The transfer of an industrial plant from one location to another in order to discriminate against EE’s at the old plant because of their union activities.
(Azucena)
I. REFUSAL TO HIRE STRIKING WORKERS
There is unfair labor practice in the refusal of ER to reinstate strikers who abandoned their strike and who voluntarily and unconditionally offered to return to work. (Cromwell vs. CIR)
Yellow Dog Contract
1. Art. 248 : It shall be unlawful for the ER 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.
2. What is a yellow dog contract? It is a promise exacted from workers a condition of employment that they do not belong to, or attempt to foster, a union during their period of employment. The typical yellow dog contract contains a representation by the EE that he is not a member of a labor union and a promise by him not to join a labor union or upon joining a union to quit his employment. (Alcantara) 3. X, a member of a union, applied for employment with Y Co. The union
is not among the unions in the bargaining unit. He was told by the personnel manager that he cannot be employed unless he resigned from his union. X refuses to do so. He was not hired. Is this unfair labor practice?
Yes. This is an example of an exaction of a yellow dog contract. The defense that X is not yet an EE of Y is not tenable since the unfair labor practice covered by a “yellow dog” contract may be committed against a prospective EE. (Alcantara)
Contracting Work Out
1. Art. 248 : It shall be unlawful for an ER to contract out services or functions being performed by union members when such will interfere with, restrain or coerce EE’s in the exercise of their rights to self-organization.
2. Shell dissolved its security guard section, transferred 18 guards to other departments and eventually dismissed them, then contracted out to an independent security agency. Such section was among the departments covered by the existing CBA. In the absence of an express reservation in the CBA of Shell’s right to abolish the section, did the ER commit unfair labor practice?
Yes. The dissolution of a section is a violation of the CBA, the terms of which cannot be unilaterally disregarded by either party. Shell should have specifically reserved its right to dissolve the section; a statement of management prerogatives couched in general terms is not sufficient.
(Shell Oil vs. Shell)
Company Dominated Union
1. Art. 248 : It shall be unlawful for an ER to initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial aid or other support to it or its organizers or supporters.
2. What are the various manifestations of domination of labor union?
a. Initiation of the company union idea.
b. Financial support to the union.
c. ER encouragement and assistance i.e. immediately granting the union exclusive recognition as a bargaining agent without determining majority representation.
d. Supervisory assistance i.e. solicitation of membership. (Philippine American Cigarette Factory Union vs. Philippine American Cigarette Factory) Discrimination
1. Art. 248 : It shall be unlawful for an EE 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. [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. (Azucena)]
2. Give some examples of discrimination resulting in unfair labor practices :
a. Discrimination in work quota between members and non-members of union. (AHS/Philippines EE’s Union vs. NLRC)
b. Discrimination in dissemination of bonus allocation of salary adjustments between members and non-members of union contrary to previous practice of dividing equally the percentage of net profits. (Manila Hotel vs. CIR)
c. Even where business conditions justified a lay-off of EE’s, unfair labor practices in the form of discriminatory dismissal were found where only unionists were permanently dismissed while non-unionists were not. (Manila Pencil vs. CIR)
d. Discrimination in regularization between old EE’s who were members of union and new EE’s who were non-members. The new EE’s were immediately given permanent appointments after their hiring. (Manila Railroad vs. Kapisanan ng mga Manggagawa sa Manila Railroad)
e. Indirect discrimination i.e. the discharge of an EE due to the union activities of wife, brother or husband. (Azucena)
3. What is the test of discrimination to be considered unfair labor practice? It is necessary that the underlying reason for the discharge be established. The fact that a lawful cause for discharge is available is not a defense where the EE is actually discharge because of his union activities. If the discharge is actually motivated by a lawful reason, the fact that the EE is engaged in union activities at the time will not lie
against the ER and prevent him from the exercise of his business judgment to discharge an EE for cause. (Id.)
4. A company considers one factor for promotion the fact that an EE is Ilocano. Assuming this is discriminatory, is this unfair labor practice?
No. Only such act as would interfere with the EE’s right to self-organization, encourage or discourage membership in a labor organization, or discriminate against an EE of having given or being about to give testimony under the Code are considered unfair labor practices.
The said provisions, being penal in character, should be strictly construed.
(Alcantara)
Violation of Duty to Bargain
1. Art. 248 : It shall be unlawful for an ER to violate the duty to bargain collectively as prescribed by this Code.
2. While the law does not compel the parties to reach an agreement, it does contemplate that both parties will approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement. (Kiok Loy vs. NLRC)
3. ALU was certified as the bargaining agent of Balmar Farms. Balmar subsequently received a letter by the president of the union of its workers that they wanted to negotiate directly with the company and not through ALU. Because of this, Balmar refused to negotiate with ALU. Is this unfair labor practice?
Yes. ALYU has been certified as the exclusive bargaining agent, and it is not for Balmar to question which group in the bargaining representative of its workers. (Balmar farms vs. NLRC)
Testimony of EE
Art. 248 : It shall be unlawful for an ER to dismiss , discharge or otherwise prejudice or discriminate against an EE for having given or being about to give testimony under this Code.
Negotiation or Attorneys Fees
Art. 248 : It shall be unlawful for an ER to pay negotiation of attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute.
Violation of CBA
1. Art. 248 : It shall be unlawful for an EE to violate a CBA.
2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer be treated an unfair labor practice and shall be resolved as grievances under the CBA.
7.5 Unfair Labor Practice of Labor Organizations Restraint or Coercion by Labor Organization
1. Art. 249 : It shall be unfair labor practice for a labor organization to restrain or coerce EE’s in the exercise of their right to self-organization.
2. The provision is violated by a union’s restraining or coercing an EE in the exercise of his right to refuse to participate or recognize a strike
i.e. blocks their ingress and egress from the plant or damages their automobiles. (Azucena)
Discrimination
1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to cause an ER to discriminate against an EE, including discrimination against an EE with respect to who, 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 is made available to other members.
2. The union may not arbitrarily use the union security clause to unjustly discriminate against non-members of the union. (Salunga vs. CIR)
3. Due to negligence of a mother federation in attending to a case filed by its local against the ER, 32 out of the 36 members of the local union signed a resolution of disaffiliation from the mother federation. The federation demanded dismissal of the union members pursuant to the maintenance of membership clause in the CBA. Thereafter, the union members were dismissed. Is there unfair labor practice?
Yes. The union members were dismissed by reason of their freedom to disaffiliate. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills)
4. What is the liability of the ER and the mother federation? The company’s liability should be limited to reinstatement considering that the dispute revolve around the mother federation and its local. The mother federation at whose instance the workers were dismissed, should be held liable for payment of backwages. (Id.)
Refusal to Bargain
Art. 249 : It shall be unfair labor practice for a labor organization to violate the duty, or refuse to bargain collectively with the ER, provided
it is the representative of the EE’s.
Featherbedding and Make-Work Arrangements
1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to cause an ER to 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 free for union negotiations.
2. Define featherbedding : Name given to EE practices which create or spread employment by “unnecessarily” maintaining or increasing the number of EE’s used, or the amount of time consumed to work on a particular job. (Azucena)
3. A union in a company declares a strike to compel the ER to assign 2 checkers to 1 container. If it can be established that only 1 checker is needed for a container, has the union committed in unfair labor practice?
Yes. The union is guilty of featherbedding.
Negotiation Fees
Art. 249 : It shall be unfair labor practice for a labor organization to ask for or accept negotiations or attorneys fees from the ER’s as part of the settlement of any issue in collective bargaining or any other dispute.
Violation of CBA
1. Art. 249 : It shall be unfair labor practice for a labor organization to violate a CBA.
2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA. {“Gross Violations of a CBA”] “ Flagrant and/or malicious refusal to comply with the economic provisions of such agreement. (Alcantara)
7.6 Enforcement, Remedies and Sanctions Parties Liable for Acts
1. Who may commit an unfair labor practice? The ER or a labor organization may commit unfair labor practices. (Id.)
2. In case the ER committing the unfair labor practices is a corporation, association or partnership, who may be held criminally liable? Only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified the unfair labor practices shall be held criminally liable. (Art. 248)
3. Who may be held criminally liable for the unfair labor practices committed by labor unions? 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 the unfair labor practices shall be held criminally liable. (Art. 249)
Prosecution and Prescriptive Period A. CIVIL ASPECT
1. Art. 247 : Subjects to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Arts. 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 revolve such cases within 30 days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.
2. Art. 290 : All unfair labor practices shall be filed with the appropriate agency within 1 year from the accrual of such unfair labor practice, otherwise, they shall be forever barred.