UNFAIR LABOR PRACTICE (ULP) AND STRIKE

Nature and Aspects

• The act complained of as ULP must have a proximate and

causal connection with the following:
a) Exercise of the right to self-organization;
b) Exercise of the right to collective bargaining; or
c) Compliance with CBA
Sans this connection, the unfair acts do not fall within the
technical signification of the term “unfair labor practice”.
• The only ULP which is the exception as it may or not
relate to the exercise of the right to self-organization and
collective bargaining is the act described under paragraph
(f) of Article 259[248] of the LC, i.e., to dismiss, discharge,
or otherwise prejudice or discriminate against an EE for
having given or being about to give testimony under the
Labor Code.
Labor Code Provisions on ULP
• Article 258 [247] which describes the concept of ULPs and prescribes
the procedure for their prosecution;
• Article 259 [248] which enumerates the ULPs that may be committed
by ERs;
• Article 260 [249] which enumerates the ULPs that may be committed
by labor organizations;
• Article 274 [261] which considers violations of the CBA as no longer
ULPs unless the same are gross in character which means flagrant
and/or malicious refusal to comply with the economic provisions
thereof.
• Article 278(c) [263(c)] which refers to union busting, a form of ULP
involvinhg the dismissal from employment of union officers duly elected
in accordance with the union constitution and by-laws, where the
existence of the union is threatened thereby.
Parties who may commit ULP
• May be committed by the ER or by a labor organization;
• On the part of the ER, only the officers and agents of the
corporation, associations or partnerships who have
actually participated in or authorized or ratified ULPs are
criminally liable.
• On the part of the union, only the officers, members of
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.
Elements of ULP

• There should exist an ER-EE relationship between the

offended party and the offender, and
• The act complainted of must be expressly mentioned and
defined in the Labor Code as ULP.
Aspects:

• Civil aspect - includes claims for actual, moral and

exemplary damages, attorney's fees and other affirmative
reliefs. Generally, these civil claims should be asserted in
the labor case before the Labor Arbiters who have original
and exclusive jurisdiction over ULP cases.
• Criminal aspect - can only be asserted before the regular
courts.
Burden of proof

• In ULP cases against ERs, it is the union which has the

burden to present substantial evidence to support its
allegation of ULP committed by the ER. In ULP cases
against labor organizations, the burden of proof rests on
the ER.
ULP by ERs (Article 259 [248] of the Labor Code)

1. Interference with, restraint or coercion in the exercise of

their right to self-organization

Insular Life Doctrine: The test of the ER's interference

with, restraint or coercion of EEs within the meaning of the
law is whether the ER has engaged in conduct which may
reasonably tend to interfere with the free exercise of the
EE's twin rights to self-organization and collective
bargaining.
TOTALITY OF CONDUCT DOCTRINE
Under this doctrine, a finding of ULP should not be made
based alone on the cited ULP act considered in isolation but
should be viewed on the basis of the ER's act outside of the
bigger context of the accompanying labor relations
situation.
Expressions of opinion by an ER, though innocent in
themselves, may be held to constitute ULP because of the
circumstances under which they were uttered, the history of
the particular ER's labor relations or anti-union bias or
because of their connection with an established collateral
plan of coercion or interference.
2. Yellow dog contract
Paragraph b of Article 259 [248] describes what is
commonly known as “yellow dog contract”. It is 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 thing during their period of employment or
that they shall withdraw therefrom in case they are already
members of a labor organization.
• Common stipulations in a yellow dog contract:
a) A representation by the EE that he is not a member of
a labor organization;
b) A promise by the EE that he will not join a union;
c) A promise by the EE that upon joining a labor
organization, he will quit his employment.
3. CONTRACTING OUT OF SERVICES AND FUNCTIONS
As a general rule, the act of an ER in having work or
certain services or functions being performed by SEBA
members contracted out is not per se ULP. This is so
because contracting out a job, work or service is clearly an
exercise by the ER of its business judgment and its inherent
management rights and prerogatives.
• It is only when the contracting out a job, work or service
being performed by SEBA members will interfere with,
restrain or coerce EEs in the exercise of their right to self-
organization that is shall cnstitute ULP.
4. Company union
Paragraph d of Article 259 [248] considers it a ULP 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. Such union is called “company
union” as its formation, function, or administration has been
assisted by any act of the ER defined as ULP under the LC.
5. Three (3) separate legal concepts treated in paragraph e, Article 259
[248]
a) Discrimination - considers 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.
b) Union security clause - ULP to stop the parties from requiring
membership in a recognized collective bargaining agent as a condition
for employment, except those EEs who are already members of
another union at the time of the signing of the collective bargaining
agreement.
c) Agency fee - reasonable fee equivalent to the dues and other
fees paid by members of the recognized collective bargaining agent, if
such non-union members accept the benefits under the collective
bargaining agreement.
Various forms of security arrangement

• CLOSED SHOP AGREEMENT

- a scheme in which, by agreement between the ER and
its EEs or their representatives, no person is allowed to be
employed in any departments of the enterprise unless
he/she is, becomes and for the duration of the agreement,
remains a member in good standing of a SEBA entirely
comprised of or of which the EEs in interest are a part.
• MAINTENANCE OF MEMBERSHIP AGREEMENT
- when EEs whp are SEBA members as of the effective
date of the agreement, or who thereafter become its
members, must maintain their union membership as a
condition for their continued employment until they are
promoted or transferred out of the bargaining unit, or the
agreement is terminated.
• UNION SHOP AGREEMENT
- when all new regular EEs are required to join the SEBA
within a certain period as a condition for their continued
employment.
• MODIFIED UNION SHOP AGREEMENT
EEs who are not SEBA members at the time of the signing
or execution of the CBA are not required to join it. However,
any and all workers hired or employed after the signing or
execution of the CBA are required to join the SEBA.
• EXCLUSIVE BARGAINING AGENT AGREEMENT
The union which negotiated and concluded the CBA with
management is considered and recognized as the SEBA of all
the EEs covered by the bargaining unit, irrespective of
whether they may be members or not of SEBA of all the EEs
covered by the bargaining unit, irrespective of whether they
may be members or not of the SEBA.
• BARGAINING FOR MEMBERS ONLY AGREEMENT
The union which negotiated and concluded the CBA with
management is recognized as the SEBA only for its new members.
• AGENCY SHOP AGREEMENT
There is no requirement for non-members of the SEBA to
become its members. However, it is required that such non-SEBA
members should pay to the SEBA and agency fee as a condition for
their continued employment.
• PREFERENTIAL HIRING AGREEMENT
ER gives preference in hiring to the members of the SEBA under
equal circumstances and qualifications. Once hired, they are
required to maintain their membership in good standing in the SEBA
for the entire duration of the CBA as a condition for their continued
employment.
Dismissal due to violation of union security clause is NOW
a just cause for termination (Picop Resources, Inc., vs.
Dequila, GR No. 172666, Dec. 7, 2011)
Requisites:
a) Union security clause is applicable;
b) SEBA is requesting for the enforcement of such
clause; and
c) There is sufficient evidence to support the SEBA's
decision to expel the EE from membership.
Union due process vs. employer due process
• The due process required to be observed by the union
prior to its member's expulsion concerns the termination
of his membership with the union; while the due process
that must be complied with by the ER pertains to the
termination of his employment with the ER. The purpose
being distinct from each other, it is complete error on the
part of the ER to adopt as its own due process what has
been earlier afforded by the SEBA to the erring EE
without conducting its own independent and separate due
process.
Liability for reinstatement, backwages and damages

• The latest rule is that good faith will not exonerate the ER
and the SEBA from liability for reinstatement, backwages
and damages, in cases the dismissal based on violation
of the union security clause is declared illegal.
• The nature of the liability of the ER and the union for
reinstatement, backwages, damages and other monetary
claims in cases of illegal dismissal arising from purported
violation of the union security clause is solidary or joint
and several.
6. Filing of charges or giving of testimony
Under paragraph (f) of Article 259 [248] of the LC, it is un
unfair labor practice for an ER to dismiss, discharge, or
otherwise prejudice or discriminate against an EE for having
given or being about to give testimony under the LC.
“The phrase “having given or being about to give
testimony” should not be confined merely to the act of the
EE in actually testifying or offering his testimony in a labor
case, whether as a party-in-interest therein or as a witness
for himself, for a co-employee, for a union, for the
government or for a third party.
• CBA-related ULPs
a) To violate the duty to bargain collectively as prescribed
in the Labor Code;
b) 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;
c) To violate a CBA.
• The failure of the ER to submit its counter-proposals to
the demands of the SEBA does not, by itself, constitute
refusal to bargain as would amount to ULP.
• It bears emphasis, however that the refusal of the ER t
furnish the requested information is not ULP if the SEBA
failed to put its request in writing as required in Article
251(c)[242(c) of the LC.
• ER's act of negotiating with union members individually is
a ULP.
Surface Bargaining
• going through the motions of negotiating without any legal
intent to reach an agreement. It is a form of ULP which
may only be committed by the ER.
Blue-sky bargaining
• making exaggerated or unreasonable proposals. This is a
kind of ULP which can only be committed by a SEBA.
Boulwarism
• a negotiation tactic named after Lemuel Boulware. It is a
labor law principle in which management opens the
negotiations with a generous offer that is not meant to be
negotiated (take it or leave it offer).
ULP by LABOR ORGANIZATION (Article 260[249], LC)
1. Restrain or coerce EEs in the exercise of their right to self-
organization
2. Discrimination
a) The act of the union to cause or attempt to cause an ER to
discriminate against an EE, in general, irrespective of whether he or
she is a member or non-member of the union.
b) The discrimination act of the union against an EE “with respect to
whom membership in such organization has been denied”.
c) The discriminatory act of the union against an EE whose
membership therein has been terminated based “on any ground other
than the usual terms and conditions under which membership or
continuation of membership is made available to other members.
3. Violation of duty of the union to bargain collectively
Requisites:
a) union is a duly certified SEBA;
b) it commit any of the following:
1) it violates the duty to bargain collectively; or
2) it refuses to bargain collectively with the ER.
4. Featherbedding
• Featherbedding or “make work” refers to the practice ,
caused and induced by a union, of hiring more workers
thatn are needed to perform a given work, job or task or
to adopt work procedures which is evidenly senseless,
wasteful, inefficient and without legitimate justifications
since it is meant purely for the purpose of employing
additional workers than are necessary. This is resorted to
by the union as a response to the laying-offs of workers
occasioned by their obsolescence because of the
introduction of machines, robots, or new and innovative
technological changes and standards, among other
reasons.
• Requisites:
a) the labor organization, its officers, agents or representatives
have caused or attempted to cause an EE either:
(a) to pay or agree to pay any money, including the demand
for fee for union negotiations; or
(b) to deliver or agree to deliver any things of value;
b) such demand for payment of money or delivery of things of
value is in the nature of an exactionl and
c) the services contemplated in exchange for the exaction are not
actually performed or will not be performed.
• A union commits ULP under this provision by causing or
attempting to cause an ER to pay or agree to pay for standby
services.
5. Demand or acceptance of negotiation fees or attorney's
fees
Requisites:
a) the union or any of its officers, agents or
representatives commit either of the following acts:
1) to ask for negotiation fees or attorney's fees; or
2) to accept negotiation fees or attorney's fees
b) the negotiation fees or attorney's fees are demanded
from, or given by, the ER as part of the settlement of any
issues related to:
1) collective bargaining; or
2) any other dispute
6. Violation of CBA
It becomes ULP only if the violation is gross in character
which means that there is flagrant and/or malicious refusal
to comply with the economic stipulations in the CBA.
Peaceful Concerted Activities
Common justification

• The common justification for the conduct of concerted

activities, on the part of the workers, and lockout, on the
part of the ER, is the existence of an industrial or labor
dispute. As defined by law, industrial or labor dispute
includes any controversy concerning terms, tenure or
conditions of employment, or concerning the association
or representation of persons in negotiating, fixing,
maintaining, changing, or seeking to arrange terms and
conditions of employment, regardless of whether the
disputants stand in the proximate relations of ER and EE.
STRIKE

• means temporary stoppage of work for the concerted

action of the EEs as a result of an industrial or labor
dispute.
• Elements:
a) temporary stoppage of work by the EEs;
b) through their concerted action; and
c) occasioned by an industrial or labor dispute.
Classification of strikes
As to nature:
• Legal strike - one called for a valid purpose and conducted
through means allowed by law.
• Illegal strike - one staged for a purpose not recognized by law
or, if for a valid purpose, it is conducted through means not
sanctioned by law.
• Economic strike - one declared to demand higher wages,
overtime pay, holiday pay, vacation pay, etc.
• ULP or political strike - one called to protest against the ER's
ULP enumerated in Article 259[248] of the LC, including gross
violation of the CBA under Article 274[261] and union-busting
under Article 278(c)[263(c)] of the LC.
• Slowdown strike - one staged where the workers do not quit
their work but are merely, slacked or reduced their normal
work output.
• Wildcat strike - one declared and staged without the majority
approval of the certified bargaining agent.
• Sit-down strike - one where the workes stop working but do
not leave their place of work.
As to coverage:
• General strike - one which covers and extends over a whole
province or country.
• Particular strike - one which covers a particular establishment
or ER or one industry involving one union or federation.
As to purpose:
• Economic strike
• ULP or political strike
As to the nature of the strikers' action:
• Partial strike - one which consists of unannounced work
stoppages, such as slowdowns, walkouts or unauthorized
extension of test periods.
• Sit-down strike
• Slowdown strike
As to the extent of interest of strikers:
• Primary strike - refers to a strike conducted by the workers
against their ER, involving a labor dispute directly affecting them.
• Secondary strike - refers to a strike staged by workers of an ER
involving an issue which does not directly concern or affect their
relationship but rather, by some circumstances, affects the
workers, such as when the ER persists to deal with a third person
against whom the workers have an existing grievance.
• Sympathy strike - refers to a strike where the strikers have no
demands or grievances or labor dispute of their own against their
ER but nonetheless stage the strike for the purpose of aiding,
directly or indirectly, other strikers in other establishments or
companies, without necessarily having any direct relation to the
advancement of the striker's interest.
Latest case on forms of strike

• The sporting by the workers of closely cropped hair or

cleanly shaven heads after their union filed a notice of
strike as a result of a CBA deadlock was considered a
form of illegal strike (Dusit Hotel Nikko vs. CA, GR No.
166295, Nov. 11, 2008)
Requisites of a valid strike:
1. Existence of valid and factual grounds:
a) ULP of the ER
b) collective bargaining deadlock
2. Filing of notice of strike with NCMB-DOLE;
3. Service of a 24-hour prior notice to the NCMB-DOLE to inform it of the
conduct of a strike vote by secret balloting;
4. Conduct of strike vote;
5. Submission of strike vote report to the NCMB-DOLE;
6. Observance of the cooling-off period
a) bargaining deadlock - 30 days
b) ULP - 15 days
Exception: union-busting (cooling-off period may be disregarded
completely)
 In requiring the cooling-off period, the avowed intent of
the law is to provide an opportunity for mediation and
conciliation by the NCMB-DOLE.
7. Observance of the 7-day waiting period or strike ban
This is intended to give the NCMB-DOLE an opportunity
to verify whether the projected strike really carries the
imprimatur of the majority of the union members.
Union-busting

• Elements:
a) A dismissal from employment of union officers duly
elected in accordance with the union's constitution and by-
laws; and
b) The existence of the union is threatened by such
dismissal.
Take note:

• The 15-day cooling off period applicable to cases where

the ground invoked is ULP does not apply in cases of
union-busting; thus, the union may take action
immediately after the strike vote is conducted and the
results thereof submitted to the NCMB.
• However, the other remaining requirements: notice of
strike, strike vote, strike vote report, and seven-day
waiting period or strike ban cannot be dispensed with.
Strikes in hospitals, clinics and medical institutions

• In labor disputes adversely affecting the continued

operation of such hospitals, clinics or medical institutions,
it shall be the duty of the striking union or locking-out ER
to provide and maintain an effective skeletal workforce of
medical and other health personnel whose movement and
services shall be unhampered and unrestricted as are
necessary to insure the proper and adequate protection of
the life and health of its patients, must especially
emergency cases, for the duration of the strike or
lockouts.
• In such cases, the DOLE Secretary may immediately
assume, within 24 hours from knowledge of the
occurence of such a strike or lockout, jurisdiction over the
same, or certify it to the NLRC for compulsory arbitration.
For this purpose, the contending parties are strictly
enjoined to comply with such orders, prohibitions, and/or
injunctions as are issued by DOLE Secretarty or NLRC,
as the case may be, under pain of immediate disciplinary
action, including dismissal or loss of employment status
or payment by the locking ER of backwages, damages
and other affirmative relief, even criminal prosecution
against either or both of them.
Strike in the Government Service

• EEs of GOCC organized under the Corporation Code:

right to self-organization and right to strike
• EEs of government and its political subdivisions including
GOCCs with original charters: right to self-organization
but no right to strike
Liability for illegal strike

• An EE who participates in a lawful strike is not deemed to

have abandoned his employment but is merely exercising
his right to self-organization precisely to protect his rights
as an EE and/or to obtain better working conditions.
• Even if the strike started as a lawful strike, if in the course
thereof, illegal acts are committed by the strikers, the
strike becomes illegal and the participants in the
commission thereof become liable therefor and may thus,
be terminated. This holds true whether the striker guilty of
committing illegal acts is an officer of the union or an
ordinary member thereof.
Liability for illegal strike

Union officers
The mere finding or declaration of illegality of the strike
will result in the termination of all union officers who
knowingly participated in the illegal strike.
Shop stewards are union officers, hence, they should be
terminated upon the declaration of the illegality of the strike.
Liability for defiance of assumption/certification order

• The very act of defiance of such order would result in the

termination of employment, irrespective of whether the
defiant worker is a union officer or an ordinary union
member. By their own acts, they are deemed to have
abandoned their employment and cannot now demand
the right to return thereto by virtue of the very order they
have defied.
Picketing

• a concerted activity of workers consisting in peacefully

marching to and fro before an establishment involved in a
labor dispute generally accompanied by the carrying and
display of signs, placards and banners intended to inform
the public about the dispute.
• this right is guaranteed under the law “to engage in
concerted activities for purposes of collective bargaining
or for their mutual benefit and protection. This right is also
duly guaranteed under the freedom of speech principle in
the Constitution.
Important principles:
• Picketing, if peacefully carried out, cannot be prohibited even
in the absence of ER-EE relationship between the picketers
and the ER being picketed.
• It is important to stress that the right to peaceful picketing
should be exercised by the workers with due respect for the
rights of others. Hence, commission by any picketing EE of
any act of violence, coercion or intimidation is prohibited.
• The procedural but mandatory requisites that must be
complied with before a valid strike may be staged are not
applicable to picketing. The only requirement to make
picketing valid and legal is that it should be peacefully
conducted.
Strike vs. Picketing

• To strike is to withhold or to stop work by the concerted

action of the EEs as a result of an industrial or labor
dispute. While a strike focuses on stoppage of work,
picketing focuses on publicizing the labor dispute and its
incidents to inform the public of what is happening in the
company struck against. A picket simply means to march
to and from the ER's premises, usually accompanied by
the display of placards and other signs making known the
facts involved in a labor dispute.
Lockouts

• Lockout means temporary refusal of an ER to furnish

work to its EEs as a result of an industrial or labor
dispute.
• Elements:
(1) temporary refusal to furnish work by the ER; and
(2) occasioned by an industrial or labor dispute.
Requisites for a valid lockout

• Requisites of valid lockout:

(a) It must be based on any or both of the following two
(2) exclusive grounds:
(1) ULP of the labor organization;
(2) Collective bargaining deadlock (CBD)
(b) notice of lockout filed with NCMB
(c) notice must be served to the NCMB-DOLE at least 24
hours prior to the taking of the lockout vote by secret
ballotting;
(d) lockout vote must be taken where majority of the
members of the BOD of the corporation or association or of
the partners in a partnership, obtained by secret ballot in a
meeting called for the purpose, must approve it;
(e) lockout vote report should be submitted to NCMB-DOLE
at least 7 days before the intended date of the lockout;
(f) observance of the cooling-off period of 15 days, in case
of ULP of the labor organization, or 30 days, in case of
CBD, reckoned from the date of filing og the notice of
lockout; and
(g) 7-day waiting period reckoned after the submission of
the lockout vote report to the NCMB-DOLE should be
Assumption of jurisdiction by DOLE Secretary

• Article 278(g)[263(g)] provides that when in the opinion of

the DOLE Secretary, the labor dispute causes or likely to
cause a strike or lockout in an industry indispensable to
the national interest, he is empowered to do either of two
(2) things:
(a) assume jurisdiction over the labor dispute and decide
it himself; or
(b) certify it the NLRC for compulsory arbitration in which
case the NLRC shall hear and decide it.
Note:
• Assumption of jurisdiction is a police power measure. The
power to issue an assumption order is an extraordinary
authority granted to the DOLE Secretary, the exercise of which
should be strictly limited to national interest cases.
• Notwithstanding the power granted to the DOLE Secretary to
assume jurisdiction over national interest labor disputes or to
certify them to the NLRC for compulsory arbitration, the
President of the Philippines shall not be precluded from doing
any of the following:
(a) to determine the industries, that in his opinion are
indispensable to the national interest; or
(b) to intervene at any time and assume jurisdiction over any
such labor dispute in order to settle or terminate it.
Industries indispensable to the national interest:

• hospital sector;
• electric power industry;
• water supply services, to exclude small water supply
services such as bottling and refilling stations
• air traffic control; and
• such other industries as may be recommended by the
National Tripartite Industrial Peace Council
Note:
• Assumption of labor dispute in an industry not
indispensable to the national interest amounts to grave
abuse of discretion.
• In national interest cases involving unresolved issues in
the CBA negotiations, DOLE Secretary is not precluded
from assuming jurisdiction over the labor dispute or
certifying it to the NLRC for compulsory arbitration even in
the absence of a formal declaration of deadlock by either
or one of the parties (Tabangao Shell Refinery Employees
Association vs. Pilipinas Shell Petroleum Corporation, GR
No. 170007, April 7, 2014)
Injunctions
• As a general rule, strikes and lockouts that are validly
declared enjoy the protection of the law and cannot be
enjoined unless illegal acts are committed or threatened
to be committed in the course thereof. This policy applies
even if the strike appears to be illegal in nature.
• However in some cases, injunctions issued to enjoin the
conduct of the strike itself and not only the commission of
illegal or prohibited acts in the course thereof, where held
to be valid.
• For instance, in San Miguel Corporation vs. NLRC, GR
No. 119293, June 10, 2003, the SC ruled that the
injunction may be issued not only against the commission
of illegal acts in the course of the strike but against the
strike itself.
Regular courts are prohibited from issuing injunction
against strikes or lockout.
• It bears stressing that all the cases cited above involve
the issuance of restraining order or injunction by the
NLRC pursuant to the exercise of its injunctive power. In
contrast, regular courts are absolutely prohibited to grant
any injunctive relief in cases of strikes or lockouts.
Injunction in picketing cases
• As a general rule, injunction cannot be issued against the
conduct of picketing by the workers. Under our constitutional
setup, picketing is considered part of the freedom of sppech
duly guaranteed by teh Constitution. However, excepted from
this legal proscriptions are the following situations:
(1) where picketing is carried out through the use of illegal
means;
(2) where picketing involves the use of violence and other
illegal acts;
(3) where picketing affects the rights of third parties and
injunction becomes necessary to protect such rights.
Innocent Bystander Rule

• Under the Innocent Bystander Rule, the third party ERs or

innocent bystanders who have no ER-EE relationship with
the picketing strikers, may apply for injunction with the
regular courts to enjoin the conduct of the picket.
Because the absence of such ER-EE relationship, the
NLRC, cannot entertain such application for injunction
from innocent bystanders.