UNFAIR LABOR PRACTICES Art 247

Concept: Major aim of labor relations policy is industrial democracy- felt in free collective bargaining or negotiation over terms and conditions of employment. Self-organization- is a prerequisite (lifeblood) of industrial democracy, enshrined in the Constitution and any act to weaken or defeat the right is considered an offense-(unfair labor practices ULP) ULP-does not mean an unfair practice by labor but rather a practice unfair to labor. Offender: employer or labor organization; Victim: workers as a body and the State; carries with it civil and criminal liabilities. Art 246- declares that it is unlawful for any person to restrain, coerce, discriminate against or unduly interfere with the exercise of the rights to selforganization. ULP vs violation of an employer of its contractual obligation: ULP involves violation of public rights or policy to be prosecuted like criminal offenses; violation of an employer is only a contractual breach to be redresses like an ordinary contract or obligation. Elements: 1. Employer-employee relationship between the offender and the offended ULP is a negation of, a counteraction to, the right to organize which is available only to employees in relation to their employment. 2. The act done is expressly defined in the Code as an act of ULP. Prohibited acts should be all related to the workers self-organization right and the observance of the CBA. Exception: Art 48 (f). Therefore not every unfair act is ULP. ULP has limited and technical meaning. Refers only to acts opposed to workers right to organize. Prosecution: To prosecute ULP as a criminal case is no possible until after finality of judgement in the labor case, finding that the respondent indeed committed ULP. Use judgement will not serve as evidence on the criminal case. (proof beyond reasonable doubt). Jurisdiction: MTC or RTC. Prescription: 1 year. Art 248 Condition precedent: 1. That the injured party comes within the definition of employee as defined by the Code. (Employee Art 97 (c)- any individual employed by the employer). 2. The act charged as ULP must fall under the prohibitions of Art 248 or 249. No ULP: 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. Nor are his rights of selection and discharge of his employees wrested from him by the Act. Personnel Movements o As a rule, it is the prerogative of the company to promote, transfer or even demote its employees. No ULP if it exercises the option given to it in the CBA to retire an employee who rendered 25 yrs of service or reached the age of 60. Acceptance of Mass Resignation o Acceptance of voluntary resignation is not ULP. Cases of pilots who voluntarily terminated their employment relationship with the company. Grant of profit sharing benefits to non-Union members o Management has the prerogative to regulate, according to its discretion and judgment, all aspects of employment. Reason: labor law does not authorize the substitution of the judgment of the employer in the conduct of its business. (as long as it is exercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights of employees) Forced Vacation Leave o Where the vacation leave without pay, which the employer requires employees to take in view of the economic crisis, is neither malicious, oppressive or vindictive, ULP is not committed. Issuance of Rules or Policy o Every business enterprise endeavours to increase its profits. In the process, it may adopt or devise means designed towards that goal. (even as the law is solicitous of the welfare of the employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The free of management to conduct its own business affairs to achieve its purpose cannot be denied. Taking Action against Slowdown o 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, the employer does not commit an ULP by discharging employees who engage in a slowdown even if their object is a pay increase which is lawful. Determination of Validity Involves appraisal of his motives; it is for the NLRC to weigh the employers motive. The failure of the employer to ascribe a valid reason therefore may justify an interference that his unexplained conduct in respect of the particular employee or employees was inspired by the latters union membership or activities.

1 ULP: Interference Intimidation- the most obvious form of interference; such conduct of the employer, even if only on one occasion, constitutes ULP and will support a cease and desist order of the Board. Ex. where the superintendent of the employer threatened the employees with cutting their pay, increasing rent of the company houses, or closing the plant if they supported the union and where the employer encouraged the employees to sign a petition repudiating the union. Interrogation Persistent interrogation of employees to elicit information as to what had happened at union meetings and the identity of the active union employees was held as violative of organizational rights of employees. Not coercive if: the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal would take place, and obtain his participation on the voluntary basis; must also occur in the context free from employer hostility to union organization and must not itself be coercive in nature; interrogating an employee as to his union affiliation is not per se ULP but circumstances may make it as such. ULP even before union is registered The employer who interfered with the right to self organization before the union is registered can be held guilty of ULP. Prohibiting Organizing Activities A rule prohibiting solicitation if union membership is company property is unlawful if it applies to non-working time as well as to working time. Where 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-employee union organizers to come within its premises, in order to solicit employees. The following are examples of unlawful acts to discourage membership in labor organization: 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 CBA; 3. Dismissal of an old employee allegedly for inefficiency, on account off her having joined a union and engaging in union activities. Violence or Intimidation When employer unlawfully coerced employees by pointing a gun on them on the day of representation election; where employer threatened employees with force and violence if they are caught with a union leaflet; an employer who threatened unions recruiter to surrender union affiliation forms. Espionage and Surveillance Spying upon employees This device consists of using one or a small group of employees or agents, inspired by profit, opportunism, vengeance or some kindred human frailty to use as their access to employees quarters and affairs for the purpose of spying upon fellow employees and reporting back to the employer. Such conduct of the employer constitutes interference with the employees exercise of their rights Economic Inducements A violation results from an employers announcement of benefits prior to a representation election, where it is intended to induce the employees to vote against the union. Employers expression of opinion; Totality of conduct Doctrine Totality of conduct Doctrine- holds that the culpability of employers remarks was to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances. - under this doctrine, expression 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-union 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. 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 interference that the anti-union conduct of the employer does not have an adverse effect on self-organization and collective bargaining. Mass lay-off amounting to ULP A companys capital reduction effort, to camouflage the fact that it has been making profits, and to justify the mass lay-off or its employees especially union members, were an unfair labor practice which can neither be countenances nor condoned. Lockout or closure amounting to ULP A lockout, actual or threatened, as a means of dissuading the employees from exercising their rights under the Act is clearly ULP. However, to hold an employer who actually or who threatens to lock out his - the evidence must be established that the purpose thereof was to interfere with the employees exercise of their rights; may be proven by circumstantial evidence. Successor Employer; Piercing the Corporate Veil Closure is likewise not legal and the employees cannot be separated if in fact, there is no closure because the closed dept or company reappeared although under a new name. If the new company is engaging in the same business as the closed company or dept, or is owned by the same people, and the closure is calculated to defeat the workers organizational right, then the closure may be declared a subterfuge and the doctrine of successor employer will be applied, that is, the new company will be treated as a continuation or successor of the one that st closed. If such the case, the separated employees will have to be employed in the new: firm because in the 1 place they should not have been separated at all.

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The successor employer ruling is an enforcement of the legal recourse called piercing the veil of corporate entity Doctrine of piercing the veil of corporate entity- when valid grounds exist, a corporation may be considered as mere association of persons; liability will attach directly to the officers and stockholders. - the doctrine applies when 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 the corporation is a mere alter ego or business conduit of a person or where a 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. nd 2 ULP: Yellow Dog Condition Promises exacted from workers as a condition of employment that they are not to belong to or attempt to foster, a union during their period of employment. 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. rd 3 ULP: Contracting Out ULP for an employer to contract out services or functions being performed by union members when such act will interfere with, restrain, or coerce employees in the exercise of their right to self-organization; not by itself ULP but it is the ill intention that makes it so. Contracting out Restricted by CBA Runaway Shop An industrial plant moved by its owners from one location to another to escape union labor regulations or state laws; a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities. It was held that where a plant removal is for business reasons but the relocation is hastened by anti-union motivation, the early removal is ULP; it is immaterial that the relocation is accommodated by a transfer of title to a new employer who is an alter ego of the original employer. th 4 ULP: Company-Domination of Union a. Initiation of the company union idea. 1. Outright formation by the employer or his representatives; 2. Employee formation on outright demand or influence by employer; and 3. Managerially motivated formation by employees. b. Financial support to the union. An employer commits ULP if he defrays the union expenses or pays the attys fees to the atty who drafted the constitution and by-laws of the union. c. Employer encouragement and assistance. Immediately granting the union exclusive recognition as bargaining agent without determining whether the union represents the majority of employees is an illegal form of assistance amounting to ULP. d. Supervisory assistance. This takes the form of soliciting membership, permitting union activities during working time or coercing employees to join the union by threats of dismissal or demotion. Company-dominated labor union- where 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; that key officials of the company and its legal counsel have attended the election of officers; that officers and members of the rival labor union were dismissed allegedly pursuant to a retrenchment policy to the company after they had presented demands for the improvement of the working conditions despite its alleged retrenchment policy; and that after dismissal of the aforesaid officers of the rival union, the company engages to services of new labourers. th 5 ULP: Discrimination Purpose to be unlawful: to influence the union activities of employees. The discrimination committed by the employer must be regard to the hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. Test of Discrimination o Lawful cause of discharge- not a defense where the employee was actually discharge because of his union activities; the fact that the employee is engaged in union activities at the time will not lie against the employer and prevent him from the exercise of his business judgment to discharge an employee for cause. o The underlying reason for the discharge must be established.