Art. 254 (e) Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement.
LIMITATION
Art. 254 (e) Employees who are already members of another union at the time of the signing of the collective bargaining agreement may not be compelled by any union security clause to join any union.
UNION SECURITY CLAUSES; CLOSED SHOP, UNION SHOP, MAINTENANCE OF MEMBERSHIP SHOP, ETC.
CLOSED SHOP
Only union members can be hired by the company and they must remain as members to retain employment in the company. (Azucena) Maintenance of membership shop
No employee is compelled to join the union, but all present or future must, as a condition of employment, remain in good standing in the union. (Azucena)
UNION SHOP
Non-members may be hired, but to retain employment, they must become union members after a certain period. The requirement applies to present and future employees. (Azucena)
MODIFIED UNION SHOP
Employees who are not union members at the time of signing the contract need not join the union, but all hired workers thereafter must join. (Azucena)
AGENCY SHOP
An agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. (Azucena)
UNFAIR LABOR PRACTICE IN COLLECTIVE BARGAINING
Both employers and labor organizations can commit acts of unfair labor practices in collective bargaining. However, the labor organization must be the representative of the employees before any act it does may be considered as a violation of the duty to bargain collectively. (Art. 248 (g) and Art. 249 (c)]
(1) Bargaining in bad faith (2) Refusal to bargain (3) Individual bargaining (4) Blue sky bargaining (5) Surface bargaining
UNFAIR LABOR PRACTICE (ULP)
Unfair labor practice refers to acts that violate the workers’ right to organize. The prohibited acts are related to the workers’ right to self- organization and to the observance of a CBA. Without that element, the acts, no matter how unfair, are not unfair labor practices. The only exception is Art. 248 (f) [i.e. to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code]. (Philcom Employees Union v. Phil. Global, 2006)
ULP of employers
(1) Interference/ Restraint/ Coercion (2) Yellow dog contracts
(3) Contracting out
General rule: contracting out is not ULP Exception:
(a) contracted-out services or functions are performed by union members AND (b) contracting out will interfere with,
restrain, or coerce employees in the exercise of their right to self-organization. [Art. 248 (c)]
Company unionMeans any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. (Art. 212[i])
(4) Discrimination – Encourage/Discourage Unionism
General rule: it is 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.
Exception (union security clause):
Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment.
Exception to exception: Those employees who are already members of another union at the time of the signing of the collective bargaining agreement. (Art. 254 [e])
(5) Testimony
Art. 254 (f) It is an act of ULP by an employer to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code.
(6) Violate duty to bargain collectively (7) Payment of negotiation or attorney's fees
Sweetheart contracts
Sweetheart contracts are favorable both to the union and the employer at the expense of the employees. The settlement of bargaining issues must be made by fair bargaining in good faith, and not through the payment of negotiation or attorney's fees which will ultimately lead to sweetheart contracts.
(8) To violate a collective bargaining agreement Flagrant and/or malicious refusal required Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered
unfair labor practice and shall not be strikeable. (IRR)
Note: The list in Art. 254 LC is not exhaustive. Other acts which are analogous to those enumerated can be ULP.
ULP of labor organizations
(1) Restraint, or coercion
“Interfere” is not included in Art. 249 simply because any act of a labor organization amounts to interference to the right of self- organization.
(2) Discrimination Encourage/Discourage Unionism
General rule: it is ULP for a labor organization to cause an employer to discriminate against an employee
Exception: provisions of a valid union security clause and other company policies applicable to all employees.
(3) Violate duty to bargain or the CBA (4) Exaction (Featherbedding)
Featherbedding or “make-work” by the union is the practice of the union asking (exacting) for money or other things of value from the employer in return for services which are not performed or are not to be performed. (5) Asking or accepting negotiation and other
attorney's fees
(6) Violate a collective bargaining agreement Flagrant and/or malicious refusal required