CONCLUSIÓN

248[a])

In summarized form, the nine U.L.P. acts of an employer under Art. 248 are: (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, (8) paid negotiation, and (9) violation of CBA.

5.1 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.

In order that the questioning of an employee concerning his union activities would not be deemed coercive, 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 a voluntary basis. In addition, questioning must also occur in a context free from employer hostility to union organization and must not itself be coercive in nature.

5.2 U.L.P. Even Before Union is Registered An employer who interfered with the right to self-organization before the union is registered can be held guilty of ULP.

5.3 Prohibiting Organizing Activities

A rule prohibiting solicitation of union membership in 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.

However, in the absence of showing that the illegal dismissal was dictated by anti-union motives, the same does not constitute an unfair labor practice as would be a valid ground for strike. The remedy is an action for reinstatement with backwages and damages.

We have held that unfair labor practice cases are not, in view of the public interest involved, subject to compromises.

5.4 Violence or Intimidation

An employer unlawfully coerced employees by directing two individuals to his office at gun point on the day of representation election after the

individuals had informed the employer that they were on the premises to vote in the election.

5.5 Espionage and Surveillance

One form of “pressure” which some over-eager employers sometimes use is the practice of spying upon employees. This device consists of using one or a small group of employees, or other agents, inspired by profit opportunism, vengeance or come 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. It is plainly evident that such conduct on the employer’s part, however subtly it may be accomplished, constitutes interference with the employee’s exercise of their rights. Inasmuch as the “pressure” results more from the employees’ apprehension than from the employer’s purpose in spying and the use of its result, it has been held to be no answer to a charge of unfair labor practice that the fruits of espionage were not used.

When an employer engages in surveillance or takes steps leading his employees to believe it is going on, a violation results because the employees come under threat of economic coercion or retaliation for their union activities.

Unlawful surveillance was properly found where supervisors were present near the place where union meeting was being held to check the names of employees leaving the meeting.

5.6 Economic Inducements

A violation results from an employer’s announcement of benefits prior to a representation election, where it is intended to induce the employees to vote against the union.

It is 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.

5.7 Employer’s Expression of Opinion;

Totality of Conduct Doctrine

The doctrine holds that the culpability of employer’s remarks was to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.

(1) Letter to individual employees—It is an act of interference for the employer to send a letter 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 unfair labor practice. All the above-detailed activities are unfair labor practices because they tend to undermine the concerted activity of the employees, an activity to which they are entitled free from the employer's molestation.

(2) Strike-breaking—When the respondent company 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 unfair labor practice.

(3) Acts violative of right to organize—

Violative of the right to organize, form and join labor organizations are the following acts:

the offer of a Christmas bonus to all "loyal"

employees of a company shortly after the making of a request by the union to bargain;

wage increases given for the purpose of mollifying employees after the employer has refused to bargain with the union, or for the purpose of inducing striking employees to return to work; the employer's promises of benefits in return for the strikers' abandonment of their strike in support of their union; and the employer's statement, made about 6 weeks after the strike started, to a group of strikers in a restaurant to the effect that if the strikers returned to work, they

would receive new benefits in the form of hospitalization, accident insurance, profit-sharing, and a new building to work in.

(4) Test of interference or coercion—The test of whether an employer has interfered with and coerced employees within the meaning of subsection (a) (1) is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of employees' rights under section 3 of the Act, and 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.

(5) The “totality of conduct” doctrine—the letters of the company president to the individual strikers should not be considered by themselves alone but should be read in the light of the preceding and subsequent circumstances. The letters should be interpreted according to the "totality of conduct doctrine," whereby the culpability of an employer's remarks has to be evaluated not only on the basis of their implicit implications, but were to be appraised against the background of and in conjunction with collateral circumstances.

5.8 Mass Layoff Amounting to U.L.P.

A company’s capital reduction efforts, to camouflage the fact that it has been making profits, and to justify the mass lay-off of its employees especially union members, were an unfair labor practice which can neither be countenanced nor condoned.

5.9 Lockout or Closure Amounting to U.L.P.

A lockout, actual or threatened, as a means of dissuading the employees from exercising their rights under the Act is clearly an unfair labor practice. However, to hold an employer who actually or who threatens to lock out his employees guilty of a violation of the Act, the evidence must establish that the purpose thereof

was to interfere with the employees’

exercise of their rights.

An honest closing of one’s plant is not a violation of the Act. However, cessation of operations, actual or threatened, does constitute an unfair labor practice, if it is, directly or indirectly, expressly or by innuendo, calculated or employed to interfere with the employees’ rights under the Act. Proof of the employer’s state of mind, unless it is expressed, is often very difficult. However, 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.

An employer which closed its business to put an end to a union’s activities, and which made no effort to allow the employees’ attempt to exercise their right to self-organization and collective bargaining, and even threatening the employees that they would lose their jobs if they did not cease affiliation with the union, commits unfair labor practice.

5.9a Sale in Bad Faith

Where the sale of a business enterprise was attended with bad faith, there is no need to consider the applicability of the rule that labor contracts being in personam are not enforceable against the transferee. 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.

It is irrational to suppose that a purchaser of a manufacturing enterprise is not aware of the labor-management situation in the firm he bought.

5.9b Assumption of Obligations by New Company

5.10 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”

department or company reappeared although under a new name. If the “new”

company is, for instance, 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’ 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 closed. If such be the case, the separated employees will have to be employed in the “new” firm because in the first place they should not have been separated at all.

The “successor employer” ruling is an enforcement of the legal recourse called

“piercing the veil of corporate entity.”

Under the doctrine of piercing the veil of corporate entity, when valid grounds therefore exist, 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 officers and stockholders. The doctrine applies 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.