Labor Integration

LABOR LAW 2 INTEGRATION NOTES BASIC PROPOSITIONS Constitutional basis - government employees included - the Consti is specific: it makes mention of “unions” - A13 Sec.3 Consti: talks talks about the Private sector sector and Labor Relations Relations rights: - collective bargaining - echoes Art. II of Consti - right to engage in peaceful concerted activities including the right to strike in accordance with law (purpose and means test) - preferred: voluntary mode of dispute settlement - share in the fruits of production

 A211 LC Policy declarations - policy considerations considerations - note that all provision operate under A211 [a] modes of dispute settlement: collective bargaining and negotiation; and arbitration - the intention of the law is to provide for a democratic way of setting wages and no court can set terms of employment except as otherwise  provided for: *compulsory arbitration under A263(g), minimum wage fixing, and in cases of wage distortion, unorganized establishment. establishment. [b] unions are valid institutions; policy considerations include: *trade union unionism ism where where union unionss are instru instrume ments nts for enhanc enhancem ement ent of  Democracy and promotion promotion Social Justice, and a strong strong united labor  force, *enlighten worker, *just sharing, and *stable industrial peace  A212 LC re Definitions Definitions - statutory definitions definitions - A212 is used to determine WON Book 5 of LC applies - “means” “means” v “include “includes” s” – means: means: definiti definition on is complet complete, e, dictiona dictionary ry meaning RIGHT TO SELF-ORGANIZATION Road map of the law: [a] Consti – states and recognizes the right of  workers to self organization

[b] LC – A243 – All EEs A244 – Gov’t EEs and GOCC (see EO 180) A245 – Right of supervisors; right denied to managerial EEs A269 – with respect to aliens Jurisprudential Rules: [1] The right of the worker to self organization is both a constitutionally constitutionally and statutorily guaranteed right. [2] The right to self organization is of paramount value and thus cannot  be denied on nebulous grounds\ [3] Any exception exception to the rule on self organiza organization tion must be strictly strictly construed against the ER and must be liberally construed for the worker  A243 – [a] applies to all EE status, regardless of WON ER is organized for profit or not. [b] distinction: Right to SO for purposes of CB, and Right to SO for   purpose of Mutual Aid and Protection

 FEU Medical Center case – the amended law no longer limits the applicability to establishments profit institutions; it also applies to non  profit institutions.   Kapatir Kapatiran an case and Victoria Victoriano no Elizalde Elizalde case – the right to SO is constitutionally constitutionally guaranteed. It may run afoul right to religion. When EE exercises right to SO, it is valid and the courts will not disturb. The choice to exercise was made by EE, therefore religious tenets canot  prevail. A245 – Supervisor: acts in the interest of the ER  Limitation in A245: a union must exclusively be a union of supervisors A supervisor, when he is performing his function: [a] uses independent  judgment,  judgment, and [b] effectively exercises that right

Jurisprudential rules: [1] WON an EE is a supervisor is a question of fact [2] In the exercise of the supervisor of the right, the question is, is it effective? If power is present but the exercise is not effective, then he’s  NOT a supervisor. (power-present + power effective = supervisor) supervisor)

[3] It is not the title which ER confers on the worker that makes him a supervis supervisor, or, neither neither is the job descriptio description, n, BUT it is the job that is actually performed by him. A269 – re Aliens 2 Rules: [a] alien is a holder of a valid work permit [b] rule of reciprocity: alien’s country recognizes the same

- When right to SO is infringed, then there’s possibility possibility of ULP - LA has original exclusive jurisdiction - Compulso Compulsory ry arbitrat arbitration ion but may stipulat stipulatee voluntar voluntary y arbitrat arbitration ion as allowed under A217 - There are penal sanctions. LABOR ORGANIZATION

Security Guards The prohibition in A245 LC with regard to supervisory EEs does not include security guards. Meralco doctrine: doctrine : EO 111 has eliminated the disqualification of security guards from forming labor unions. IRR which disqualify security guards from joining rank and file EEs are null and void for being not germane to object and purpose of EO 111. SG’s were direct EEs of Meralco. Workers with NO right to SO: [a] Managerial EEs (A212.m, A245 and A82) [b] Confidential EEs by necessary implication

Jurisprudential Jurisprudential rules: [1] Deemed confidential EE IF he *acts in a confidential capacity, *assists another individual who formulates, determines, effectuates mgt mgt polici policies es in the field field of labor labor relati relation ons, s, and *has access access to information re labor mgt. relations as *an integral part of his job (nature of access + nature of info). [2] If the info relates to non-labor mgt relations, no right to SO. [c] Cooperatives Jurisprudential Jurisprudential rules: [1] If individual is both an EE and member of coop, there’s no right to SO (Rural Bank of Davao case) [2] If only an EE of coop, then he has right to SO. * The fact of ownership and not membership in coop is the basis for   prohibition.  prohibition. Fact of active participation in coop is irrelevant. [d]Non EEs – If union members are not EEs, no right to organize for the  purpose of CB and to be certified as bargaining agent can be recognized. ( Republic  Republic Planters Bank v Laguesma)

The law on Labor Organization (LO) is anchored on policy declarations in A211. Focus: A234-A re Chartering Chartering and Creation of a Local Local Chapter  A242-A re Reportorial Requirements A239 – Grounds for Cancellation of Union Registration A211 A211 – Policy Policy intent intent of the law: LO’s are valid valid institution institutionss in Phil. Phil. Society designed to promote social justice, a strong and united labor  union, and to enlighten the work force in order to function well A277 – labor education programs 3 important terms [1] Legit LO (LLO)– Test: Registration with the DOLE and not SEC not SEC - “includes a local/branch thereof” – not automatically a LLO A234-A re union’s limited form of legitimacy for purposes of CE, but must satisfy the requirements. A242 re rights of LLO; A242-A re reporting requirements [2] Company Union – defined in A248 (act of company union is an act of ULP) - the organization, formation or administration is assisted by ER (this is ULP) [3] Workers Association – unlike LO, its purpose is for mutual aid and  protection  Airline Pilots Assoc case – the test of what is LO is its purpose: “in whole or in part for purposes of CB”. Members of a LO not limited to EEs of a particular ER   Dunlop case – where union is of both supervisors and rank and file EEs, then it is not a LO.

 Bitonion case – one becomes a member of a LO if intent is coupled with a positive act. Test: consti and by-laws A234 and A237 *A234 re Req’ts of registration of LO - independent union, 20% support requirement - req’t of submission of book of accounts - if period of existence is less than 1year, just state so and it will be sufficient, no need to submit book of accts *A237 re Req’ts of registration of national federations - no 20% suppo support rt requir requirem ement ent,, applic applicati ation on must must instea instead d be supported by 10 locals *A235 re action on application: to approve or not

“except for mandatory activities” –  Check-of Check-offf – authorit authority y in writing writing stating the amount, amount, purpose and  beneficiary. *distinguish: A113 re check-off of union dues, and A241 check-off of  special assessment Collateral attack is not allowed. Legitimacy must be attacked directly through a petition for cancellation of registration registration Union-Member Relations UST Faculty Union v Bitonio – union’s consti and by laws (CBL) is the fundamen fundamental tal law that governs governs the relations relationship hip between and among among members of the union.

- The right to SO is not infringed on LC req’t of registration Reasons: [a] right guaranteed by the registration are mere statutory [b] Protective device argument: protect labor from organizations which which are not really really representa representative tivess of labor ( Progressive  Progressive  Devt Corp case) [c] Valid exercise of Police Power (PAFLU Power (PAFLU v Sec of Labor) - Registration however is a requirement to avail of right under A242. So if not registered, it cannot avail of rights under A242, (e.g. KMU is not registered)

Admission A249.a – “LO shall have the right to prescribe its own rules with respect to the acquisition or retention of membership” A277.c – any EE, WON employed for a definite period, beginning on his first day of service, shall be considered an EE for purposes of  membership in any labor union.

A241, A222 and A113 A241 par. m, n, p are the most difficult part *distinguish between extraordinary fees in A241 and atty’s fees in A222

Election – ER should give voter’s list if not records of SSS is a valid alternative

A222 speaks of atty’s fees re disputes A241 speaks of special assessments and extraordinary expenses; this can be processed thru check off  How to pass: - a meeting called for that purpose - required quorum: all members - records req’ts and attestation clause 2 Rules: [1] No shortcut is allowed by law; there must be total absolute case), [2] Authority must be in writing compliance (ABS-CBN case),

Discipli Discipline ne – inherent inherent function function of union. union. Basis: Basis: survival survival however, however, requisites of due process must always be complied with

Last par. of A241 – don’t bother because there’s A226: any inter/intra union is governed by the jurisdiction of BLR and A226 Union Affiliation and Disaffiliation Right of union to affiliate and disaffiliate Right of worker to join, not to join and to disaffiliate --- part of the right to SO Jurisprudential rules: [1] Right to affiliate affiliate includes includes the right right to disaffiliate disaffiliate,, right right to join includes the right not to join

[2] Union has a right right to disaf disaffil filiat iate, e, but it must must compl comply y with with the  procedure to disaffiliate if such procedure is provided and at the same time valid. [3] An affili affiliate ate is not not a creati creation on of a nation national al federa federatio tion. n. One One is independent of the other  [4] Both may enter in a CBA or other other contra contracts cts,, and in case case of  disaff disaffili iliati ation on the local local union union will will own the the contra contract ct becau because se nat’l nat’l federation is only an agent. *Adamson, Atlas and De La Salle cases are no longer applicable: The amendment of the law provides that both rank and file EEs union and supervisors union of the same ER may now affiliate with the same nat’l federation Union Security A249 – basis Union security provisions are valid Jurisprudence: Union security provisions do not violate the freedom to associate a. clo closed sho shop  b.  b. unio union n shop shop c. maint maintena enance nce of memb members ership hip 3 basic concepts a. What is the access to the labor market?  b. What is the condition for continuing employment? c. When is employment lost? Rules: [1] if there is termination, ER must comply with the procedural die  process. The union’s offer to exempt ER from liability will not lie if ER  does not comply with due process [2] Union security provisions applicable to present and future EEs, but not to members of other unions. *Note amendments: A234-A, A239, and A242-A APPROPRIATE BARGAINING UNIT A255 and A256 Key: definition of Rothenberg, used by Justice Narvasa in UP v Calleja:

[a] composition: all or less than all EEs of a particular ER  [b] ER equity musrt also be considered (administration of CBA) [c] group EEs with a commom interest (with respect to wages, hrs of  work and othr terms and conditions) Reason for the grouping: To best assure workers’ right to CB & SO UP v Calleja – there’s no test or guide provided by LC except the word “appro “appropri priate ate.” .” But since since 1956, 1956, SC has consis consisten tently tly applie applied d the the commonality or mutuality of interest test . test . - Freedom to agree between EE and ER to determine ABU. If not, then through BLR and NCMB. Gen. Rule:   Dayotogan and Interphil  – Corporat Corporatee fiction fiction,, treated treated as distinct corporations even if there’s common ownership. Exception:   Philipp Philippine ine Scouts Scouts Veterans Veterans case – If there’ there’ss pervas pervasive ive commonality, piercing the corporate veil is justified. *A prior agreement on the composition of a bargaining unit is not  binding. Appropriateness of bargaining unit composition may change. UNION MAJORITY STATUS - Union of their own choosing – majority of workers in ABU – negotiate with ER  - Before a union can negotiate a CBA with ER: [a] union must be legit LO [b] it must represent majority of EEs in the ABU [c] there must be ER-EE relationship; absent ER-EE rel, there’s no duty to bargain

Mechanism: [A]*Do I want a union? *if Yes, which one? [B ] I do not want a union Rules: (see A246 and A257) [1] CE is only an inquisitory proceeding, not adversarial [2] There can be no direct certification, because CE is a statutory policy that cannot be circumvented [3] The law is partial to CE because it’s the most democratic and most efficient way of settling majority status

2 ways to determine majority status (prior to voluntary recognition) - Certification Election (CE) - Consent election *Voluntary recognition recognition (VR) came in by IRR  Law Prior to VR  - There There was no direct direct certifica certification tion.. Law is parti partial al to CE - A256 (organized establishment, A257 (unorganized), A258 (ER  initiated) Warren case – introduced consent election, but with a limited purpose: to determine majority status only to administer already existing CBA. Consent election is bar to CE. A256 – Structure [a] There’s existing CBA or no existing CBA but there is a union recognized. [b] Petition for CE in relation to A253-A, filed only within freedom  period. [c] Petition for CE must be accompanied by substantial support. Jurispru Jurisprudenc dence: e: [1] Petition Petition filed filed within within freedom freedom period period and not  before or after expiration. expiration. [2] Substantial support rule need not be shown at the time of filing the petition, but within a reasonable time thereafter before CE [3] Withdrawal of signatures has no effect, CE continues A257 – no existing certified bargaining agent A258 – ER requested to bargain & ER doubts majority status Q: When is CE automatic? [a] In A256, it is automatic if it is filed within freedom period and there’s substantial support [b] In A257, election is automatic if a union files a petition for CE Q: When is CE discretionary?  A: CE is discretionary under A256 if even absent substantial support, CE will achieve the purpose of the law, which is CB *ER is a total stranger in CE

Colgate-P Colgate-Palmo almolive live case and Samahan Samahan ng mga Manggaga Manggagawa wa case –  There is no direct certification. certification. Neither can ER voluntarily recognize the union because in effect it is a direct certification. In Colgate, Colgate , the act of  the Labor Sec. certifying certifying without without conducting conducting CE violated violated A256. In Samahan, Samahan , ER’s voluntarily recognizing the union is invalid because in effect it’s direct certification. certification. Law After VR  DOLE implemented VT in IRR but provided safeguards: a. there’s there’s only only 1 union union in the the establ establishm ishment ent  b.  b. the the uni union on is a LLO LLO c. fact of VR is report reported ed to DOLE DOLE and advertise advertised d  In sum, - Today Colgate and Samahan cases are still valid - A256 and A257 are still valid and not deemed repealed by the IRR  - Voluntary Recognition (VR) has not yet been challenged in court Mechanics of A256: *There’s a support but only DOLE can question the veracity of such; no other parties can *A256 and A257 are union-initiated union-initiated elections (see A212 on Legit status of petitioner, and also A234-A) *A258 is ER initiated Mecganics of CE: *CE must be validly held, because if not the question of run-off does not arise *Majority of the workers cast their votes *For a union to win it must garner the majority of the valid votes cast. Run-off election: Requisites: - CE was was val valid idly ly cond conduc ucte ted d - Ther Theree wer weree 3 or more more choi choice cess - Not one one of the choic choices es had had majori majority ty of the valid valid votes votes cast cast - The comb combined ined votes votes of all all the the unions unions = 50% of votes votes cast cast

Votes cast – Important in determining [a] the validity of the run-off  elections, and [b] WON run off elections can be done (last req’t)

*Certificate Election is held on a regular business day. CE is valid even if there’s strike unless it is so pervasive that a substantial number of  workers weren’t able to vote. 3 bars to CE: [1] Contract Bar Rule (A232) – CBA valid and contract complete If contract is incomplete, incomplete, it can be completed to invoke the contract-bar  rule [2] 1 yr bar rule – from the time elections results were certified [3] deadlock bar rule – 2 req’ts: *there was effort to bargain but it failed, and, *that such deadlock had already been submitted for conciliation or arbitration Suspension Rule: refers to prejudicial question  Purpose: to level level the playing playing field in order order to preven preventt undue undue advantage Ground: charge of company domination filed by the union which filed the case for ULP COLLECTIVE BARGAINING A250, A251 – designed to implement Consti rights to SO and CB A252 A251 – authorizes the parties to a voluntary mode, but it must be expeditious; if but A250 applies A250 – proposal and counter-proposals must be in writing - time time frames frames are not not mandato mandatory ry but merel merely y direct directory ory;; if such time frames were not complied, it will not amount to ULP - entr entry y poin pointt of NCMB NCMB (A23 (A233 3 re priv privil ileg eged ed commu communi nica cati tion on::  Nissan case – whatever is discussed in a conciliation proceeding cannot be basis for award and to compel one to testify) A252 – First part: duty to bargain Second part: defines what a negotiable issue is

Jurisprudence: Jurisprudence: Negotiable issues may either be mandatory or permissive [a] mandatory issue – refusal to negotiate a mandatory issue results in ULP; if there’s impasses, strike weapon is available [b] permissive issue – refusal to negotiate a permissive issue does not result in ULP; strike weapons not available *“Other terms and conditions” as negotiable issue – the proposal or  counterproposal must have nexus to the nature of work  *The minutes of the negotiation is merely a records and cannot be the  basis of actions. Only the CBA itself can be basis. *CBA is a contract in personam and not in rem UNFAIR LABOR PRACTICE - any act defined by law as ULP (248 and 249) - designed to redress constitutional and statutory guaranteed rights to self organization and collective bargaining Key: A212, A248 and A249 A246 and A247

A248 – interfere, restrain, coerce A249 – restrain, coerce An act is ULP [1] if actor is a labor org, or ER  [2] the act is to interfere, restrain or coerce [3] the act is directed against the right to self organization or collective  bargaining *A248 on contracting out: it is ULP if performed by a union member  and has chilling effect *A247 and 248 re violation of CBA: relate to A260; if it’s not gross and serious violation of economic provisions, it’s not ULP but remains to be a grievance *A248 (a) and 249(a) are bases for the other enumerations of ULP. The act is ULP only if it falls in A248 and A249, Test: [a] Was there a reasonable tendency to succeed?

[b] Did anti-union bias contribute to his decision? (mixed-motive test) *ULP cannot be compromised! On civil and criminal liability: criminal liability can only be invoked after civil liability. Jurisdiction is with the LA, however parties can voluntarily confer jurisdiction on voluntary arbitrators Preserve management rights of ER so ULP only delves on the manner of  exercise.

STRIKES Consti Consti basis basis – “peaceful “peaceful concerted concerted activities activities”” and “guarante “guaranteed ed in accordance with law”

Purpose and Means Test Peaceful – A264 is the measure In accordance with law – A263 A263 – Allowed strikes: [a] ULP, [b] collective bargaining. All others are illegal A264 – Prohibit Prohibited ed strikes: strikes: [a] inter/in inter/intra tra union union disputes disputes,, [b] strikes strikes against industries indispensable to national interest San Miguel case – A strike includes a “slow down” or a strike in installments. Procedure for Strike - File notice notice of of intent intent - Strike vote to to make sure there’s there’s no minority minority strikes strikes - Reporting (to determine liability) - Observan Observance ce of cooling cooling off period period - 7-da 7-day y ban ban - Special Special procedure: procedure: union busting busting where there’s no observan observance ce of cooling off period and 7-day ban. Note that the 7-day ban is distinct and separate from the cooling off period *Compliance of the procedure is mandatory *Liability is individual

[a] if union officer – “knowingly participates,” or that he authorized or  ratified [b] if union member – mere participation does not constitute as a ground for termination (it must be participation + identification) LABOR INJUNCTION Focus: A254, A217, A218 and A264 2 rules: Gen. Rule: Labor injunction is prohibited under certain conditions to equalize and level the field (A254) Exception: Labor injunction is allowed under certain conditions (A217, A218, and A264)

Procedure: A217 and A218 *NLRC has jurisdiction *What cannot be dispensed with at all times is hearing *If injunc injunctio tion n is wrong wrongly ly issued issued,, remedi remedies es to aggrie aggrieved ved party party is available Injunction in EO 180 is different from injunction in LC ARBITRATION 2 kinds: [a] voluntary, [b] compulsory Voluntary arbitration It is initiated by agreement of the parties Jurisdic Jurisdiction tion by voluntar voluntary y arbitrato arbitrator: r: any and all disputes disputes (A260 and A217)

Compulsory arbitration Only labor dispute in an industry indispensable to national interest Only labor secretary and President arbitrates  NLRC cannot arbitrate unless there’s conferment If there’s compulsory arbitration, by operation of law, return to work  order is automatic, and compliance is mandatory, and such obligation does not amount to involuntary servitude. READ EO 180