ULP

 Unfair Labor Practice – acts that violate the workers’ right to organize

ULP 247 -  VIOLATE the constitutional right of workers and employees to self-organization

- 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.

These are also criminal offenses against the State 

President or Secretary of Labor and Employment – none-declaration of strike or lockout after their assumption of jurisdiction. The Pres. Shall not be precluded from determining the industries that in his opinion are indispensable to the national interest and from intervening at any and assuming jurisdiction over any such labor dispute in order to settle or terminate the same. Their decision and the Commission or the Voluntary Arbitrator shall be final and executory 10 calendar days after receipt thereof by the parties.

The LAs shall give utmost priority to the hearing and resolution of all cases involving ULP. Shall be resolved 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.

Criminal prosecution – there must be a final judgment finding that a ULF was committed.

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, 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.

Insular Life Assurance Co. Ltd., Employees Association-NATU vs. Insular Life

Assurance Co., Ltd., 37 SCRA 244 [1971] – “The act of an employer in notifying absent employees individually during a strike following unproductive efforts at collective bargaining that the plant would be operated the next day and that their jobs were open for them should they want to come in has been held to be an unfair labor practice, as an active interference with the right of collective bargaining through dealing with the employees individually instead of through their collective bargaining representatives.”

- It is a ULP for an employer operating under a CBA to negotiate or to attempt to negotiate with his employees individually in connection with changes in the agreement.

- 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. 

- When the respondents offered reinstatement and attempted to “bribe” the strikers with “comfortable cots,” “free coffee and occasional movies,” “overtime” pay for “work performed in excess of eight hours,” and “arrangements” for their families, so they would abandon the strike and return to work, they were guilty of STRIKE-BREAKING and/or UNION-BUSTING and, consequently of ULP. It is equivalent to an attempt to break a strike for an employer to offer reinstatement to striking employees individually, when they are represented by a union, since the employees thus offered reinstatement are unable to determine what the consequences of returning to work would be. 

- Success of purpose is not, and should not, be the criterion in determining whether or not a prohibited act constitutes ULP.

- When the management double crossed or will not negotiate in good faith, it is tantamount to refusal collectively and considering the ULP in the meantime being committed by the management such as the sudden resignation of some unionists and who became supervisors without increase in salary or change in responsibility, such as the coercion of employees, decided to declare the strike.” 

- So is there a ULP where the employer, although authorized by the CIR to dismiss the employees who participated in an illegal strike, dismissed only the leaders of the strikers, such dismissal being evidence of discrimination against those dismissed and constitution a waiver of the employer’s right to dismiss the striking employees and a condonation of the fault committed by them.”

- Where the strike was induced and provoked by improper conduct on the part of an employer amounting to a ULP, the strikers are entitled to reinstatement with back pay. 

- Where the employers’ ULP caused or contributed to the strike or where the lock-out by the employer constitutes a ULP, the employer cannot successfully urge as a defense that the striking or lock-out employees position has been filed by replacement. Under such circumstances, if no job sufficiently and satisfactorily comparable to that previously held by the aggrieved employee can be found, the employer must discharge the replacement employee, if necessary, to restore the striking or locked-out worker to his old or comparable position… If the employer’s improper conduct was an initial cause of the strike, all the strikers are entitled to reinstatement and the dismissal of replacement employees wherever necessary. 

- Strikers who are entitled to reinstatement are not entitled to back pay during the period of the strike, even though it is caused by a ULP. However, it may offer to return to work under the same conditions just before the strike, the refusal to re-employ or the imposition of conditions amounting to ULP is a violation of sec 4a of the Industrial Peace Act and the employer is liable for backpay from the date of the offer. 

De Leon vs. NLRC, 358 SCRA 274 (2001] – the LA correctly applied the doctrine of piercing the corporate veil to hold all respondents liable for ULP. It was shown that FISI was a mere adjunct of FTC. FISI, by virtue of a contract for security services, provided FTC with security guards to safeguard its premises. However, records show that FISI and FTC have the same owners and business address, and FISI provided security services only to FTC and other companies belonging to the Lucio Tan group of companies. The purported sale of the shares of the former stockholders to a new set of stockholders who change the name of the corporation to Magnum Integrated Services, Inc. appears to be part of a scheme to terminate the services of FISI’s security guards posted at the premises of FTC and but their newly-organized union which was then beginning to become active in demanding the company’s compliance with Labor Standards laws. Under these circumstances, the Court cannot allow FTC to use its separate corporate personality to shield itself from liability for illegal acts committed against its employees. 

ULP of Employers art 248. It shall be unlawful for an employer to commit any of the following ULP:

1. To INTERFERE with, restrain or coerce employees in the exercise of their right to self-organization;

2. To REQUIRE as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;

3. To CONTRACT OUT services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization;

4. To INITIATE, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters;

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

6. To DISMISS, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;

7. To VIOLATE the duty to bargain collectively as prescribed by this Code;

8. To 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; or

9. To VIOLATE a CBA

The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified ULP shall be held criminally liable.

Interference in the right to self-organization

Hacienda Fatima vs. National Federation of Sugarcane Workers-Food and General Trade, G.R.

No. 149440, 28 January 2003 – The sudden changes in work assignments reeked of bad faith. These changes were implement immediately after respondents had organized themselves into a union and started demanding collective bargaining. Those who were union members were effectively deprived of their jobs. Petitioners’ move actually amounted to unjustified dismissal of respondents, in violation of the Labor Code. “Where there is not showing of clear, valid and legal cause for the termination of employment, the law considers the matter a case of illegal dismissal and the burden is on the employer to prove that the termination was for a valid and authorized cause.”

- From respondents’ refusal to bargain, to their acts of economic inducements resulting in the promotion of those who withdrew from the union, the use of armed guards to prevent the organizers to come in, and the dismissal of union officials and members, one cannot but conclude that respondents did not want a union in their hacienda – a clear interference in the right of the workers to self-organization. 

Prince Transport, Inc. vs. Garcia, et at. G.R. No. 167291, 12 January 2011 – The petitioners are guilty of ULP. The respondents’ transfer of work assignments to Lubas was designed by petitioners as a subterfuge to foil the former’s right to organize themselves into a union. Under Art. 248 a and e of the Labor Code, an employer is guilty of ULP if its interferes with, restrains or coerces its employees in the exercise of their right to self-organization or if it discriminates 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. Indeed, evidence of petitioners’ ULP is shown by the established fact that, after respondents’ transfer to Lubas, petitioners left them high and dry insofar as the operation of Lubas was concerned. The Court finds no error in the finding and conclusion of the CA that petitioners “withheld the necessary financial and logistic support such as spare parts, and repair and maintenance of the transferred buses until only two units remained in running condition.” This left respondents vitually jobless. 

2014 ULP CASE WHERE THE EMPLOYER HAS ORCHESTRATED ACTIVITIES TO SUBERT CERTIFICATION ELECTIONS.

T & H Shopfitters Corporation/ Gin Queen Corporation et. at. vs. T & H

Shopfitters Corporation/Gin Queen Workers Union, et. at., G.R. No. 191714, - ULP relates to the commission of acts that transgress the workers’ right to organize. The prohibited acts must necessarily relate to the worker’s right to self-organization. The test of whether an employer has interfered with and coerced employees in the exercise of their right to self-organization, that is, whether the employer has engaged in conduct which, it may reasonable be said, tends to interfere with the free exercise of employees’ rights; and that it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining. 

- Questioned acts of petitioners : 1. Sponsoring a field trip to Zambales for its employees, to the exclusion of union members, before the scheduled certification election;

2. the active campaign by the sales officer of petitioners against the union prevailing as a bargaining agent during the field trip;

3. escorting its employees after the field trip to the polling center;

4. the continuous hiring of subcontractors performing respondents’ functions;

5. assigning union members to the Cabangan site to work as grass cutters; and

6. the enforcement of work on a rotational basis for union members, all reek of interference on the part of petitioners.

- The various acts if taken together, reasonable support an inference that, indeed, such were all orchestrated to restrict respondents’ free exercise of their right to self-organization. A certification election was the sole concern of the workers, save when the employer itself had to file the petition, but even after such filing, its role in the certification process ceased and became merely a bystander. Thus, petitioners had no business persuading and/or assisting its employees in their legally protected independent process of selecting their exclusive bargaining representative. The fact and peculiar timing of the field trip sponsored by petitioners for its employees not affiliated with THS-GQ Union, although a positive enticement, was undoubtedly extraneous influence designed to impede respondents in their quest to be certified. This cannot be countenance.

REFUSAL TO BARGAIN COLLECTIVELY

Divine World vs. Secretary of Labor, 213 SCRA 759 [1992] -  Kiok Loy v. NLRC – factors :

a. The union is the duly CERTIFIED bargaining agent;

b. It made a definite REQUEST to bargain and submitted its collective bargaining proposals, and

c. The University made NO COUNTER proposal whatsoever. 

- “a company’s 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 Union’s request for a counter proposal is left unanswered.” “It is not obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the other. But an erring party should not be tolerated and allowed with impunity to resort to schemes feigning negotiations by going through empty gestures.” 

Gross violation of the CBA; need not be limited to economic provisions if

GROSS PER SE

Employees Union of Bayer Phils. vs. Bayer Philippines. GR No. 162943 – In Silva v. NLRC, for a ULP case to be cognizable by the LA, and for the LRC to exercise appellate jurisdiction thereon, the allegations in the complaint must show prima facie the concurrence of two things, namely: 1. Gross violation of the CBA; and 2. The violation pertains to the economic provisions of the CBA. 

- This pronouncement in Silva, however, should not be construed to apply to violations of the CBA which can be considered as gross violations per se, such as utter disregard of the very existence of the CBA itself, similar to what happened in this case. When an employer proceeds to negotiate with a splinter union despite the existence of its valid CBA with the duly certified and exclusive bargaining agent, the former indubitable abandons its recognition of the latter and terminates the entire CBA. 

- A legitimate labor organization cannot be construed to have abandoned its pending claim against the management/employer by returning to the negotiating table to fulfill its duty to represent the interest of its members, except when the pending claim has been expressly waived or compromised in its subsequent negotiations with the management. To hold otherwise would be tantamount to subjecting industrial peace to the precondition that previous claims that labor may have against capital must first be waived or abandoned before negotiations between them may resume. Undoubtedly, this would be against public policy of affording protection to labor and will encourage scheming employers to commit unlawful acts without fear of being sanctioned in the future. 

Question: Is a Iumpsum amount in lieu of wage increases during CBA

negotiations tantamount to bargaining in bad faith?

Tabangao Shell Refinery Employees Association vs. Pilipinas Shell Petroleum

Corporation, G.R. No. 170007, 07 April 2014. – No. The corporation’s unswerving position on the matter of annual lump sum payment in lieu of wage increase did not, by itself, constitute bad faith even if such position caused a stalemate in the negotiations, as correctly ruled by the Sec. of Labor. 

- The duty to bargain does not include the obligation to reach an agreement. Thus, the Company’s insistence on a bargaining position to the point of stalemate does not establish bad faith.

- For failure of the union to substantiate its demand for wage increase as it did not file its position paper, the Secretary looked at the financial situation of the company, as shown by its audited financial statements, and found it just and equitable to give a lump sum package. 

Unfair Labor Practices of Labor Organizations, Art. 249 LC

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 self-organization. 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 a fee for union negotiations;

5. To 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; or

6. To VIOLATE a collective bargaining agreement. 

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. 

Interference in the employee’s right to self-organization or to discriminate

against him.

Manila Mandarin employees union vs. NLRC, 154 SCRA 368 (1987) – the CBA in this case contains a union security clause – a closed-shop agreement. It is an agreement whereby an employer binds himself to hire only members of the contracting union who must continue to remain members in good standing to keep their jobs. It is “the most prized achievement of unionism.” It adds membership and compulsory dues. By holding out to loyal members a promise of employment in the closed-shop, it welds group solidarity. It is a valid form of union security, and such a provision in a CBA is not a restriction of the right of freedom of association guaranteed by the Constitution. 

- A union member may not be expelled from her union, and consequently from her job, for personal or impetuous reasons or for causes foreign to the closed-shop agreement and in a manner characterized by arbitrariness and whimsicality.

- This is particularly true in this case where Ms. Beloncio was trying her best to make a hotel bus boy do his work promptly and courteously so as to serve hotel customers in the coffee shop expeditiously and cheerfully. Union membership does not entitle waiters, janitors, and other workers to be sloppy in their work, inattentive to customers, and disrespectful to supervisors. The Union should have disciplined its erring and troublesome members instead of causing so much hardship to a member who was only doing her work for the best interests of the employer, all its employees, and the general public whom they serve.

When not ULP:

General Santos Coca-cola Plant Free Workers Union-TUPAS vs. Coca Cola

Bottlers et al., GR 178647, 13 February 2009 -  The CA found that, based on the evidence, CCBPI did not engage in labor-only contracting and, therefore, was not guilty of ULP. JJLBP was an independent contractor and that the decision to contract out jobs was a valid exercise of management prerogative to meet exigent circumstances. On the other hand, petitioner failed to adduce evidence to prove that contracting out of jobs by the company resulted in the dismissal of petitioner’s members, prevented them from exercising their right to self-organization, let to the Union’s demise or that their group was singled out by the company. 

- The company’s action to contract-out the services and functions performed by Union members did not constitute ULP as this was not directed at the members’ right to self-organization.

Suspension of CBA due to financial losses not ULP:

Manila Mining Corp. Employees Association, et al vs. Manila Mining Corp, et al.,

G.R. Nos. 178222-23,.29. September 2010 – MMC’s temporary suspension of business operations resulted in the temporary lay-off of some of its employees. 

- unfair labor practice cannot be imputed to MMC since, as ruled by the CA, the call of MMC for a suspension of the CBA negotiations cannot be equated to “refusal to bargain.” For a charge of unfair labor practice to prosper, it must be shown that the employer was motivated by ill-will, bad faith or fraud, or was oppressive to labor. The employer must have acted in a manner contrary to morals, good customs, or public policy causing social humiliation, wounded feelings or grave anxiety. While the law makes it an obligation for the employer and the employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement. 

- it cannot be said that MMC deliberately avoided the negotiation. It merely sought a suspension and in fact, even expressed its willingness to negotiate once the mining operations resume. There was valid reliance on the suspension of mining operations for the suspension, in turn, of the CBA negotiation. The Union failed to prove bad faith in MMC’s actuations.