UNFAIR LABOR PRACTICE

1. What is ULP?
• Acts by the employer or union which violate the employees’ exercise of right to self-
organization.

2. What is the nature of a ULP?

• Civil and criminal.
• But before the criminal aspect be prosecuted, there must be a finding in the ULP complaint
with the LA finding ULP is already final and executory
• The criminal aspect of the ULP will fall under the jurisdiction of the regular courts

3. What are the requisites of Unfair Labor Practice?

• Employer-employee relationship between the offender and the offended.
• The act done is expressly defined in the Code as an act of ULP.

4. What are the acts of unfair labor practice committed by the employer?
• Interference
• Prohibition on joining or membership to any organization; “Yellow dog-contract”
• Contract out services
o Contracting out itself is not ULP; it is the ill intention that makes it so. (when
motivated to prevent his employees from organizing and selecting a collective
bargaining representative
o Outsourcing is not per se ULP.
• Company domination of union
o Initiation of company union idea
o Financial support to the union
o Employer encouragement and assistance
o Supervisory assistance
• Discrimination as to wages, hours of work, or terms and conditions of employment to
encourage or discourage membership
o Discrimination =/= Differentiation
o The discrimination committed by the ER must be in regard to the hire or tenure or
any term or condition pf employment to en/discourage membership in any labor
organization.
o If the discharge is actually motivated by a lawful reason, the fact that the employee
is engaged in union activities at the time will not lie against the employer and
prevent him form the exercise of his business judgment to discharge an employer
for cause.
• Dismissal, discharge, or prejudice for giving testimony
• Violation of duty to bargain collectively
• Paying negotiation or attorney’s fees for settlement of any issue
• Violation of CBA

5. What are the acts of unfair labor practice committed by the union?
• Restrain or coercion form exercising right to self-organization.
• Causing or attempting to cause ER to discriminate employee with respect to whom
membership in such organization has been denied or terminated
• Violation of duty to bargain collectively
• Causing or attempting 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 exaction
• Violation of CBA

6. What is a “yellow dog contract”?

 • It is a promise 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.

7. What is surface bargaining?

• an employer’s proposal which could not be offered with any reasonable expectation that
they would be accepted by the union
• Going through the motions of bargaining without any legal intent to reach an agreement,
• “bato sa buhangin”

8. What is blue sky bargaining?

• an unrealistic and unreasonable demands in negotiations by either or both labor and
management, where neither concedes anything and
demand the impossible. It actually is not collective bargaining at all.
• “kapantay ay langit”

9. What is Boulwarism?
• “Take it or leave it” bargaining amounting to bad faith bargaining

10. What is a runaway shop?

• An industrial plant moved by its owners from one location to another to escape union labor
organization 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
• Business relocation animated by anti-union animus.
• Complex Electronics v. NLRC

11. What is the prescriptive period for ULP? (Art. 305)

• One year

12. What is the penal provision for ULP? (Art. 303)

• not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos
(P10,000.00) or imprisonment of not less than three months nor more than three years,
or both such fine and imprisonment at the discretion of the court.

13. What are the reliefs against ULP?

• Cease and Desist Order
• Affirmative Order
• Order to bargain; Mandated CBA
• Disestablishment

14. Who has jurisdiction over cases of ULP? (Art. 224)

• Under Art. 224, it is the Labor Arbiter who has original and exclusive jurisdiction, within
thirty (30) calendar days after the submission of the case by the parties for decision
without extension, even in the absence of stenographic notes
• However, by mutual agreement, the ULP may be referred to the VA.

15. What is the procedure for cases involving ULP? (Art. 258)
• Civil aspect of the ULP case shall be under the LA jurisdiction, which shall be resolved within 30
calendar days from submission for decision.
• Criminal prosecution shall not commence without a final judgment finding commission of ULP.
• During the pendency of such administrative proceedings, the running of the period of prescription
of the criminal offense herein penalized shall be considered interrupted.
• 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
 herein set forth.

16. BPI v. BPI Employees Union – Davao Chapter

Successor-employer rule
I. Purchase of Assets
• When there is a purchase of assets by one corporation of the assets of the other corp,
there is no ibligation on the part of the buyer corporation to absorb the employees of
the selling corporation nor honor the CBA held with the selling corporation.
XPNs:
a) If in the contract for purchase of assets,it is expressly agreed by the selling and
buying corporation that the buying corp assumes all the rights and obligations
of the selling corporation
b) Lock, stock and barrel - all the rights and oblig of the sleler corp, buyer copr is
obligated
c) Bad faith - runaway shop when one comoany does not want to negotiate iwth
its union a Cba On the disguise of closing down then kayer on establish another
shop elsewhere but with the same composition of officers and of the board;
piercing the veil of corporate fiction

II. Merger and Consolidation (BPI v BPI EU Davao)

• Corporation Code requires the automatic assumption of all the rights and obligations
of the seller corporation by the buyer corporation. Buyer corporation must absorb the
selling corporation's employees and honor the CBA

III. Shares of stock

• Same with Merger and Consolidation

• Based on J. Brion's DO, upon MFR of BPI-EU, the SC followed J. Brion's DO.
• BPI is mandated to automatically absorb the employees of FEBTC.

• WON said employees of FEBTC are to be covered in the closed shop provision of the BPI CBA?
o YES, they are covered. The CBA did not make any distinction. It said "all new employees"
shall become members of the union. New employees are not merely restricted to those
normally hired. They also cover a situation, as in the BPI case, where BPI has to absorb
FEBTC employees which it has taken over.
o They are for all intents and purposes, new employees, hence covered by the closed shop
agreement.
o There is nothing that prevents the employees from deciding not to join BPI. They were
given 30 days to make a decision WON to join BPI. If they do not want, they should resign.

GUIDE QUESTIONS ON STRIKES AND LOCKOUTS:

1. What is a strike? lockout?
• Strike means any temporary stoppage of work by the concerted action of employees as
a result of industrial dispute.
• Lockout means the temporary refusal of any employer to urnish work as a result of an
industrial or labor dispute.

2. What are the grounds for a valid strike? valid lockout?

• Bargaining deadlock and ULP
3. What are the guidelines on the conduct of the police and armed forces on occasions of
strike or lockout?
• No public official or employee, including officers and personnel of the Armed Forces of
the Philippines or the Philippine National Police, or armed person, private security
guards and similar personnel in the private security agency shall bring in, introduce or
escort in any manner, any individual who seeks to replace strikers in entering or leaving
the premises of a strike area, or work in place of the strikers.
• 50-meter radius away from the picket/strike/lockout area
• If done in a public thoroughfare, the traffic police shall ensure the flee flow of traffic
• Not deliberately inflict physical harm
• Observe courtesy and strict neutrality
• Not fraternize with any of the parties
• Ensure a gun-free zone
• Protection from unreasonable searches and seizures

4. Is a striking employee entitled to his wage during a strike?

• NO. No work, no pay. “A fair day’s pay for a fair day’s labor”

5. What are the procedural requirements for a valid strike? valid lockout?
• Notice of strike must be filed with the NCMB
• Observance of cooling-off period
o ULP: 15 days
o Bargaining Deadlock: 30 days
o Union busting: cooling-off period dispensed with.
• Conduct of strike vote
• Submission of strike vote report at least 7 days before scheduled strike.

6. Are those requirements mandatory?

• YES, otherwise, strike is illegal.
• XPN: for union busting, the cooling-off period may be dispensed with since the very
existence of the union is threatened. However, the other procedural requirements shall
still be complied with.

7. When can the strike be staged?

• If the dispute remains unsettled after the lapse of the cooling-off period and the seven-
day reporting period, the labor union may strike or the employer may lock out its
workers.

8. What is a strike on installment basis?

• Interphil case
• Respondents’ unjustified unilateral alteration of the 24-hour work schedule through their
concerted activities of “overtime boycott” and “work slowdown” can be classified as a
strike on an installment basis, which constituted a violation of their CBA, which prohibits
the union or employee, during the existence of CBA to stage or engage in slowdown or
interruption of work.

9. What is union busting?

• Dismissal from employment of union officers duly elected in accordance with the union
constitution and its by-laws, where the existence of the union is threatened.
• Cooling-off period is dispensed with; the union may take action immediately.
• Other requirements must still be complied with.
10. What is preventive mediation?
• It is a process of resolving disputes with the aid of a neutral person who helps the parties
identify issues and develops proposals to resolve their disputes.
• A preventive mediation case refers to the potential labor disputes which are the subject
of a formal or informal request for conciliation and mediation assistance sought by either
or both parties or upon NCMB’s initiative, to prevent the occurrence of an actual labor
dispute.

11. What is the effect of preventive mediation on a strike that is to be staged?

• The effect of a request for preventive mediation is that the notice of strike previously
filed is deemed vacated.
• Nothing prevents the parties from requesting for preventive mediation even after a
Notice of strike has been filed.
• If the Preventive Mediation still failed to have the parties arrive to an agreement, the
union must file another Notice of Strike because it cannot rely on the previous notice
which was already deemed vacated.

12. What is the so-called “good faith strike” doctrine?

• It is where the union believed that the employer committed acts constituting ULP and
the circumstances warranted such belief in good faith although subsequently, such
allegation of ULP are found out as not true.
• However the good-faith strike doctrine does not tolerate groundless strike. It does not
excuse the union;’;s non-presentation of substantial evidence to support its allegation
of ULP by employer.
• The presumption of legality of strike prevails even if the allegations of ULP are
subsequently found out to be untrue,
• As for procedural requirements, even if the union acted in good faith in the belief that
the company was committing ULP, if no notice of strike and a strike vote were
conducted, the strike is still illegal.

13. May a minority union strike?

• NO. It is only the SEBA who has the right to strike.
• A minority union cannot demand collective bargaining with the employer because such
right properly belongs to the union that comprises the majority.
• Although the minority union cannot strike, it can engage in peaceful and concerted
activities short of strike and it can file a ULP complaint.

14. When is a strike illegal?

• Strike by government employees (they are prohibited [SSS v. CA])
• Non-observance with procedural requirements
• Unlawful purpose (not based on deadlock or ULP)
• Unlawful means and methods
o Even if justified as to ends, it becomes illegal because of the means employed.

15. What are the consequences of an illegal strike so far as the officers of the union are
concerned? So far as the members of the union are concerned?
• Participation in an Illegal strike:
o Union officers: dismissal from employment
o Union members: Mere participation does not warrant dismissal
• Commission of illegal acts (whether strike is legal or illegal)
 o Union officers: Dismissal from employment
o Union members: Dismissal from employment
• Liability is individual

16. What is the effect of assumption of jurisdiction by the President or the Secretary of Labor
over a labor dispute? Or the certification of the same for compulsory arbitration?
• AJO by President or SOLE
o It automatically enjoins the staging of an impending strike or lockout
o If a strike or lockout has already commenced, it mandates the workers to return
to work and for the employer to resume its operations and readmit the workers
to the same terms and conditions of employment prior to such strike or lockout.
o If the SOLE decides to resolve the dispute, the result Is an Arbitral Award or
Mandated CBA (Meralco v. Quisimbing)
o The mere issuance of an AJO by the SOLE automatically carries with it a return-
to-work order (Telefunken Semiconductors v. CA)
• Certification for compulsory arbitration with NLRC
o The NLRC will render an Arbitral Award or Mandated CBA

17. What are the industries concerning national interests?

• The following are industries imbued with national interest per DO. 40-H-13:
o Hospitals
o Electric power industry
o Water supply services, excluding small water supply
o Air traffic control
o Such other industries as may be recommended by the NTIPC

18. What is the purpose of AJO?

• To have a speedy resolution of disputes
• To maintain status quo (related: actual reinstatement)

19. What is the extent of the Secretary of Labor’s authority to decide on certified cases? Is
the decision of the Secretary’s subject to review?
• The Secretary may so act at his own initiative or upon petition by any of the parties.
• The LC vests the President and SOLE almost unlimited discretion to determine what
industries may be considered as indispensable to national interest.
• When sitting in a compulsory arbitration certified to by the SOLE, the NLRC is not sitting
as a judicial court but as an administrative body charged with the duty to implement the
order of the Secretary.

20. What is the effect of Defiance with the AJO?

• Defiance with the AJO is an illegal act which mat be a ground for the commission of an
illegal strike and commission of illegal acts.
• Any declaration of a strike or lockout after the SOLE has assumed jurisdiction over the
labor dispute is considered an illegal act. (St. Scholastica’s College v. Torres)
o From the moment a worker defies a return-to-work order, he is deemed to have
abandoned his job.
• Defiance must be proved.

21. How should employers readmit the striking employees?

• There should be actual, not payroll, readmission to the employees’ positions.
 • XPN: due to certain circumstances which may be inimical to the business if immediately
readmitted. (University of Immaculate Concepcion, University of Santo Tomas, and
Dusit Hotel Nikko cases)

22. What is the application of No-Strike-No Lockout clause in the CBA? Does such clause
apply to both bargaining deadlock and ULP?
• A no strike / no lockout clause in the CBA is VALID because parties may freely stipulate
as long as such stipulation is not contrary to law, morals and public policy. It is
applicable only to economic strikes.
• If the strike is founded on a ULP of the employer, a strike declared by the union cannot
be considered a violation of the no strike clause.

23. What is improved-offer balloting?

• A device to end the work stoppage; a “graceful exit”
• Improved offer of the employer or reduced offer by the union on or before the 30th day
of the strike
• If majority of the members of the union or majority of the members of the board voted
to accept the offer, the striking (or locked out) workers shall immediately return to work,
and the employer shall readmit them upon the signing of the agreement.

24. Is boycott legal? When is it illegal?

• Boycott per se is not illegal. Its legality depends on 1) the means and method employed;
and 2) the ends intended to be accomplished.

25. What is the difference between picketing, boycott and slowdown?

• Picketing
o A concerted action involving the movement to and fro the establishment or
company premises off the employer, usually accompanied by placards, with the
intention too publicize the labor dispute.
• Boycott
o An attempt, by arousing a fear of loss, to coerce others, against their will to
withhold from one denominated “unfriendly to labor” their beneficial business
intercourse.
o Not illegal per se.
• Slowdown
o A method by which one’s employees, without seeking complete stoppage of
work, retard production and distribution in an effort to compel compliance by the
employer with the labor demands made upon him.
o Not complete stoppage, but reduction of pace of production

26. May an employer hire replacement for strikers?

• YES. However, if the legality of strike is upheld, the striking workers shall be reinstated
and the replacement workers shall be discharged.
• Replacement workers’ employment is subject to striking workers’ status.
• The replacements did not gain permanent right to the positions they held.

27. May a labor union and/or its officers be held liable by the employer for damages caused
during a strike?
• YES. In order to hold a labor organization liable for the unlawful acts of individual
officers, agents, or members, there must be proof of actual authorization or ratification
of such acts after actual knowledge thereof.
 28. What is the anti-injunction ban?
• No temporary or permanent injunction or restraining order in any case involving or
growing out of labor disputes shall be issued by any court or other entity
• Trial courts are proscribed from issuing injunctions on any labor dispute. Recourse for
issue of injunction is to the NLR
• LA does not have authority to issue injunctions
o XPN: 1) Acts of violence during strike; 2) blocking of ingress and egress; 3) there
are third parties (not ERs or EEs of the establishment) being affected by the
strike or picketing (Innocent-Bystander Rule)

GUIDE QUESTIONS ON GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION:

1. What is a grievance?
• Any question by either the employer or union regarding the interpretation or
implementation of the CBA or company personnel policies.
• Not all violations of CBA are grievances; if gross violations of CBA, they are considered
ULP.

2. What is the so-called grievance machinery?

• It is a local process established by the parties in the negotiated CBA for settling
complaints and stresses an employee’s right to air his gripes and expect redress.
• Different levels
o Shop steward
o Management
o President
o If grievance is not resolved, it will be submitted to voluntary arbitration
3. Is it mandatory to have a grievance machinery and voluntary arbitration provision in the
CBA?
• YES. If there is non-compliance, CBA may not be registered. If the CBA is not
registered, the contract-bar rule will not operate, hence, a petition for certification
election may still be filed.

4. What is voluntary arbitration?

• Contractual proceeding whereby the parties to any dispute or controversy in order to
obtain a speedy and inexpensive final disposition of the matter involved, select a judge
of their own choice and by consent submit their controversy to him for determination.

5. How does it differ from compulsory arbitration?

• In VA, there is more likelihood that it would put an end to a labor dispute rather than a
CA.

6. Why is voluntary arbitration called the “master procedure”?

• Any and all kinds of labor disputes may be submitted to, settled, or resolved through
VA, if the parties so desire.
• VA takes precedence over other dispute settlement devices.
o Parties may withdraw the case from LA and submit it to VA
o Parties may withdraw the case from the jurisdiction of the President or SOLE
and submit it to VA.
• The best persons to resolve a labor dispute are the party disputants themselves.
o Implied undertaking to consider the VA decision as binding upon them.
7. What are the proper subjects of voluntary arbitration?
• VA usually has jurisdiction over unresolved grievances.
• However, there is nothing barring the parties upon agreement to submit their dispute,
whatever it may be, to VA.

8. Can bargaining deadlock or ULP be submitted to voluntary arbitration?

• YES, even bargaining deadlocks, ULP, and all other disputes may, if mutually agreed
upon by the parties, be submitted to a voluntary arbitrator.

9. What about illegal termination cases? CBA violations?

• By the parties’ explicit agreement, VA has jurisdiction over termination cases. Without
such agreement, the LA may hear and decide the case.
• If dismissal is still an unresolved grievance, VA has jurisdiction.
• CBA violations not constituting ULP are likewise cognizable by a voluntary arbitrator if
not resolved through the grievance machinery.
o Even if CBA violation is gross (Amounting to ULP), the parties are allowed under
Ar.t 275 to submit the ULP case to the voluntary arbitrator.

10. What is the extent of the voluntary arbitrator’s authority to resolve a case?
• The Voluntary Arbitrator had plenary jurisdiction and authority to interpret the
agreement to arbitrate and to determine the scope off his own authority subject only,
in a proper case, to the certiorari jurisdiction off the SC.

11. Is the decision of the voluntary arbitrator subject to judicial review?

• YES

12. By what mode? Within what period (Guagua National Colleges vs. CA, August 28, 2018)
• The 10-day period stated in Article 276 should be understood as the period within which
the party adversely affected by the ruling of the Voluntary Arbitrators or Panel of
Arbitrators may file a motion for reconsideration. Only after the resolution of the motion
for reconsideration may the aggrieved party appeal to the CA by filing the petition for
review under Rule 43 of the Rules of Court within 15 days from notice pursuant to
Section 4 of Rule 43.
13. Who pays the voluntary arbitrator or panel of voluntary arbitrators?
• There must be a proportionate scheme in allocating the expenses for VA. The following
factors shall be considered:
o Nature of the case
o Time consumed in hearing the case
o Professional standing of the VA
o Capacity to pay of the parties
o Fees provided for in the ROC.

14. Will the VA have the same powers as the LA in rendering a labor case?
• YES. There is no difference in the authority of the VA and LA in a labor case. They may
also award back wages, order reinstatement, order award of attorney’s fees and order
award of damages.
• VA is even more powerful than the LA in a sense that the VA apart from having the
authority to award back wages, damages, reinstatement, it also has the power to issue
a writ of execution in order to execute the judgement it rendered.