I.

Unfair Labor Practices

Art. 253 Concept of unfair labor practices and procedure for prosecution thereof
Unfair labor practices violate the constitutional right of workers and employees to selforganization, are inimical to the legitimate interest 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 and hinder the
promotion of healthy and stable labor-management relations.
Consequently, unfair labor practices are not only violations of the civil rights of both
labor and management but are also criminal offenses against the State which shall be
subject to prosecution and punishment as herein provided.
Subject to the exercise by the President or by the Secretary of Labor and Employment of
the powers vested to them [in the Labor code], the civil aspects of all cases involving
unfair labor practices which may include claims for actual, moral, exemplary and other
forms of damages, attorneys fees and other affirmative relief, shall be under the
jurisdiction of the Labor Arbiters. [They] shall give utmost priority to the hearing and
resolution of all cases involving unfair labor practices. They shall resolve such cases
within thirty (30) calendar days from the time they are submitted for decision.
Recovery of Civil Liability in the administrative proceedings shall bar recovery under the
civil code.
No criminal prosecution under this title may be instituted without a final judgment,
finding that an unfair labor practice was committed, having been first obtained in the
preceding paragraph. During the pendency of such administrative proceeding, the
running of the period of prescription of the criminal offense herein penalized shall be
considered interrupted: Provided, however, that the final judgment in the administrative
proceedings shall not be binding in the criminal case nor be considered as evidence of
guilt but merely as proof of compliance of the requirements.
Notes and Comments
1. Concept of an unfair labor practice
Unfair labor practice is an act of an employer or union or their agents,
which violates the right of workers to self-organization, which includes
the right:
a. To form a union
b. To take part in its formation
c. To join or assist a union of their own choosing for purposes of
i.
Collective bargaining and negotiations;
ii.
To engage in concerted activities for mutual help and
protection

Unfair labor practices violate the constitutional right of workers and

employees to self-organization, are inimical to the legitimate interest of

both labor and management, including their right to bargain collective

and otherwise deal with each other in atmosphere of freedom and mutual
respect.

Unfair labor practices are deemed criminal offenses. (B.P. 70/386)

2 Kinds of Unfair Labor Practices

a. Employer unfair labor practices
b. Union unfair labor practices
2. Civil Aspects
- May include claims for actual, moral, exemplary and other forms of damages and
attorneys fees, and other affirmative relief.
3. Criminal Aspects
- No criminal prosecution for ULP may be instituted without a final judgment
finding that the ULP was committed, having been first obtained in the
administrative proceedings before the Labor Arbiters.
- Period of prescription: Within one year from accrual of such ULP
- Final judgment in the administrative case shall not be binding in the criminal
case.
4. Scope of ULP; Burden of Proof of ULP
- Those expressly stated in arts. 254 and 255 of the Labor Code, those which are
not included are excluded.
- Gen. Rule: Can be committed only if there exists an employer-employee
relationship.
- Exception: Yellow Dog Contract: an applicant is made to denounce his
membership to a union or promised not to join one as a condition for
employment. Hence, being an applicant, no employer and employee
relationship yet.
- Can be committed only against an employee who exercises or has exercised his
right to self-organization and not against one who is no connected with any labor
organization.
- Burden of Proof: it is the union who has the burden of proof to present
substantial evidence to support its allegations of an unfair labor practice
committed by the employer.
5. Quantum of Evidence to Prove ULP
- The law does not provide for the quantum of evidence or measure of evidence
required only that it is substantial enough to prove that there was ULP.

A. Unfair Labor Practices of Employers

Art. 254, It shall be unlawful for an employer to commit any of the following unfair labor
practices:

a. To interfere with, restrain or coerce employees in the exercise of

their right to self-organization
b. To require as a condition of employment that a person or an
employee not join a labor organization or shall withdraw from one
to which he belongs
c. To contract out services or functions being performed by union
members when such will interfere with, restrain or coerce
employees in the exercise of their rights to self-organization
d. 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
e. To discriminate in regard to wages, house of work, and other
terms and conditions of employment in order to encourage or
discourage membership in any labor organization.
f. To dismiss, discharge, or otherwise prejudice or discriminate
against an employee for having given or being about to give
testimony under this code
g. To violate the duty to bargain collectively (as prescribed by the
code)
h. To pay negotiation or attorneys fees to the union or its officers or
agents as part of the settlement of any issue in collective
bargaining or any other dispute
i. To violate a collective bargaining agreement.

Notes and Comments

1. Employers interference; totality of conduct test
- Interference is used to embrace both restraint and coercion.
2. Restraint and Coercion
- May be economic, physical, or psychological. Economic coercion may be exerted
through wage increase, promising permanent positions and etc.
3. Prohibition against membership in a union
- Also knows as Yellow-dog contract
- Abandonment of ones constitutional right
4. Company or captive unionism
5. Contracting out services being performed by union members
- Not per se illegal unless it is designed to frustrate the right of workers to selforganize
6. Act of Discrimination
- Discrimination is a relative term connoting unequal treatment.
- Dismissal or Lay-off. Not per a ULP unless it is committed because of union
activities.
- Closure or shutdown. Closure, lock out or shut down or mass discharge because
of union activities, is discrimination.
- Rehiring. Delayed reinstatement is a form of discrimination in hiring.

Transfer. An employee transferred from one job to another, even though it

carries the same wage rate, if the new job is considered by the employee to be less
desirable and the purpose is discouragement of union activity is to be held
discriminatory.
- Retrenchment. Laying off for the purpose of cutting down expenses.
7. Refusal to bargain
- It is ULP for an employer to violate the duty to bargain collectively.
- The following acts are held to constitute refusal to bargain:
o Alleging that the union is irresponsible
o Transferring operation to elude the union
The Duty to bargain collectively means the performance of a mutual obligation to
meet and convene promptly and expeditiously in good faith for the purpose of
negotiating an agreement with respect to wages, hours of work and all other terms
and conditions of employment including proposals for adjusting grievances or
questions arising under such agreement.
8. Gross violations of a CBA
- Violations of a the CBA, except those which are gross in character, shall no longer
be treated as unfair labor practice and shall be resolved as grievances under the
CBA.
- Violations of the CBA must be gross, flagrant and/or malicious to be considered a
ULP.
9. Dismissal for giving testimony
10. Union Security Clauses
- Common forms of union security:
o Closed-shop. all employees must be members of the union at the time
of hiring and they must remain members in good standing during the
period of employment.
o Union shop. workers under this agreement are not required to be union
members when hired; but to maintain continued employment, they must
continue to pay union dues and must become union members also after
sometime.
o Maintenance of membership.
o Agency shop employees who do not join the union must pay agency fees
as a condition of employment to help defray the union expenses as the
bargaining agent for the group or all employees.
o Etc.
11. Non-member of any labor union can be compelled to join the contracting union (bargaining
agent)
- If an employee is already a member of a labor union different from the
contracting labor union, said employee or worker cannot be obliged to become a
member of the contracting union as a condition for his continued employment.
12. Doubts are resolved against the existence of a closed-shop
13. Followers of INC cannot be compelled to join a union under a closed-shop agreement.
14. Union members who joined another union may be expelled and consequently dismissed
pursuant to a union security clause
15. Employer should afford due process to expelled union member prior to his dismissal.

The right of an employee to be informed of the charges against him and to

reasonable opportunity to present his side in a controversy with either the
company or his own Union is not wiped away by a union security clause or a
union shop clause in a CBA
- An employee is entitled to be protected not only from a company which
disregards his rights but also from his own union.
16. Agency fee is not mandatory.
B. Unfair Labor Practices of Labor Organizations
Art. 255, It shall be unfair labor practice for a labor organization its officers, agents or
representative:
a. To restrain or coerce employees in the exercise of their rights to self-organization.
However, a labor organization shall have the right to prescribe its own rules with
respect to the acquisition or retention of membership.
b. To cause or attempt to cause an employer to discriminate against an employee
c. To violate the duty or refuse to bargain collectively with employer provided it is
the representative of the employees
d. To cause or attempt to cause an employer to pay or deliver or agree to pay or
delover any money or other things of value, in the nature of an exaction, for
services which are not performed or not be performed, including the demand for
fee for union negotiations.
e. To ask for or accept negotiations or attorneys fees from employers as part of the
settlement of any issue in collective bargaining or any other dispute
f. To violate the CBA
Notes and Comments
1. Restraint or coercion of employees
- It is ULP for a union to restrain or coerce employees in the exercise of their right
to self-organization.
- The evil sought to be prevented is the conduct of union such as threats of
reprisals against employees and their families during the course of their
organizational campaign and other violent conduct and duress of employees by
unions.
2. Featherbedding activities (make-work activities)
- ULP of a union through coercive practices such as strikes or boycotts, or extortion
for exacting or attempting to exact from an employer, compensation for services
not rendered or not intended to be rendered.
- Simply, this is an extortion of money or other things of value for services
performed or underperformed by the labor union.
- Exception: where the union demands payment of damages for breach of contract.
3. Discrimination against employees
- Inducing or causing to induce employer to discriminate employees with respect
to membership in organizations and unions.
4. Violation of duty to bargain collectively
- To violate the duty, or to refuse to bargain collectively with the employer,
provided it is the representative of the employees.

Union commits ULP if it declares a strike to compel an employer to negotiate a

bargaining agreement with it during the pendency of a petition for certification
election.
5. Payment of negation or attorneys fees
- ULP for an employer to pay negotiation fees for a labor org to ask for or accept
negation or attorneys fees from employers as part of the settlement of any issue
in the CBA or any other dispute.
6. Gross violation of the CBA
- The CBA is not a mere contract but the LAW between the parties which must be
complied with in good faith.
7. Engaging in blue-sky bargaining
- Defined as making exaggerated or unreasonable proposals such as unreasonable
economic demands.
II.

Certification of Election
1. What is Certification Election?
- Certification election is a process of determining through secret ballot the sole
and exclusive bargaining agent (SEBA) of all the employees in an appropriate
bargaining unit for the purpose of collective bargaining.
2. Where does a union file a petition for certification election (PCE)?
- A PCE is filed at the Regional Office which issued the certificate of petitioning
unions certificate of registration/certificate of creation of chartered local.
3. What are the requirements in filing a PCE?
- Among the important requirements are the following:
a) A statement indicating any of the following:

That the bargaining unit is unorganized or that there is no registered CBA

covering the employees in the bargaining unit;
If there exists a duly registered CBA, that the petition is filed within the
sixty-day freedom period of such agreement;
If another union had been previously recognized voluntarily or certified in
a valid certification, consent or run-off election, that the petition is filed
outside the one-year period from entry of voluntary recognition or
conduct of certification or run-off election and no appeal is pending
thereon.

b) In an organized establishment, the signature of at least twenty-five (25%)

percent of all employees in the appropriate bargaining unit shall be attached
to the petition at the time of its filing (Section 4, Rule VIII, of the Department
Order No. 40-03).
4. What happens after receipt of the PCE?

The petition will be raffled to the Med-Arbiter for preliminary conference to

determine, among others, the bargaining unit to be represented, the contending
unions, and the possibility of consent election.

5. What happens upon approval of the conduct of certification election by the MediatorArbiter?
- The PCE will be endorsed to an election officer for the conduct of pre-election
conference wherein the date, time and place of election will be identified, the list
of challenged and eligible voters will be made, as well as the number and location
of polling places.
6.May a PCE be denied?
- Yes, a PCE may be denied if:
a) it was filed before or after the freedom period of a registered CBA;
b) the petitioner union is not listed in the DOLE Registry of legitimate labor
organization; or
c) the legal personality of the petitioner-union has been revoked or cancelled with
finality.
6. Who will conduct the CE?
The DOLE Regional Office through the election officer conducts the certification
election.
8.How is the SEBA determined?
- The union that garners majority of the valid votes cast in a valid certification
election shall be certified as the SEBA
9. May election protest be entertained?
- Yes, but protest should have been first recorded in the minutes of the election
proceedings.
10.What happens if the petitioner union fails to garner the majority of the valid votes
cast?
- There will be no SEBA, but another PCE may be filed one year thereafter.
11. What are the requisites for certification election in organized establishments?
Certification election in organized establishments requires that:
a) a petition questioning the majority status of the incumbent bargaining agent is filed
before the DOLE within the 60-day freedom period;
b) such petition is verified; and
c) the petition is supported by the written consent of at least twenty-five percent (25%) of
all employees in the bargaining unit.
12. What is the requirement for certification election in unorganized establishments?

Certification election in unorganized establishments shall automatically be conducted

upon the filing of a petition for certification election by an independent union or a
federation in behalf of the chartered local or the local/chapter itself.
13. May an employer file a PCE?
Yes, the employer may file a PCE if it is requested to bargain collectively.
14. May an employer extend voluntary recognition to a legitimate labor organization
without filing a PCE?
Yes, management may voluntarily recognize a union if there is no other union in the
company and if other requirements are complied with (Sec. 2, Rule 7 of D.O. 40-03).
15. What is the role of employer in certification election?
The employer shall not be considered a party to a petition for certification election,
whether it is filed by an employer or a legitimate labor organization, and shall have no
right to oppose it. Its participation shall be limited only to being notified or informed of
petition for certification election and submitting the certified list of employees or where
necessary, the payrolls (Employer as Bystander Rule).