F. Unfair Labor Practice

C. Unfair Labor Practices

• By Employers – Labor Code, art. 259
• By Labor Organizations – Labor Code, art. 260

Any unfair labor practice expressly defined by the Labor Code. (Labor Code, Art. 219[k])

Nature of Unfair Labor Practice

• 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;
• Disrupt industrial peace;
• Criminal offenses against the State;
• Violation of civil rights of both labor and management;
• Violate the constitutional right of workers and employees to self-organization; and
• Creates unstable labor-management relations (Labor Code, Art. 258)

Prescription of actions for ULP

The offense prescribes in 1 year. (Labor Code, Art. 305)

Not every unfair act is an Unfair Labor Practice

Conduct need not interfere with employees’ right to self-organize to constitute ULP when it is another act expressly defined as ULP by the Labor Code. An unfair act is not necessarily ULP; it must fall within an act expressly defined as ULP by the Labor Code, including interference with self-organization, refusal to bargain collectively, and gross violations of a CBA. (Bankard v. NLRC, G.R. 171664, 2013).

ULP therefore, includes acts expressly defined by the Labor Code concerning self-organization, collective bargaining, and gross violations of a CBA. When committed by the employer, it commonly connotes anti – unionism.

NOTE: But judgment in the labor case will not serve as evidence of ULP in the criminal case.

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. (Bankard, Inc. v. NLRC, G.R. No. 171664, 2013)

Totality of Conduct Doctrine

The culpability of employer’s remarks is to be evaluated on the basis of their implication, against the background of and in conjunction with collateral circumstances.

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. (Insular Life Assurance Co., Ltd., Employees Association-ATU, et al. v. Insular Life Assurance Co., Ltd., G.R. L-25291, 1971).

Runaway Shop is ULP

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.

FIFTH ULP: DISCRIMINATION (ART. 259 [E])

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. (Labor Code, Art. 259[e])

To Constitute Discrimination, it must be established that:

• No reasonable distinction or classification that can be obtained between persons belonging to the same class
• Persons belonging to the same class have not been treated alike (Wise and Co., Inc. v. Wise and Co., Inc Employees Union, G.R. No. 87672, 1989).

There is discrimination only when one is denied privileges which are granted to others under similar conditions and circumstances (Caltex Philippines, Inc. v. Philippine Labor Organization, G.R. No. L-5206, 1953).

There can be no discrimination if the employees are not similarly situated. (Great Pacific Life Employees Union v. Great Pacific Life Assurance Corporation, G.R. No. 126717, 1999).

Note: To constitute an unfair labor practice, the discrimination committed by the employer must be in regard to the hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.

The exaction by the Company, from strikers returning to work, of a promise not to destroy company property and not to commit acts of reprisal against the Union members who did not participate in the strike, cannot be considered as intended to encourage or discourage Union membership. Taking the circumstances surrounding the prescribing of that condition, the requirement by the Company is actually an act of self – preservation and designed to inure the maintenance of peace and order in the Company premises. (Pagkakaisang Itinataguyod ng mga Manggagawasa Ang Tibay, et al., G.R. No. L22273, 1967)

Discrimination in Bonus Allocation or Salary Adjustments

There is unfair and unjust discrimination in granting of salary adjustments where evidence shows that:

• The management paid the employees of the unionized branch;
• Where salary adjustments were granted to employees of one of its non – unionized branches although it was losing in its operations; and
• 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

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.

Refusal to make counter-proposals – Effect is that CBA will be imposed on the union

Refusal to make counter-proposals – Effect is that the union’s proposed CBA may be imposed on the employer

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. In an appropriate case, the union’s proposed CBA may be imposed on the employer, not on the union. (Kiok Loy v. NLRC, G.R. No. L-54334, 1986; Divine Word University of Tacloban v. Secretary of Labor, G.R. No. 91915, 1992)

Relief In ULP Cases

• Cease and Desist Order

To support a cease and desist order, the record must show that the restrained misconduct was an issue in the case; that there was a finding of fact of said misconduct and such finding was supported by evidence.

The Court is not authorized to issue blank cease and desist orders, but must confine its injunction orders to specific act or acts which are related to past misconduct. (Azucena Vols. II-A and II-B, 9th ed., 2016, p. 363).

• Affirmative Order

In addition to a cease and desist order, the court may issue an affirmative order to reinstate the said employee with back pay from the date of the discrimination.

The order may usually direct the full reinstatement of the discharged employees to their substantially equivalent position without prejudice to their seniority and other rights and privileges.

If other laborers have been hired, reinstatement does not automatically require their dismissal; their treatment depends on the circumstances and applicable law. (Azucena Vols. II-A and II-B, 9th ed., 2016, p. 363).

• Court may impose the union’s proposed CBA on the employer. (Kiok Loy v. NLRC, G.R. No. L-54334, 1986)
• Strike by union members (Labor code, Art. 278)

ULP in a given period should be included in a single charge

When a labor union accuses an employer of acts of unfair labor practice allegedly committed during a given period of time, the charges should include all acts of unfair labor practice committed against any and all members of the union during that period. The union should not, upon the dismissal of the charges first preferred, be allowed to split its cause of action and harass the employer with subsequent charges, based upon acts committed during the same period of time. (Dionela, et. al. v. CIR et. al., G.R. No. L-18334, 1963)