Labor Law Reviewer Book Five (Mindmap)

LABOR LAW REVIEW (Book V) under Labor Arbiter Natividad Roma Cecille Carmela T. de los Reyes Philippine Christian University- College of Law

Labor Relation Laws Labor Relations It is the interaction between the employer and employees or their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted and enforced.

 Interaction between employer and employees  Mechanism by which  Standards and other terms and conditions of employment are negotiated, adjusted and enforced

It defines the status, rights and duties and the institutional mechanisms that govern the individual and collective interactions of the employers, employees or their representatives. ***Note: Absent an employer-employee relation, there is no labor relation to speak of. If there is no ER-EE relationship between the parties, there is no basis for organizing for purposes of collective bargaining. *** Labor Relations may be distinguished from Labor Standards in that the latter is that part of labor law which prescribes the minimum terms and conditions of employment which the employer is required to grant to its employees.

(a) Self-organization

LABOR RELATIONS POLICY UNDER Section3, Article XIII of the Constitution

[d] Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The Constitution guarantees to all workers their right, among others to:

[c] Peaceful and concerted activities including the right to strike in accordance with the law

(b) Collective bargaining and negotiations

TITLE I: Chapter 1

 No court shall have the power to set or fix wages, except: (a) Increase in wages by the National Wages and Productivity Board (NWPB) (b) Petitions for assumption of jurisdiction

 Participation in the decision and policymaking processes is limited to which affects the employees rights, duties and welfare (example: economic benefits)  Union should be allowed participation in drafting the Code of Discipline (PAL)  But in purely business matters/ initiative, it is usually within the ambit of the management prerogative.

[g] To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare.

[f] To ensure a stable but dynamic and just industrial peace

[e] To provide an adequate and administrative machinery for the expeditious settlement of labor or industrial disputes  Note that: grievance mechanism/ machinery is mandatory in the CBA

B. To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work, or other terms and conditions of employment, except as otherwise provided in the Code.

Parties to the Labor Relations Case:

POLICY OF THE STATE TO ENCOURAGE FREE BARGAINING  Collective bargaining process is possible only when there is a labor organization, such as (a) labor union or (b) employee association  Labor relations is essentially an inter-party-- ER and EE must deal with their problems in a manner that mutually suits them. Exception: But when the legal boundaries are transgressed, the State will step in. (a) Promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation as modes of setting labor or industrial disputes.

ARTICLE 211: DECLARATION OF POLICY It is the policy of the State to:

[d] Promote the enlightenment of workers concerning their rights and obligations as union members and employees Explained further in Art. 255 of the Labor Code.

The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to the employer. Any provision of the law notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment, may promulgate, to participate in policy and decisionmaking processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, that the representatives of the workers in such labormanagement councils shall be elected by at least the majority of all employees in the said management.

(b) Promote free trade unionism

[c] Foster free and voluntary organization

 Hence, free collective bargaining agreement is the rule, while government intervention is the exception.  Principle of Non-Oppression- it mandates that the capital and labor must not act oppressively against each other or impair the interest and convenience of the public. The protection to labor clause in the Constitution is not designed to oppress or destroy the capital (Capili v. NLRC G.R 117378)

 Employee s organization (active party)  The management (active party)  The public—always to be considered in dispute between labor and capital, and it has been held that the rights of the general public are paramount  The State (passive party) Conciliation, Mediation and Voluntary Arbitration as an settlement of labor dispute

alternative modes of

 Conciliation- process where a disinterested third party meets with management and labor, at their request or otherwise, during a labor dispute or in collective bargaining conference wherein by cooling tempers, aids the parties in reaching an agreement.

 Mediation- process where a third party studies each side of the dispute and submits a proposal for the disputants to consider. But a mediator however cannot make an award or render a decision.  Arbitration- the submission of a dispute to an impartial person for determination on the basis of evidence and arguments of the parties. (Position papers lang) The arbiter s decision or award is enforceable upon the disputants, which may be either voluntary or compulsory

Chapter 2

(a) Commission

It means the NLRC or any of its divisions, as the case may be, provided under this Code.

(b) Bureau

It means the Bureau of Labor Relations (BLR) and/or the Labor Relations Division in the regional offices established under P.D. 1 in the Department of Labor

[c] Board

It means the Bureau of Labor Relations (BLR) and/or the Labor Relations Division in the regional offices established under P.D. 1 in the Department of Labor

(d) Council

It means the Tripartite Voluntary Arbitration Advisory Council established under EO 126 as amended

(e) Employer

It includes any person acting in the interest of employer directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer.

 It is one who employs the services of others; one for whom employees work and who pays their wages or salaries. (Feati University v. Bautista, G.R. L-21278)  Any person acting in the interest of an employer, directly or indirectly. The term does not include a labor organization or any of its officers or agents, EXCEPT when acting as an employer. In this case, the mere fact that the respondent is a labor union does not mean that it cannot be considered as an employer for persons who work for it. Much less should it be exempted from labor laws. (Bautista v. Inchiong, G.R. L52824)

Types of Employees under the Labor Code: CED

It includes any person in the employ of the employer. The term shall not be limited to the employees of a particular employee, unless the Code so explicitly requires.

Art. 212: Definitions

C- any individual whose work has CEASED as a result of any current labor dispute.

1. Managerial 2. Supervisory 3. Rank-and-file

(f) Employee It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

E- any person in the EMPLOY of an employer. D- one who has been DISMISSED from work but the legality of dismissal is being contested in a forum of appropriate jurisdiction.

Also take note that illegally dismissed people are still employees if (a) dismissed because of a labor dispute or (b) has not yet obtained any other substantially equivalent and regular employment. So, if he is merely probationary in the new job, he is still considered employee.

Labor Organization v. Employees Association

(g) Labor Organization

(h) Legitimate Labor Organization

Any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment.

2. Employees Association- It can be for the mutual aid of the employees.

Any labor organization which is duly registered with DOLE, the term includes a local/chapter directly chartered by a legitimate federation or national union which has been duly reported to the Department in accordance with Section 2, Rule IV, Book V, IRR of LC (See notes under Art. 234 and 242, LC)

(i) Company Union

Any labor organization whose formation, function or administration has been assisted by any act defined as ULP under the labor code.

(j) Bargaining Representative

A legitimate labor organization whether or not employed by the employer.

(k) Unfair Labor Practice

Any unfair labor practice as expressly defined by this Code.

Includes any controversy or matter concerning: (l) Labor Dispute

1. Labor organization- collective bargaining and for dealing with employer regarding terms and conditions.

(a) Terms or conditions of employment OR (b) Association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment. REGARDLESS of whether the disputants stand in the proximate relation of employe and employee

Test: Depends on whether it involves or concerns terms, conditions of employment or representation (SMC Employees Union- PTGWC v. Bersamira G.R. 87700, 1990)

Note that: labor disputes may occur even if there s no proximate relationship between ER-EE

(More on Art. 245) Is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. (m) Managerial Employee

Supervisory employees are those, who, in the interest of employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book.

Managerial employee- one vested with powers or prerogatives to lay down and execute management policies (hire, fire, transfer, layoff, suspend) Supervisor- recommends managerial actions in which the recommendations must be: DIE (1) discretionary or judgmental (not clerical) (2) independent and (3) effective Rank and file- the rest of the employees Why is it important to know the differences? Because rank-and-file employees may join unions, supervisors may form their own union (and cannot join rank-and-file unions), while managerial and confidential employees can t. RF and Supervisory unions may be affiliated however with the same federation.

(n) Voluntary Arbitrator

(o) Strike

Any person accredited by the Board as such or any person named or designated in the CBA by the parties to act as their Voluntary Arbitrator, or one chosen with or without the assistance of the NCMB, pursuant to the selection procedure agreed upon in the CBA—or any official that may be authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor dispute.

Means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.

(p) Lockout

Means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.

(q) Internal Union Dispute

All disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by laws of a union, including any violation of the rights and conditions of union membership provided for in this Code.

(r) Strike-breaker

(s) Strike area

Any person who obstructs, force, violence, coercion, peaceful picketing affecting work or in the exercise of collective bargaining.

It is important to know if concerted action is a strike or not, because there are legal conditions to make a strike a legal one. Strike in installment, or employees deliberately being inefficient—that is illegal. (More on this later)

Intra-union disputes:  BLR has jurisdiction over federations and national unions  LRD has jurisdiction over independent unions

impedes, or interferes with by threats, or intimidation any wages, hours or conditions of a right of self-organization or

Means the establishment, warehouses, depots, plants or offices; including the sites or premises used as runaway shops of the employer struck against as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment.

It is important to know the extent of the strike area because the police folks cannot go into the strike area, except of course if there s violence.

Chapter 2

 Compensation (underpayment of minimum wage, stringent output quota, illegal pay deductions)  Benefits (nonpayment of holiday pay, overtime pay or other benefits)  Working conditions (unrectified work hazards)

Labor Standard Disputes

Types of Labor Disputes

 Organizational right dispute/ unfair labor practice (coercion, restraint, inference in unionization efforts, reprisal or discrimination due to union activities, company unionism)  Representation disputes (determination of the collective bargaining unit, ULP, strike, uncertainty as to determination of the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit which is the majority union)  Bargaining disputes (refusal to bargain or ULP, bargaining deadlock, economic strike or lockout  Contract administration or personnel policy disputes (non-compliance with the CBA provisions, ULP if gross non-compliance with the economic provisions, disregard of grievance machinery, violation of no-strike or no-lockout agreement, and  Employment tenure disputes (non regularization of employees, illegal termination, non-issuance of employment contract)

Labor Relations Dispute

Parties to a Dispute

Primary Parties

Secondary Parties

    

 Employer  Employees  Union

Remedies in Labor Disputes

Voluntary Arbitrator

            

Voluntary arbitrator Agencies of DOLE (BLRC, VAC) NLRC Secretary of Labor Office of the President

Grievance procedure Conciliation Mediation Enforcement of compliance order Certification of bargaining representative Arbitration (voluntary or compulsory) Assumption of jurisdiction Certification to NLRC Injunction Judicial action Appeal Review by court Compromise agreement

 Any person accredited by the Board as such  Any person named or designated in the CBA by the parties to act as their voluntary arbitrator  One chosen with or without the assistance of the National Conciliation and Mediation Board pursuant to a selection procedure agreed upon in the CBA,  Any official that may be authorized by the Secretary of Labor to act as voluntary arbitrator, upon the

Title 2, Chapter 1

Exclusive and Original JD

 Certified cases- cases certified to it for compulsory arbitration by the Secretary of Labor under Art. 263 or the President under Art. 264  Injunction cases under Art. 218 and 264, and  Contempt cases

The Commission and its first, second, third, fourth, fifth and sixth divisions shall have their main offices in Metropolitan Manila, and the seventh and eighth divisions in the cities of Cebu and Cagayan de Oro, respectively.

 The Chairman and members of the Commission shall have the same rank, receive an annual salary equivalent to and be entitled to the same allowances, retirement and benefits as, those of the Presiding Justice and Associate Justice of the Court of Appeals, respectively.  Labor Arbiters shall have the same rank, receive annual salary equivalent to and be entitled to the same allowances, retirement and other benefits and privileges as those of the judges of the Regional Trial Courts.

Exclusive Appellate JD  Cases decided by the LA under Art. 217 of the Labor Code and Sec. 10 of RA 8042 Migrant Workers Act) and  Cases decided by the Regional offices of DOLE in the exercise of its adjudicatory function under Art. 129 of the Labor Code over monetary claims of workers amounting to not more than P5k.

(Art. 215) Headquarters, Branches and Provincial Extension Units)

(Art. 216) Salaries, Benefts and other Emoluments

Note that: findings of facts of a labor tribunal are accorded with utmost respect by the courts and well-nigh conclusive if supported by substantial evidence. Note also that barangay conciliation is NOT applicable in labor cases, since ordinary rules of procedure are merely suppletory in character vis-à-vis labor disputes which are primarily governed by labor laws. (Montoya v. Escayo G.R. 82211)

 The NLRC adjudicates cases by division.  A concurrence of 2 votes is needed for a valid judgment. (Since 3 members each per division)  (Whenever the required membership in a division is not complete and the concurrence of the commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional commissioners from the other divisions as may be necessary)  It shall be mandatory for the division to meet for purposes of consultation.  The conclusion of a division on any case submitted to it for decision should be reached in consultation before the case is assigned to a member for the writing of the opinion.  A certification to this effect signed by the presiding commissioner of the division shall be issued (copy attached to the record of the case and served upon the parties)

Composition Jurisdiction

Note: The NLRC composition is trisectoral. Tripartism is the representation of three sectors—public or government, employers and workers—in the policy-making bodies of the government. Tripartism is observed in numerous government agencies or instrumentalities among them, the NLRC. There is no need for the Comission on Appointments to confirm the positions in the NLC. Such requirement has no constitutional basis. (Calderon v. Carale, G.R. 91636)

National Labor Relations Commission (As amended by RA 9347, 2006)

Adjudication of Cases

Definition

En Banc

 An administrative body with quasi-judicial functions and the principal government agency that hears and decides labor management disputes, attached to the DOLE for program and policy coordination only.  It is independent from DOLE, attached to it only for program and policy coordination only.

Division

 Eight division each with three members  Exclusive appellate JD over cases within their respective territorial jurisdiction, appealed from the Labor Arbiter But the division shall have original jurisdiction in two instances: (1) Petition for injunction (2) Certified national interest labor disputes which are referred to the commission for compulsory arbitration (Art. 263, g)

 1 Chairman and 23 Members  Eight (8) members each, shall be chosen only from among the nominees of workers and employers organization, respectively.  The Chairman and the seven (7) remaining members shall come from the public sector, with the latter to be chosen preferably from among the incumbent Labor Arbiters.  Upon assumption into office, members nominated by the workers and employers organization shall divest themselves of any affiliation with, or interest in the federation or association to which they belong.

NLRC acts En Banc when they:  Promulgate rules and regulations governing the hearing and disposition of cases  Formulate admin policies  Allow cases within the JD of any division to be heard and decided by another division  Recommend appointment of Labor Arbiter  They decide and do stuff in divisions of three (3) commissioners. An individual commissioner has NO adjudicatory power.

 Commissioners are the same rank as CA justices, arbiters and RTC judges.

If majority of the employees refuse to adhere to a work schedule, this constitutes strike in installment which is illegal. (Interphil EU-FFW v. Interphil, wherein the employees resorted to overtime and boycott and slowdown to coerce the employer to accede to their demands. For a labor organization to enjoy all the rights and obligations of a legitimate labor organization, it must be registered.

The issue of whether or not the federation has reasonable grounds to expel the petitioner union officers is within the jurisdiction of the BLR, it being an intra-union conflict.

Runaway shop is an industrial plant moved by its owner from one location to another, to escape union activities. In other words, the relocation is motivated by anti-union animus rather than for business reasons.

Case Doctrines: Art. 211 to 216

The existence of a labor dispute is not negated by the fact that the plaintiff and defendants do not stand in the proximate relations of ER-EE.

Exercise of management prerogative is initiated by law, CBA and general principles of fair play and justice. Moreover, it must be duly established that the prerogative being invoked is a managerial one.

There s a difference between management prerogative regarding business operations per se and those which affect the rights of EEs. In the latter, the management should see to it that the EES are at least properly informed of its decisions and actions.

Participation does not mean that the EEs will control the decisionmaking. It means that they must be consulted. In the end, management will still prevail. (PAL v. NLRC)

JURISDICTION OF LABOR ARBITERS AND THE COMMISSION

Exclusive and Original JD of Labor Arbiters

Except as otherwise provided under this Code, the LA shall have original and exclusive JD to hear and decide, within 30 calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the ff. cases involving all workers, whether agricultural or non-agricultural: (1) ULP (2) Termination disputes (3) If accompanied with a claim for reinstatement, those that workers file involving wages, rates of pay, hours of work and other terms and conditions of employment (4) Claims for actual, moral, exemplary and other forms of damages arising from ER-EE relations (5) Cases arising from violation of Art. 264 (strikes and lockouts), including questions involving the legality of strikes and lockouts (6) Except claims for Employment Compensation, Social Security, Philhealth and maternity benefits all other claims arising from ER-EE relations, including those persons in domestic or household service, involving an amount exceeding P5,000.00 regardless of whether accompanied with a claim for reinstatement. (7) Monetary claims of overseas contract workers arising from ER-EE relations under Migrant Workers Act of 1995 (8) Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to RA 6727 (9) Enforcement of compromise agreements when there is noncompliance by any of the parties pursuant to Art. 227 of the Labor Code, as amended, and (10) Other cases as may be provided by law.

* Of all cases within the JD of LA, the parties, may, by agreement, go to a voluntary arbitrator instead. The law prefers voluntary arbitration instead of compulsory arbitration. * The common element in the cases which go under the LA is the existence of an employment connection (law of resolution test: will the Civil Code or the Labor Code apply?)

 Compulsory arbitration- the process of settlement of labor disputes by a government agency that has the authority to investigate and make an award which is binding on all parties. (The Labor Arbiter is clothed with original and exclusive jurisdiction to conduct compulsory arbitration—but once on appeal to the NLRC, it is no longer part of the arbitration proceedings as the NLRC merely reviews the decision of the Labor Arbiter)  Of all the cases within the JD of the LA, the parties may, by agreement, go to a voluntary arbitrator instead. (The law prefers voluntary arbitration, instead of compulsory arbitration)  The common element in cases which go under the LA is the existence of employment connection, where law of resolution test applies (is the Labor Code or the Civil Code which will apply?)

 On termination disputes, the termination disputes which are referred to are those which does NOT involve enforcement or interpretation of personnel policies (Read with Art. 261)  On strike cases, the Labor Arbiter has the duty to determine the legality of strikes and lockouts  If money claim is P5,000.00 and less, file with the Regional Director. If it is more than P5,000.00, the Labor Arbiter has jurisdiction.

 Other cases under LA: 1. Money claims arising from ER-EE rel. including those of OFW 2. Wage distortion disputes in unorganized establishments not voluntarily settled. 3. Enforcement of compromise agreements when there is noncompliance by the parties 4. Others which are provided by law.

Must be within office hours.  Conduct an ocular inspection on any establishment, building and the like  As any employee, laborer or any person for any info concerning any matter relative to the object of investigation

Decide appealed cases

Conduct ocular inspections NLRC POWERS Requisites before a TRO may be issued ex parte:

 Where substantial and irreparable injury will be unavoidable  There is a testimony under oath to justify the Commission in issuing a TRO  The complainant shall first file an undertaking with adequate amount to be fixed by the Commission sufficient enough to recompense any loss  The TRO shall be effective no longer than 20 days and shall become void at the expiration of 20 days In absence of service of summons or a valid waiver thereof, hearings and judgment rendered by the Labor Arbiter are null and void. The procedural and substantial requirements of Art. 218 must be strictly complied before an injunction may be issued in a Labor Dispute.

Who may Injunctions Disputes?      

Requisites before restraining order/ injunction may issue:

 File a verified petition  Hearing after due and personal notice has been served  Reception at the hearing of the testimony of witnesses with opportunity for cross examination  Finding of fact of the Commission that: (a) prohibited and unlawful acts are committed and will be continued unless restrained (b) That substantial and irreparable duty will follow without the restraining order [c] That complainant has no adequate remedy by law [d] That complainants has no adequate remedy at law [e] That public officers charged with the duty to protect complainant s property are unable or unwilling to furnish adequate protection

issue in

TRO/ Labor

President (Art. 263, g) Secretary of Labor (Art. 263) Labor Arbiters (Art. 217) NLRC Regional Directors Med-arbiters

 Main consideration is substantial and irreparable injury to complainant s property which is: beyond repair and that business has to prove it will not be able to recover.  Permanent injunctions can only be issued after hearing  TROs last only for 20 days and must be placed  Issuance of a TRO ex parte is not per se prohibited. It must be justified by considerations of extreme necessity— when the commission of unlawful acts is causing substantial and irreparable injury to company properties and the company is bereft of any adequate remedy by law.

Issue injunctions and restraining orders

Hold persons in contempt

 In direct contempt: If it is against the LA- a fine not exceeding 100, or imprisonment not exceeding 1 day or both

If it is against the Commission, a fine not exceeding 500, or imprisonment not exceeding 5 days or both  If indirect contempt:

Follow the manner prescribed in Rule 71 of the ROC

Make rules and regulations with regard to its functions (rulemaking power)

Administer oath and issue subpoenas and summons

Investigate, hear and decide disputes within its JD

 Formal or trial-type hearing is not at all essential to due process  It is enough when parties are afforded fair and reasonable opportunity to explain their sides of the controversy  Labor cases can be decided on the basis of position papers and other documents submitted by the parties  The Rules however encourage compromise settlement but they have to be approved by the Labor Arbiter.  The LA shall exert efforts toward amicable settlement. They can be settled at any proceeding, at any point/ time of the proceeding.

 An amicable settlement of a labor dispute should be approved by the labor arbiter before whom the case is pending after being satisfied that it was voluntarily entered by the parties and after having explained the terms and consequences thereof.  PURPOSE: for the employee s protection for the labor arbiter before whom the case is pending would be in a better position than just any labor arbiter to personally determine the voluntariness of the agreement and certify its validity.

Art. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT

 Res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of administrative powers.

 An amicable settlement of a labor dispute should be approved by the labor arbiter before whom the case is pending after being satisfied that it was voluntarily entered by the parties and after having explained the terms and consequences thereof.

Art. 222. APPEARANCE AND FEES

 General rule: Only lawyers can appear before the NLRC, or any Labor Arbiter  Non-lawyers may appear in court if: 1. He represents himself as a party to the case. 2. Represents a legitimate labor organization. 3. Represents a member or members of a legitimate organization existing in the establishment. 4. Duly accredited member of any legal aid office and recognized by the DOJ or the IBP. 5. He is the owner or president of a corporation or establishment party to the case.

COMPARATIVE CHART ON JURISDICTIONS

Bureau of Labor Relations

 Inter-union dispute  Intra-union dispute  Labor Management Relations except interpretation or implementation of the CBA

Grievance Machinery

 Interpretation and implementation of the CBA  Interpretation and enforcement of company personnel policies (Note that it is the labor arbiter and not the grievance machinery which has jurisdiction over dismissal pursuant to the union security clause)

Voluntary Arbitration

 Unresolved grievances  Agreement on other labor dispute (Bargaining deadlock, ULP)

National Conciliation and Mediation Board (NCMB)- strikes

Grounds for judicial review of decisions of voluntary arbitrators     

Grave abuse of discretion Lack of jurisdiction Violation of due process Denial of substantial justice Erroneous interpretation of the law

Labor Arbiter

 ULP  Termination disputes  Reinstatement with cases involving wages  Claims of damages arising from employer-employee relationship  Cases involving prohibited acts in strikes (Bombo Radyo v. SOLE) If the employer-employee relationship has ceased, claims for payment of monetary benefits arising out of that relationship has to be referred to the NLRC-Labor Arbiter because it has JD in view of termination of ER-EE Hence, if there is still ER-EE relationship, Labor Arbiter nor the NLRC has jurisdiction.

So

NLRC = determination of ER-EE relationship in termination cases DOLE= enforcement of labor standard provisions so dapat established na may employer-employee relationship na talaga If no employer-employee relationship, to the regular courts

NLRC

 Appellate jurisdiction over Labor Arbiters  Rule-making powers  Injunction  Contempt

 He can admit the dismissed employee back to work  He can reinstate the employee merely in the payroll Note that: failing to exercise any option may compel the employer under pain of contempt and the employer may be made to pay instead the salary of the employee.

 The LA decision ordering reinstatement of a dismissed or separated employee shall IMMEDIATELY BE EXECUTORY  There is no need for the arbiter to issue a writ of execution on the reinstatement order as it is selfexecutory (Pioneer Texturizing Case)

 File verified memo of appeal within required period of appeal  In case of monetary award, the employer should file a bond either in the form of cash deposit or surety corresponding to the monetary award excluding awards for moral, exemplary damages and attorney s fees  Appeal fee is P110  Furnish other parties with the memo of appeal If the employer fails to post a bond to perfect the appeal, the remedy of the employee is NOT petition for mandamus but a motion to dismiss appeal. The intention of the lawmakers is to make the bond an indispensable requisite for the perfection of an appeal by employer.

OPTIONS OF EMPLOYER IN COMPLYING WITH ORDER OF REINSTATEMENT

 Abuse of discretion on the part of Labor Arbiter or Compulsory Arbitrator  If decision or order was secured through fraud or coercion  If made purely on questions of law  If serious error in the findings of facts are raised GROUNDS

Decisions of Regional Director 5 calendar days from receipt of order.

EXECUTION PENDING APPEAL

REQUISITES BEFORE APPEAL TO NLRC IS PERFECTED

Art. 223. APPEAL

PERIOD WITHIN WHICH TO APPEAL

IS THE PERIOD TO APPEAL EXTENDIBLE?

No—the period of appeal to cases decided by the Regional Director and the Labor Arbiter is never extendible. It is the policy of the state to settle expeditiously labor disputes.

Decisions of Labor Arbiter 10 calendar days from receipt of decision. Note that, the appeal must be under oath and must specifically state the grounds relied upon and the supporting arguments. If the last day falls on a holiday or weekend, file on the next business day. Petition for relief from the decision of the labor arbiter must strictly comply with these two reglementary period:  Petition must be filed within 60 days from knowledge of judgment  Within a fixed period of 6 months from entry of such judgment

 Abuse of discretion on the part of Labor Arbiter or Compulsory Arbitrator  If decision or order was secured through fraud or coercion  If made purely on questions of law  If serious error in the findings of facts are raised APPEAL FROM THE NLRC DECISION

Art. 223. APPEAL Art. 224, EXECUTIONS OF DECISIONS, ORDER OR AWARDS

Appeal Bond

 In case the decision of Labor Arbiter or Regional Director involves a monetary award, an appeal by the employer may be perfected only upon posting of a bond which shall be either in the form of cash deposit or surety bond equivalent to the monetary award, exclusive of damages and attorney s fees.  Without bond, appeal is not perfected.

 The decision of the Secretary of Labor, Commission, Bureau or Regional Director, Labor Arbiter, Med-arbiter or Voluntary Arbitrator shall be final and executory after 10 calendar days from receipt thereof by the parties.  Upon its initiative or upon motion of any interested party, they may issue a writ of execution on a judgment within 5 years from the date it becomes final and executory.  The immediate execution should be undertaken only when the monetary award has been carefully and accurately determined by the NLRC and only after the employer is given the opportunity to be heard and to raise objections to the computation.

Has absorbed all the conciliation, mediation and voluntary arbitration functions of the BLR

Title 3 National Conciliation and Mediation Board (NCMB) E.O. 126

 Regulation of registration of labor unions  Keeping of registry of labor unions  Maintenance of a file of CBAs

Exclusive Original Jurisdiction Admin Functions

BUREAU OF LABOR RELATIONS (Med-Arbiter)

Cases where BLR has no JD Requirements in Filing Cases

If it involves the entire membership (a) The complaint must be signed by at least 30% of the entire membership of the union (b) and it must show exhaustion of administrative remedies

If it involves a member only In such cases only the member may file a complaint

 Inter-union conflicts  Intra-union conflicts  All disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces whether agricultural or not

Inter-union Disputes

 Refers to questions involving or arising out of representation disputes between or among different unions. It also includes other conflicts which legitimate labor organizations may have against each other based on any violation of their rights as labor organizations.

 Those arising from implementation of collective bargaining agreements which shall be subject of grievance procedure and/ or voluntary arbitration

Intra-union Disputes

 Includes all disputes or grievances arising from any violation or disagreement over any provision of the Constitution and bylaws of a union.  It also includes the violation of the rights and conditions of union membership provided in the Labor Code.

 (Intra meaning within the labor organization and the employers lang)

Note that: Since the BLR exercises labor-management relations, the Med-arbiter HAS THE AUTHORITY to determine the existence of employeremployee relationship.

 Quitclaim, in relation to labor law, is defined as a waiver of claim by an employee against his employer. Requisites for a valid quitclaim:

 Must be voluntarily arrived at by the parties  Must be within the assistance of BLS (Bureau of Labor Standards), BLR or any representative of the DOLE  The consideration must be reasonable COMPROMISE AGREEMENTS

Quitclaim If filed WITHOUT the assistance of DOLE it is valid and binding within the parties but the parties can still go to the NLRC and repudiate the agreement.

If filed WITH the assistance of DOLE, it shall be final and binding between the parties, except: (1) in case of non-compliance with the compromise agreement (2) If there is evidence that the settlement is obtained by fraud, coercion or misrepresentation—In such cases, the NLRC may assume jurisdiction.

Title 4 Registration and Cancellation  A labor organization is any union or association of employees which exists in whole or in part for the purpose of: (a) collective bargaining (b) of dealing with employers concerning the terms and conditions of employment DEFINITION

LABOR ORGANIZATION

Federation is an association of national unions.

PURPOSE

Requirements before a federation can be issued certificate of registration:  Application  Proof of affiliation of at least 10 locals or chapters each of which must be: (a) duly recognized collective bargaining agent (b) supports the registration of such applicant federation or national union  The names and addresses of the companies where the locals or chapters operate and the list of all members in each company involved.

 For securing a just and fair wage and good working conditions for laborers, and for protection of labor against unjust exactions of capital. Reason for requirement of registration?

FEDERATION

What is the remedy for unjustified refusal of BLR?

REQUIREMENTS BEFORE A LABOR ORG MAY BE REGISTERED IN THE BLR

It is a condition sine qua non for the acquisition of a legal personality. After registration, it becomes juridical person and would seek recognition from management as SAEBA (sole and exclusive bargaining agent)

For Independent Labor Union

Mandamus is the proper remedy for unjustified refusal of Bureau in approving the application and the corresponding issuance of certificate of registration, it being a ministerial duty.

 Written application verified by the Sec/ Treasurer, attested to by the President  Names of members comprising at least 20% of employees in the bargaining unit where it seeks to operate  Non-existence of CBA  If CBA exists, state in the application that it is filed within the freedom period. It shall be accompanied by these attachments:      

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Registration fee for P50.00 Names and officers and their addresses Minutes of the organizational meeting List of workers who participated in the organizational meeting Names of all members and employees in the bargaining unit Annual financial report, if the applicant has been existing for at least one year Four copies of CBL (constitution and by-laws) Minutes of the resolution of the CBL and the list of members who participated in the bargaining unit concerned If there exists a CBA submitted to the DOLE, a sworn statement that the application for registration is filed during the last 60 days of the agreement.

For Local Chapters  Application form  Charter certificate issued by the federation or national union indicating the creation/ establishment of the local chapter  Names of local/ chapter officers, their addresses and principal office  Local/ chapter s CBL, provided that where the local/ chapter s CBL is the same as the federation or national union, the fact shall be indicated accordingly

Certificate of registration may be cancelled by the BLR if it has reason to believe after due hearing that the said labor organization no longer meets one or more of the requirements herein prescribed. Appeal may be filed within 15 days from the receipt of Decision to the Secretary of Labor.

Art. 238. Cancellation of Registration, Appeal

LABOR ORGANIZATION

Art. 236. Denial of Registration

Denial of registration by the BLR is appealable to the Secretary of Labor within 10 calendar days from receipt, on grounds of:

1. Grave abuse of discretion 2. Gross incompetence

KINDS OF LABOR ORG

 Public Sector (a) Employees Organization (b) Public Sector Union  Private Sector (a) Federation/ National Union (b) Chartered Local Union [c] Independent Union

May a local union affiliate with a federation?

Can a union of supervisory EEs affiliate with federation of rank-and-file employees?

Yes, but it depends whether the Union is individually registered or not If independently registered, the affiliation is by signing a contract of affiliation with the labor union and the registration of such contract with the BLR.

Yes, provided that:

If NOT independently registered= affiliation is done by application with the federation so it may be issued a charter certificate-- to be filed with the BLR.

(1) Federation is not actively involved in union affairs;

What if it DISAFFILIATES?

(2) Rank-and-file employees are not directly under the control of the supervisors

If independently registered, the disaffiliation with the union would not affect its being a legitimate labor organization and therefore would continue to have the rights and privileges of a legitimate organization— CBA will still be valid. If NOT independently registered= it would cease to be a legitimate labor organization and would therefore no longer have the legal personality.

LABOR ORGANIZATION

Grounds for Cancellation of Union Registration

Remedy in case the BLR should cancel the union registration:  Appeal to the Secretary of Labor within 10 calendar days on the ground of (1) grave abuse of discretion (2) gross incompetence of the BLR  Should the SOLE affirm the Bureau s decision, file before SC under Rule 65.

 Misrepresentation, false statement or fraud in connection with (1) adoption or ratification of CBL, (2) minutes of ratification (3) list of members who took part in the ratification  Failure to submit document within 30 days from adoption or ratification of CBL and its amendments  Misrepresentation, false statement, fraud in connection with: (a) Election of officers (b) Minutes of election of officers, list of voters, failure to submit these documents together with the list of newly-elected/appointed officers [c] Within 30 days from election  Failure to submit the annual financial report to the BLR (within 30 days after closing of every fiscal year, and misrepresentation, fraud, and false entries)  Acting as a labor contractor or engaging in a cabo (contracting out of work) system or otherwise engagement in any prohibited activity  Entering into CBA which provides terms and conditions of employment WITHIN the minimum standard provided by law  Asking for or accepting attorney s fees or negotiation fees from the employers  Other than mandatory activities under this Code, checking off special assessment or any other fees without duly signed individual written authorization of the members,  Failure to submit list of individual members to the Bureau once a year of whenever required by the Bureau  Failure to comply with the requirements under Art. 237 and 238. (with respect to federal/ national unions)

Note that: even before registration, ULP may be committed, as intrusion on the employee s right to self-organize is considered ULP.

UNION ORGANIZATION/ REGISTRATION PROCESS Based on LA Natividad Roma s Lecture

Without certification issued by the Federation

House Union (Independent Union)  

Then the labor organization becomes the sole and exclusive bargaining agent (SAEBA)

Affiliated Union

Follow the prodecure under Art. 234 After registration, it becomes a juridical person and would seek RECOGNITION FROM THE MANAGEMENT as the SAEBA (sole and exclusive bargaining agent)

With certification issued by the Federation

At this point, management s refusal to recognize the labor organization is STILL VALID. Then CERTIFICATION ELECTION ensues

If it agrees

Management may agree or disagree

If it disagrees

Note that: voluntary recognition is no longer allowed, there should be a certification election if the management disagrees.

At the end of Certification Election is an ORDER from the BLR (Med Arbiter Regional Office) naming the petitioner as the SAEBA

Management s refusal is no longer allowed this time, otherwise—they may suffer the pain of contempt.

Next is BARGAINING

Rationale: economic provisions should be negotiated since there is no law which says that the salary should be increased in a certain period.

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Which must last for 5 years and 60-day freedom period.

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However, before the lapse of three years, there should be bargaining on the economic provisions, while noneconomic provisions may remain.

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Whether there is a next union in the freedom period or not, there will always be negotiation in the CBA.

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Deadlock may occur in the bargaining process Note that bargaining per se does not necessarily mean agreeing to the proposal One may disagree without being diagreeable ^_^ Benefits of the CBA continues until a new one is signed

 No special assessment or other extraordinary fees may be levied upon the members of a labor organization UNLESS: (a) authorized by written resolution of a majority of all members at a general membership meetings  The secretary of the organization shall record the minutes of the meeting including: (a) List of all members present (b) Votes cast [c] Purpose of assessment or fees  Which shall be attested to by the President

Art. 241- Rights and Conditions of Membership in a Labor Organization

 Political Right- right of members to vote and be voted for  Deliberative and decision-making right- members right to participate in deliberations on major policy questions and decide them by a secret ballot

 Rights over money matters- right of members against (a) excessive fees (b) unauthorized collection of contributions or unauthorized disbursements [c] require adequate records of income and disbursements (d) access financial records (e) vote on officers compensation (f) vote on special assessment (g) to be deducted special assessment only with the members written authorization  Right to information- members right to be informed about: (a) the organization s CBL (b) CBA © about labor laws

Requirements in Making a Special Assessment

General Rights of Union Members (Art. 241)

Requisites for a Valid Check-off?

The REQUIREMENTS when it comes to special assessment are as follows:  There must be a written resolution  The resolution must have been approved by a majority of all members  Approval must be at a general membership duly called for the purpose

What is Check-off?

 GENERAL RULE Art. 241: No special assessment, attorney s fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee—WITHOUT an individual written authorization duly signed by the employee.  The authorization should specifically state the: (a) amount (b) purpose [c] beneficiary of deduction  EXCEPTION to the requirement of individual written authorization—(a) the law does not require it when it comes to mandatory fees under this Code (b) when non-union members avail of the CBA benefits.

 It is a method of deducting from an employee s pay at prescribed period, the amounts due to the union for fees, fines or assessment.  In special assessment, there must be a written resolution authorized by majority of the members at a general meeting called for the purpose.  Purpose of check-off- to facilitate the collection of dues necessary for the union s life and sustenance.

Art. 242- Rights of a Legitimate Labor Organization Rights of LLO

 Undertake activities for benefit of members  Sue and be sued  Exclusive representative of all employees  Represent union members  Furnished by employers of audited financial statements  Own properties  Exempted from taxes

Effect of Cancellation of Registration in the Course of Proceedings

 Where a union is a labor party in a proceeding and it later loses its registration permit during the pendency of the case, such union may still continue as a party without need of substitution of parties, subject however to the understanding that whatever decision may be rendered therein will only be binding upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits.

Title 6 Unfair Labor Practice

Nature of ULP

Art. 247. Unfair Labor Practice Prescriptive Period for Filing Criminal and Civil Cases of ULP

 Violate the constitutional right of workers and employees to selforganization  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  Hinder the promotion of healthy and stable labor-management relations

 One (1) year from the accrual of the ULP act.

 Prescriptive period of criminal case is suspended once the administrative case has been filed and would only continue running once the admin case has attained finality.  However, final judgment in the admin proceeding shall not be binding in criminal case nor shall be considered as an evidence of guilt but merely as proof of compliance of the requirements prescribed in the Code.  Prerequisite in filing criminal case: final judgment in the administrative case that the ULP has been committed.

Test of Discrimination?

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Whenever the benefits or privileges given to one is not given to the other under similar or identical conditions When directed to encourage or discourage union membership To dismiss, discharge or otherwise prejudice or discriminate against an employee—for having given or about to give testimony under the Code To violate the duty to bargain collectively as prescribed by the Code 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 disputes To violate a CBA—which must be gross and must pertain to the economic provisions only.

Three components of Art. 248 on Discrimination 

It prohibits discrimination in terms and conditions of employment in order to encourage or discourage membership in the union

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It gives validity to union security agreements

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It allows an agency shop agreement whereby agency fees may be collected from non-union members

Yellow Dog Contract = a promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster a union during their period of employment. It is contrary to public policy for it is tantamount to involuntary servitude.

(a)To interfere with, restrain or coerce employees in the exercise of their right to selforganization

It is entered into without consideration for employees to waive their right to self-organization. Employees are coerced to sign contracts disadvantageous to their family.

[e] DISCRIMINATION 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

Art. 246. ULP by Employer

[d] To initiate, dominate or otherwise interfere (1) with the formation of labor organization (2) including the giving of financial or other support to its organizers or officers

Does Art. 248 mean that an employer cannot contract out work? (b) To require as a condition of employment that a person or employee—(a) shall not join a labor organization (b) shall withdraw from one to which he belongs

[c] To contract out services performed by union members— when such will interfere with the employees right to self-organize (example: contracting out services during strike)

No. Contracting out per se is not ULP. It is only ULP when the following conditions exist:  

The services contracted out are being performed by union members Such contracting out interferes with, restrains or coerces employees in the exercise of their right to self-organization.

However, when the contracting-out is being done to minimize expenses, then it is a valid exercise of management prerogative.

Protection Self-Preservation

It strengthens the union through selective acceptance of new members on the basis of commitment and loyalty

To shield union members from whimsical and abusive exercise of management prerogatives

Benefits Security Arrangements

These are CBA stipulations requiring membership in the contracting union as a condition for employment or retention of employment in the company.

An additional membership will insure additional source of income to the union dues and special assessment

Closed Shop Agreement The employer undertakes not to employ any individual who is not a member of the contracting union and the said individual once employed must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment.

Agency Shop Agreement

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.

Union-Shop Agreement

This is directed against free rider employees who benefit from union activities without contributing to union support to prevent a situation of non-union members enriching themselves at the expense of union members.

Stipulation whereby any person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the CBA

Different Kinds of Security Arrangements

Preferential Shop Agreement The employer agrees to give preference to the members of the bargaining union in hiring or firing vacancies and retention in case of lay-off. But the employer has the right to hire in open market if union members are not available. Usually, descendants (children) are also given preference in employment.

Maintenance of Membership Clause The agreement does not require nonmembers to join the contracting union but provides that those who are members thereof at the time of the execution of the CBA and those may thereafter on their own volition become members must for the duration of the agreement maintain their membership in good standing as a condition for continued employment in the company for the duration of the CBA

It can only have a prospective application

It must be expressed in a clear and unequivocal way so as not to leave room for interpretation because it is a limitation to the exercise of the right to self-organization. Any doubt must be resolved against closed shop.

Requirements for a Valid Union or Closed Shop Agreement (So that employer can terminate the employee for violation of said agreement)

It cannot be applied to employees who are already employees of the rival union nor to the employees based on their religious beliefs

It can only be exercised by giving the employee the right to due process.  The employer has the right to satisfy itself that there are sufficient bases for the request of the union  The termination of the employee is not automatic upon request of the union

To restrain or coerce employees in the exercise of their right to self-organization.

To violate a CBA.

To ask for or accept negotiation or attorney s fees from employers as part of the settlement of any issue in collective bargaining or in any dispute

PERSONS CIVILLY LIABLE FOR ULP  Officers and agents of employer  Labor organization, officers and agents PERSONS CRIMINALLY LIABLE FOR ULP  Agents and officers who participated or authorized or ratified the act  Agents, representatives, members of the government board, including ordinary members

Featherbedding= refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of exaction, for services which are not performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latter s requirements.

However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership

Unfair Labor Practices of Labor Organizations

To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value in the nature of exaction, for services which are not performed or not to be performed, including the demand for a fee for union negotiations (featherbedding)

To cause or attempt to cause an employer to discriminate against an employee.

To violate the duty or refuse to bargain collectively with the employer

Title 7

Collective Bargaining and Administration of Agreements

It is the negotiation by an organization or group of workmen, in behalf of its members, with the employer, concerning wages, hours of work or other terms and conditions of employment and the settlement of disputes by negotiation between an employer and the representative of his employees. Meaning

Mandatory provisions of the CBA       

Wages Hours of work Grievance machinery Voluntary arbitration Family planning Rates of pay Mutual observance clause

In addition, the Bureau requires that the CBA should include a clear statement of the terms of the CBA.

Procedure in Collective Bargaining Scope of CBA

Scope of CBA

Procedure in CBA

 Written notice with statement of proposals  Reply by the other party  In case of differences, either party may request for a conference  If not settled NCMB may intervene and encourage the parties to submit the dispute to a voluntary arbitrator  If not resolved, the parties may go to where they want and resort to any other lawful means

CBA is a negotiated contract between a legitimate labor organization and the employer concerning:    

Wages Hours of work All other terms and Conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries

Collective Bargaining and Administration of Agreements

Title 7

A group of employees of a given employer, comprised of all or less that all the entire body of employees, consistent with equity to the employer—indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provision of the law.

Bargaining Unit

1. By selection certification election

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Voluntary recognition/ direct certification under EO 111 is no longer allowed

Method of Choosing the Bargaining Unit

Duty to Bargain Collectively where there is CBA

Four Factors In Determining the Appropriate Bargaining Unit

Things to Consider in Determining the Community Interest Doctrine

Automatic Renewal Clause

This is under the present Article which establishes an automatic renewal clause in the CBA where the CBA is effective and enforceable even after the expiration of the period fixed by the parties as long as no new agreement is reached by them.

 The express will or desire of the employees (Globe Doctrine)  The substantial and mutuality interest factor  Prior collective bargaining history  Employment status, such as— temporary, seasonal or probationary employee

 Similarity in the scale and manner of determining earnings  Similarity in employment benefits, hours of work and other terms and conditions of employment  Similarity in the kinds of work performed  Similarity in the qualifications, skills and training of employees  Frequency of contact or interchange among the employees  Common supervision and determination of laborrelations policy  History of previous collective bargaining  Desires of affected employees  Extent of union organization

CONSENT ELECTION

CERTIFICATION Aimed at determining the SAEBA (sole and exclusive bargaining agent) of all the employees in an appropriate bargaining unit for the purpose of collective bargaining

An agreed one, its purpose being merely to determine the issue of majority representation of all workers in the appropriate collective bargaining unit

Separate and distinct consent election

From the very nature of consent election, it is a separate and distinct process and has nothing to do with the import and effect of a certification election.

from

What is the effect of voluntary recognition by the employer? By voluntary recognition of the employer, the labor organization organized by the employer as the exclusive bargaining agent may collectively bargain with the employer.

In an unorganized company— (a) upon filing of a verified petition by a legitimate labor organization (b) upon filing of a petition by the employer when such employer is requested by the employees to bargain collectively When is conduct of CE mandatory on the part of the BLR?

In an organized company upon filing of a verified petition by a legitimate labor organization questioning the majority status of the incumbent bargaining agent within the 60-day freedom period before the expiration of CBA

The petition must be supported by the written consent of at least 25% of all the employees in the appropriate bargaining unit. Note that: in case the establishment is organized, the employer cannot file a petition for certification election, only a legitimate labor organization may file such petition.

When the establishment is not organized, it can file a petition for CE at any time, subject however to the ONEELECTION-PER-YEAR rule.

In an organized establishment, (a) when there is CBA—the labor organization can file a petition for certification election within the 60-day freedom period (CONTRACT-BAR RULE)

(b) when there is no CBA—then the labor organization can file a petition for certification election at any time, subject to the Deadlock bar rule. When may a labor organization file for certification election

Deadlock bar rule—a petition for CE can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout.

Requisites before a labor union may be declared a winner:  Majority of the eligible voters cast their votes  Obtained majority of the valid votes cast (double majority)

Run-off Elections

Sample Certification Election

 This happens when: Eligible Voters:

(a) The election provides for at least 3 choices—(no union is always a choice) (b) The election results in none of the choices received the majority votes (50%+1) of the valid votes cast.

Union A: Union B: Union C: No Union: Spoiled Ballots:

200 votes 240 votes 60 votes 20 votes 30 votes

Question:  What is the total number of votes cast? 550 votes  What is the total number of VALID VOTES cast? (eliminate spoiled ballots) 520 votes (minus 30 spoiled ballots)  Was there a valid certification election? Yes, because majority of the bargaining unit have voted.  Which union will be the SAEBA? None, because no union has majority of the valid votes cast. (550 / 2 =275 +1 = 276) No union has 276 votes  What else may be done to elect the SAEBA? Run-off election

(b) Provided that the total number of votes for all the contending unions is at least 50% of the total votes cast

 In determining VALID VOTES = eliminate spoiled ballots, but include challenged votes  In determining ELIGIBLE VOTES CAST= include spoiled ballots

Run-off shall be conducted: (a) Between the labor union receiving the two highest number of votes

How to determine two majority?

Ang mag rurun-off election ay Union A and B, because:

 They are the labor unions which have the two highest number of votes  Their total number of votes combined is more than 50% of the total votes cast

CONTRACT BAR RULE provides that while a valid and registered CBA is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union. Exception to the Rule: It arises when there is an impasse which presupposes reasonable effort at good bargaining which, despite noble intentions, did not conclude in agreement between parties

DEADLOCK BAR RULE

RULES WHICH WILL PREVENT HOLDING OF A CERTIFICATION ELECTION

ONE YEAR BAR RULE

 Where it is shown that because of a schism in the union the contract can no longer serve to promote industrial stability, and the holding of election is in the interest of employees right in the selection of their bargaining representatives  Basic to the contract bar rule is the proposition that the denial of the right to select representatives can be justified only when stability is deemed paramount  Certain types of contracts which do not foster industrial stability such as contracts where the identity of the representative is in doubt or those that are prematurely renewed

Requirements in order to invoke the contract bar rule  Agreement is in writing, signed by all contracting parties  It must contain the terms and conditions of employment  Covered employees in an appropriate bargaining unit  It is for a reasonable period or duration  It must be ratified  It must be registered with the Bureau  The violation of the contract bar rule or the existence of a duly-registered collective bargaining agreement must be specifically impleaded as a defense

Exceptions to a contract bar rule

 CBA is not registered  CBA deregstered  CBA was hastily concluded way ahead of the freedom period  CBA is incomplete in itself  CBA does not foster industrial peace because of schism  CBA was concluded in violation of an order enjoining the parties from entering into a CBA until the issue of representation is resolved Effect of an invalid and unregistered CBA= then there is no bar and therefore a certification election may be held

When there is a collective bargaining agreement, the DUTY TO BARGAIN COLLECTIVELY shall mean that neither party shall terminate or modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least 60 days prior to its expiration period.

Does the duty to bargain collectively carry with it the duty to agree to a proposal or to make a concession? No. The duty to bargain collectively does not compel any party to (1) agree to a proposal or (2) make a concession

Wages

DUTY TO BARGAIN COLLECTIVELY

The performance of a mutual obligation to meet and convene promptly and expeditiously and in good faith, for the purpose of negotiating an agreement with respect to—

Executing a contract incorporating such agreements if requested by either party

Hours of work

All other terms and conditions of employment, including

Proposals for adjusting any grievances or questions arising under such agreement

Surface Bargainingoccurs when employer constantly changes its positions over the agreement

EXAMPLES OF BAD FAITH BARGAINING

Duties of the Parties during the 60-day period— Boulwarism- occurs when the employer directly bargains with the employer disregarding the union, or employer submits its proposals and adopts a take it or leave it stand. This is NOT a negotiation because a take-it-or-leave-it stand implieas threat

 Keep the status quo  Continue in full force and effect and the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties

Title 7-A

Grievance Machinery and Voluntary Arbitration What is grievance machinery? It is the mechanism for the adjustment of controversies or disputes arising from the interpretation or implementation of the CBA and the interpretation or enforcement of personnel policies. Grievance arises when: a dispute or controversy arises over the implementation of a CBA or from the implementation or enforcement of company personnel policies, and either the union or the employer invokes the grievance machinery provision for the adjustment or resolution of such dispute or controversy.

For voluntary arbitration, refer to the Comparative Chart on Jurisdictions

In economic strike= it is the collective bargaining agent. Any temporary stoppage of work by the concerted action of employees as a result of an industrial labor dispute

In political (ULP) strike= it can either be the collective bargaining agent or the legitimate labor organization in behalf of members.

Who may declare strike?

 Deadlock collective bargaining  Unfair practices

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labor

STRIKES

Grounds for Declaration of Strike WHAT IS LOCKOUT?—Gawa ng employer. Pag strike, employee

Temporary refusal of an employer to furnish work as a result of an industrial or labor dispute

Meaning

Strike Area

Importance

It is the most effective weapon of labor in protecting the rights of employees to improve the stems and conditions of their employment

Strike Breaker

The establishment, warehouse, depots, plants or offices; including the sites or premises used as runaways shops of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from the said establishment.

Any person who obstructs, impedes or interferes by force, violence, coercion, threats or intimidation with any peaceful picketing by employees during any labor controversy affecting wages, hour or conditions of work in the exercise of the right to self-organization or collective bargaining

One where the workers stop working but do not leave their place of work

One called for a valid purpose and conducted through means allowed by law Sitdown Strike Legal Strike

One declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent

FORMS OF STRIKE

Illegal Strike

Wildcat Strike

One staged without the workers quitting their work but merely slackening or by reducing their normal work output

Slowdown Strike

One staged for a purpose not recognized by law, or if for a valid purpose, conducted through means not sanctioned by law

Economic Strike ULP Strike

One called to protest against the employer s acts of unfair labor practice enumerated in Art 248 of the Labor Code, as amended, including gross violation of the CBA

One staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant

When is strike considered legal? Lecture by Labor Arbiter Natividad Roma

Strike must always be on— Lawful purpose and on lawful means, and in accordance with the procedural and substantive requirements by law

MUST BE FILED AND STAGED BY THE SAEBA (sole and exclusive bargaining agent)

SUBJECT MATTER must either be on: (1) Unfair labor practice (2) Bargaining deadlock

There should be a NOTICE OF STRIKE filed before the NCMB Regional Office where the employer is located

If the ground is UNFAIR LABOR PRACTICE, 15 DAYS before the intended date of strike/ lockout

Must not be an inter/intra union dispute

Purpose of notice of strike is for conciliation and mediation, and to forge a voluntary/ amicable settlement—conducted by NCMB Concilator-Mediators

If the ground is BARGAINING DEADLOCK, 30 days before the intended date of strike/lockout

*** Contents of notice of strike (1) names (2) addresses of employer (3) union involved (4) nature of industry

***But in case of UNION BUSTING where the existence of the union is threatened, the 15-day cooling off period before the intended strike does not apply and the union may immediately take action after the strike vote is conducted, and the results thereof will be submitted to DOLE.

Present a copy to the concerned parties of the notice of strike

Note that:

 If the strike is considered illegal, nobody will dismiss the union members, not even the management BUT for their failure to follow the legal strike procedure, they are deemed to have lost their employment status. THIS APPLIES ONLY TO UNION OFFICERS

The union will first notify the NCMB re: taking of STRIKE VOTE where only union members will act.

***Purpose of strike vote— to ensure that the decision to stage a strike comes from the majority members of the union.

SUBMISSION OF STRIKE VOTE REPORT to the NCMB, (secret ballot in the company)

 BUT—if there were illegal activities committed during the strike, the members who committed such act will also be apprehended  Also, they may file separate criminal acts (BLTB Case: If there are criminal cases filed against the union members, they may go back to work but note on the theory of substantiality where the employer must identify the perpetrator of the criminal act committed during strike with positive evidence with respect to the union members. Example: actual pictures of violent acts committed during strike  If something happens to the picket line, criminal charges may be filed against the violator which may even declare the entire strike illegal  Police people cannot arrest or detain a union member for union activities except on grounds of (1) national security (2) public peace (3) commission of a crime

Where to file petition to declare strike illegal? Regional Arbitration Branch-NLRC which is composed of Labor Arbiters. On appeal, file it with the Commission as a whole.

WAIT FOR 7 DAYS to give NCMB last stage effort to settle

STRIKE ON THE 8th DAY

When does the Secretary of Labor assume jurisdiction?  If the strike is of national interest  If they assume jurisdiction after a strike vote report and cooling off period  In this case, Secretary of Labor conducts arbitration proceedings where parties will only submit their position papers, and certify dispute to NLRC for arbitration and no longer conciliation. Consequence is—issuance of return-to-work order at wala nang strike.

If at this point where SOLE assumes jurisdiction, a strike still ensues— The law considers it a defiance of a state order, where union members may also be held liable. Note that a strike after SOLE assumes jurisdiction is a prohibited activity na.

The obstruction of free ingress or egress from the employer s premises for lawful purposes

Any act of violence, coercion or intimidation by the picketer

Stationary picket and the use of means like placing objects to constitute permanent blockade or to effectively close points of entry or exit in company premises

Obstruction of public thoroughfares while engaged in picketing

PROHIBITED ACTS AND PRACTICES ON STRIKES

Employing any strike breaker or being employed as a strike breaker

Declaring strike on the grounds of inter/ intra union dispute

Declaring a strike without first having bargained collectively or without following the legal procedures

Obstructing, impending or interfering with by force, violence, coercion etc.

You should not study the law merely for the sake of doing well in recitations, passing your law school exams, surviving law school or hurdling the bar to become a lawyer. You have to study the law because you are in love with the study of law. Create a theater of different human activities in your mind and see the law in action. Visualize how the law interacts with the people and the society; and how it offers solutions to problems, how it facilitates transactions, how it nurtures relationships, how it preserves order, how it affects human thought. When you can do this, the law will come to life, and you will see it everywhere, and you will fall in love with the study of law. And when you fall in love with the study of law, you will never forget it again. The knowledge that it gives you, you can no longer unlearn it. It will be yours forever.

Speak, for those who cannot speak for themselves. Proverbs 31:8 Cecille Carmela T. de los Reyes Philippine Christian University- College of Law