Unfair Labor Practice by

Employers
Atty. Dominic Victor C. De Alban
Interference with, restraint or coercion of EE
in the exercise of their right to SO
• It means the employer has engaged in a
conduct which may reasonably tend to
interfere with the free exercise of the
employee’s right
– No need for direct evidence that the employee
was in fact intimidated
– As long as there is a reasonable interference
through anti-union conduct of the employer
• It is for the labor tribunal’s determination to
weigh the employer’s action with its effect to
the employees.
• Whoever it must be shown that the
employer’s act was motivated by ill-will, bad
faith, or oppressive to labor.
– That is why anti-union remarks made in heat of
anger not included.
 Totality of Conduct Doctrine
• Expression of opinion by an employer, through innocent in
themselves, may be held to constitute an unfair labor
practice because of:
– the circumstances under which they were uttered
– History of the anti-union bias of employer
– Past conduct of employer in union-related activities
• If given the foregoing, the employer failed to give
justification for his actions which amounts to interference,
it can be held liable for ULP.
• An employer can be held liable for ULP even before the
union is registered.
 Examples of interference
• Threat to close down if the employees would
unionize .
• Giving undue pressure to the employees to
disaffiliate from their union.
• Incentives, promotions to those who
withdraws from the union.
• Closing the company and re-opening as
another entity.
• Preventing the union from meeting and urging
employees to cease union related activities.
• Termination of employment of members of union based
on alleged abandonment of the employees.
• The employees which are going to form a union was
suddenly transferred to another plant and thereafter
was indefinitely suspended for alleged unavailability of
work.
• Constructive dismissal of union members through
unfair and discriminatory treatments.
• Pressuring non-union members to vote for “no union”
to prevent the certification of a SEBA
• Dismissal of a union officer to curb union activities
(union busting).
• Interference in intra-union disputes.
 Yellow Dog Contract
• Requires as a condition for employment or
continued employment that they shall no join
or belong to a labor organization or to attempt
to organize one during their period of
employment.
• Or that they should withdraw from their union
in case they are already a member.
Common stipulation in a yellow dog contract

• A representation by the employee that he is

not a member of a labor organization.
• A promise by the employee that he will not
join a union.
• A promise by the employee that upon joining
a labor organization he will quit his
employment.
• These conditions are NULL and VOID.
 Contracting Out
• To contract out services or functions which are
being performed by a union member.
• As a rule out-sourcing is valid since it is a valid
management prerogative.
• It is only when the contracting out of a job
being performed by union members will
interfere, restrain or coerce employees in the
exercise of their SO that it shall constitute as an
ULP.
 Contracting Out as ULP
• Contracting out of security services to an
outside private security agency while there is
a CBA which includes employees which render
security services.
• Closure of a department which has a union
while there is a deadlock/labor dispute then
thereafter outsourcing the services being
performed by said department.
 Company unionism
• If the employer initiates, dominates, assists or
otherwise interferes with the formation or
administration of any labor organization
including giving financial or other support to
its organizers or supporters.
 ULP charge of company domination
• It suspends the holding of a certification
election pending the resolution of the issue
whether or not the union is a company union.
• Otherwise the certification election will not
embody the true will of the employees.
• However suspension of the CBA for a long
period does not make the union company
dominated if said suspension is agreed upon by
the parties.
 Example of Company Unionism
• The employer dismissed the president of a union after the he
refused the demand of the employer to dissolve their union to pave
the way of the other union favored by the employer.
• The employer forced the employees to join a .certain union
otherwise the employees will be dismissed.
• Act of employer to process the papers of the union and to
immediately recognize the same after there some employees are
about to form a union.
• Refusal of the employer to collectively bargain with the SEBA and
thereafter forcing most of the members of the SEBA to join a new
union organized by the employer.
• Dismissal of certain employees who refused to resign from their
union and join the union aided by the company.
 Discrimination
• Simply means the 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.
• Discrimination per se is not unlawful, it is
discrimination among employees similarly situated
which is unlawful.
 Discrimination vs. Classification
• Discrimination is considered an unfair labor
practice.
• Classification is not since it merely
differentiates the employees in accordance
with their respective jobs and accords them
the appropriate levels of pay or benefits due
them by reason thereof.
 ULP Discrimination
• What is prohibited as ULP under the law is 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.
Examples of alleged discriminatory acts

• Prohibition of striking employees and other

employees from going inside the work place for fear
that the machineries and goods would be damaged
or sabotaged.
• A business in financial distress which implemented
lay-offs but only to members of the union.
• Non-regularization of long time employees which
are union members while new employees are
immediately regularized.
• Disapproval of leave of union member?
– Depends if it could be shown that the disapproval
was due to employee’s union membership or
activities.
• Employer suddenly transferred the president
of the union from Manila to Cebu at the time
when a union was about to be organized.
• Employer’s alleged refusal to promote
employee to force him to join a union.
 Treatment to erring employees
• Employees have no right to continue working
upon their own terms and rejecting the
standards desired by the employer.
– As such it is not ULP to dismiss some member-
employees to serve as an example to stop the
slowdown effected by the employees.
• Recall of erring workers is within the ambit of
management prerogative as long as done in
good faith.
 Granting of bonus
• Granting of bonus, as a rule, is a matter of
management prerogative.
• However if the bonus was given only to non-
union employees or to departments where
there was no union, then it is obvious that the
act was motivated by anti-union intentions.
 Run-away shop
• A form of discriminatory act of the employer.
• When a plant of the employer is moved from
one location to another to escape labor
regulations or laws.
• In essence it is a relocation motivated by anti-
union animus rather than for legitimate
business reasons.
 Filing of charges or giving of testimony
• It is the only ULP not related to the employee’s
exercise of right to SO and collective bargaining.
• Includes the dismissal or any retaliatory actions
made by the employer to a kin of the employee
who is about to testify or file a claim against the
employer.
• Example would be the removal of the employee
because of testifying after orders from the
employer not to do so.
 CBA-related ULPs
• To violate the duty to bargain collectively as
prescribed by this Code.
• 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.
• To violate a collective bargaining agreement.
Payment of negotiation and attorney's fees

• It is the payment of the aforementioned fees to the

union or the officers or agents as a part of
settlement of any issue in the collective bargaining.
• Negotiation fees refer to payments made to non-
lawyers who are not entitled to attorney’s fees.
– To prevent the circumvention of the law by giving
payments to non-lawyers instead of lawyers, who
usually assists the union or officer during the
negotiation.
• Attorney’s fees and negotiation fees should be
paid from UNION FUNDS.
• These fees, however, cannot be charged directly
from individual employees.
• The purpose of such prohibition is to prevent
undue burden to the employees.
• Furthermore it must be so since it is the union,
not the employees, which are obligated to the
lawyer.
 Violation of the CBA
• Only those violations which are gross in
character are considered as ULP.
• Others shall be resolved under the grievance
machinery.
• Example is that to credit the increase in the
CBA as a compliance to a wage order absent
any creditability clause is said agreement.
 Burden of proof in ULP cases committed by
Employers
• It is the union which has the burden to
present substantial evidence to support its
allegation of ULP committed by the employer.
•  Substantial evidence means such relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion, even if
other minds equally reasonable might
conceivably opine otherwise.
Persons criminally liable for ULPs of Employer

•  Only the officers and agents of corporations,

associations or partnerships who have actually
participated in, authorized or ratified unfair
labor practices shall be held criminally liable.
• Absent any such participation, authorization
or ratification, the officers and agents of such
entities cannot be held personally liable for
ULP.
 References:
• Alcantara, Samson. Labor Law Reviewer
(2014).
• Chan, Joselito. Labor Law Book II (2009).
• Labor Code of the Philippines.

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