an Ee with respect to
whom membership in such organization has
been denied or to terminate an Ee on any
ground other than the usual terms and
conditions under which membership or
continuation of membership is made
available to other members;
Q: What is a case of union induced
discrimination by labor organization
(LO)?

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A: This pertains to the arbitrary use of union

security clause.
A union member may not be expelled
from the union, and consequently from his
job, for personal and impetuous reasons or for
causes foreign to the closed shop
agreement. (Manila Mandarin Ees Union v.
NLRC, G.R. No. 76989, Sep. 29, 1987)
Labor unions are not entitled to arbitrarily
exclude qualified applicants for membership
and a closed shop applicants provision will
not justify the employer in discharging, or a
union in insisting upon the discharge of an
employee whom the union thus refuses to
admit to membership without any
reasonable ground thereof. (Salunga v. CIR,
G.R. No. L22456, Sep. 27, 1967)
3. To violate the duty, or refuse to bargain
collectively with the Er, provided it is the
representative of the Ees;
Q: When is there refusal to bargain?
A: 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. To cause or attempt to cause an Er 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;
FEATHER BEDDING - refers to the practice of
the union or its agents in causing or
attempting to cause an employer to pay or
deliver or agree to pay or deliver money or
other things of value, in the nature of
exaction, for services which are not performed
or not to be performed, as when a union
demands that the employer maintain
personnel in excess of the latters
requirements.
It is not featherbedding if the work is
performed no matter how unnecessary or
useless it may be.
5. To ask for or accept negotiations or attys fees
from Ers as part of the settlement of any issue
in collective bargaining (CB) or any other
dispute;
SWEETHEART DOCTRINE considers it ULP
for a labor organization to ask for or accept
negotiation or attorneys fees from the
employer in settling a bargaining issue or
dispute

Resulting CBA is considered a

sweetheart contract a CBA that does not
substantially improve the employees wages
and benefits.
6. To violate a CBA.
Q: What is surface bargaining?

A: Surface bargaining is defined as going through

the motions of negotiating without any legal intent to
reach an agreement. (Standard Chartered Bank
Employees Union [NUBE] vs. Confesor, G. R. No.
114974, June 16, 2004).
The resolution of surface bargaining allegations never
presents an easy issue. The determination of whether
a party has engaged in unlawful surface bargaining is
usually a difficult one because it involves, at bottom, a
question of the intent of the party in question, and
usually such intent can only be inferred from the
totality of the challenged partys conduct both at and
away from the bargaining table. (Luck Limousine, 312
NLRB 770, 789 [1993]).
According to Standard Chartered Bank Employees
Union [NUBE] vs. Confesor, [G. R. No. 114974, June
16, 2004], surface bargaining involves the question of
whether an employers conduct demonstrates an
unwillingness to bargain in good faith or is merely
hard bargaining. There can be no surface bargaining,
absent any evidence that management had done acts,
both at and away from the bargaining table, which
tend to show that it did not want to reach an
agreement with the union or to settle the differences
between it and the union. Here, admittedly, the
parties were not able to agree and reached a
deadlock. However, it must be emphasized that the
duty to bargain does not compel either party to
agree to a proposal or require the making of a
concession. Hence, the parties failure to agree does
not amount to ULP under Article 248 [g] for violation
of the duty to bargain. (See also National Union of
Restaurant Workers [PTUC] vs. CIR, 10 SCRA 843
[1964]).
Q: What is blue-sky bargaining?
A: Blue-sky bargaining means making exaggerated
or unreasonable proposals. (Arthur A. Sloane and Fred
Witney, Labor Relations, 7th Edition 1991, p. 195).
In order to be considered as unfair labor practice,
there must be proof that the demands made by the
union were exaggerated or unreasonable. In the same
2004 case of Standard Chartered Bank [supra], the
minutes of the meeting show that the union based its
economic proposals on data of rank-and-file
employees and the prevailing economic benefits
received by bank employees from other foreign banks
doing business in the Philippines and other branches
of the bank in the Asian region. Hence, it cannot be
said that the union was guilty of ULP for bluesky
bargaining.
Q: Is refusal to furnish financial information is ULP?
A: While the refusal to furnish requested information
is in itself an unfair labor practice and also supports
the inference of surface bargaining, however, if the
union failed to put its request in writing as required in
Article 242 [c] of the Labor Code, management cannot
be held liable for ULP. (Standard Chartered Bank
Employees Union [NUBE] vs. Confesor, supra).
Q: Will signing of CBA estop a party from raising
issue of ULP?
A: The eventual signing of the CBA does not operate
to estop the parties from raising ULP charges against
each other. Consequently, as held by the High Court in
Standard Chartered Bank [supra], the approval of the
CBA and the release of signing bonus do not

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necessarily mean that the union waived its ULP claim

against the management during the past negotiations.
After all, the conclusion of the CBA was included in the
order of the Secretary of Labor and Employment,
while the signing bonus was included in the CBA itself.
Q: Who has the burden of proof in ULP cases?
A: In unfair labor practice cases, it is the union which
has the burden of proof to present substantial
evidence to support its allegations of unfair labor

practices committed by the employer. It is not enough

that the union believed that the employer committed
acts of unfair labor practice when the circumstances
clearly negate even a prima facie showing to warrant
such a belief. (Tiu vs. NLRC, G. R. No. 123276, Aug.
18, 1997, 277 SCRA 680, 687; See also Schering
Employees Labor Union [SELU] vs. Schering Plough
Corporation, G. R. No. 142506, Feb. 17, 2005;
Samahang Manggagawa sa Sulpicio Lines, Inc. -NAFLU
vs. Sulpicio Lines, Inc., G.R. No. 140992, March 25,
2004).

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