UNFAIR LABOR PRACTICES

Source: The Labor Code with

comments and cases, Volumes
II-A and II-B, 2013 edition,
Cesario Alvero Azucena, Jr.

CONCEPT

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 labor-management relations.

WHY ULP EXISTS

2 ASPECTS
NATURE
EMPLOYERS VIOLATION OF
ITS CONTRACTUAL
OBLIGATION
Elements

NOTE:

NOT EVERY UNFAIR ACT IS UNFAIR LABOR

PRACTICE

- ULP has technical meaning because it is a labor

relations concept with a statutory definition. It
refers only to acts opposed to workers right to
organize. Without that element, the act, no matter
how unfair, is not unfair labor practice as legally
defined.

PROSECUTION OF ULP

Two aspects:

CIVIL
- include liability for damages and these may
be passed upon by a labor arbiter.

CRIMINAL
- jurisdiction
- what to prove

UNFAIR LABOR PRACTICES

of employers

CONDITIONS PRECEDENT TO
U.L.P. CHARGE

- injured party comes within the

definition of employee

- charged as ULP must fall under

the prohibition of Art. 248 (acts
of the employer) or 249 (acts of
the union)

NO U.L.P

Personnel Movements
Acceptance of Mass Resignation

DETERMINATION OF VALIDITY:
- motive

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

Interrogation

Prohibiting Organizing Activities

Espionage and Surveillance

Mass Layoff Amounting to U.L.P.

Successor Employer; Piercing the Corporate

Veil

TOTALITY OF CONDUCT DOCTRINE

Test of interference or coercion

NOT necessary that there be direct

evidence that any employee was in fact
intimidated or coerced by statements of
threats of the employer

anti-union conduct of the employer does

have an adverse effect on selforganization and collective bargaining.

SECOND U.L.P.: YELLOW DOG

CONDITION (ART. 248[b])

(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.

THIRD U.L.P.: CONTRACTING

OUT (ART. 248[c])

Contracting out itself, is not ULP;

it is the ill intention that makes it so.

Runaway Shop

FOURTH U.L.P.: COMPANYDOMINATION OF UNION (ART. 248[d

(a)Initiation of the company union idea

(b) Financial support to the union.

(c) Employer encouragement and

assistance.

(d) Supervisory assistance

FIFTH U.L.P.: DISCRIMINATION

(ART. 248[e])

to encourage or discourage
membership in a labor organization

Discrimination in Bonus Allocation or

Salary Adjustments

Discrimination in Layoff or Dismissal

Indirect Discrimination

TEST OF DISCRIMINATION

MOTIVE
UNION ACTIVITIES
BASED ON EVIDENCE
Example:
DISCHARGE OF AN EMPLOYEE
- actual
-constructive

EXCEPTION TO DISCRIMINATION

VALID
REASON
UNION SECURITY AGREEMENTS
- advantages
-disadvantages
- closed-shop
- validity of this agreement
DISMISSAL
- observe due process

SIXTH U.L.P.: DISCRIMINATION

BECAUSE OF TESTIMONY (ART. 248[f])

The ONLY ULP not related to the

employees right to self-organization

REASON

REFUSAL TO TESTIFY; EXAMPLE

TEST

SEVENTH U.L.P.: VIOLATION OF THE

DUTY TO BARGAIN (ART. 248[g])

FOUR FORMS of ULP in Bargaining

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

FAILURE OR REFUSAL TO MEET

AND CONVENE

To bargain in good faith, an employer

must not only meet and confer with
the union which represents his
employees, but also must recognize
the union for the purpose of
collective bargaining.

Do Economic Exigencies Justify Refusal to

Bargain?

as long as employer continues to

negotiate no problem!

REASON

Acts not
Refusal to Bargain
(1) adoption
of Deemed
an adamant

bargaining position in good faith,

particularly when the company is
operating at a loss;

(2) refusal to bargain over demands

for commission of unfair labor
practices;

(3) refusal to bargain during period of

employer has demanded additional

proof or acquisition of an official
certification of bargaining
agency

WHY

Non-reply to Proposal; CBA

Imposed on Employer

A companys refusal to make counter

proposal if considered in relation to the
entire bargaining process, may indicate
bad faith and this is especially true
where the Unions request for a
counter proposal is left
unanswered.

SECOND: EVADING THE MANDATORY SUBJECTS

WHAT ARE THE MANDATORY

SUBJECTS
Wages and Employment
Conditions
Taft-Hartley Act
Must materially affect terms and
conditions of employment
EXAMPLES

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

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

(3) Vacations and holidays;

(4) Bonuses;

(5) Pensions and retirement plans;

(6) Seniority;

(7) Transfer;

(8) Lay-offs;

(9) Employee workloads;

(10) Work rules and regulations;

(11) Rent of company houses;

(12) Union security arrangements.

Wage Agreement; Solomonic

Approach

Workloads and Work Rules

Code of Conduct

Arbitration, Strike-Vote, or NoStrike Clause

LABOR MANAGEMENT COUNCIL

WORKERS PARTICIPATORY RIGHT

3 LEVELS
- corporate level
- plant or department level
- shop floor level

Employees Participation in Formulating the Code of

Discipline

March 2, 1989
- approval of Republic Act No. 6715,
amending Article 211 of the Labor
Code, that the law explicitly
considered it a State policy

Collective Bargaining is just one of

the forms of employee participation.

the real aim is employee participation

in whatever form it may appear
bargaining or no bargaining, union or
no union.

Art. 255 (second sentence)

BASIS

Article 255.Exclusive bargaining

representation and workers
participation in policy and decisionmaking.The labor organization
designated or selected by the
majority of the employees in an
appropriate collective bargaining unit
shall be the exclusive representative
of the employees in such unit for the
purpose of collective bargaining.

INDIVIDUAL GRIEVANCE

However, an individual employee or

group of employees shall have the
right at any time to present
grievances to their employer.

Any provision of law to the contrary

notwithstanding, workers shall have the
right, subject to such rules and
regulations as the Secretary of Labor and
Employment may promulgate, to
participate in policy and decision-making
processes of the establishment where
they are employed insofar as said
processes will directly affect their rights,
benefits and welfare.

For this purpose, workers and

employers may form labormanagement councils: Provided, That
the representatives of the workers in
such labor-management councils
shall be elected by at least the
majority of all employees in said
establishment. (As amended by
Section 22, Republic Act No. 6715,
March 21, 1989)

WHY LMC WAS CREATED

individual representation in dealing or

bargaining with the employer is weak

It can exist where there is no union or

co-exist with a union

Dealing with the employer

CREATION OF LMC

The Department shall promote the

formation of labor-management councils
in organized and unorganized
establishments to enable the workers to
participate in policy and decision-making
processes in the establishment, insofar
as said processes will directly affect
their rights, benefits and welfare,
except those which are covered by
collective bargaining agreements or are
traditional areas of bargaining.

DUTY TO BARGAIN
Duty to AGREE even if
MANDATORY PROVISIONS?

Bargaining to the
Point of Impasse
BAD FAITH?
Mandatory provisions
Non-Mandatory Provisions
DEPENDS ON THE INSISTENCE

What the rulings forbid is the

posture of making settlement
on a non-mandatory subject a
precondition to the discussion
or settlement of a mandatory
subject.

When
Is There Deadlock or Impasse?
Impasse

FACTORS TO CONSIDER
- bargaining history,
- good faith in negotiations,
- length of the negotiations,
- issues as to which there is
disagreement,
- contemporaneous understanding of the
parties as to the state of negotiations.

Duty to Bargain When There Is Deadlock or

Impasse

End of bargaining?
Third-party intervention
Win-win situation

THIRD: BARGAINING IN
BAD FAITH
When Can Bargaining in Bad
Faith Occur?
When to raise it
Execution of CBA

INSTANCES OF BAD FAITH

Delay of, or Imposing Time Limit on,

Negotiations

Dilatory Tactics during negotiations

Unilateral action and without

consulting the majority
representative

Nonetheless, the prior adjudication of

bad faith on an earlier occasion is not
itself substantial evidence of present
bad faith.

As the Court held in the case of Kiok

Loy v. NLRC, 141 SCRA 179, 186
(1986), the company's refusal to
make counter-proposal to the union's
proposed CBA is an indication of its

Surface bargaining

Blue- sky bargaining

Repeated shifts in position

Inflexible Demands; Strike Amid Negotiation

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

Individual Bargaining

GROSS VIOLATION OF THE

CONTRACT

The duty to bargain is still operative

because such duty further requires
faithful adherence to the
contractual provisions.

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

Self-organization
Right to bargain
Corruption
Undue influence

NINTH U.L.P.: VIOLATION OF THE CBA (ART.

248[i])

Implementation is still part of

the bargaining process

RELIEFS IN U.L.P. CASES

Cease and desist order

Affirmative Order
Order to Bargain
Disestablishment

SUMMARY

9 ULP ACTS OF EMPLOYER under Art. 248

(1) Interference;
(2) yellow dog condition;
(3) contracting out;
(4) company unionism;
(5) discrimination;
(6) discrimination because of testimony;
(7) violation of duty to bargaining (4
instances);
(8) paid negotiation; and
(9) violation of CBA.

UNFAIR LABOR PRACTICES OF LABOR

ORGANIZATIONS

RESTRAIN OR COERCE
INTERFERENCE NOT PUNISHABLE

because interfering in the exercise

of the right to organize is itself a
function of self-organizing.

COERCION

UNION-INDUCED DISCRIMINATION
. REFUSAL TO BARGAIN

FEATHERBEDDING AND MAKEWORK ARRANGEMENTS