Saint Louis University

School of Law
Bonifacio St., Baguio City

TERMINATION DUE TO
ENFORCEMENT OF UNION
SECURITY CLAUSE

LABOR LAW II

APRIL 10, 2019

SUBMITTED BY:
BADONGEN, Bernadette Mae M.
BERMEJO, Jennylyn T.
Article 248(e) - (Union Security Clause) where violation of the union
security agreement in the CBA may result in termination of employment.
Under this clause, the bargaining union can demand from the employer
the dismissal of an employee who commits a breach of union security
arrangement, such as failure to join the union or to maintain his
membership in good standing therein. The same union can also demand
the dismissal of a member who commits an act of disloyalty against it,
such as when the member organizes a rival union.

TERMINATION DUE TO ENFORCEMENT OF

UNION SECURITY CLAUSE

1. What is a union security clause?

The “union security clause” is a stipulation in a CBA which allows the parties
thereto to enter into an agreement requiring membership in the exclusive
collective bargaining agent which successfully negotiated said CBA as a condition
for continued employment with the exception of employees who are already
members of another union at the time of the signing of the CBA.

The “union security clause” allows the parties thereto to enter into an
agreement requiring compulsory membership in the bargaining agent which
successfully negotiated said CBA as a condition for continued employment with
the exception of employees who are already members of another union at the time
of the signing of the CBA.

“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 the employees the obligation to acquire or retain
union membership as a condition to their continued employment. In other words,
the purpose of a union security arrangement is to guarantee the continued
existence of the union through enforced membership for the benefit of the
workers.

Without this clause, the existence of the union is always subject to uncertainty
as its members may resign anytime resulting in the decimation of its ranks. The
union becomes gradually weakened and increasingly vulnerable to company
machinations. In this security clause lies the strength of the union during the
enforcement of the CBA. It is this clause that provides labor with substantial power
in collective bargaining.

SEBA (Sole and Exclusive Bargaining Agent)

2. What are the requisites in order to validly terminate employees based on this clause?

(1) The union security clause is applicable;

(2) The bargaining union is requesting for the termination of employment due to
enforcement of the union security provision in the CBA; and

(3) There is sufficient evidence to support the union’s decision to expel the employee
from the union.

All the foregoing requisites should be complied with to justify the termination of
employment.

3. Kinds of union security agreement

A. Closed shop
 A “closed-shop” may be defined as a scheme in which, by agreement
between the employer and its employees through their bargaining
union/agent, no person may be employed unless he or she is, becomes, and,
for the duration of the agreement, remains a member in good standing of the
bargaining union. Basically, this kind of agreement stipulates the undertaking
by the employer not to hire or employ any person who is not a member of
the bargaining union. Once employed, it is required that the said person
should remain a member of the bargaining union in good standing as a
condition for continued employment, at least during the whole duration of
the CBA.

B. Union shop
 There is “union shop” when all new regular employees are required to join
the union within a certain period as a condition for their continued
employment. Its role is to compel the membership of those who are not yet
union members. Under this scheme, the employer is given the freedom to hire
and employ any person who is not a member of the bargaining agent. Once
such person becomes an employee, he is required to become a member of
the bargaining agent and to remain as such member in good standing for the
whole period of the effectivity of the CBA as a condition for his continued
employment.

C. Modified union shop

SEBA (Sole and Exclusive Bargaining Agent)

  Employees under this arrangement who are not union members at the time
of the signing or execution of the CBA are not required to join the bargaining
union. However, any and all workers hired or employed after the signing or
execution of the CBA are required to join the bargaining union.

D. Maintenance of membership shop

 There is “maintenance of membership agreement” when employees, who are
union members as of the effective date of the agreement, or who thereafter
become members, must maintain union membership as a condition for
continued employment until they are promoted or transferred out of the
bargaining unit, or the agreement is terminated. Its role is to protect the
union’s current membership. By its express terms, it covers and renders
continued union membership compulsory for: (1) those who were already
union members at the time the CBA was signed; and (2) the new employees
who will become regular during the life of the CBA.

E. Exclusive bargaining shop

 The union which negotiated and concluded the CBA with management is
considered and recognized as the sole and exclusive bargaining agent of all
the covered employees in the bargaining unit, whether they be members or
not of the said agent.

F. Bargaining for member only

 Under this arrangement, the union which negotiated and concluded the CBA
with management is recognized as the bargaining agent only for its own
members.

G. Agency shop agreement or Maintenance of treasury shop

 Under this scheme, there is no requirement for non-members of the
bargaining agent to become its members. However, it is required that such
non-union members should pay to the bargaining agent an agency fee as a
condition for their continued employment.

H. Open shop
 An agreement which does not require union membership as a good condition
of employment.

I. Preferential hiring agreement

 It is the principal feature of this arrangement that the employer gives
preference in hiring to the members of the bargaining agent under equal
circumstances and qualifications. Once hired or employed, they are required
to maintain their membership in good standing in the bargaining agent for
the duration of the CBA as a condition for their continued employment.

SEBA (Sole and Exclusive Bargaining Agent)

Note:
The right of an employee not to join a union is not absolute and must give way to
the collective good of all members of the bargaining unit. When certain employees are
obliged to join a particular union as a requisite for continued employment, as in the case
of a union security clause, this condition is a valid restriction on the freedom or right not
to join any labor organization because it is in favor of unionism.

Union security clause in a CBA is not a violation or a restriction of the employee’s

right to freedom of association guaranteed by the Constitution. Labor, being the weaker
in economic power and resources than capital, deserves protection that is actually
substantial and material.

4. Effects of the application of the union security clause

a. On the members of the SEBA- they are not allowed to resign or terminate their
membership therefrom. Any member of the SEBA who resigns or is expelled
therefrom maybe recommended to the employer by the SEBA for termination of
his employment.
b. On non-members of the SEBA but members of the minority union/s- they are
not bound by the union security clause if they are members of the union or other
unions at the time of the signing of the CBA. Hence, they cannot be compelled to
resign from their unions in order to join the SEBA.
c. On members of the SEBA or of any minority union/s- if not a member of the
SEBA or any other unions in the bargaining unit at the time of the signing of the
CBA by reason of the fact that he is excepted from the coverage of the bargaining
unit, the employee cannot be compelled to join the SEBA.
d. On the new employee hired after the signing of the CBA containing the union
security clause-they can be compelled to join the SEBA. If they refuse, they can be
recommended for termination by the SEBA to the employer as such refusal is
deemed a violation of such clause.

4. Exception of its application

EMPLOYEES EXEMPTED FROM COVERAGE OF UNION SECURITY CLAUSE.

All employees in the bargaining unit covered by a Union Security Clause in their CBA with
the employer are subject to its terms. However, under law and established jurisprudence,
the following kinds of employees are exempted from its coverage, namely:

SEBA (Sole and Exclusive Bargaining Agent)

 1. Employees who, at the time the union security agreement takes effect, are
bona-fide members of a religious organization which prohibits its members
from joining labor unions on religious grounds;

Religious objector an employee cannot be compelled to join any union based

on religious ground. For example: members of the Iglesia ni Kristo (INK) cannot be
compelled to join a union; hence, they are not bound by the union security doctrine. As
in the case of Victoriano vs Elizalde Workers Union, 59 scra 54 (1947), The Act does
not violate the establishment of religion clause or separation of Church and
State, for Congress, in enacting said law, merely accommodated the religious
needs of those workers whose religion prohibits its members from joining labor
unions, and balanced the collective rights of organized labor with the
constitutional right of an individual to freely exercise his chosen religion; that
the constitutional right to the free exercise of one's religion has primacy and
preference over union security measures which are merely contractual.

Republic Act No. 3350 only exempts members with such religious
affiliation from the coverage of closed shop agreements. So, under this Act, a
religious objector is not required to do a positive act - to exercise the right to
join or to resign from the union.

Thus, Republic Act No. 3350, furthermore, is not limited in its application
to conditions existing at the time of its enactment. The law does not provide
that it is to be effective for a certain period of time only. It is intended to apply
for all times as long as the conditions to which the law is applicable exist. As
long as there are closed shop agreements between an employer and a labor
union, and there are employees who are prohibited by their religion from affiliating
with labor unions, their exemption from the coverage of said agreements continues.

2. Employees who are already members of a union other than the bargaining
agent at the time the union security agreement took effect;

3. Confidential employees who are excluded from the rank-and-file or supervisory

bargaining unit;

SEBA (Sole and Exclusive Bargaining Agent)

 4. Supervisory employees who are excluded from becoming members of the rank-
and-file union and vice-versa; and

5. Employees excluded from the union security clause by express terms of the
agreement.

6. Is the employer required to observe due process before terminating an employee who is
recommended by the SEBA for termination due to violation of the union security clause?

Yes, the employer should afford both substantive and procedural due
process to the employee. It cannot terminate his employment merely on the basis
of the recommendation of the union.
To validly dismiss an employee based on violation of union security clause,
EMPLOYER should still afford due process to the expelled unionists.
In Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos (GR
113907 February 28, 2000) The security clause invoked by the respondent in
justifying the dismissal of the employees is in a clear violation of the due
process clause. The inviolability of a contract such as the security clause in
the case cannot override one’s right to due process. The employee’s dismissal,
allegedly basing on acts of disloyalty, should have been done through due
process and investigation, in which none of the requirements were complied.
Respondent company did not inquire into the cause of expulsion and whether
or not the federation had sufficient grounds to effect the same. Relying merely
upon the federation’s allegations, respondent company terminated petitioners
from employment when a separate inquiry could have revealed if the
federation acted capriciously in expelling the union officers. Respondent
company’s allegation that petitioners which state that dismissal shall be
immediately effective.

Before dismissal may be effected by the employer for breach of a union

security clause, due process must be observed by the employer. The employee
sought to be dismissed must be given opportunity to be heard. The employer
should not rely solely upon the request of the union.

SEBA (Sole and Exclusive Bargaining Agent)

 Furthermore, Disaffiliation is not a violation of the union security
clause. The Court held that there is no disloyalty as well. In addition, there is
no violation of the federations’ constitution since there is nothing stated
prohibiting disaffiliating or sending a declaration of autonomy. Hence, the
petitioner in this case, which as affiliated itself with the federation, is free to
sever such affiliation anytime and it is not an act of disloyalty. Since there is
an absence of a specific provision prohibiting disaffiliation, a local union may
dissociate with its parent union anytime. Thus, the Court rules and order
respondents to reinstate petitioners to their respective positions.

7. Can the employer adopt the due process afforded by the SEBA to the employee in
expelling him from his membership in the SEBA?

No. The employer cannot adopt the due process afforded by the SEBA as its own
due process for the simple reason that such due process concerns the termination of
membership of the employee from the SEBA. The due process in Alabang Country Club,
Inc. v. NLRC, is required for a different purpose - to terminate his employment. We
cautioned in the same case that the power to dismiss is a normal prerogative of the
employer; however, this power has a limitation. The employer is bound to exercise
caution in terminating the services of the employees especially so when it is made upon
the request of a labor union pursuant to the CBA. Dismissals must not be arbitrary and
capricious. Due process must be observed in dismissing employees because the dismissal
affects not only their positions but also their means of livelihood. Employers should
respect and protect the rights of their employees, which include the right to labor.

The due process afforded by the union prior to expulsion is different from the due process
required prior to termination of employment.

The due process afforded by the union is meant solely and exclusively to address
the issue of validity of the termination of the membership of the employee in the union;
while that required of the employer is aimed at addressing the issue of validity of the
employee’s termination of employment. Hence, it is complete error on the part of the
employer to adopt as its own due process what has been earlier afforded by the union to
the erring employee without conducting its own independent and separate due process.

SEBA (Sole and Exclusive Bargaining Agent)

 Thus, in declaring the illegality of the dismissal of petitioner in Cariño v. NLRC, the
Supreme Court noted in regard to the involvement of the company in his dismissal, that
the company, upon being formally advised in writing of the expulsion of petitioner Cariño
from the union, in turn simply issued a termination letter to Cariño, the termination being
made effective the very next day. The Company should have given petitioner Cariño an
opportunity to explain his side of the controversy with the union. Notwithstanding the
union security clause in the CBA, the company should have reasonably satisfied itself by
its own inquiry that the union had not been merely acting arbitrarily and capriciously in
impeaching and expelling petitioner Cariño. Had the company taken the trouble to
investigate the acts and proceedings of the union, it could have very easily determined
that the union had acted arbitrarily in impeaching and expelling from its ranks petitioner
Cariño.

In the case of Alabang Country Club, Inc. v. NLRC, of the termination was
valid. Another cause for termination is dismissal from employment due to the
enforcement of the union security clause in the CBA, which is recognized and
accepted in this jurisdiction. This practice is strengthens the union and
prevents disunity in the bargaining unit within the duration of the CBA. By
preventing member disaffiliation with the threat of expulsion from the union
from the union and consequent termination of employment, the authorized
bargaining unit gain more members and strengthens its position as against
other unions which may want to claim majority representation. The
respondents were expelled after due investigation. In compliance, the club
reviewed the documents, and thereafter, afforded them reasonable
opportunity to present their side. The club substantially complied with the due
process requirements before respondents were dismissed.
In the case of Del Monte Phils. Inc. vs Saldivar. The dismissal was
illegal. Timbals’ dismissal is not predicated on any of the just or authorized
causes under the Labor Code, but on the Union Security Clause. Stipulations
in a CBA authorizing the dismissal of employees are of equal import as the
statutory provision under the Labor Code since the CBA is the law between
the company and the union. However, it is still necessary to observe
substantive due process in order to validate the dismissal as it is indispensable
in establishing the presence of the cause or causes for dismissal as provided
for in the CBA.

SEBA (Sole and Exclusive Bargaining Agent)

 SOME PRINCIPLES ON TERMINATION DUE TO VIOLATION OF UNION SECURITY CLAUSE

 Employer is obligated to act upon being demanded by the union to

terminate the employment of its errant members.

 Members of the minority union cannot be compelled to join the

bargaining union. The union security clause therefore does not cover
employees who are members of the union/s other than the bargaining
union. Not being so covered, they cannot be dismissed for violation of
said clause.

 The employer has the right to be reimbursed for payment of any

claims arising out of dismissals demanded by the union under the
union security clause. Such right of reimbursement may be invoked:
 By express provision in the CBA to that effect; or
 By securing it through judicial directive.

SEBA (Sole and Exclusive Bargaining Agent)