THE LEGAL FRONT
By J. ART D. BRION (RET.)
J. Art D. Brion (RET.)
A labor relations term that people usually use without a full understanding of what it means is “unfair labor practice.” A very common usage and cause of misunderstanding is in making the charge of “illegal dismissal and unfair labor practice” in a dismissal situation.
For example, a worker dismissed from work due to repeated absences, whose complaint is prepared without much thought to legalities, may simply copy a sample complaint, adapt its recitals to the complainant’s situation, and claim for reinstatement, backwages, and damages under the charge “illegal dismissal and unfair labor practice.” This kind of charge may lead an uninformed third-party reader to think that illegal dismissal and unfair labor practice are one and the same.
Despite the possible technical inaccuracy, not much harm is done to the complainant’s interests under this verbose charge because its inappropriate wording does not really harm the complainant’s case. Filing a labor case, too, does not entail financial costs to the worker.
Aside from this kind of common misuse, unfair labor practice can be misleading because of the two words: “unfair” and “labor.”
Not everything that is “unfair” can be labelled as unfair labor practice because unfair labor practice (ULP) is a defined term under the Labor Code. Hence, no matter how unfair an act may be, it cannot be called a ULP unless it falls under the definitions of this term under the Labor Code. These definitions appear under Articles 259 and 260 of the Code.
The term “labor” can also be misleading because the term, by itself, also refers to the party rendering service at a workplace; management or the party to whom service is rendered never falls under the term “labor.”
It is management (or the employer, to use the Code’s wording) who, together with the union, can be guilty of ULP. The worker or employee himself, is never guilty of ULP in his or her personal capacity.
These seeming disconnects are all due to the contextual use or misuse of the term “labor.” The word “labor” in “unfair labor practice” refers to the setting where the prohibited or “unfair” practice takes place, i.e., in a labor situation. “Labor” in ULP likewise cannot refer to the worker as a perpetrator but only as the victim of the prohibited act. He cannot be the perpetrator as the term “ULP” came to exist in the Labor Code to protect the worker whose rights have been violated.
Conceptually, an act becomes a ULP when it violates a worker’s (1) right to self-organization for collective bargaining purposes, or (2) the right to concerted action for the same collective bargaining purposes or for the workers’ mutual aid or protection.
The law steps in to help the worker protect himself because of his position of weakness in the workplace. He is weak because he is under the control and supervision of the employer. As an individual, he is also weaker than the union to which he may run for assistance and which, as protector, may exert dominance over him.
The right to self-organization, the right violated by a ULP, is exercised when workers:
- form a union, or
- join a union, or
- assist in the formation of a union.
An employer violates workers’ right to self-organization and thereby commits a ULP when it either –
- prevents workers from forming, joining, or assisting in the formation of a union; or
- compels workers to undertake acts contrary to union formation or organizing activities; or
- interferes with workers’ union formation or organizing activities.
Specific instances of ULP transpire when the employer (i) asks the worker not to join a union, or to leave a union, as a condition for hiring; or,
(ii) contracts out union members’ positions;
(iii) discriminates against a worker with respect to wages, hours of work, and other terms and conditions of employment;
(iv) initiates the formation of a union, dominates it, assists in or otherwise interfere with union formation,
– all for the purpose of adversely affecting workers’ union organizing rights and activities.
A unique ULP transpires when the employer retaliates against a worker who has given testimony under the Labor Code. The element of retaliation or reprisal against the testifying worker distinguishes this ULP from the situation of a worker who testifies in a complaint he filed to collect the wages and other benefits due him under the Code.
ULP may also happen in a collective bargaining situation when the employer refuses to bargain; pays the union lawyers or the officials’ attorney’s or negotiation fees; or grossly violates the terms of an existing collective bargaining agreement.
To protect the worker against his own union, the law penalizes the union (i) when it restrains or compels workers in the exercise of their self-organizing activities; (ii) when a union granted bargaining rights under the Labor Code, refuses to bargain for the workers; and (iii) when it attempts or actually collects negotiation or attorney’s fees from the opposing party, the employer (a practice commonly called “lagaring hapon”).
Notably, mere interference by unions in workers’ organizing activities is not a ULP because the natural role of unions is to organize workers; in undertaking this role, unions may interfere (short of using restraint or compulsion) in the organizing acts of other unions or in individual workers’ union formation and other organizing activities.
Similarly, a union could be guilty of ULP (i) if it causes the employer to discriminate against workers (except in certain unique situations recognized by law), or (ii) if it causes the employer to pay for unrendered services. Note that in these ULPs, the employer acts, but it does so under the prodding or initiative of the union.
To be sure, the bare recitals of the concept of ULP and the instances when these acts can be committed will not be enough to fully help in protecting workers. These recitals may be enough, though, to get workers to inquire further from more knowledgeable sources.
I will already be very happy when a worker further inquires as this kind of inquiry is his first step in protecting his rights.
jadb.legalfront.mb@gmail.com