UNFAIR LABOR PRACTICES OF EMPLOYERS

ART. 248


INTRODUCTION

MANAGEMENT PREROGATIVE VS. ULP

The purpose of the law on unfair labor practices is to protect and safeguard the
right of workers and employees to self-organization and collective bargaining. However,
the protection of workers' right to self-organization shall in no way deprive the
employer of his fundamental right to prescribe & enforce such rules as he honestly
believes to be necessary to the proper, productive & profitable operation of his
business.
It is the prerogative of management to regulate, according to its discretion and
judgment, all aspects of employment. Such management prerogative may be availed of
without fear of any liability so long as it is exercised in good faith for the advancement
of the employers interest and not for the purpose of defeating or circumventing the
rights of employees under special laws or valid agreement and are not exercised in a
malicious, harsh, oppressive, vindictive or wanton manner or out of malice or spite.


TEST OF VALIDITY OF EMPLOYERS ACT

In determining the validity of an employers act involves an appraisal of his
motives. Where the attendant circumstances, history of employers past conduct and
the like, give rise to the suspicion as to the motivation of the employer, the failure of
employer to ascribe valid reasons for his actions may justify an inference that his
unexplained conduct was inspired by the employees union membership or activities.


FIRST ULP: INTERFERENCE

Article 248 (a)

To interfere with, restrain or coerce employees in the exercise of their right to
self-organization

The registration of a union is not necessary for an employer to be liable for unfair
labor practice. An employer may be held guilty of ULP constituting an interference with
the employees right to self-organization EVEN BEFORE THE UNION IS REGISTERED as
when he interferes with the formation of a labor union.

Test of Interference
The test of whether an employer has interfered with and coerced employees
within the meaning of law is whether the employer has engaged in conduct which it
may reasonably be said tends to interfere with the free exercise of employees' rights. It
is not necessary that there be direct evidence that any employee was in fact intimidated
or coerced by statements of threats of the employer if there is a reasonable inference
that anti-union conduct of the employer has an adverse effect on self-organization and
collective bargaining. (Insular Life Insurance Company Employees Association vs Insular
Life Assurance Company G.R. No. L-25291 January 30, 1971)
It must be shown that the employers act are 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, of course, that social humiliation, wounded feelings or grave
anxiety resulted. (Tunay Na Pagkakaisa Ng Manggawa sa Asia Brewery vs Asia Brewery
Inc. G.R. No. 162025 Aug 3 2010)
In determining restraint, interference or coercion, the Totality of Conduct
Doctrine shall be applied.
Totality of Conduct Doctrine
Under this "doctrine" expressions of opinion by an employer which, though
innocent in themselves, frequently were held to be culpable 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. (The Insular Life Assurance Co., Ltd.,
Employees Association-Natu vs.The Insular Life Assurance Co., Ltd., Fgu Insurance Group,
G.R. No. L-25291 January 30, 1971)
Thus, an expression which may be permissibly uttered by one employer, might,
in the mouth of a more hostile employer, be deemed improper and consequently
actionable as an unfair labor practice.

Acts Constituting Interference amounting to ULP
A. Violence or Intimidation
The most obvious form of interference is violence or unconcealed intimidation.
Intimidation, even if only on one occasion, constitutes unfair labor practice and will
support a cease and desist order by the Board.
For instance, a superintendent of the employer threatened the employees with
cutting their pay, increasing rent of the company houses, or closing the plant if they
supported the union. (NLRB vs. Briton, 52 LC 23, 735)
B. Persistent Interrogation
Persistent interrogation of employees to elicit information as to what happened
at union meetings and the identity of the active union employees was held violative of
organizational rights of employees.
It is important to note that interrogating an employee as to his union affiliation is
not per se ULP but circumstances may make it such. In order that the questioning of an
employee concerning his union activities would not be deemed coercive, the employer
must obtain his participation on voluntary basis and communicate to the employee the
purpose of questioning, assuring him that no reprisal would take place.
B. Prohibiting Organized Acitivities
The following acts are examples of unlawful acts to discourage membership in a
labor organization:
Rule prohibiting solicitation of union membership in company property
Dismissal of union members upon their refusal to give up their membership,
under the pretext of retrenchment due to reduced dollar allocations
Refusal over a period of years to give salary adjustments according to the
improved scales in the CBA
Dismissing of an old employee allegedly for inefficiency, on account of her
having joined a union & engaging in union activities
C. Espionage or Surveillance

One form of pressure which some employees use is the practice of spying upon
employees. When an employer engages in surveillance or takes steps leading his
employees to believe it is going on, a violation results because the employees come
under threat of economic coercion or retaliation for their union activities. (Henriz Mfg.
Co vs NLRB, 321 F 2d 00)

D. Economic Inducements

There is unfair labor practice when the employer confers benefits upon the
employee with the purpose of inducing the latter to vote against having a union.

E. Closure or Cessation of Companys Business

Closure or cessation of companys business is not an unlawful act per se. In fact,
it is allowed under Art 283 of the Labor Code as an Authorized Cause. It provides that an
employer may terminate the employment of any employee due to installation of labor
saving devise, redundancy, retrenchment, to prevent losses or the closing or cessation
of operation of the establishment or under taking unless the closing is for the purpose
of circumventing the provision of this Code.

The settled rule is that, it would be unlawful for an employer to:

a. threaten its employees with moving or shutting down the plant and
consequently loss of employment;
b. close its business to put an end to unions activities and make no effort to
allow the employees attempt to exercise their right to self-organization and
collective bargaining;
c. undertake the sale of the business enterprises in bad faith, such sale being
simulated and a device resorted merely to get rid of the employees who are
members of the union;
If the closure is calculated to defeat the workers organizational right, such
closure may be declared as a subterfuge and the doctrine of successor employer will be
applied.


Doctrine of Successor-Employer

A new company will be treated as a continuation or successor of the one that
closed in the new or take-over company is engaging in the same business as the
closed company or department, or is owned by the same people, and the
closure" is calculated to defeat the workers organizational right in which case
the closure may be declared a subterfuge.

The successor-employer doctrine is just an enforcement of the piercing the veil
of corporate entity.

Factors to Determine Continuity of the Closed Company:

d. Retention of CONTROL
e. Use of the SAME PLANT OR FACTORY
f. Use of the SAME OR SUBSTANTIALLY THESAME EMPLOYEES, workers,
supervisors or managers
g. Similar or substantially the same work or production under SIMILAR OR
SUBSTANTIALLY THE SAME WORKING CONDITIONS
h. Use of the SAME MACHINERY ANDEQUIPMENT
i. Manufacture of the SAME PRODUCTS or the performance of the same
services