Unfair Labor Practices (UP BOC)
Bargaining in bad faith
refers to acts that violate the workers’ right to
organize. The prohibited acts are related to the
workers’ right to self organization and to the
observance of a CBA. Without that element,
the acts, no matter how unfair, are not unfair
labor practices.
Thus, an employer may only be held liable for
unfair labor practice if it can be shown that his
acts affect in whatever manner the right of his
employees to self-organize. (ateneo BN)
XPN: The only exception is Art. 259(f)
[i.e. to dismiss, discharge or otherwise
prejudice or discriminate against an employee
for having given or being about to give
testimony under this Code]. (UP BOC)
Nature of ULP (UP BOC)
a. inimical to the legitimate interests of both
labor and management, including their right to
bargain collectively and otherwise deal with
each other in an atmosphere of freedom and
mutual respect
b. disrupt industrial peace
c. hinder the promotion of healthy and stable
labor-management relations
d. violations of the civil rights of both labor and
management but are also criminal offenses
[Art. 258]
e. Criminal offenses against the State; (Ateneo
BN)
f. Violate the constitutional right of workers
and employees to self-organization. (Ateneo
BN)
Four forms of Unfair Labor Practice in
Collective Bargaining (UP BOC)
1. Failure or refusal to meet and convene
2. Evading the mandatory subjects of
bargaining
3.
4. Gross violation of the CBA
Prescription of actions for ULP: The offense
prescribed in 1 year. (Labor Code, Art. 305)
Purpose of the Policy Against ULPs (UP BOC)
Protection of right to self-organization and/or
collective bargaining:
a. The employee is not only protected from
the employer but also from labor
organizations.
b. The employer is also protected from ULP
committed by a labor organization.
The public is also protected because it has an
interest in continuing industrial peace.
Parties Not Estopped from Raising ULP by
Eventual Signing of the CBA (UP BOC)
The eventual signing of the CBA does not
operate to estop the parties from raising unfair
labor practice charges against each other.
[Standard Chartered Bank Union v. Confesor,
G.R. No. 114974 (2004)]
NOTES FROM CHAN (2019)
UNFAIR LABOR PRACTICES (ULPs)
Parties who may commit ULP
● Committed by an employer or by a
labor organization (Article 259 and
260).
Who is criminally liable?
On the part of the employer – only the officers
and agents of corporations, associations or
partnerships who have actually participated in
or authorized or ratified ULPs.
On the part of the union – only the officers,
members of the governing boards,
representatives or agents or members of labor
associations or organizations who have
actually participated in or authorized or
ratified the ULPs are criminally liable.
Who can Commit ULP (ateneo BN)
Both employers and labor organizations can
commit acts of unfair labor practices in
collective bargaining. However, the labor
organization must be the representative of the
employees before any act it does may be
considered as a violation of the duty to bargain
collectively. (Labor Code, Arts. 259[g] and
260[c])
ELEMENTS OF ULP
1. There should exist an employer-employee
relationship between the offended party and
the offender; and
2. The act complained of must be expressly
mentioned and defined in the labor code as
ULP.
3. Act complained of as ULP must have
proximate and causal connection with/
violation of: (Ateneo BN)
a. Exercise the right to self-organization
b. Exercise of the right to collective
bargaining
Employer-Employee Relationship Required
(UP BOC)
GR: An unfair labor practice may be
committed only within the context of an
employer-employee relationship [American
President Lines v. Clave]
XPN: “Yellow Dog” condition or contract:
to require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to
which he belongs. [Art. 259 (b)]
ASPECTS OF ULP (chan)
1. Civil aspect – claims for actual, moral and
exemplary damages, attorney’s fees and other
affirmative reliefs. It should be asserted in the
labor case before the Labor Arbiters who have
original and exclusive jurisdiction over ULP
cases.
2. Criminal aspect – Only be asserted before
the regular courts.
ASPECTS OF UNFAIR LABOR PRACTICE
(Ateneo BN)
Civil aspect Criminal Aspect
May include liability Can only be initiated
for damages and after the finality of
may be passed upon judgment in the
by the Labor Arbiter labor case (Labor
(Labor code, Art. code, Art. 258)
258
NOTE: But judgment in the labor case will not
serve as evidence of ULP in the criminal case.
BURDEN OF PROOF
● In cases against employers, the union
has the burden of proof to present
substantial evidence.
● In cases against labor organizations,
the burden of proof is on the employer.
ULP BY EMPLOYER
WHEN THERE IS NO ULP AND THERE IS VALID
EXERCISE OF MANAGEMENT RIGHTS (Ateneo
BN)
When rules are necessary to the proper and
effective business operation
The law on unfair labor practices 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.
Management exercised in good faith
So long as a company’s management
prerogatives are exercised in good faith for the
advancement of the employer’s interest and
not for the purpose of defeating or
circumventing the rights of the employees
under special laws or under valid agreements,
the Court will uphold them.
There is also no ULP when
● The Court has held that management
is free to regulate, according to its own
discretion and judgment, all aspects of
employment, including hiring, work
assignments, working methods, time,
place, and manner of work, processes
to be followed, supervision of workers,
working regulations, transfer of
employees, work supervision, lay-off of
workers, and discipline, dismissal and
recall of workers. The exercise of
management prerogative, however, is
not absolute as it must be exercised in
good faith and with due regard to the
rights of labor. (Royal Plant Workers
Union v. Coca-Cola Bottlers
Philippines, inc)
● Where the vacation leave is without
pay, which the employer requires
employees to take in view of the
economic crisis, is neither malicious,
oppressive nor vindictive, ULP is not
committed. (Philippine Graphic Arts,
Inc. v. NLRC,)
● 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 back wages and damages. (AHS/
Philippine Employees Union v. NLRC)
Specific ULP acts by the Employers
Article 259: UNFAIR LABOR PRACTICES OF
EMPLOYERS - It shall be unlawful for an
employer to commit any of the following unfair
labor practices: (YIP-C2-D2-V2)
A. Interference - To interfere with,
restrain or coerce employees in the
exercise of their right to self-
organization;
B. Yellow Dog Contracts - To require as a
condition of employment that a person
or an employee shall not join a labor
organization or shall withdraw from
one to which he belongs;
C. Contracting Out - To contract out
services or functions being performed
by union members when such will
interfere with, restrain or coerce
employees in the exercise of their right
to self-organization;
D. Company Unionism - To initiate,
dominate, assist or otherwise interfere
with the formation or administration of
any labor organization, including the
giving of financial or other support to it
or its organizers or supporters;
E. Discrimination for or against union
membership - 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. Nothing in this Code or in
any other law shall stop the parties
from requiring membership in a
recognized collective bargaining agent
as a condition of employment, except
those employees who are already
members of another union at the time
of the signing of the collective
bargaining agreement.. Employees of
an appropriate collective bargaining
 unit who are not members of the
recognized collective bargaining agent
may be assessed a reasonable fee
equivalent to the dues and other fees
paid by members of the recognized
collective bargaining agent, if such
nonunion members accept the
benefits under the collective
agreement. Provided, That the
individual authorization required
under Article 242, paragraph (o) of this
Code shall not apply to the
nonmembers of the recognized
collective bargaining agent; [the
correct reference is to Article 241,
paragraph (o) but this has been
renumbered as Article 250, paragraph
(o);
F. Discrimination because of testimony -
To dismiss, discharge, or otherwise
prejudice or discriminate against an
employee for having given or being
about to give testimony under this
Code;
G. Violation of duty to bargain - To violate
the duty to bargain collectively as
prescribed by this Code;
H. Paid negotiation - To pay negotiation
or attorney’s fees to the union or its
officers or agents as part of the
settlement of any issue in collective
bargaining or any other dispute; or
I. Violation of CBA - To violate a collective
bargaining agreement.
The provisions of the preceding paragraph
notwithstanding, only the officers and agents
of corporations, associations or partnerships
who have actually participated in, authorized
or ratified ULP shall be held criminally liable.
INTERFERENCE WITH, RESTRAINT OR
COERCION OF EMPLOYEES IN THE EXERCISE
OF THEIR RIGHT TO SELF-ORGANIZATION
INSULAR LIFE DOCTRINE: TEST TO DETERMINE
INTERFERENCE, RESTRAINT OR COERCION
The test of the employer’s interference with,
restraint or coercion of employees within the
meaning of the law
● Whether the employer has engaged in
conduct which may reasonably tend to
interfere with the free exercise of the
employees’ twin rights to
selforganization and collective
bargaining.
● It is not necessary that there be direct
evidence the any employee was
restrained, intimidated or coerced by
the statements or threats of the
employer; what matters is that there is
a reasonable interference that the
anti-union conduct of the employer
does have an adverse effect on the
exercise of said rights.
For a charge of ULP to prosper, it must be
shown that the employer’s act was motivated
by ill will, bad faith or fraud, or was oppressive
to labor, or done in a manner contrary to
morals, good customs, or public policy, and
social anxiety or grave humiliation resulted
therefrom.
The employee has the burden of proving that
the employer exercised bad faith.
TOTALITY OF CONDUCT DOCTRINE
● Used to determine whether the act of
the employer constitutes interference
with, restraint or coercion of the
employees’ exercise of their right to
self-organization and collective
bargaining.
● ULP should be viewed on the basis of
the employer’s act outside the bigger
context.
 ● Under this doctrine, an expression
which might be permissibly uttered by
one employer, might be deemed
improper when spoken by a more
hostile employer, because of the
circumstances under which they were
uttered, the history of the particular
employer’s labor relations or anti –
union bias or because of their
connection with an established
collateral plan of coercion or
interference, and consequently
actionable as an unfair labor practice.
(Ateneo BN)
General Milling Case v CA
● The fact that the resignations of the
union members occurred during the
pendency of the case before the LA
shows the employer’s desperate
attempt to cast doubt on the
legitimate status of the union.
● The ill-timed letters of resignation
from the union members indicate that
GMC had interfered with the right of its
employees to self-organization.
JURISPRUDENTIALLY DECLARED ACTS OF ULP
INVOLVING EMPLOYER’S INTERFERENCE,
RESTRAINED OR COERCION
1. Dismissals
2. Threats
3. Questioning and interrogation
4. Offers and Promises
5. Espionage and surveillance
6. Interference in intra-union affairs
7. Other forms of interference, restraint or
coercion
(1) DISMISSALS
● Dismissals that are occasioned by
employer’s interference, restraint, or
coercion are always ULP
EXAMPLES
● Dismissal after they have organized
their union and about to start efforts at
having it certified as SEBA
● Dismissal of union members to ensure
defeat in certification election
● Dismissal of union officers which
threatens the existence of the union –
union busting -
● Dismissing union officers and
members on the ground of losses 2
years after it has allegedly sustained
them and after the dismissed officers
and members became more militant.
● Effecting discriminatory dismissal
where only unionists were
permanently dismissed.
● Mass lay-off or dismissal of 65
employees due to retrenchment
absent any loss or financial reverses.
● Dismissal by refusal of employees to
give up their union membership. -
● Dismissal because of his act of
soliciting signatures for the purpose of
forming a union.
● Dismissal because of their refusal to
resign from the union and to join the
union favorable to the employer
● Dismissal because of acts engaging in
valid and legal concerted union
activities
● Dismissal because an employee who
worked for 19 years have filed money
claims against the employer.
● Terminating teachers who have
attained permanent status because of
the employer’s apprehension that
there may be a future strike in the
school.
(2) THREATS
● Mere issuance of a threat by the
employer, even if not actualized, may
already constitute ULP.

EXAMPLES:
● Threatening employees with loss of
jobs or benefits or promotional
opportunities if they join or vote for a
union or engage in protected
concerted activity.
● Threatening to close the plant if EE
selects a union to represent them or to
discourage union activity or support.
● Stating to employees that union
bargaining is futile or a strike is
inevitable.
● Threatening the union recruiter with
bodily harm when he refused to yield
the demand of the employer to
surrender the union affiliation forms
● where the employer encouraged the
employees to sign a petition
repudiating the union. (ateneo BN)
(3) QUESTIONING AND INTERROGATING
EMPLOYEES
● May be ULP even if it is merely in the
form of a question
General rule: employer may interrogate its
employees regarding their union affiliation for
legitimate purposes and with the assurance
that no reprisals would be taken against the
unionists. (UP BOC)
XPN: when interrogation interferes with or
restrains employees' right to self organization.
Note: The interrogation of the ER should not be
persistent and/or hostile. (UP BOC)
EXAMPLES:
● Interrogating its employees in
connection with their membership in
the union or their union activities
which hampers their exercise of free
choice.
● Questioning employees about their
union sympathies or activities in
circumstances that tend to interfere
with, restrain or coerce employees in
the exercise of their rights would be
treated as ULP.
(4) OFFERS AND PROMISES
● The employer’s act of making an offer
or practice of certain favors or benefits
may also constitute as ULP
EXAMPLES:
● Promising or implementing employee
wage increases to discourage their
union activity or support.
● Offer of reinstatement and attempt to
bribe the strikers with comfortable
costs, free coffee and occasional
movies, overtime pay, for work
performed in excess of 8 hours and
offer of arrangements for their
families so they could abandon the
strike and return to work.
● Offer Christmas bonus to all loyal
employees after the request by the
union to bargain.
● Announcement by the employer of
benefits prior to the conduct of a
certification election, intended to
induce the employees to vote against
the union.
(5) ESPIONAGE AND SURVEILLANCE
● The act of spying and surveillance of
employees to determine their
involvement and participation in union
organizing and formation and
concerted activities is ULP.
● The information obtained by means of
espionage is invaluable to the
employer and can be used in a variety
of cases to break a union. (UP BOC)
EXAMPLES:
● When management conducts
espionage or surveillance of the
meetings and activities of the union. -
Requesting employees to report on the
union activity of others.
(6) INTERFERENCE IN INTRA-UNION DISPUTE
● The act of management in meddling
with purely internal concerns, issues
and affairs of the union is ULP
Other Forms of Interference, Restraint, or
Coercion Constituting ULP
a. Indirectly forcing employees to join another
labor union as a condition for re-admission for
participating in a strike.
b. Instructing employees not to join a union.
c. Refusal of employer to reinstate strikers
who voluntarily and unconditionally offered to
return to work but did not accept new
discriminatory conditions imposed against
them because of their union membership or
activities.
d. Grant of concessions and privileges during
pendency of a certification election case to
members of one of the unions participating
therein.
e. Suspending union officers who attended
hearing in the petition for certification election
they filed.
f. Ceasing operation due to establishment of
the union.
g. Asking employees to disclose the names of
the members of the union.
h. Putting on “rotation” only the alleged
members of the union.
i. Transferring, laying off or assigning
employees more difficult work or tasks, or
otherwise punishing them because they are
engaged in organizing or forming a union.
Speech (UP BOC)
● The acts of a company which subjects
a union to vilification and its
participation in soliciting membership
for a competing union are also acts
constituting a ULP.
● An employer may not send letters
containing promises or benefits, nor
threats of obtaining replacements to
individual workers while the
employees are on strike due to a
bargaining deadlock. This is
tantamount to interference and is not
protected by the Constitution as free
speech.
Lockout or Closure Amounting to ULP (ateneo
BN)
● 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.
● To hold an employer who actually or
who threatens to lock out his
employees guilty of a violation of this
Act, the evidence must establish that
the purpose thereof was to interfere
with the employee’s exercise of their
rights (Azucena Vols. II-A and II-B, 9th
ed., 2016, p. 323).
Sale in Bad Faith (ateneo BN)
● Where the sale of a business
enterprise is 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
tortfeasor, having been a party
likewise responsible for the damage
inflicted on the members of the
aggrieved union and therefore cannot
justly escape liability. (Cruz v. PAFLU)

YELLOW DOG CONTRACT
● Art. 259 (b) of the Labor Code
One which exacts from workers as a condition
of employment that they shall not join or
belong to a labor organization, or attempt to
organize one during their period of
employment or that they shall withdraw
therefrom in case they are already members
of a labor organization.
Common Stipulations (or Requisites)
1. Representation by the employee that he is
not a member of an LO;
2. Promise by employee that he will not join a
union; and
3. Promise by the employee that upon joining
an LO, he will quit his employment.
These constitutes ULP. Thus, stipulation is null
and void.
CONTRACTING OUT OF SERVICES AND
FUNCTIONS GENERAL RULE:
GR: contracting out is not a ULP, but is covered
by the employer’s management prerogative.
XPN [Art. 259 (c)]:
1. contracted-out services or functions are
performed by union members AND
2. contracting out will interfere with, restrain,
or coerce employees in the exercise of their
right to self-organization.
● Art. 259 (c) of the Labor Code
Act of an employer in having work or certain
services or functions being performed by SEBA
members contracted out is not per se ULP
● Considered as an exercise by
employers of its business judgment
and inherent management rights and
prerogatives.
● Promoting efficiency and attaining
economy by a study of what units are
essential for its operation.
● Er – has the ultimate right to
determine whether services should be
performed by its personnel or
contacted to outside agencies.
Absent proof that the management acted in
malicious or arbitrary manner, the Court will
not interfere with the exercise of judgment by
an employer.
Contracting-out as ULP
● If the act of contracting out of a job,
work or service being performed by
SEBA members will interfere with,
restrain, or coerce employees in the
exercise of their right to self-
organization that it will constitute ULP.
Conditions for a valid outsourcing (ateneo BN)
1. Motivated by good faith; and
2. Must not have been resorted to
circumvent the law or must not have
been the result of malicious or
arbitrary action (Manila Electric v.
Quisumbing)
Runaway Shop is ULP (ateneo BN)
When an industrial plant is moved by its
owners from one location to another to escape
union labor regulations or state laws or to
discriminate against employees at the old
plant because of their union activities.
Resorting to runaway shop is ULP.
Where a plant removal is for business reasons
but the relocation is hastened by anti – union
motivation, the early removal is unfair labor
practice. It is immaterial that the relocation is
accompanied by a transfer of title to a new
employer who is an alter ego of the original
employer.

COMPANY UNIONISM - COMPANY
DOMINATION OF UNION
Article 259 (d) of the Labor Code
Company union means any labor organization
whose formation, function or administration
has been assisted by any act defined as unfair
labor practice by this Code. [Art. 219(i)] (UP
BOC)
ULP – to initiate, dominate, assist, or
otherwise interfere with the formation or
administration of any LO, including giving of
financial or other support to it or its organizers
or supporters.
Formation, function, or administration has
been assisted by any act of the employer.
Manifestations of Domination of a Labor
Union (ateneo BN)
1. Initiation of company union idea. This may
further occur in three styles:
A. outright formation by the employer or
his representatives
B. employee formation on outright
demand or influence by employer
C. managerially motivated formation by
employees
2. Financial support to the union.
By defraying the union expenses or paying the
attorney’s fees of the lawyer who drafted the
constitution and by – laws of the union.
3. Employer encouragement and assistance.
Immediately granting the union exclusive
recognition as a bargaining agent without
determining whether the union represents the
majority of employees.
4. 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.
(Philippine American Cigar & Cigarette Factory
Workers Union v. Philippine American Cigar &
Cigarette Mfg.)
A labor union is company – dominated where
it appears that key officials of the company
have been forcing employees belonging to
rival labor union to join the former under pain
of dismissal should they refuse to do so; that
key officials of the company, as well as its
legal counsel, have attended the election of
officers of the former union; that officers and
members of the rival union were dismissed
allegedly pursuant to a retrenchment policy of
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 labor union, the
company engages the services of new
laborers. (Oceanic Air Products, Inc. v. CIR)
Prejudicial Question (chan)
● General Rule: Pendency of ULP case
filed against an LO participating in
certification election does not stay the
holding thereof.
● Exception: Pendency of a formal
charge of company domination
against one of the unions which is
participating in the certification
election is a PQ that bars the holding
thereof until its final resolution
Suspension of CBA for a long period (chan)
● CBA may be suspended for more than
usual 5- year lifetime thereof if
warranted by circumstances.
● During – parties may mutually agree
that SEBA’s status shall continue to be
recognized as such.
● Not tantamount to making the SEBA
company dominated.

THREE SEPARATE LEGAL CONCEPTS TREATED
IN ARTICLE 259 (E)
1. Discrimination
● 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.
2. Union security clause
● “Nothing in this Code or in any other
law shall stop the parties from
requiring membership in a recognized
CB agent as a condition for
employment, except those employees
who are already members of another
union at the time of the signing of CBA.
3. Agency Fee
● “Employees of an appropriate
bargaining unit who are not members
of the recognized CB agent may be
assessed a reasonable fee equivalent
to the dues and other fees paid by
members of the recognized CB agent,
if such non-union members accept the
benefits under the CBA, provided that
the individual authorization required
under Art. 251 (o) shall not apply to the
non-members of the CB agent.”
DISCRIMINATION
● Failure to treat all persons equally
when no reasonable distinction can be
found between those favored and
those not favored.
● One is denied privileges which are
granted to others under similar
conditions and circumstances.
General Rule: it is ULP 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.
XPN: Union security clauses
For claim to prosper, establish:
1. No reasonable distinction or classification
that can be obtained between persons in
same class; and
2. Persons belonging to the same class have
not been treated alike.
Classification
● Not ULP because it merely
differentiates the employees in
accordance with their respective jobs
and accords appropriate levels of pay
or benefits due them by reason
thereof.
There is discrimination only when one is
denied privileges which are granted to others
under similar conditions and circumstances.
There can be no discrimination if the
employees are not similarly situated. (Great
Pacific Life Employees Union v. Great Pacific
Life Assurance Corporation)
Discrimination in Bonus Allocation or Salary
Adjustments (ateneo BN)
There is unfair and unjust discrimination in
granting of salary adjustments where
evidence shows that:
1. The management paid the employees of the
unionized branch;
2. Where salary adjustments were granted to
employees of one of its non – unionized
branches although it was losing in its
operations; and
3. The total salary adjustments given every ten
of its unionized employees would not even
equal the salary adjustments given one
employee in the non – unionized branch.
(Manila Hotel Company v. Pines Hotel
Employees Association (CUGCO) and CIR, G.R.
No. L-30818, 1972)
Discrimination in Layoff or Dismissal (ateneo
BN)
Even where business conditions justified a
layoff of employees, unfair labor practices in
the form of discriminatory dismissal were
found where only unionists were permanently
dismissed while non – unionists were not.
Test of Discrimination (ateneo BN)
To determine whether or not a discharge is
discriminatory, 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 employee
is actually discharged because of his union
activities. 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 from exercising his business
judgment to discharge an employee for cause.
(NLRB v. Ace Comb Co. 342 F. 2 841, as cited
in Cainta Catholic School v. CCSU).
An inference that the discharge of an
employee was motivated by his union activity
must be based upon evidence, direct or
circumstantial, not upon mere suspicion.
(NLRB v. South Rambler Co., 324 F 2d 447).
DISMISSAL DUE TO VIOLATION OF UNION
SECURITY CLAUSE
Union security is a generic term which is
applied to and comprehends “closed shop,”
“union shop,” “maintenance of membership”
or any other form of agreement which
imposes upon employees the obligation to
acquire or retain union membership as a
condition affecting employment.
- It is an indirect restriction on the right
of an employee to self organization.
- It is a solemn pronouncement of a
policy that while an employee is given
the right to join a labor organization,
such right should only be asserted in a
manner that will not spell the
destruction of the same organization.
Just Cause
● Violation of a union security clause is
considered a just cause to terminate
employment.
Grounds for termination due to violation of
union security clause
● Where termination is expressly
stipulated as the end-result of refusal
to join the SEBA, SEBA has to back up
its recommendation to the employer
to terminate a member-employee’s
employment with just and valid
grounds.
Discharge due to union activity, a question of
fact (ateneo BN)
The question of whether an employee was
discharged because of his union activities is
essentially a question of fact as to which the
findings of the court of Industrial Relations are
conclusive and binding if supported by
substantial evidence considering the record as
a whole. (Philippine Metal Foundries, Inc., v.
CIR
Three common grounds usually invoked by
SEBA to justify termination of employment:
1. Refusal to become members of the SEBA
of:
 a. Employees who are neither Art. 259 (F) To dismiss, discharge or otherwise
members of SEBA nor any other prejudice or discriminate against an employee
union/s at the time of the signing of for having given or being about
the CBA; or to give testimony;
b. Future, newly-hired employees upon
their regularization Note: This is broader than the prohibition
2. Resignation by its existing members; under Art. 118 because Art. 259(f) covers
3. Expulsion on the following grounds: testimony under the whole Code, while Art.
a. Disloyalty to the SEBA; 118 only covers testimony under Book I: Pre-
b. Commission of any act/s inimical to Employment, Title II: Wages.
the interest of the SEBA; Note further: Includes not giving testimony
c. Refusal to pay union dues and other [Azucena]. (UP BOC)
assessments
d. Commission or conviction of a Note: This is the only ULP not directly related
felony, offense, or crime against any to the right to self – organization. The
union officer or member in relation to testimony or proceedings might involve
activities for and in behalf of the SEBA; wages, employee’s benefits, disciplinary rules,
e. Organizing and/or joining another or organizational rights, or anything covered by
labor organization claiming the Labor Code. What is chargeable as ULP is
jurisdiction similar to that of the SEBA the employer’s retaliatory act regardless of the
or affiliating with a labor federation subject of the employee’s complaint or
without its approval; testimony. (Ateneo BN)
f. Involvement in any violation of the
union security agreement or the Unfair labor practice refers to acts that violate
SEBA’s Constitution and By-Laws; or the workers’ right to organize. The prohibited
g. Participation in a ULP or any acts are related to workers' right to self-
derogatory act against the SEBA or any organization with the sole exception of Art.
of its officers or members [259 (f)].

VIOLATION OF THE DUTY TO BARGAIN

CBA-RELATED ULPS COLLECTIVELY (UP BOC)
Three (3) CBA-related ULPs (Article 259)
1. To violate the duty to bargain collectively as Collective bargaining does not end with the
prescribed in the Labor Code. execution of an agreement. Being a
2. To pay negotiation or attorney’s fees to the continuous process, the duty to bargain
union or its officers or agents as part of the necessarily imposes on the parties the
settlement of any issue in collective obligation to live up to the terms of such a
bargaining or any other dispute. collective bargaining agreement if entered
3. To violate a CB. into, it is undeniable that non-compliance
—------------------------------------------------------------------------------ therewith constitutes an unfair labor practice.
-----
DISCRIMINATION FOR HAVING GIVEN OR Duty to bargain collectively (chan)
ABOUT TO GIVE TESTIMONY ● Both employer and SEBA
 ● Performance of a mutual obligation to
meet and convene promptly and
expeditiously in good faith for the
purpose of negotiating an agreement
with respect to terms and conditions of
employment (wages, hours of work),
including proposals for adjusting any
grievances or questions arising under
such agreement and executing a
contract incorporating such.
● Duty does not compel any party to
make any concession.
● Absence of an agreement or other
voluntary arrangement providing for a
more expeditious manner of collective
bargaining, it is the duty of the
employer and representatives of
employees to bargain collectively.
ACTS DEEMED AS REFUSAL TO BARGAIN (UP
BOC)
1. Refusal to bargain when there is an
unresolved petition for union
cancellation
2. Employer’s suspension of operations
in order to forestall a demand for
collective bargaining
3. Implied refusal
ACTS NOT DEEMED REFUSAL TO BARGAIN:
1. Adoption of an adamant bargaining
position in good faith, particularly
where the company is operating at a
loss
2. Refusal to bargain over demands for
commission of unfair labor practices
3. Refusal to bargain during period of
illegal strike
4. Not initiating the bargaining
5. Refusal to bargain where the union
demands for recognition and
bargaining within the year following a
certification election, and the clear
choice is no union and no ad interim
significant change has taken place in
the unit
6. Refusal to bargain because the other
party is making unlawful bargaining
demands
—------------------------------------------------------------------------------
------
PAYMENT OF NEGOTIATION OR ATTORNEY’S
FEES (UP BOC)
Art 259(h) - To pay negotiation or attorney's
fees to the union or its officers or agents as
part of the settlement of any issue in collective
bargaining or any other dispute.
Sweetheart contracts are favorable both to the
union and the employer at the expense of the
employees. The settlement of bargaining
issues must be made by fair bargaining in
good faith, and not through the payment of
negotiation or attorney's fees which will
ultimately lead to sweetheart contracts.
—------------------------------------------------------------------------------
-----
VIOLATION OF A COLLECTIVE BARGAINING
AGREEMENT - ART 259(i) (UP BOC)
Flagrant and/or Malicious Refusal to Comply
with Economic Provisions Required
Art. 274. Jurisdiction of Voluntary Arbitrators.
– Accordingly, violations of a Collective
Bargaining Agreement, except those which
are gross in character, shall no longer be
treated as unfair labor practice and shall be
resolved as grievances under the Collective
Bargaining Agreement.
For purposes of this Art., gross violations of
Collective Bargaining Agreement shall mean
flagrant and/or malicious refusal to comply
with the economic provisions of such
agreement.
Violations of collective bargaining
agreements, except flagrant and/or malicious
refusal to comply with its economic provisions,
shall not be considered unfair labor practice
and shall not be strikeable. [Book V, Rule XXII,
Sec. 5]
Note: The list in Art. 259 is not exhaustive.
Other acts which are analogous to those
enumerated can be ULPs.
The alleged violation of the CBA, even
assuming it was malicious and flagrant, is not
a violation of an economic provision, thus not
an Unfair Labor Practice.
Example: An employer cannot be considered
to have committed a gross and economic
violation of the CBA when it, in good faith,
withheld union dues and death benefits from
the union upon written request of the union
members in light of the conflict between the
members and the union officers and instead
deposited such amount to the DOLE.
Motive, Conduct, Proof
To constitute ULP, the dismissals by the ER
need not be entirely motivated by union
activities or affiliations. It is enough that
discrimination was a factor.
Note: The basic inspiration of the dismissals
should concern the right to self-organization.
Totality of Evidence
Where the attendant circumstances, the
history of the employer's past conduct and like
considerations, coupled with an intimate
connection between the employer's action
and the union affiliations or activities of the
particular employee or employees, taken as a
whole, raise a suspicion as to the motivation
for the employer's action, the failure of the
employer to ascribe a valid reason therefor
may justify an inference that his unexplained
conduct in respect of the particular employee
or employees was inspired by the latter's
union membership or activities.
ULP OF LABOR ORG
Persons Criminally Liable In Case Of ULP bv LQ
1. Officers
2. Members of governing board
3. Representatives, agents, members of the
labor organization who actually
participated, authorized, or ratified the
ULP act.
ULP Committed Bv Labor Organizations
a. Restraint or Coercion
b. Discrimination:
Encourage/Discourage Unionism
c. Violation of Duty, or Refuse to Bargain
d. Illegal Exaction (Featherbedding)
e. Asking or Accepting Negotiation and
other Attorney's Fees
f. Violation of a Collective Bargaining
Agreement
RESTRAINT OR COERCION
Art. 260(a). Unfair Labor Practices of Labor
Organizations — To restrain or coerce
employees in the exercise of their right to self-
organization. However, a labor organization
shall have the right to prescribe its own rules
with respect to the acquisition or retention of
membership;
“Interfere” is not included in Art. 260 simply
because any act of a labor organization
amounts to interference to the right of self-
organization [U.P. Law BOC 2020]
Interference bv a Labor Organization is not
ULP
A labor organization can actually interfere with
employees' right to self-organization as long
as it does not amount to restraint or coercion.
Interfering in the exercise of right to organize
is itself a function of self-organizing. (Azucena,
Vol. 2,2016, p. 368)
NOTE: Under the first ULP committed by an
employer, there is "IRC" - interference,
restraint, or coercion. However, under the first
ULP committed by a labor organization, the
word "interference" is left out, leaving only
"restraint or coercion". The omission is
deliberate. (Azucena, Vol. 2,2016, p. 368)
Labor organization cannot coerce members to
participate in strike
A labor organization violates the law when it
restrains or coerces an employee in the
exercise of his right to refuse to participate in
or recognize a strike. [UST Golden Notes]
DISCRIMINATION: ENCOURAGE/DISCOURAGE
UNIONISM
Art. 260(b). Unfair Labor Practices of Labor
Organizations — To cause or attempt to cause
an employer to discriminate against an
employee, including discrimination against an
employee with respect to whom membership
in such organization has been denied; or
terminate an employee on any ground other
than the usual terms and conditions under
which membership or continuation of
membership is made available to other
members;
GR:
It is a ULP for a labor organization to
cause an employer to discriminate against an
employee. [UP BOC]
EXN: Provisions of a valid union security clause
and other company policies applicable to all
employees [UP BOC]
This pertains to the attempt of the labor
organization to cause an employer to grant
advantages to:
1. Members over non-members
2. Members in good standing over
suspended or expelled members;
3. Members of the executive board over
more senior employees; or
4. Members of one union over members of
another union. [UST GN]
Arbitrary use of Union Security Clause
Unions are not entitled to arbitrarily exclude
qualified applicants for membership, and a closed-
shop provision would not justify the employer in
discharging, or a union in insisting upon the
discharge of an employee whom the union thus
refuses to admit to membership, without any
reasonable ground therefor. (Salunga v. CIR) [UST
GN]
A union member may not be expelled from her
union, and consequently from her job, for personal
or impetuous reasons or for causes foreign to the
closed-shop agreement and in a manner
characterized by arbitrariness and whimsicality.
(Manila Mandarin Employees Union v. NLRCG.R.
No. 76989 Sept. 29,1987) [UST GN]
Not disloyalty to ask help from another union
The mere act of seeking help from another union
cannot constitute disloyalty. It is an act of self-
preservation of workers who, driven to desperation,
found shelter in another union who took the
cudgels for them. (Rance v. NI.RC, G.R. No. L-
68147,June 30, 1988) [UST GN]
Violation of Duty, or Refuse to Bargain
Art. 260(c) Unfair Labor Practices of Labor
Organizations — To violate the duty, or refuse
to bargain collectively with the employer,
provided it is the representative of the
employees;
It is the act of a union in refusing or violating its
duty to bargain collectively by entering
negotiations with a fixed purpose of not reaching
an agreement or signing a contract. [UST GN]
NOTE: It is intended to insure that unions approach
the bargaining table with the same attitude of
willingness to agree as the law requires of
management. [UST GN]
Illegal Exaction (Featherbedding)
Art. 260(d). Unfair Labor Practices of Labor
Organizations — To cause or attempt 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 an exaction, for services which
are not performed or not to be performed,
including the demand for fee for union
negotiations;
The practice of the labor organization to cause
or attempt to cause an employer to pay or
deliver or agree to pay or deliver money or
other things of value, in the nature of an
exaction, for services which are not performed
or are not to be performed, including the
demand for a fee for union negotiations. [UP
BOC]
Featherbedding refers to an employee practice
which creates or spreads employment by
unnecessarily maintaining or increasing the
number of employees used, or the amount of time
consumed, to work on a particular job. [UST GN]
The practices are found to be economically
wasteful and without any legitimate employee
justification. [UST GN]
Asking or Accepting Negotiation and other
Attorney's Fees
Art. 260(e). Unfair Labor Practices of Labor
Organizations — To ask for or accept
negotiation or attorney's fees from employers
as part of the settlement of any issue in
collective bargaining or any other dispute
Sweetheart Contract [UST GN]
It is when a labor organization asks for or
accepts negotiations or attorney’s fees from
Ers as part of the settlement of any issue in CB
or any other dispute.
The resulting CBA is considered as a
“sweetheart contract” – a CBA that does not
substantially improve the employees’ wages
and benefits and whose benefits are far below
than those provided by law. It is an incomplete
or inadequate CBA.
Violation of a Collective Bargaining Agreement
Art. 260(f). Unfair Labor Practices of Labor
Organizations — To violate a collective
bargaining agreement.
Accepting for or accepting some “fee” from
the employer as part of CBA or dispute
settlement. [UST GN]
Gross Violations of the CBA
Art. 274. Jurisdiction of Voluntary Arbitrators.
– Accordingly, violations of a Collective
Bargaining Agreement, except those which
are gross in character, shall no longer be
treated as unfair labor practice and shall be
resolved as grievances under the Collective
Bargaining Agreement.
For purposes of this Art., gross violations of
Collective Bargaining Agreement shall mean
flagrant and/or malicious refusal to comply
with the economic provisions of such
agreement. [UP BOC]
It is the flagrant and/or malicious refusal by a
party to comply with the economic provisions
of the CBA. [UST GN]
NOTE: If the violation of the CBA is not gross, it
is not ULP but a mere grievance. [UST GN]
Reliefs available in ULP cases
1. Cease and Desist Order
2. Affirmative Order
3. Order to Bargain; or Mandated CBA
4. Disestablishment of the Company-
Dominated Union
Cease and Desist Order
A prohibitive order requiring a person found to
be committing ULP to cease and desist from
such ULP and take affirmative action as will
effectuate the policies of the law including (but
not limited to) reinstatement with or without
back pay and including rights of employees
prior to dismissal, including seniority. [UST GN]
Affirmative Order
An order directing either the reinstatement of
the discharged employee without prejudice to
their rights or, if new laborers have been hired,
the dismissal of the hired laborers to make
room for the returning employee. [UST GN]
Order to Bargain
An order to compel the respondent to bargain
with the bargaining agent. It can also be an
imposition of a collective bargaining contract
upon an employer who refuses to bargain with
the union of its employees which is known as
“mandated CBA” [UST GN]
Disestablishment
An order directing the employer to withdraw all
recognition from the dominated labor union
and to disestablish the same. [UST GN]
ULP case is not subject to compromise
In view of the public interest involved, they are
not subject to compromise (E. G. Gochangco
Workers Union v. NLRC). However, in the case
of Reformist Union of R. B. Liner, Inc. v NLRC,
the court approved a compromise agreement
finally settling an illegal strike case. The
agreement was voluntarily entered into and
represents a reasonable settlement, thus it
binds the parties. [UST GN]
BLUE SKY BARGAINING
It is defined as making exaggerated or
unreasonable proposals. Demands which the
Er has no capacity to give. [UST GN]
Whether or not the union is engaged in blue-
sky bargaining is determined by the evidence
presented by the union as to its economic
demands. Thus, if the union requires
exaggerated or unreasonable economic
demands, then it is guilty of ULP (Standard
Chartered Bank v. Confessor, G.R. No.
114974, June 16, 2004). [UST GN]
SURFACE BARGAINING
It is the act of “going through the motions of
negotiating” without any legal intent to reach
an agreement (Standard Chartered Bank v.
Confessor, G.R. No. 114974, June 16, 2004).
[UST GN]
A concrete example is the withholding of the
Er of the audited financial statement
requested by the union. [UST GN]
Surface bargaining is a question of intent of
the party concerned and usually such intent
can only be inferred from the totality of the
challenged party’s conduct both at and away
from the bargaining table. [UST GN]

Impasse In Bargaining

1. Where the subject of a dispute is a

mandatory bargaining subject, either
party may bargain to an impasse as
long as he bargains in good faith.
2. Where the subject is non-mandatory, a
party may not insist in bargaining to
the point of impasse. His instance may
be construed as evasion of duty to
bargain. [UST GN]

Deadlock

It is synonymous with impasse or a standstill

which presupposes reasonable effort at good
faith bargaining but despite noble intentions
does not conclude an agreement between the
parties. [UST GN]

Occurrence Of Deadlock In Collective

Bargaining

A deadlock arises when there is an impasse

which presupposes reasonable effort at good
faith in bargaining which, despite noble
intentions, does not conclude in agreement
between the parties. [UST GN]

Remedies In Case Of Deadlock

The parties, during renegotiation, may:

1. Call upon the NCMB to intervene for

the purpose of conducting conciliation
or preventive mediation;
2. Refer the matter for voluntary
arbitration or compulsory arbitration;
3. Declare a strike or lockout upon
compliance with the legal
requirements(this remedy is a remedy
of last resort) [UST GN]
 ULP in COLLECTIVE BARGAINING
SEVENTH ULP: VIOLATION OF THE DUTY TO
BARGAIN (ART. 259 [G])
Both employers and labor organizations can
commit acts of unfair labor practices in
collective bargaining. However, the labor
organization must be the representative of the
employees before any act it does may be
considered as a violation of the duty to bargain
collectively. (Labor Code, Art. 259[g] and
260[c]) (Ateneo BN)
Four Forms of Unfair Labor Practice in
Bargaining (Ateneo BN)
1. Failure or Refusal to Meet and Convene
2. Evading the Mandatory Subjects of
Bargaining
3. Bad Faith in Bargaining
4. Gross Violation of the CBA
FAILURE OR REFUSAL TO MEET AND CONVENE
An employer is guilty of an unfair labor
practice in refusing to bargain with the
representative of a majority of his employees.
It is essential that the employer and the
employees should both act in good faith.
Collective bargaining is not merely going
through the motions of negotiating a CBA. A
party must not have a predetermined resolve
not to budge from an initial position.
Where an employer did not even bother to
submit an answer to the bargaining proposals
of the union, there is a clear evasion of the
duty to bargain collectively. (Chan)
In addition, he must recognize the union as the
bargaining representative of all the employees
in the appropriate bargaining unit, even if they
are not all members of the union. (UP BOC)
The duty to bargain extends beyond the period
of contract negotiations, and applies to labor-
management relations during the term of the
agreement.
Since a collective bargaining agreement does
not define all the rights and obligations of the
employer and his employees, negotiation of
grievances is part and parcel of the bargaining
process
An Employer cannot bargain directly with
employees and the employer cannot ignore
the bargaining agent and bargain directly with
individual employees. (Ateneo BN)
Refusal to make counter-proposals – Effect is
that CBA will be imposed on the union
- A company’s refusal to make counter-
proposal if considered in relation to
the entire bargaining process, may
indicate bad faith and this is especially
true where the Union’s request for a
counter proposal is left unanswered.
(Kiok Loy v. NLRC, G.R. No. L-54334,
1986; Divine Word University of
Tacloban v. Secretary of Labor, G.R.
No. 91915, 1992)
The failure of the employer to submit its
counter-proposals to the demands of the
bargaining union does not, by itself, constitute
refusal to bargain. However, it is different if the
employer refuses to submit an answer or reply
to the written bargaining proposals of the
certified bargaining union. (Chan)
A party to a fully-concluded CBA may be
compelled to sign it, especially if said refusal
to sign is the only remaining hitch to its being
implemented. Such refusal is considered an
unfair labor practice. (Chan)
A local union which is not independently
registered cannot exercise the rights and
privileges granted by law to legitimate labor
organizations. The employer cannot be faulted
for refusing to negotiate with the unregistered
chapter. (Abaria, et al v. Metro Cebu
Community Hospital, G.R. No. 154113, 2011)
Note: Holding meetings that result in
deadlocks, if done in good faith, does not
result in ULP. The purpose of collective
bargaining is the reaching of an agreement
resulting in a contract binding on the parties
but the failure to reach an agreement after
negotiations have continued for a reasonable
period does not establish a lack of good faith.
(Union of Filipro Employees v. Nestle, G.R. Nos.
158930-31, 2008) (Ateneo BN).
Economic Exigencies do not justify refusal to
bargain:
Section 158(d) of 29 USCS [Article 252 of the
Labor Code] expressly provides that the duty to
bargain collectively "does not compel either
party to agree to a proposal or require the
making of a concession."
An employer has been held not guilty of a
refusal to bargain by adamantly rejecting the
union's economic demands where he is
operating at a loss, on a low profit margin, or
in a depressed industry, as long as he
continues to negotiate. But financial hardship
constitutes no excuse for refusing to bargain
collectively. And, the NLRB has held that an
employer is guilty of a refusal to bargain when
he refuses even to discuss a union's economic
demands on the ground that in his very serious
financial condition it would be impractical to
negotiate or that he is financially unable to
accept a contract negotiated by the union with
the employers' association of which he is a
member. (Azucena Labor Code, Vol. 2, p. 364)
Acts Not Deemed Refusal to Bargain (Azucena
Labor Code, Vol. 2, p. 365)
1. Adoption of an adamant bargaining position
in good faith, particularly when the company is
operating at a loss;
2. Refusal to bargain over demands for
commission of ULP;
3. Refusal to bargain during period of illegal
strike;
4. Refusal to bargain where there is no request
for bargaining;
5. Union seeks recognition for an
inappropriately large unit
EVADING MANDATORY SUBJECTS OF
BARGAINING
An employer's refusal to negotiate a
mandatory subject of bargaining is an unfair
labor practice although the employer has
every desire to reach agreement earnestly and
in all good faith gains to that end.
On the other hand, an employer's duty to
bargain is limited to the mandatory bargaining
subjects; as to other matters, he is free to
bargain or not to bargain.
The following are examples of matters
considered as mandatory subjects of
bargaining (Azucena Labor Code, Vol. 2, pp.
370-371):
1. Wages and other types of
compensation, including merit
Increases;
2. Working hours and working days,
including work shifts;
3. Vacations and holidays;
4. Bonuses;
5. Pensions and retirement plans
 6. Seniority;
7. Transfer;
8. Lay-offs;
9. Employee workloads;
10. Work rules and regulations;
11. Rent of company houses;
12. Union security arrangements.
Where the subject of the dispute is a
mandatory bargaining subject, either party
may bargain to an impasse as long as he
bargains in good faith.
Where the subject is non-mandatory, a party
may not insist on bargaining to the point of
impasse. His insistence may be construed as
evasion of the duty to bargain. (Ateneo BN)
BARGAINING IN BAD FAITH
Good faith or bad faith is an inference to be
drawn from the facts.
There is no per se test of good faith in
bargaining. The test of good-faith bargaining is
not the effect of an employer’s or a union's
actions individually but rather it is the impact
of all such occasions or actions, considered as
a whole, and the inferences fairly drawn
therefrom. (The Hong Kong and Shanghai
Banking Corporation Employees Union v.
NLRC, G.R. 125038, 1997). (Ateneo BN)
[T]he failure to reach an agreement after
negotiations continued for a reasonable
period does not establish a lack of good faith.
A finding of good faith in bargaining cannot be
based upon whether a particular provision of a
contract seems reasonable or unreasonable to
the NLRB, or whether the NLRB thinks the
provision should be agreed to, but it must be
based entirely upon a consideration of the
negotiations as a whole.
A fair criterion of good faith in collective
bargaining requires that the parties involved
deal with each other with open and fair mind
and sincerely endeavor to overcome obstacles
or difficulties existing between them to the
end that employment relations may be
established and obstruction to the free flow of
commerce prevented.
An employer’s steadfast insistence to exclude
a particular substantive provision from the
union’s proposal is no different from a
bargaining representative's perseverance to
include one that they deem of absolute
necessity. (Union of Filipro Employees v.
Nestle-Philippines, G.R. Nos. 158930-31,
2008)
DUTY TO BARGAIN DOES NOT INCLUDE:
1. Any legal duty [on the employer] to initiate
contract negotiation [Kiok Loy v. NLRC, G.R.
No. L-54334 (1986)]
2. The obligation to reach an agreement:
While the law makes it an obligation for the
employer and the employees to bargain
collectively with each other, such compulsion
does not include the commitment to
precipitately accept or agree to the proposals
of the other.
All it contemplates is that both parties should
approach the negotiation with an open mind
and make reasonable effort to reach a
common ground of agreement. [Union of
Filipro Employees v. Nestle, G.R. Nos. 158930-
31 (2008)]
Evading the Mandatory Subjects of Bargaining
The refusal to negotiate a mandatory subject
of bargaining is an unfair labor practice,
although either party has every desire to reach
agreement and earnestly and in all good faith
bargains to that end.
However, the duty to bargain does not obligate
the parties to make concessions or yield a
position fairly held. [Azucena]
The duty to bargain is limited to mandatory
bargaining subjects; as to other matters, he is
free to bargain or not to bargain.
Over mandatory subjects, a party may insist on
bargaining, even to the point of deadlock,and
his insistence will not be construed as
bargaining in bad faith.
Over a non-mandatory subject, on the other
hand, a party may not insist on bargaining to
the point of impasse, otherwise his insistence
can be construed as bargaining in bad faith
(Ateneo BN)
Bargaining in Bad Faith Must Occur While
Bargaining is in Process
- With the execution of the CBA, bad
faith can no longer be imputed upon
any of the parties thereto. All
provisions in the CBA are supposed to
have been jointly and voluntarily
incorporated therein by the parties.
- This is not a case where private
respondent exhibited an indifferent
attitude towards collective bargaining
because the negotiations were not the
unilateral activity of petitioner union.
- The CBA is proof enough that
private respondent exerted
“reasonable effort of good
faith bargaining.” (Samahan
Ng Manggagawa sa Top Form
Manufacturing-United Workers
of the Philippines v. NLRC, G.R.
No. 13856, 1998)
A company's refusal to make counter-
proposal, if considered in relation to the entire
bargaining process, may indicate bad faith
and this is especially true where the Union's
request for a counter-proposal is left
unanswered." Considering the facts of that
case, the Court concluded that the company
was "unwilling to negotiate and reach an
agreement with the Union." (Kiok Loy v. NLRC,
G.R. 54334, 1986). (Ateneo BN)
OTHER EXAMPLES OF BAD FAITH
BARGAINING:
1. Surface Bargaining: defined as “going
through the motions of negotiating”
without any legal intent to reach an
agreement. (UP BOC)
A sophisticated pretense in the form of
apparent bargaining does not satisfy
the statutory duty to bargain.
The duty is not discharged by merely
meeting together or simply
manifesting a willingness to talk. An
employer’s proposals which could not
be offered with any reasonable
expectation that they would be
accepted by the union constitute
surface bargaining. (Standard
Chartered Bank Employees Union
(NUBE) v. Confessor, G.R. No 114974,
2004) (Ateneo BN)
Part of good-faith bargaining, and a
method to expedite the process, is
supplying of information to the other
party, as required by law.
An employer is under a duty, upon
request of the bargaining
representative,
 to provide information relevant to the
issues at the bargaining table. Refusal
to provide relevant information after
the same has been requested
constitutes per se violation of the duty
to bargain.
2. Blue Sky Bargaining: defined as
"unrealistic and unreasonable
demands in negotiations by either or
both labor and management, where
neither concedes anything and
demands the impossible." It actually is
not collective bargaining at all.
(UPBOC)
The making of exaggerated or
unreasonable proposals in collective
bargaining. (Standard Chartered Bank
Employees Union (NUBE) v. Confessor,
G.R. No. 114974, 2004) (Ateneo BN)
3. Boulwarism – A take-it-or-leave-it
approach in negotiation constitutes
bad faith. "Although the law cannot
open a man's mind, it can at least
compel him to conduct himself as if he
were trying to persuade and were
willing to be persuaded.
Occurs when:
1. When the employer directly
bargains with the employee
disregarding the union;
2. The aim was to deal with the
union through the employees,
rather than with the
employees through the union;
3. Employer submits its
proposals and adopts a “take it
or leave it” stand. (NLRB v.
General Election Co., 418 F. 2d
736 (1970) (Ateneo BN)
Part of good-faith bargaining, and a
method to expedite the process, is
supplying information to the other
party, as required by law.
An employer is under a duty, upon
request of the bargaining
representative, to provide information
relevant to the issues at the bargaining
table. Refusal to provide relevant
information after the same has been
requested constitutes per se violation
of the duty to bargain. (Azucena Labor
Code, Vol. 2, pp. 388-389)
4. Individual Bargaining: To negotiate or
attempt to negotiate with individual
workers rather than with the certified
bargaining agent is an unfair labor
practice. (Chan)
That constitutes interference because
the company is still under obligation to
bargain with the union as the
bargaining representative.
Individual bargaining contemplates a
situation where the employer bargains
with the union through the employees
instead of the employees through the
union. (UP BOC)
Respondent union in Philippine
Diamond Hotel and Resort, Inc.
[Manila Diamond Hotel] v. Manila
Diamond Hotel Employees Union,
insists that it could validly bargain in
behalf of “its members” only. The
Supreme Court, however, ruled that
the same would only “fragment the
employees” of petitioner.
 What the respondent union will be
achieving is to divide the employees,
more particularly, the rank-and-file
employees of petitioner hotel. The
other workers who are not members
are at a serious disadvantage,
because if the same shall be allowed,
employees who are non- union
members will be economically
impaired and will not be able to
negotiate their terms and conditions of
work, thus defeating the very essence
and reason of collective bargaining
which is an effective safeguard against
the evil schemes of employers in
terms and conditions of work. (Chan)
Petitioner‟s refusal to bargain then
with respondent cannot be considered
an unfair labor practice to justify the
staging of the strike
GROSS VIOLATION OF THE CBA
At this stage, the negotiations are over; the
document has been signed; sealed, and
delivered. Implementation should follow.
2. The violation pertains to the economic
provisions of the CBA (Silva v. NLRC, G.R. No.
110226, 1997)
Gross: Refers to a flagrant and/or malicious
refusal by a party to comply with the
[economic provisions] (FASAP v. PAL, G.R. No.
178083, 2008).
Total Disregard of CBA Constitutes ULP
Reference to the economic provisions of the
CBA is not a necessary element of ULP where
the employer in effect totally disregarded the
CBA. (Employees’ Union of Bayer v. Bayer Phil.,
G.R. No. 162943, 2010)
An employer should not be allowed to rescind
unilaterally its CBA with the duly certified
bargaining agent it had previously contracted
with, and decide to bargain with a different
group if there is no legitimate reason for doing
so and without first following the proper
procedure. (Employees’ Union of Bayer v.
Bayer Phil., G.R. No. 162943, 2010) (Ateneo
BN)

But at this stage the collective bargaining

process is not yet over, and the duty to bargain
is still operative because such duty further
requires faithful adherence to the contractual
provisions.

Violation of the contract amounts to ULP, if the

violation is "gross." This form of ULP is taken
up in Article 261.

ULP exists in this form when the complaint

shows prima facie the concurrence of two
things:

1. There is a gross violation of the CBA; and