UNFAIR LABOR PRACTICE OF EMPLOYERS bargaining agreement.

Employees of an appropriate
bargaining unit who are not members of the
Unfair Labor Practice recognized collective bargaining agent may be
▪ ULP has a limited and technical meaning. It is a assessed a reasonable fee equivalent to the dues
labor relations concept with a statutory and other fees paid by members of the recognized
definition. collective bargaining agent, if such non-union
▪ Article 219(k) - “Unfair labor practice” means any members accept the benefits under the collective
unfair labor practice as expressly defined by the bargaining agreement: Provided, That the individual
Code. authorization required under Article 242, paragraph
▪ Therefore, the act done must be prohibited by (o) of this Code shall not apply to the non-members
the Code for it to be considered ULP. of the recognized collective bargaining agent;
▪ Articles 259 for ULP of employer and Article 260
for ULP of a labor organization (f) To dismiss, discharge or otherwise prejudice or
▪ Thus, not every unfair act can be labeled “unfair discriminate against an employee for having given
labor practice.” or being about to give testimony under this Code;

Elements of ULP (g) To violate the duty to bargain collectively as

1. There should exist an employer-employee prescribed by this Code;
relationship
2. The act complained of must be expressly (h) To pay negotiation or attorney’s fees to the union
mentioned and defined in the Labor Code as or its officers or agents as part of the settlement of
constitutive of unfair labor practice. any issue in collective bargaining or any other
dispute; or
▪ If the act is not covered by the grounds provided
for by the law, then it is not ULP. (i) To violate a collective bargaining agreement.

ART. 259. [248] Unfair Labor Practices of Employers. The provisions of the preceding paragraph
– It shall be unlawful for an employer to commit any notwithstanding, only the officers and agents of
of the following unfair labor practices: corporations, associations or partnerships who have
actually participated in, authorized or ratified unfair
(a) To interfere with, restrain or coerce employees in labor practices shall be held criminally liable.
the exercise of their right to self-organization;
A. ULP SPEECH
(b) To require as a condition of employment that a (a) To interfere with, restrain or coerce employees in
person or an employee shall not join a labor the exercise of their right to self-organization;
organization or shall withdraw from one to which he ▪ The management commits interference by way
belongs; of speech when it contains:
1. promise of a reward; or
(c) To contract out services or functions being 2. threat or reprisal
performed by union members when such will ▪ Unfair labor speech does not only include verbal
interfere with, restrain or coerce employees in the speech but also includes written speech (e.g.
exercise of their right to self-organization; posting notices, sending letters [termination,
reprimand or memo].
(d) To initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor INTERFERENCE
organization, including the giving of financial or ▪ It is the act of restraining or coercing the
other support to it or its organizers or supporters; employees in their exercise of the right of self-
organization.
(e) To discriminate in regard to wages, hours of work
and other terms and conditions of employment in How do you know whether an employer interfered
order to encourage or discourage membership in with and coerced the employees?
any labor organization. Nothing in this Code or in any ▪ The test of interference/coercion is whether the
other law shall stop the parties from requiring employer has engaged in conduct which may
membership in a recognized collective bargaining reasonably be said tends to interfere with the
agent as a condition for employment, except those free exercise of employees’ right to self-
employees who are already members of another organization and collective bargaining.
union at the time of the signing of the collective

UNFAIR LABOR PRACTICE OF EMPLOYERS 1

If there was threat, but the employee was not actually An employer who interfered with the right to self-
threatened. Is it still ULP? organization before the union is registered can be
▪ Yes, it is still ULP because what is used is the held guilty of ULP.
Dangerous Tendency Rule.
The employees were dismissed, or their services
DANGEROUS TENDENCY RULE were terminated, because they were soliciting
▪ If the content of the speech has an inherent signatures in order to form a union within the plant.
tendency to discourage or encourage the right
to self-organization not whether there was B. YELLOW DOG CONTRACT
actual threat effected. (b) To require as a condition of employment that a
▪ It is not necessary that the employee is actually person or an employee shall not join a labor
intimidated or coerced, but if there is a organization or shall withdraw from one to which he
reasonable tendency to interfere, restrain or belongs;
coerce employees. ▪ There is a promise exacted from the workers as
▪ As long as there is inherent tendency to a condition of employment, that they shall not
discourage or encourage the right to self- join or belong to a labor organization or attempt
organization of the employee, then that is ULP. to organize one during their period of
employment or that they shall withdraw
How do we know that the act of the employer therefrom in case they are already members of
constitutes ULP? a labor organization.
▪ By applying the Totality of Conduct Doctrine ▪ A Yellow Dog Contract is effectively an outright
▪ Under this doctrine, the Court looks at the restriction on your right to Self-Organization
surrounding circumstances, the history of the that’s why it is a ULP.
employer on how he treats unions or based on
the acts of the company towards unionism. C. ULP CONTRACTING
▪ Because of its nature and consequences, a
(c) To contract out services or functions being
finding of ULP should not be made based alone
performed by union members when such will
on the cited ULP act considered in isolation but
interfere with, restrain or coerce employees in the
should be viewed based on the employer's act
exercise of their right to self-organization;
outside of the bigger context of the
accompanying labor relations situation. ▪ As a general rule, the act of an employer in
having work or certain services or functions
being performed by union members contracted
INSULAR LIFE ASSURANCE EMPLOYEES
out is not per se ULP. It is a valid exercise of
ASSOCIATION VS. INSULAR LIFE ASSURANCE
management prerogative absent any proof of
CO., LTD.
malice, arbitrariness, and anti-unionism.
GR No. L-25291 | January 30, 1971
When does it constitute unfair labor practice?
Ruling :
▪ It is only when the contracting out will interfere
It was an act of interference for the employer to send
with, restrain or coerce employees in the
letters to all employees notifying them to return to
exercise of their right to self-organization that it
work at a time specified therein, otherwise new
shall be ULP.
employees would be engaged to perform their jobs.
▪ You should ask first, if the employer’s reason to
contract out services is legitimate.
The individual solicitation of the employees or
▪ Or where it is motivated by a desire to prevent
visiting their homes, with the employer urging the
his employees from organizing or to bargain
employees to cease union activity or cease striking,
collectively.
constitutes unfair labor practice.
▪ It is not ULP to contract out work for reasons of
business decline, inadequacy of facilities and
Can the management commit ULP while there was no equipment and similar reasonable grounds.
union yet ? YES.
SAMAHAN NG MGA MANGGAGAWA SA DIGITAL TELECOMMUNICATIONS PHILIPPINES,
BANDOLINO–LMLC VS. NLRC INC. VS. DIGITAL EMPLOYEES UNION
G.R. No. 125195 | July 17, 1997 GR Nos. 184903-04 | October 10, 2012
RULING: RULING:
Bad faith was manifested by the timing of the
closure of Digiserv and the rehiring of some

UNFAIR LABOR PRACTICE OF EMPLOYERS 2

employees to Interactive Technology Solutions, Inc. other law shall stop the parties from requiring
(I-tech), a corporate arm of Digitel. membership in a recognized collective bargaining
agent as a condition for employment, except those
The closure of Digiserv to outsource its operations employees who are already members of another
to I-tech constitutes ULP under Article 259(c) of the union at the time of the signing of the collective
Labor Code. bargaining agreement. Employees of an appropriate
bargaining unit who are not members of the
At the height of the labor dispute, occasioned by recognized collective bargaining agent may be
Digitel’s reluctance to negotiate with the Union, I- assessed a reasonable fee equivalent to the dues
tech was formed to provide the same services and other fees paid by members of the recognized
performed by Digiserv. collective bargaining agent, if such non-union
members accept the benefits under the collective
D. COMPANY UNION bargaining agreement: Provided, That the individual
(d) To initiate, dominate, assist or otherwise interfere authorization required under Article 242, paragraph
with the formation or administration of any labor (o) of this Code shall not apply to the non-members
organization, including the giving of financial or of the recognized collective bargaining agent;
other support to it or its organizers or supporters; Three separate labor law concepts:
▪ The employer, when it initiates, dominates, 1. Discrimination
assists or otherwise interferes with the 2. Union security clause
formation or administration of any labor 3. Agency fee
organization, including the giving of money or
other support to it or its organizers or (e) To discriminate in regard to wages, hours of work
supporters. and other terms and conditions of employment in
▪ This is when the company is obviously in favor order to encourage or discourage membership in any
of a particular union, it gives the members labor organization. xxx
money, bonus, or they give assistance just to DISCRIMINATION
make that union win. The failure to treat all persons equally when no
▪ The union should be left in their own resources. reasonable distinction can be found between those
▪ The employer should not help them in election favored and those not favored.
or other activities, the employer should remain
as bystander. ▪ What is prohibited as ULP under the law is to
discriminate in regard to wages, hours of work,
KAPISANAN NG MGA MANGGAGAWA NG ALAK and other terms and conditions of employment
(NAFLU) VS. HAMILTON DISTILLERY COMPANY in order to encourage or discourage membership
GR No. L-18112 | October 30, 1962 in any labor organization.
▪ Discrimination is not unlawful per se, there can
The company asked the president of the union to be a valid “classification” if employees
dissolve NAFLU and when he refused, he was concerned are not similarly situated.
dismissed. Some members of NAFLU resigned ▪ But if there is a basis for their distinctions, then
therefrom and joined the Workers' Union because you can treat them differently. And it will not be
otherwise they would be dismissed. discrimination.

Those who remained affiliated with NAFLU were Q: When does it constitute discrimination?
allowed to work only two days a week. Later, 52 A: If all else is equal, and you discriminate because
employees who were members of NAFLU were also of union participation or union related issues, then
terminated for refusing to join Hamilton Workers’ that is discrimination that qualifies as ULP.
Union.
Examples of ULP by discrimination:
Because of these circumstances, the Supreme ▪ To dismiss permanently only union members
Court declared Hamilton Workers’ Union is a and not non-unionists (Manila Pencil v. CIR)
company union. ▪ Non-regularization of long-time employees
because of their affiliation with the union while
E. DISCRIMINATION new employees were immediately regularized.
(e) To discriminate in regard to wages, hours of work (Manila Railroad v. Kapisanan)
and other terms and conditions of employment in ▪ Where the employer transferred the union
order to encourage or discourage membership in president from the main office in Manila to Cebu
any labor organization. Nothing in this Code or in any at the time when the union was still being

UNFAIR LABOR PRACTICE OF EMPLOYERS 3

 organized. The uneven application of its ▪ What is material to consider is the fact that the
marketing plan resulting in the said transfer of sanction imposed on the employee that
the union president is patently an act of constitutes ULP was occasioned by his act of
discrimination constitutive of ULP filing a complaint against the employer or of
(AHS/Philippines v. NLRC) participating in any labor case, regardless of its
nature and extent and in whatever capacity or
(e) xxx Nothing in this Code or in any other law shall purpose the same may have been made by him.
stop the parties from requiring membership in a ▪ The prohibition in Article 259(f) is also violated
recognized collective bargaining agent as a condition where the victim of discrimination is not the
for employment, except those employees who are employee himself who testified but a person
already members of another union at the time of the related to him. There is an indirect
signing of the collective bargaining agreement. xxx discrimination.

VALID DISCRIMINATION: Union Security Clause Examples of ULP by indirect discrimination:

▪ A union security clause essentially requires ❑ Dismissal of a laborer on account of union
membership in the union so that an employee activities of his brother (Matter of Quidnick
may retain his job and the union’s existence may Dye Works)
be assured. ❑ The discharge of an employee due to the
▪ It is a form of encouragement of union union activities of the wife (In the matter of
membership which is not considered ULP. the Ford Motor Co.)
▪ In a sense, there is discrimination when certain ❑ The discharge of a wife due to the union
employees are obliged to join a particular union. activities of the husband (Union Asbestos
▪ But according to the Court, it is discrimination and Rubber Co.)
favoring unionism; it is a valid kind of
“discrimination.” ▪ The act of reprisal contemplated under this
▪ It is a form of compulsory union membership provision is not limited to the dismissal or
which is limitedly authorized by Article 259(e). discharge of an employee.
▪ The employer’s retaliatory act may take various
F. RETALIATORY MEASURES forms, such as transferring the employee to a
(f) To dismiss, discharge or otherwise prejudice or demeaning position or assigning him with more
discriminate against an employee for having given difficult work, or otherwise punishing him
or being about to give testimony under this Code; because he has filed or he has participated in a
labor case. That’s still ULP.
▪ When the employer dismisses an employee for
having given testimony under labor relations,
ULP Dismissal vs. Ordinary Illegal Dismissal
about to give testimony, or filed a complaint or
Ordinary Illegal
about to do so.
ULP Dismissal Dismissal
▪ The retaliatory measures have to pertain to
Art. 259(F) Art. 118 or
labor relations, otherwise, the rules on ordinary
Art. 294(279)
illegal dismissals will apply.
Ground for strike Not a ground for strike
Will the provision apply when the employer’s
Motivated to prevent
retaliation was due to the employee refusing to testify
an employee from Arises if the dismissal
in favor of the employer? YES.
exercising his right to is without just cause
❑ The act of compelling employees to sign an
self-organization
instrument indicating that the employer
In labor relations, the In labor standards, the
observed labor standards provisions of law
action for ULP action for illegal
when he might have not, constitutes unfair labor
dismissal prescribes dismissal prescribes
practice.
within 1 year within 4 years
❑ This actuation is analogous to the situation
under Article 259(f) which distinctly makes it an ULP dismissal can be An ordinary illegal
unfair labor practice to dismiss, discharge or transformed into an dismissal cannot be
otherwise prejudice or discriminate against an ordinary illegal transformed into a ULP
employee for having given or being about to give dismissal case. dismissal case
testimony under the Labor Code. (Mabeza v. The dismissal does not
Only Art 259 ripens into
NLRC) ripen into a criminal
a criminal action
action.

UNFAIR LABOR PRACTICE OF EMPLOYERS 4

G. VIOLATION OF DUTY TO BARGAIN FAILURE OR REFUSAL TO GIVE COUNTER-
(g) To violate the duty to bargain collectively as PROPOSALS
prescribed by this Code; ❑ While the law does not compel the parties to
reach an agreement, it does contemplate that
Unfair Labor Practice in Collective Bargaining both parties will approach the negotiation with
happens during the negotiation phase of the CBA. an open mind and make a reasonable effort to
reach a common ground of agreement. (Kiok
Kinds of ULP in Collective Bargaining Loy v. NLRC)
1. Bad Faith Bargaining ❑ Refusing to send a counter-proposal to the
2. Refusal to Bargain union and to bargain anew on the economic
3. Individual Bargaining terms of the CBA due to flimsy excuse attacking
4. Blue-Sky Bargaining status of the union for the delay in the
5. Surface Bargaining negotiation. (General Milling v. CA)
❑ School’s failure to make a timely reply to the
1. BAD FAITH BARGAINING proposals of the union more than a month after
❑ It is essential that the employer and employees the same were submitted to it due to a feeble
should both act in good faith when it comes to excuse that its Board of Trustees had not yet
collective bargaining. convened to discuss the matter. Its actuation
❑ If one will complain against bargaining in bad showed a lack of sincere desire to negotiate the
faith, the charge should be raised while the CBA thereby rendering it guilty of ULP. (Collegio
bargaining is in progress. de San Juan v. Assoc. of Employees)
❑ When the bargaining is finished and the CBA has
been executed voluntarily by the parties, a 3. INDIVIDUAL BARGAINING
charge of bargaining in bad faith is too late. ❑ To negotiate or attempt to negotiate with the
❑ Bad faith bargaining is eliminated if the parties individual workers rather than with the certified
end up with the CBA. bargaining agent is ULP.
❑ The CBA negates all the charges of bad faith ❑ Once there is an EBA, the employer is supposed
bargaining. to deal and negotiate with the EBA and not with
❑ All provisions in the CBA are supposed to have the individual employees.
been jointly and voluntarily incorporated by the ❑ Such actions are illegal as constituting
parties. unwarranted acts of interference. ULP.
❑ So the presumption is it is jointly and voluntary
entered by the union and the company. 4. BLUE-SKY BARGAINING
❑ Boulwarism - It is the tactic of making a “take-it- ❑ The “unrealistic and unreasonable demands in
or-leave-it” offer in a negotiation, with no further negotiations by either or both labor and
concessions or discussion. management, where neither concedes anything
❑ This “take it or leave it’ offer or counter-offer does and demands the impossible.”
not constitute proper collective bargaining. ❑ It actually is not collective bargaining at all.
❑ It is considered ULP as essentially, no labor
negotiation has taken place. 5. SURFACE BARGAINING
❑ A strategy in which one of the parties “merely
2. REFUSAL TO BARGAIN goes through the motions,” with no intention of
❑ When the employer refuses to submit an answer reaching an agreement.
or reply to the written bargaining proposals of ❑ It is a sophisticated pretense in the form of
the certified bargaining union. apparent bargaining, but does not satisfy the
❑ The counter-proposal should be filed or should statutory duty to bargain.
be submitted within ten (10) days from receipt ❑ Collective bargaining is not simply an occasion
of the proposal. for purely formal meetings between
❑ The failure of the employer to submit counter- management and labor union, but presupposes
proposals does not, by itself, constitute a refusal a desire to reach an ultimate agreement to enter
to bargain. into a collective bargaining contract.
❑ However, it is different if the employer refuses to
submit an answer or reply to the written H. KICKBACKS
bargaining proposals of the union. (h) To pay negotiation or attorney’s fees to the union
❑ Stonewalling - a refusal to communicate or or its officers or agents as part of the settlement of
cooperate

UNFAIR LABOR PRACTICE OF EMPLOYERS 5

any issue in collective bargaining or any other
dispute;
▪ A form of negotiated bribery in which a
commission is paid to the bribe-taker in Q: Who has the burden of proof in ULP cases?
exchange for services rendered. A: The union has the burden of proof to present
▪ Self-organization and collective bargaining are substantial evidence to support its allegations of
treasured rights of workers. The law shields unfair labor practices committed by the employer.
them from corruption.
▪ It is a punishable act of ULP for the employer to
pay the union or any of its officers or agents
any negotiation fee or attorney’s fee as part of
settlement in collective bargaining or any labor
dispute.
▪ To do so is akin to bribery, an under-the-table
deal.

Employer Union
Asking for or accepting
Has to pay (not merely attorney’s fees or
offer) negotiation or negotiation fee is
attorney's fees. already ULP (Art.
260(d))

Q: What about signing bonuses? What about trying to

bribe the union members to sign the CBA by giving
them signing bonus? Would that be considered
kickbacks*?
A: NO, that will not qualify as kickbacks because in
that case, everybody receives a signing bonus, not
just the union officers or agents.

I. VIOLATION OF CBA
(i) To violate a collective bargaining agreement

▪ Violation of the CBA is ULP only if GROSS in

character which means flagrant and/or
malicious refusal to comply with the ECONOMIC
PROVISIONS of the agreement.

Non-economic
Economic Provisions
Provisions
Wage rates, pensions, Union security clause,
fringe benefits etc. check-off clauses,
(anything that can be grievance procedure
valued with money) etc.

Violation of Non-
Not Gross Violation
economic Provisions
▪ Not ULP ▪ Not ULP
▪ Only grievance ▪ Only grievance
▪ Go to the grievance ▪ Go to the grievance
machinery then machinery then
voluntary voluntary
arbitration arbitration
To be ULP, it must be a GROSS VIOLATION of the
ECONOMIC PROVISIONS of the CBA.

UNFAIR LABOR PRACTICE OF EMPLOYERS 6