Labor Relations

LABOR RELATIONS PART 1 RIGHT TO SELF-ORGANIZATION 7 CARDINAL RIGHTS OF WORKERS (1987 Const., Art. 13, Sec. 3) (1) self-organization (2) collective bargaining and negotiations (3) peaceful concerted activities, including the right to strike in accordance with law (4) security of tenure (5) humane conditions of work (6) a living wage (7) participate in policy and decision-making processes affecting their rights and benefits as may be provided by law COVERAGE OF RIGHT TO SELF-ORGANIZATION [Art. 243-245, 269; DO 40-03 (Rules Implementing Book V)] •

All persons may organize for a lawful purpose but not all may form labor unions (i.e., forming or joining labor organizations for the purpose of collective bargaining)

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The right to self-organization includes the right not to exercise it. An employee may, as he pleases, join or refrain from joining an association. (Reyes v. Trajano, 1992)

Q: Do workers have a right not to join a labor organization? Suggested answer: Yes, when workers decide whether they will or will not become members of a labor organization. That is why a union’s constitution and by-laws need the members’ adoption and ratification. Moreover, if they are members of religious group whose doctrine forbids union membership, their right not to be compelled to become union members has been upheld. However, if the worker is not a “religious objector” and there is a union security clause, he may be required to join the union if he belongs to the bargaining unit. (Reyes v. Trajano) (2000 Bar Question) Q: Mang Bally, owner of a shoe repair shop with only 9 workers in his establishment, received proposals for collective bargaining from the Bally Shoe Union. Mang Bally refused to bargain with the workers for several reasons. First, his shoe business is just a service establishment. Second, his workers are paid on a piecework basis (ie per shoe repaired) and not on a time basis. Third, he has less than 10 EEs in the establishment. Which reason or reason/s is/are tenable? Explain briefly. None. First, Mang Bally’s shoe business is a commercial enterprise, albeit a service establishment. Second, the mere fact that the workers are paid on a piece-rate basis does not negate their status as regular EEs. Payment by piece is just a method of compensation and does not define the essence of the relation. [Lambo v. NLRC, 317 SCRA 420 (1999)]. Third, the EEs’ right to self organization is not delimited by their number. The right to self-organization covers all persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions whether operating for profit or not. [Art. 243, LC] (2002 Bar Question)

General Rule (To whom the right is available) All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers Ambulant—

moving

about,

Right form, join, or assist labor orgs of their own choosing form labor orgs

Purpose Collective bargaining

Mutual aid and protection and other legitimate purposes other than collective

“palipat-lipat” Intermittent— temporary Itinerant— travels from place to place

bargaining

Specific EEs With Right to Self-Organization for purposes of collective bargaining (1) Government EEs (a) For govt EEs of govt corps established under the Corp. Code (LC governs them)— right to organize and bargain collectively (b) For EEs of all branches ,subdivisions, instrumentalities of govt, including GOCCs with original charters from Congress—EO 180 governs them EXECTUIVE ORDER 180 (June 1, 1987) Applies to all EEs of all branches, subdivisions, instrumentalities and agencies of the government including EEs of GOCCs with original charters Rights (1) can form, join or assist EEs’ organizations for furtherance and protection of interest (2) can engage in concerted activities, including the right to strike (3) may negotiate collective negotiation agreements (CNA) or memorandum of agreement (MOA) with their ERs Limitations (1) the concerted activities must be exercised in accordance with law, i.e., subject to Civil Service Law and rules and any legislation that may be enacted by Congress (2) negotiations should only involve terms and conditions of employment that are not fixed by law (3) the resolution of complaints, grievances, and cases involving government EEs is not ordinarily left to collective bargaining or other related concerted activities but to Civil Service Law and labor laws and procedures whenever applicable (4) in case any dispute remains unresolved after exhausting all available remedies under existing laws and procedures, the parties may jointly refer the dispute to the Public Sector LaborManagement Council (the EO provided for the composition of this) for appropriate action Employees’ Org • The appropriate organizational unit is the unit consisting of rank-and-file EEs unless circumstances otherwise require • Govt EEs organizations shall register with the CSC and the BLR • The duly registered EEs’ organization having the majority support of the EEs in the appropriate organizational unit shall be designated as the sole and exclusive representative of the EEs Not Covered (1) High-level EEs (those whose functions are policy-making or managerial or highly-confidential cannot join the org of rank-and-file EEs) (2) AFP (3) Police officers (4) Policemen (5) Firemen (6) Jailguards •

BUT Memorandum Circular No. 6 of CSC, dated April 21, 1987, enjoins strikes by government officials and EEs (Arizala v CA, 1990) Thus, to sum up the government EEs covered by EO 180: (1) may organize and unionize (2) they can negotiate, but not bargain (negotiate only on matters not fixed

by law) (3) they cannot strike Q: How does the government employees’ right to self-organization differ from that of the employees in the private sector? Suggested Answer: There is no substantial difference of the right of self-organization between workers in the private sector and those in the public sector. In the public sector, Executive Order No. 180, the purpose of self-organization is stated as “for the furtherance and protection of their interest.” In the private sector, Art 243 o the Labor Code states “for the purpose of collective bargaining”, and “for the purpose of enhancing and defending their interests and for their mutual aid and protection.” Alternative Answer: In government, managerial employees shall no be eligible to join the organization of rank and file employees per EO 180 but said law does not provide that they are not eligible to join, assist, or form any labor organization, meaning they could join, assist of form any labor organization of their own. In the private sector, managerial employees are not eligible to join, assist, or form any labor organization. (See At. 243, LC and Sec. 3, EO 10) (1996) (1996 Bar Question)

(2) Supervisory EEs [Art. 245; Art. 212 (m)]— those who, in the interest of the employer (a)Effectively recommends such managerial actions (b) If the exercise of such authority is not merely routinary or clerical in nature (c)But requires the use of independent judgment. • What determines the nature of employment is not the employee's title, but his job description. • Supervisory employees shall—NOT be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form SEPARATE labor organizations of their own. • To maintain the segregation, a supervisor’s union is not allowed to affiliate with the same federation as that of the rank-and-file union under these conditions: (1) The rank-and-file EEs are directly under the authority of the supervisory EEs (2) The national federation is actively involved in union activities in the company (Atlas Lithographic v. Laguesma, 1992; De la Salle University Medical Center v. Laguesma, 1998) (3) Aliens (Art. 269)—Aliens, generally, have no right to self organize for purpose of collective bargaining unless (the following must concur): (a)They have valid permits issued by DOLE; and (b) That said aliens are nationals of a country which grants the same or similar rights to Filipino workers (reciprocity (4) Security Guards • EO 111 has eliminated the disqualification of security guards from forming labor unions. • They may now join a rank-and-file organization or that of the supervisory union, depending on their rank. (Manila Electric v. Sec. of Labor, 1997) Q: Do the following workers have the right to self-organization? Reasons/ basis 1. employees of non-stock, non-profit organizations? 2. alien employees? Suggested Answer: 1. Even EEs of non-stock, non-profit organizations have the right to self-organization. This is explicitly provided for in Art 243 of the Labor Code. A possible exception, however, are EE members of non-stock, non-profit cooperatives. 2. Alien EEs with valid work permits in RP may exercise the right to self-organization on the basis of parity or reciprocity, that is, if Filipino workers in the alien’s country are given the same right. (Art 269, LC) (2000 Bar Question)

Workers Without Right to Self-Organization For purposes of collective bargaining (1) Managerial Employees [Art. 245; Art. 212 (m)]

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one who is vested with powers or prerogatives a. To lay down and execute management policies and/ or b. To hire , transfer, suspend, layoff, recall, discharge, assign, or discipline employees

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NOT eligible to join, assist or form any labor organization • “labor organization” is a technical term • it is formed for the purpose of collective bargaining concerning terms and conditions or dealing with employment concerning terms and condition of employment • Hence, managerial EEs are not prohibited from forming an association The prohibition of unionization of managerial EEs does not violate the Phil. Consti. (UPSU v. Laguesma, 1998) National Sugar Refineries Corp v NLRC (1993) › the definition of a managerial employee in Labor relations [Art. 212 (m)] is not exactly the same as the definition under labor standards (Art. 82). › Art. 82 is much broader in scope than Art. 212 (m). › It was held that for purposes of forming and joining unions, certification elections, collective bargaining, supervisory EEs are considered not managerial EEs hence they can unionize. › However, in terms of working conditions and rest periods and entitlement to the questioned benefits, they are officers or members of the managerial staff (which are managerial EEs per Art. 82,) hence they are not entitled thereto.

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Who are rank-and-file EEs? EEs who are not managerial nor supervisory EEs.

Q: A, B, C and D (treasurer, accountant, elementary department Principal, and secretary of the Director, respectively), regular employees of a private educational institution, were administratively charged for their participation in a picket held in front of the campus after office hours. Several faculty members, nonacademic staff and students joined the peaceful prayer rally organized by the disgruntled employees to protest certain alleged abuses of the incumbent school director. Subsequently, the rank and file employees succeeded in forming the first and only union of the School. During the investigation, the administration discovered that two (2) days prior to the rally, A, B, C and D attended the meeting of the School’s employees’ association which planned the protest activity. Two wellknown organizers/leaders of a national federation were also present. A, B, C and D were dismissed by the School on the ground of violating the Labor Code which prohibits managerial employees to “join, assist, or form any labor organization.” Is the contention of the School tenable? Is the dismissal of A, B, C and D valid? Explain. Suggested Answer: The dismissal of A, B, C and D on the ground that they violated the Labor Code provision which states that managerial employees “are not eligible to join, assist or form any labor organization” is not valid. The Labor Code doe not provide for any sanction for the aforesaid acts. These acts could not be considered as just cause for the termination of employment, either. Another Suggested Answer: The dismissal of the management employees because of union activities, no matter how erroneous or tenuous may be the basis for the exercise, is a violation of the constitutional and statutory guaranteed rights of self-organization and an act of unfair labor practice. (Sec. 3, Art. XIII, Constitution; Art. 243, LC. See also Art. 248(a), LC). (2004 Bar Question)

(2) Confidential EEs--those who: (a)Assist or act in a fiduciary capacity (b) To persons who formulate, determine, and effectuate management policies in the field of labor relations. •

The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee — that is, the confidential relationship must exist between the employee and his superior officer and that the superior officer must handle the prescribed responsibilities relating to labor relations (if not labor relations, then not confidential EE). Sugbuanon Rural Bank vs. Laguesma, (2000) › Art. 245 of the Labor Code does not directly prohibit confidential employees from engaging in union activities.

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However, under the doctrine of necessary implication, the disqualification of managerial employees equally applies to confidential employees. The confidential-employee rule justifies exclusion of confidential employees because in the normal course of their duties they become aware of management policies relating to labor relations.

Note: An EE may not be excluded from appropriate bargaining unit merely because he has access to confidential information concerning employer’s internal business operations and which is NOT RELATED to the field of labor relations. If access is merely incidental, you cannot classify them as confidential employees. Thus a phone operator or driver cannot be classified as a confidential employee for the purpose of excluding them from joining a union. It is the policy of the law to encourage self-organization, thus if you have to limit it, the limitation must strictly be construed and well justified. Q: Malou is the Executive Secretary of the Senior Vice-President of a bank while Ana is the Legal Secretary of the bank’s lawyer. They and other executive secretaries would like to join the union of rank and file EEs of the bank. Are they eligible to join the union? Why? Explain briefly. Suggested Answer: The following rules will govern the right of self-organization of Malou, Ana, and the other Executive Secretaries: 1. No right to self-organization – confidential EE who act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor-management relation. The two criteria are cumulative and both must be met. [San Miguel Corporation Union v. Laguesma, 277 SCRA 370 (1997)] 2. With right to self-organization – when the EE does not have access to confidential labor relations information, there is no legal prohibition against confidential EEs from forming, assisting, or joining a labor organization. [Sugbuanon Rural Bank, Inc. v Laguesma, 324 SCRA 425 (2000)] No right of self-organization for Legal Secretaries – Legal Secretaries fall under the category of confidential EEs with no right to self-organization. [Pier & Arrastre Stevedoring Services, Inc. v. Confessor, 241 SCRA 294 (1995)] (2002 Bar Question)

(3) Workers-Members of a Cooperative Cooperative— is an organization composed of small producers and of consumers who voluntarily join together to form business enterprises which they themselves, own, control and patronize. (PD 175) (a) An employee of such a cooperative who is a member and co-owner— no right to collective bargaining because an owner cannot bargain with himself or co-owners. (BENECO v. FerrerCalleja, 1989) (b) Employees who are NOT members or co-owners— such employees are entitled to exercise the rights of all workers to organization, collective bargaining negotiations, and others. (San Jose Electric Service Coop. v. Min. of Labor, 1989) Q: Do EEs of a cooperative have a right to form a union? Explain briefly. Suggested Answer: EEs who are members of a cooperative cannot form a union because, as members, they are owners and owners cannot bargain with themselves. However, EEs who are not members of a cooperative can form a union. [San Jose Electric Service Cooperatiev v. Ministry of Labor (1989)] (2002 Bar Question)

(4) Employees of International Organizations Certain international organizations, such as the Intl Rice Research Institute (IRRI) and the Intl Catholic Migration Commission (ICMC), are by their charters given a grant of immunity from legal processes and thus are beyond the jurisdiction of the DOLE. A certification election cannot be conducted in these international orgs. (5) Non-Employees If there is no ER-EE relationship, then there is no right to collective bargaining but they still have the right to organize since this right is constitutionally protected, only that they cannot organize for the purpose of collective bargaining.

Q: FACTS: Solar Plexus Bar and Night Club allowed by tolerance 50 Guest Relations Officers (GROs) to work without compensation in its establishment under the direct supervision of its Manager from 8:00pm to 4:00am everyday, including Sundays and Holidays. The GROs, however, are free to ply their trade elsewhere anytime but once they enter the premises of the night club, they are required to stay up to closing time. The GROs earned their keep exclusively from commissions for food and drinks, and tips from generous customers. In time, the GROs formed the Solar Ugnayan ng mga Kababaihang Inaapi (SUKI), a labor union duly registered with the DOLE. Subsequently, SUKI filed a petition for certification election in order to be recognized as the exclusive bargaining agent of its members. Solar Plexus opposed the petition for certification election on the singular ground of absence of ER-EE relationship between th GROs on the one hand and the night club on the other hand. May the GROs form SUKI as a labor organization for purposes of collective bargaining? Explain briefly. Suggested Answer: The GROs may form SUKI as a labor organization for purposes of collective bargaining. There is an ER-EE relationship between the GROs and the night club. The Labor Code (in Art 138) provides that any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar, or similar establishment, under the effective control or supervision of the ER for a substantial period of time as determined by the Secretary of Labor, shall be considered as an EE of such establishment for purposes of labor and social legislation. In the case at bar, it is clearly stated that the women once they enter the premises of the night club would be under the direct supervision of the manager from 8:00pm to 4:00am everyday including Sundays and holidays. Such is indicative of an ER-EE relationship since the manager would be exercising the right of control. (1999 Bar Question)

PART 2 LABOR ORGANIZATION LABOR ORGANIZATION—any union or association of EEs in the private sector which exists for collective bargaining purposes or of dealing with ERs concerning terms and conditions of employment [Art. 212 (g)] Q: What is the importance of labor organizations? Suggested Answer: A labor organization exists in whole or in art for the purpose of collective bargaining agreement or of dealing with employers concerning terms and conditions of employment. Employees may form labor organizations for their mutual aid and protection. (See Arts. 212 (a) and 243 of the Labor Code) Alternative Answers: The importance of labor unions are: A. The enhancement of democracy and the promotion of social justice and development. B. As instrumentalities trough which worker welfare may be promoted and fostered. (Mactan Workers Union v. Aboitiz) C. It is the instrumentality through which an individual laborer who is helpless as against a powerful ER may, through concerted effort and activity, achieve legal goal of economic well-being. (Gullano v. CIR) (1996 Bar Question)

Legitimate Labor Organization— any labor organization in the private sector registered or reported with the DOLE [Book V, Rule 1, Sec. 1 (ee)] (if not registered, does not posses the rights of a LLO) Union—any labor organization in the private sector organized for collective bargaining and for other legitimate purpose [Book V, Rule 1, Sec. 1 (zz)]  Independent Union— labor organization operating at the enterprise level that acquired legal personality from independent registration  Chartered Local— labor organization at the enterprise level that acquired legal personality acquired through issuance of charter certificate by a duly registered federation or national union

 National Union / Federation— labor organization with at least 10 locals/ chapters or affiliated unions, each of which must be a duly certified or recognized collective bargaining agent.  Company union— any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice  Affiliate— refers to an independent union affiliated with a federation, national union or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office and the Bureau Affiliation/ Disaffiliation • Affiliation by a duly registered union with a national federation does not cause the local union to lose its legal personality. • The local union remains the basic unit that serves the common interest of its members. • The union also has the right to disaffiliate from its mother union and join a new federation (exercise of right to self-organization), in the absence of enforceable provisions in the federation’s constitution preventing disaffiliation. • But when the union is not independently registered and it disaffiliates from a federation, it is not granted the rights and privileges granted to a LLO. It cannot file a petition for CE or bargain with the ER or stage a strike (Villar v. Inciong, 1983) • Affiliation/ disaffiliation is an affair between the parent and the daughter union. The ER is not involved and should not be adversely affected. The CBA continues to bind the members of the disaffiliated union up to the CBA’s expiration date (Associated Workers Union PTWGO v. NLRC, 1990) WORKER’S ASSOCIATION — an association of workers organized for the mutual aid and protection or for any legitimate purpose other than collective bargaining of its members. [Book V, Rule 1, Sec. 1 (ccc)]  Legitimate Worker’s Association— an association of workers organized for the mutual aid and protection or for any legitimate purpose other than collective bargaining of its members registered with the DOLE. [Book V, Rule 1, Sec. 1 (ff)] LABOR ORGANIZATION V. WORKER’S ASSN Compositi on Purpose

LABOR ORGANIZATION Employees

WORKER’S ASSN Workers

collective bargaining or of dealing with employers concerning terms and conditions of employment.

mutual aid and protection of its members or for any other legitimate purpose other than collective bargaining

REQUIREMENTS OF REGISTRATION Independent Labor Org 1. Registration fee 2. Name of the applicant union, its principal address, names and addresses of its officers, approx. number of EEs in the BU where it seeks to operate, with a statement that it is not reported as a chartered local of any federation or national union; 3. Minutes of the organizational meeting; list of workers who participated in the meetings; 4. Names of all its members comprising at least 20% of all EEs in the BU; 5. Annual financial report if the applicant has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included; 6. Constitution and by-laws (CBL), minutes of its adoption and ratification, and the list of the members who participated list of the ratifying members may be dispensed with where the CBL was ratified or adopted during the organizational meeting— factual circumstance of the ratification shall be recorded in the meeting

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All required documents shall be certified under oath by the Sec. or Treas. and attested to by the Pres. 1 original copy and 2 duplicate copies of all documents accompanying the application or notice shall be submitted to the Regl Office or the Bureau.

Federation/ National Union In addition to 1,2,3,5 and 6 above: - Resolution of affiliation of at least 10 LLOs, whether independent union or chartered locals (all duly recognized as collective bargaining agents) - Names and addresses of the companies where the affiliates operate plus list all members in each company involved. 

LOs operating within an identified industry may also apply for registration as a federation or national union within the specified industry by submitting to the Bureau the same set of documents

Worker’s Association 1. Registration fee 2. Name of the applicant association, its principal address, the name of its officers and their respective addresses 3. Minutes of the organizational meeting(s) and the names of individual members who attended such meetings 4. The financial reports of the applicant association if it has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application; 5. Constitution and by-laws (CBL) to which must be attached the names of the ratifying members, the minutes of adoption or ratification of the CBL, and the date when the ratification was made, unless ratification was done in the organizational meeting(s), in which case such fact shall be reflected in the minutes of the organizational meeting(s) •

Application for registration of a workers’ association operating in more than one region shall be accompanied, in addition to the above requirements, by a resolution of membership of each member association, duly approved by its BOD.

Legal personality: cannot be attacked collaterally • The labor union or worker’s association shall be deemed registered and vested with legal personality on the date of the issuance of its certificate of registration or certificate of creation of chartered local. • such legal personality may be questioned only through an independent petition for cancellation of union registration, and not by collateral attack (Book V, Rule IV, Sec. 8) Q: At what particular point does a labor organization acquire a legal personality? (a) On the date of the agreement to organize the union is signed by the majority of all its members; or (b) On the date the application for registration is duly filed with the Department of Labor; or (c) On the date appearing on the Certificate of Registration; or (d) On the date the Certificate of Registration is actually issued; or (e) None of the above. Choose the correct answer. Suggested Answer: On the date the Certificate of Registration is actually issued. Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration. Another Suggested Answer: (c) “On the date appearing on the Certificate of Registration.” When the law provides that a “labor organization xxx shall acquire legal personality xxx upon issuance of the certificate of registration”, the date appearing therein is legally presumed – under the rule on presumption or regularity – to be its date of issuance. Actual issuance is a contentious evidentiary issue that

can hardly be resolved, not mention that the law does not speak of the actual issuance. (2003 Bar Question)

GROUNDS FOR CANCELLATION OF UNION REGISTRATION A. Failure to comply with the requirements of registration (see above) B. Violation of any of the provisions of Art. 239. These are: (1) Misrepresentation, false statement or fraud in connection with a. the adoption or ratification of the CBL or amendments thereto, the minutes of ratification and the list of members who took part in the ratification; b. the election of officers, minutes of the election of officers, the list of voters c. in the preparation of financial reports (2) Failure to submit a. the CBL or amendments thereto, the minutes of ratification and the list of members who took part in the ratification within 30 days from adoption/ ratification b. minutes of the election of officers, the list of voters within 30 days from election c. annual financial report within 30 days after the closing of every fiscal year d. list of individual members to the Bureau once a year or whenever required (3) Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity prohibited by law C. Entering into CBA which provide terms and conditions of employment below minimum standards established by law D. Asking for or accepting attorney’s fees or negotiation fees from employers E.

Checking off special assessments or any other fees without duly signed individual written authorizations of the members (Other than for mandatory activities under the Labor Code)

F.

Failure to comply with requirements under Articles 237 and 238 (requirements for unions and federations)

 Commission of any of the acts in Art. 241 (Rights and conditions of membership in a labor org) Rule: Any party-in-interest may commence a petition for cancellation of registration except in actions involving violations of Art. 241, which can only be commenced by members of the labor organization concerned. - and if it involves the entire membership of the union, the complaint should be supported by at least 30% of the union members RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LO (Art. 241) violations of these shall be a ground for cancellation of union registration or expulsion of officer from office, whichever is appropriate. • •

Any EE, whether employed for a definite period or not, shall be eligible for membership in any labor organization beginning the 1st day of service. (Book V, Rule ii, Sec. 2) Union is an agent of its members.

Q: A labor union lawyer opined that a labor organization is a private and voluntary organization; hence, a union can deny membership to any and all applicants. Is the opinion of counsel in accord with law? Suggested answer: No, the opinion of counsel is not in accord with law. The Labor Code (in Art 249 (a),(b)) provides that a labor organization has the right to prescribe its own rules for the acquisition or retention of membership, but it is an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of their right to self-organization. Thus, a labor organization cannot discriminate against any employee by denying such employee membership in the labor organization

on any ground other than the usual terms and conditions under which membership or continuation of union membership is made available to other members. Another suggested answer: Yes, the legal opinion of counsel, on the nature of a labor union and its admission policy is in accord with law, but must be qualified. The Supreme Court ruled in Salunga v. CIR (1967) as follows: “Generally, a state may not compel ordinary voluntary association to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege.” The same case further ruled that the law can compel a labor union to admit an applicant for membership when the union is“The rule is qualified in respect of labor unions holding a monopoly in the supply of labor, either in a given locality or as regards a particular employer with which it has a closed-shop agreement. The reason is that (union security provisions) cause the admission requirements of trade union to be affected with public interest.” (1998 Bar Question) Q: On what ground or grounds may a union member be expelled from the organization? Suggested Answer: Union members may be expelled from the labor organization only on valid grounds provided for in the Union Constitution, By-Laws, or conditions for union membership. Another Suggested Answer: Whenever appropriate for any violation of the rights as: 1. refusal to pay union dues and special assessments; 2. disloyalty to the union; and 3. violation of the constitution and by-laws of the union (2002 Bar Question)

Political Rights  Officers directly elected by secret ballot at intervals of 5 years  No qualification requirement for candidacy to any position other than membership in good standing  No person convicted of crime involving moral turpitude shall be eligible to be an officer of union  Officers shall not be paid any compensation other than salaries and expenses due to their positions as authorized by CBL or written resolution of majority Deliberative and decision-making rights  Determination by secret ballot any question of major policy  No admission of individuals who are members of subversive organizations Right to be informed  Full and detailed report of financial transactions  All income and revenue evidenced by a record and every expenditure evidenced by a receipt  Treasurer and officers render a true and correct account of all moneys received and paid since assuming office or since last accounting: At least once a year within 30 days from close of fiscal year Other times as required by written resolution of majority Upon vacating his office  Books of account and financial records open to inspection by officer/ member during office hours  Members should be informed about the provisions of its constitution and by-laws, CBA, prevailing labor relations system and their rights and obligations under existing labor laws (LLO may assess reasonable dues to finance labor relations seminars/ labor education activities) Rights over money matter  No arbitrary, excessive, oppressive initiation fees, fines and forfeiture  No collection of fees, dues nor disbursements unless duly authorized pursuant to CBL  All payment of fees, dues, contributions evidenced by receipt and entered into records  Funds shall not be applied for any purpose other than expressly provided in CBL or authorized by majority of members at general meeting  No special assessment or other extraordinary fees may be levied unless authorized by written resolution of majority (levy)

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Other than mandatory activities under the Code, no special assessment, atty’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an EE without any individual written authorization (check-off) (cf. Art. 113)

Requisites for a valid levy (i.e., imposition of a certain amount)  Authorization by a written resolution of majority of all members at the general membership meeting called for the purpose Requisites for a valid check-off (i.e., collecting an amount through salary deduction)  Authorization by a written resolution of majority of all members  at the general membership meeting called for the purpose  individual written authorization of the EE, specifying the amount, purposes, and beneficiary of the deduction › EEs’ check-off authorization is only valid as long as they remain members of the union. When a local union disaffiliates from a national union/ federation, the latter ceases to be entitled to check-off dues. The local union, which has validly disaffiliates will be the one entitled to check off dues (Volkschel Labor Union v. BLR, 1985) Q: What requisites must a Union comply with before it can validly impose special assessments against its members for incidental expenses, attorney’s fees, representation expenses and the like? Suggested answer: The Labor Code (in Art 241 (n)) provides that “no special assessments or extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose.” Another suggested answer: In the ABS-CBN Employees Supervisors Union v. ABS-CBN Broadcasting Corp., and Union Officers (1999), the Supreme Court ruled that the following are the requisites: 1. authorization by a written resolution of the majority of all the members at the general membership meeting duly called for the purpose; 2. secretary’s record of the minutes of the meeting; and 3. individual written authorization for check-off duly signed by the employee concerned. (2001 and 2002 Bar Questions) Q: Atty. Facundo Velasco was retained by Welga Labor union to represent it in the Collective Bargaining Negotiations. It was agreed that Atty. Velasco would be paid in the sum of P20,000 as attorney’s fees for his assistance in the CBA negotiations. After the conclusion of the negotiations, Welga Labor Union collected from its individual members the sum of P100 each to pay for Atty. Velasco’s fees and another sum of P100 each for services rendered by the union officers. Several members of the Welga Labor Union approached you to seek advice on the ff. matters. (a) Whether or not the collection of the amount assessed on the individual members to answer for the Attorney’s fees was valid. (b) Whether or not the assessment of P100 from the individual members of the Welga Labor Union for services rendered by the union officers in the CBA negotiations was valid. Answer: (a)The assessment of P100 from each union member as attorney’s fees – for union negotiation, is not valid. Art. 222(b), LC, reads: “No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting union; Provided, however, that attorneys fees may be charged against union funds in an amount to e agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void.” (b) The assessment of P100as negotiation fees charged to each individual union member and payable to union officers is also not valid, for the same reason as stated above. The assessment is an act violative of Art. 222(b). Alternative Answers: (a) The collection of the amount assessed on the on individual members to members to answer for the attorney’s fees would be valid if it was authorized by a written resolution of a majority of all the members in general membership meeting duly called for the purpose.

(b) The assessment of P100 from the individual members of the Welga Labor Union for services rendered by the Union officers in the CBA negotiations would be valid if it was authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. [Art. 241(N)] (1997 Bar Question)

RIGHTS OF LEGITIMATE LABOR ORGS (Art. 242)  To act as the representative of its members for the purpose of CB; (per Azucena: erroneous because only the LLO who has majority status can represent the BU; minority LLO does not have this right)  To be certified as the exclusive representative of all EEs in an appropriate collective bargaining unit for purposes of CB; (per Azucena, this is only true if the union won the certification election or consent election)  To be furnished by the ER with the annual audited financial statements after the union has been duly recognized by the ER or certified as the sole and exclusive bargaining representatives of the EEs in the BU, or within 60 calendar days before the expiration of the existing CBA, or during the CB negotiation;  To own property, real or personal, for the use and benefit of the labor org and its members;  To sue and be sued in its registered name; and  To undertake all other activities designed to benefit the organization and its members  The income and the properties, etc. of LLOs used actually, directly and exclusively for lawful purposes shall be free from taxes PART 3 THE APPROPRIATE BARGAINING UNIT APPROPRIATE BARGAINING UNIT (ABU)— group of EEs sharing mutual interest within a given ER unit, comprised of all or less than all of the entire body of EEs in the ER unit or any specific occupational or geographical grouping within such ER unit. Factors to be considered in determining the ABU (1) Will of the EEs (2) Affinity and unity of EEs’ interest, such as substantial similarity of works and duties or similarity of compensation & working conditions, (3) Prior collective bargaining history (4) Employment status, i.e., temporary, seasonal, and probationary EEs •

Test of grouping: community or mutuality of interests because the basic test of an asserted bargaining unit’s acceptability is whether it is fundamentally the combination w/c will best assure to all EEs the exercise of their collective bargaining rights.

•

Globe Doctrine— determinative factor is the express will of the EEs. (The practice of the courts to hold a series of elections not for the purpose of granting the right of representation to the group garnering the majority vote but to let employees select on several units to represent them)

Q: What is an appropriate bargaining unit for purposes of collective bargaining? Suggested answer: An appropriate bargaining unit is a group of employees of a given employer comprised of all or less than all of the entire body of employees, which the collective interest of all the employees, consistent with the interest of the employer, indicate to be best suited to serve reciprocal rights and duties of the parties under the collective bargaining provisions of the law. [See UP v. Ferrer-Calleja (1992)] (1998 Bar Question) Q: Can the 2 Managers be part of the bargaining unit? Suggested Answer: No, the 2 Managers cannot be part of the bargaining unit composed of supervisory EEs. A bargaining unit must effect a grouping of EEs who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining. (San Miguel Corp. Supervisors and Exempt EEs Union v. Laguesma, 227 SCRA 370)

The Labor Code (in Art. 245) provides that managerial EEs are not eligible to join, assist or form any labor organization. The above provision shows that managerial EEs do not have the same interests as the supervisory EEs which compose the bargaining unit where SMCT wishes to be the exclusive bargaining representative. (1999 Bar Question)

PART 4 UNION REPRESENTATION: ESTABLISHING MAJORITY STATUS EXCLUSIVE BARGAINING AGENT [Art. 255; Book V, Rule 1, Sec. 1(t)] — the legitimate labor union duly recognized or certified as the sole and exclusive bargaining agent (SEBA) of the EEs in a BU. • Despite having a SEBA, an individual EE or group of EEs shall have the right at anytime to present grievances to their ERs. (Art. 255) Q: The modes of determining an exclusive bargaining agreement (agent) are: a. voluntary recognition b. certification election c. consent election Explain briefly how they differ from one another. Suggested Answer a. There is voluntary recognition when in an unorganized establishment with only one legitimate labor organization, the employer voluntarily recognizes the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office of the Department of Labor and Employment which issued the recognized labor union’s certificate of registration or certificate of creation of a chartered local. b. Certificate election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election is ordered by the Department of Labor and Employment, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. (Art 256, 257, 258, LC) c. When the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit is not ordered by the DOLE, but has been voluntarily agreed upon by the parties with or without the intervention of the DOLE, then the process is consent election. [Warren Manufacturing Workers Union v. BLR(1988)] Q: When does a run-off election occur? Suggested answer: A “run-off” or second election occurs when an election which provides for three (3) or more choices result in no choice receiving a majority if the valid votes cast, and no objections or challenges have been presented which, if sustained, can materially change the results; the election officer shall motu propio conduct a run-off election within ten (10) calendar days from the close of election proceedings between the labor unions receiving the (2) highest number of votes; Provided that, the total number of votes for all contending unions is at least fifty per cent (50%) of the number of votes cast. (Art 256; LC Rule X, Dept Order 40-03) (2006 and 2000 Bar Questions)

PRE-CONDITION: ER-EE RELATIONSHIP • An employer-employee relationship is a pre-condition before the conduct of a certification election since without such relationship, there will be no duty to bargain on the part of either the employer or employee. Thus, it will be senseless to go on with a certification election to choose their bargaining representative when there is no duty to collectively bargain anyway. (Allied Free Workers Union v. Cia Maritima, 1967) Q: Is it required that an employer-employee relationship exists between an employer and the employees in the appropriate bargaining unit before a certification election can be ordered? If so, why? Suggested answer: Yes, it is required that an employer-employee relationship is existing between the employer and the employees in the appropriate bargaining unit before a certification election can be ordered for the simple

reason that a certification election is held for the purpose of determining which labor organization shall be the exclusive collective bargaining representative of the employees in an appropriate bargaining unit. There could be no collective bargaining between persons who do not have employer-employee relationship. Another suggested answer: Yes, the Supreme Court has ruled that the existence of an employer-employee relationship is required before a certification election can be held. The Supreme Court in Allied Force Waters Union v. Compania Maritima (1967), ruled: “xxx there being no employer-employee relationship between the parties disputants, there is neither a “duty to bargain collectively” to speak of. And there being no such duty, to hold certification elections would be pointless. There is no reason to select a representative to negotiate when there can be no negotiations in the first place. Where there is no duty to bargain collectively, it is not proper to hold certification elections in connection therewith.” (1998 Bar Question)

SELECTION OF SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) (1) Voluntary Recognition by ER—allowed only a. in an enterprise being unionized for the first time (unorganized establishment—if there exists no duly recognized or certified bargaining agent of the concerned bargaining unit); and b. where there is only one legitimate labor organization seeking recognition (Book V, Rule, VII, Sec. 1) Note: If a union asks the ER to voluntarily recognize it as the bargaining agent of the EEs, it in effect asks the ER to certify it as the SEBA—a certification which the ER has no authority to give. It is the EEs’ prerogative, not the ER’s, to determine whether they want a union to represent them, and if so, which one it should be. (Samahan ng Manggagawa sa Permex v. Sec. of Labor, 1998) In Colgate Palmolive Phils v. Ople (1988), it was held that the Sec. of Labor cannot directly certify a union as the SEBA. (2) Certification Election (CE)(Art. 256)—(see below) (3) Consent Election— process of determining through secret ballot, voluntarily agreed upon by the parties, the SEBA of the EEs in an ABU for purposes of CB or negotiation. (4) Run-off Election (Art. 256)— election between the labor unions receiving the 2 highest number of votes provided: (1) There are 3 or more choices in the CE; (2) results of the CE: none of these choices received majority of the valid votes cast; and (3) total number of votes for all contending unions: at least 50% of the total votes cast • Presumption: there is a valid election, i.e., majority of the eligible voters voted • “No Union” shall not be a choice in the run-off election

CERTIFICATION ELECTION— process of determining through secret balloting the sole and exclusive representative of the EEs in an ABU for purposes CB or negotiation (this is different from union election which selects the officers of the union) Q: There are instances when a certification election is mandatory. mandate?

What is the rationale for such legal

Suggested Answer: According to the Labor Code, in any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. In the above-described situation, a certification election is made mandatory because if there is no certified bargaining agent as determined by a certification election, there could be no collective bargaining in the said unorganized establishment. (2003 Bar Question)

Q: Are probationary EEs entitled to vote in a certification election? Why? Suggested Answer: In a certification election, all rank-and-file EEs in the appropriate bargaining unit are entitled to vote. This principle is clearly stated in Art. 255, LC which states that the “labor organization designated or selected by the majority of the EEs in such unit shall be the exclusive representative of the EEs in such unit for the purpose of collective bargaining.” Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all EEs in the bargaining unit. Hence, all rank-andfile EEs, probationary or permanent, have substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility to vote in the petition for certification election. The law refers to “all” the EEs in the bargaining unit. All they need to be eligible to vote is to belong to the “bargaining unit.” (Airtime Specialists, Inc. v. Ferrer-Calleja, 180 SCRA 749) Alternative Answer: Probationary EEs may not be entitled to vote in a certification election where only regular EEs belong t a bargaining unit and probationary EEs do not belong to such bargaining unit. It is the belonging to a bargaining unit that entitles an EE to vote in a certification election. Another Alternative Answer: Yes. An EE, whether employed for a definite period or not, shall, beginning on his first day of service be considered an EE for purposes of membership in any labor union. [Art. 277(c)] (1999 Bar Question)

Nature of CE proceedings (1) Non-adversarial (2) Non-litigious (3) Administrative proceeding to determine the worker’s choice “Organized Establishment”— an enterprise where there is a recognized or certified SEBA. The determination of “organized establishment” status should be at the bargaining unit level. (Hence an establishment may be considered as organized insofar as the rank-and-file BU is concerned but not organized insofar as the supervisor BU is concerned.) Freedom Period—last 60 days of the 5th year of the CBA Valid Election— at least majority of the eligible voters voted (base: eligible voters in the BU) Exclusive Bargaining Agent— labor union receiving the majority of the valid votes cast [base: valid votes (not the number of voters); exclude the invalid votes first] Petition for Certification Election (Arts. 256-258) What Who files When filed Where filed

Organized Establishment Verified petition— supported by a written consent of at least 25% of all EEs in the BU LLO or the ER (when requested to bargain collectively) With CBA— within the 60-day freedom period

Unorganized Establishment Verified petition— No 25% requirement LLO or the ER (when requested to bargain collectively) Anytime except within 1 yr from a valid CE

Without CBA— anytime except when barred (cf. bars to petition for CE) Regl Office which issued the petitioning union’s cert. of reg/ cert. of creation of chartered local (with the Med-Arbiter)

Regl Office which issued the petitioning union’s cert. of reg/ cert. of creation of chartered local (with the Med-Arbiter)

2 positive requisites: 1. filed within the freedom period 2. with written consent of at least 25% of all EEs in the BU 25% signature requirement

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Submission of the 25% consent signature need not be simultaneous with the filing of the petition. The SC held that the mere filing of a petition for CE within the freedom period is sufficient basis for the holding of a CE, subject to the submission of the consent signatures within a reasonable period from such filing. (Port Worker’s Union of the Philippines v. Laguesma, 1992) Even if 25% is not achieved, if Med-Arb feels there is a representation achievement, Med-Arb may still order CE. (California Mfg. v. Laguesma, 1992) Labor Code: mandatory requirement (it becomes the ministerial duty of the Med-Arb to conduct the CE) IRR: absence of such ground is a ground for the dismissal of the petition for CE.

Procedure Petition for CE is filed with Med-Arbiter

decides within 20 days (if no appeal, order of Med-Arb is final; order granting conduct of CE in an unorganized establishment is unappealable)

Appeal to Sec. of Labor within 10 days from receipt of order (but appeal is filed with the Regl Office, who later transmits the records to the Sec.; reply to the appeal may be filed with the Sec. within 10 days; appeal stays the conduct of the CE)

Sec. decides within 15 days

Decision of Sec. becomes final and executory in 10 days; no MR is allowed from this decision; (but may be questioned before the CA in a pet. for certiorari under Rule 65)

Records remanded to the Regionall Office of origin for implementation within 48 hrs from finality; (implementation shall not be stayed unless restrained by appropriate court) •

The incumbent bargaining agent shall automatically be one of the choices in the CE as forced intervenor. (Book V, Rule VIII, Sec. 7)

Q: Can a “no-union” win in a certificate election? Suggested Answer: Yes, because the objective in a certification election is to ascertain the majority representation of the bargaining representative, if the employees desire to be represented at all by anyone. Hence, “no union” is one of the choices in a certification election. Another Suggested Answer: No, a “no-union” cannot win in a certification election. The purpose of a certification election is to elect an exclusive bargaining agent and a “no-union vote would precisely mean that the voter is not choosing any

of the contending unions. If the “no union” votes constitute a majority of the valid votes cast, this fact will all the more mean that no union won in the certification election. A one-year bay will consequently stop the holding of another certification election to allow the employer to enjoy industrial peace for at least one year. Q: As Human Resources Department (HRD) manager of EZ Components, an unorganized manufacturer of electric and electronic components for household appliances, you are suddenly confronted with demands for recognition and collective bargaining negotiations from two competing labor unions. They both claim to represent all the rank-and-file EEs. Union A is led by a moderate faction, while Union B is affiliated with a militant federation identified with leftist ideology. Which of the following courses of action should you take to best protect the interests of your company and EEs? (a) Recognize Union A as the rightful bargaining representative because it will be more reasonable to deal with; (b) Recognize Union B because you do not want to antagonize its leftist connections and foment interunion conflicts; (c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage; or (d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the EEs in the bargaining unit. Suggested answer: (d) Petition the BLR to conduct a certification election to determine which union really represents the majority of the EEs in the appropriate bargaining unit. Cite Art. 258. Another Suggested Answer: (c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage. The reason why I am opting for (c) instead of (d) is because option (d) calls for the EZ Component’s filing of a petition for certification election with “the Bureau of Labor Relations”. Book V, Rule VIII, Sec. 2 of the Omnibus Rules Implementing the Labor Code (amended by DO 40-03, Series of 2003), which implements Arts. 257 and 258 of the Labor Code, is explicit that “a petition for certification election shall be filed with the Regional Office which issued the petitioning union’s certificate of registration / certificate of creation of chartered local. The petition shall be heard and resolved by the MED-Arbiter”. Filing it with the Bureau of Labor Relations rendered (d) a wrong answer. Art. 258 of the Code, which empowers the “Bureau” to entertain the petition for certification election of an ER, must be read alongside Art. 212(b) of the Labor Code which defines “Bureau” to mean as the BLR and/or the Labor Relations Division in the regional offices … in the Department of Labor, as well as Art. 259 of the Code which tells us that it is the MED-Arbiter of the Labor Relations Division in the regional offices who hears and decides certification election and that appeal therefrom is not even to BLR but to the DOLE Secretary. (2005 Bar Question) Q: PT&T Supervisory EEs Union filed a petition for the holding of a certification election among the supervisory EEs of the PT&T Company. The company moved to dismiss the petition on the ground that union members were performing managerial functions and were not merely supervisory EEs. The company also alleged that a certified bargaining unit existed among its rank and file EEs which barred the filing of the petition. 1) Does the company have the standing to file the motion to dismiss? Explain. 2) If you were the Med-Arbiter, how would you resolve the petition? 3) What is the proper remedy of an employer to ensure that the EEs are qualified to hold a certification election? Suggested Answer: 1) No, the company has no standing to file a Motion to Dismiss as the ER has no right to interfere in a purely union matter or concern. [Philippine Fruits and Vegetable Industries, Inc. v. Torres, 211 SCRA 95 (1992)] The Court would wish to stress once more the rule which has consistently pronounced in many earlier cases that a certification election is the sole concern of the workers and the ER is regarded as nothing more than a by-stander with no right to interfere at all in the election. 2) As the Med-Arbiter I will: a. Deny, for lack of merit, the ER’s Motion to Dismiss the Union’s Petition for Certification Election. b. Proceed to hear the merits of the petition, especially: 1. the appropriation of the claimed bargaining unit; 2. inclusion and exclusion of voters, or he proposed voter list; and

3. if the petition is in order, to set the date, time and place of the election. 3) The ER has no remedy. The petition for certification election was initiated by the Union; hence, the ER is a total stranger or a bystander in the election process. (Philippine Fruits and vegetable Industries, Inc. v. Torres). To allow an ER to assert a remedy is an act of interference in a mater which is purely a concern of the Union. Alternative Answer: 1) The company does not have the standing to file a motion to dismiss the petition for certification election, but it could move for the exclusion of the EEs it alleged to be managerial EEs from the bargaining unit for which a petition for certification election has been filed. As a general rule, an employer has no standing in a petition for certification election because the purpose of a certification election is to determine who should be he collective bargaining representative of the EEs. Thus, a certification is the concern of the EEs and not the ER. But in the case at bar, the ER may have a standing because the petition for certification election involves personnel which the ER alleges to be managerial EEs. And managerial EEs under the LC are not eligible to form, assist or join labor organizations, implying that they cannot be part of the bargaining unit for which a petition for certification election has been filed. 2) As the Med-Arbiter, I will order the holding of the certification election. The fact that there is already a certified collective bargaining representative of the rank and file EEs of the Company is not a bar to the holding of a certification election for the determination of the collective bargaining representative of the supervisory EEs. But I will exclude those EEs found to be managerial from participating in the certification election. 3) The proper remedy of an ER to ensure that only the EEs are qualified to hold a certification election is to move for the exclusion of those whom he alleges to be managerial personnel. (1996 and 1999 Bar Questions) Q: Can the Bureau of Labor Relations certify a union as the exclusive bargaining representative after showing proof of majority representation thru union membership cards without conducting an election? Suggested answer: The Bureau of Labor Relations cannot certify a union as the exclusive collective bargaining representative after showing of proof of majority representation thru union membership cards without conducting a certification election. The Labor Code (in Arts 256, 257, 258) provides only for a certification election as the mode for determining the exclusive collective bargaining representative if there is a question of representation in an appropriate bargaining unit. Another suggested answer: No, the Bureau of Labor Relations cannot certify a union as the exclusive bargaining representative without conducting a certification election. The Supreme Court, in Colgate Palmolive Phils., Inc. v. Ople (1988), ruled: “The procedure for a representation case is outlined (in the) Labor Code… the main purpose of which is to aid in ascertaining majority representation. The requirements under the law… are all calculated to ensure that the certified bargaining representative is the true choice of the employees against all contenders. xxx When an… official bypasses the law on the pretext of retaining a laudable objective, the meaning or purpose of the law will lose its meaning as the law itself is disregarded. When the (BLR) directly (certifies) a union, he in fact disregarded this procedure and its legal requirements. There was therefore failure to determine with legal certainty whether the union indeed enjoyed majority representation.” (1998 Bar Question)

Bars To A Petition For CE(negative requisites) 1. Certification year— no CE may be held within 12 months from a previous CE, or consent election, or a run-off election, or voluntary recognition by ER 2.

Negotiation/ Deadlock bar— no CE if a duly certified union has commenced and sustained negotiations with the ER within 1 year from its certification or there is a pending bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout

3.

Contract bar— no CE when there is an existing CBA which has been duly registered (a petition for CE may only be filed within the last 60 days of the 5th year of the CBA— freedom period)

* If the legitimacy of the petitioner union is under question in a proceeding seeking to cancel its registration, such question must first be filed before its petition for CE may be granted. Q: Distinguish between “contract bar rule” and “deadlock bar rule”. Suggested Answer: Under the “contract bar rule,” a certification election cannot be held if there is in force and in effect a CBA that has been duly registered with the DOLE except during the freedom period of such CBA which is the 60-day period prior to the expiry date of said CBA. (See Articles 231, 253-A and 256) Under the “deadlock bar rule” a certification election can not be held if a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or mediation or had become a subject of a valid notice of strike or lockout. (See Sec. 3, Rule XI, Book V of the IRR of the LC) Q: in what instance may a petition for a certification election be filed outside the freedom period of a current CBA? Suggested Answer: As a general rule, in an establishment where there is in force and effect a CBA, a petition for certification election may be filed only during the freedom period of such CBA. But to have the above-mentioned effect, the CBA should have been filed and registered with the DOLE. (See Art 231, 253-A and 256) Thus, a CBA that has not been filed and registered with the DOLE cannot be a bar to a certification election and such election an be held outside of the freedom period of such CBA. Alternative Answer: A petition for certification election may be filed outside the freedom period of a current CBA if such CBA is a new CBA that has been prematurely entered into, meaning, it was entered into before the expiry date of the old CBA. The filing of the petition for certification election shall be within the freedom period of the old CBA which is outside the period of the new CBA that has been prematurely entered into. (1999 Bar Questions)

Grounds for denial of petition for CE  Petitioning union is not a LLO (not registered as a LLO or legal personality has been revoked or cancelled)  Petition violates any of the bars to CE  Petitioning union in an organized establishment fails to submit the 25% support requirement for the filing of the petition for CE Note: Any question pertaining to the validity of petitioning union’s certificate of registration or its legal personality as LLO, or validity of registration and execution of CBA, shall be held and resolved by the Regl Director in an independent petition for cancellation of its registration (not by the MedArb in the petition for CE), unless the petitioning union is not in the roster of LLO or the CBA is not registered. Q: UNIDAD, a labor organization claiming to represent the majority of the rank and file workers of BAGSAK Toyo Manufacturing Corp. filed a petition for certification election during the freedom period obtaining in said corporation. Despite the opposition thereto by SIGAW Federation on the ground that UNIDAD was not possessed with all the attributes of a duly registered union, the Med-Arbiter issued an order calling for a certification election on July 25, 2001. This Order was promulgated and served on the parties on July 12, 2001. On July 14, 2001, UNIDAD submitted and served the required documents for its registration as an independent union, which documents were approved by the DOLE on July 15, 2001. During the elections, UNIDAD won over SIGAW. SIGAW questioned UNIDAD’s victory on the ground that UNIDAD was not a duly registered union when it filed a petition for certification election. Shall SIGAW’s case prosper or not? Why? Suggested answer: No, SIGAW’s case will not prosper. The application of technicalities of procedural requirements in certification election disputes will serve lawful objective or purpose. It is a statutory policy that no obstacles should be placed on the holding of a certification election, (Samahan ng Manggagawa sa Pacific Plastic v. Laguesma (1997)) and that the law is indisputably partial to the holding of a certification election. (Western Agusan v. Trajano (1991))

At any rate, UNIDAD completed all the requirements for union registration on July 14, n 2001, and legitimate union status was accorded on July 15, 2000, or at least 10 days before the scheduled date for holding the certification election. (2001 Bar Question)

-o0o0o0oQ: 1. 2. 3. 4. 5.

Distinguish clearly but briefly between: Sympathy strike and general strike company union and union shop lock-out and closed shop consent election and certification election. social security and union security

Suggested Answers: 1. In both sympathy strike and in a general strike, there is stoppage of work by the concerted action of employees. In both kinds of strike, the strike is not the result of a labor or industrial dispute. As the name implies, workers go on sympathy strike to show their sympathy for certain workers who are on strike. On the other hand, in a general strike, workers in the country or in a region, province, or city or municipality go on strike to publicly protest a certain policy or action taken by the government. Thus, for instance, a general strike may be declared by workers to publicly protest the stand of President Arroyo that she is against a increase of the minimum wage at this time. 2. A company union is a union of employees dominated or under the control of the employer of said employees. A union shop, on the other hand, refers to a union security clause in a collective bargaining agreement whereby the employer agrees to terminate the employment of an employee who ahs not become a member of the union which is the exclusive bargaining unit within a certain period after the employment of said employee or has ceased to become a union member. 3. Lockout refers to the temporary refusal of an employer to furnish work as a result of a labor or industrial dispute. Closed shop, on the other hand, refers to a union security clause in a collective bargaining agreement whereby the employer agrees not to employ any person who is not a member of the exclusive bargaining representative of the employees in a bargaining unit. 4. A certification election and a consent election are both elections held to determine through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for the purpose of collective bargaining negotiations. There is this difference, however. A certification election is ordered by the Department of Labor and Employment while a consent election is voluntarily agreed upon by the parties, with or without the intervention of the Department of Labor and Employment. 5. Social Security is the protection given by social insurance programs such as the program of the SSS, GSIS and PHIC undertaken pursuant to their respective charters, including the employees’ compensation program provided for in the Labor Code. The aforesaid programs provide income benefits and/or medical care when contingencies like sickness, (also maternity in the case of SSS) disability, death, or retirement, including in the case of GSIS, separation and unemployment benefits. On the other hand, union security refers to a clause in a collective bargaining agreement whereby the employer agrees to employ or continue in employment only workers who are members of the exclusive collective bargaining representative of the employees of said employer in a bargaining unit. (2004 Bar Question)

PART 5 COLLECTIVE BARGAINING DUTY TO BARGAIN COLLECTIVELY (Art. 250-253) — performance of a mutual obligation of ER and EEs (through the SEBA): When there is no CBA (1) To meet and convene a. Promptly and expeditiously b. In good faith - parties deal with each other with open and fair mind and sincerely endeavor to overcome obstacles between them c. PURPOSE: Executing a contract with respect to (bargainable issues): (i) Wages (but parties may not set a wage lower than minimum wage

(ii) Hours of work (iii) All other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement (2) Executing a contract incorporating such agreements if requested by either party (3) BUT such duty does not compel any party to a. Agree to a proposal or b. Make a concession. When there is a CBA—all the foregoing PLUS (4) Neither party to the CBA may modify nor terminate the CBA during its lifetime. ›

While it is a mutual obligation of the parties to bargain, the ER is not under any legal duty to initiate contract negotiation. The mechanics of collective bargaining are set in motion only when these jurisdictional preconditions are present: 1. Possession of the status of majority representation of the EEs’ representative; 2. Proof of majority representation; and 3. Demand to bargain under Art. 250 (a) (Kiok Loy v. NLRC, 1986)

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If these jurisdictional preconditions are present, the collective bargaining should begin within 12 months following the determination and certification of the EEs’ SEBA. This is the certification year.

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Violation of the duty to bargain collectively = ULP (which is a ground for holding a strike by the EEs or declaration of a lockout of ER). This is committed in these ways: 1. failure or refusal to meet and convene 2. in evading the purposes of bargaining 3. in not observing good faith in bargaining 4. in grossly violating the economic provisions of the CBA

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COLLECTIVE BARGAINING PROCEDURE Follow CBA procedure for collective bargaining. If no CBA or voluntary agreement providing for a more expeditious manner, follow this procedure (Art. 251, 250): (a)Party desiring to negotiate shall serve a written notice upon the other party with a statement of its proposals. (b) Other party shall reply later than 10 calendar days from receipt. (c)If there are differences on the basis of notice and reply, either party may request for a conference which shall begin not later than 10 calendar days from request (d) If the dispute is not settled, the Board shall intervene and call the parties to conciliation meetings. Parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes. (e)The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. COLLECTIVE BARGAINING AGREEMENT (CBA)— refers to the contract between legitimate labor organization and the ER concerning wages, hours of work, and all other terms and conditions of employment in a BU Terms of the CBA (Arts. 253- 253-A) Political Aspect (representation)— 5 years Economic Aspect— renegotiation of provisions other than the representations aspect shall not be later than 3 years after its execution   

At least 60 days prior to expiration date— either parties may serve a written notice to terminate or modify During the 60-day period or until a new CBA is reached— the parties shall keep the status quo (automatic renewal) Retroaction:

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If new CBA is reached within 6 months from expiration date— retroact to the day immediately following such date. If beyond 6 months— parties shall agree on duration of retroactivity If CBA resulting from an arbitration award— Sec. of Labor’s determination of retroactivity date shall control (MERALCO v. Quisumbing, 2000)

Contents (1) Enumeration or reservation of management rights (2) Union recognition and security (3) Wage and fringe benefits and their administration (4) Physical working condition (5) Selected personnel management and plant operation practices (6) Grievance and arbitration (Art. 260) (7) Duration of contract Q: What matters are considered mandatory subjects of collective bargaining? Suggested Answer: Wages, hours of work, and all other terms an conditions o employment including proposals for adjusting any grievances arising from the collective bargaining agreement are considered mandatory subjects of collective bargaining. (Art. 258, LC) Q: What jurisdictional pre-conditions must be present to set in motion the mechanics of a collective bargaining? Suggested Answer: To set in motion the mechanics of collective bargaining, these jurisdictional requirements pre-conditions must be present, namely: 1. The employees in a bargaining unit should form a labor organization; 2. Te labor organization should be a legitimate labor organization; 3. As such legitimate labor organization, should be recognized or certified s he collective bargaining representative of the employees of t bargaining unit; and 4. The labor organization as the collective bargaining representative should request the employee to bargain collectively. (Arts. 243, 24, 255 and 250, LC) Alternative Answer: The mechanics of collective bargaining are set in motion only when the following jurisdictional preconditions are met: (1) possession of the status of majority representation of the employees’ representative in accordance with any of the means of selection or designation proved for by the Labor Code; (2)proof of majority of representation; and (3) a demand to bargain under Art 251(g), LC. (Kiok Loy v.NLRC) (1996 Bar Question) Q: What is the “automatic renewal clause” in a CBA? Suggested Answer: The “automatic renewal clause” in a CBA refers to that provision of the Labor Code (Art. 253) which states that “it shall be the duty of both parties (to a CBA) to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.” (1999 Bar Question) Q: Company A and union B negotiated the last two years of their five-year CBA on April 1, 1990 to expire on March 31, 1992 considering the amicable relations between the parties, neither one moved for the extension or termination of the agreement. Sometime in 199, some disgruntled employees filed a compliant demanding that they be paid annual salary increases and other related annual increases specified in the CBA of April 1990, citing the provisions in Art 253, LC which requires the parties to “xxx keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/ or until a new agreement is reached by the parties”. A, however, maintained that the annual salary increases and related benefits specifically provided for in the CBA were, pursuant to contract and law, effective only for the term specified therein, namely, until March 31, 1992 only. Who is correct? State the reason/s for your answer.

Suggested answer: The disgruntled employees are correct in their claim that the expired CBA remains in full force and effect until a new CBA is signed in accordance with Art 253, LC. The SC ruled in New Pacific Timber and Supply Co., Inc. v. NLRC (2000) “Art 253 of the Labor Code explicitly provided that until a new Collective Bargaining Agreement has been executed by band between the parties, they are duty bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception or qualification as to which of the economic provisions of the existing agreement are to retain force and effect, therefore, it must be understood as encompassing all the terms and conditions in the agreement.” Another suggested answer: With Art 253, LC as basis, the disgruntled employees should be paid the annual salary increases and other related annual increases provided in the 1990-1992 CBA even after the expiration of said CBA as long as said CBA did not provide that said increases were to be paid only for certain specific years. (2001 Bar Question)

Registration of the CBA (Book V, Rule XVII) When to File Who will file Where to File

What to File

Other requirements •

Within 30 days from execution of agreement Parties to the CBA Regional Office which issued the certificate of registration / certificate of creation of chartered local If the certificate was issued by the BLR, CBA shall be filed with the Regl Office which has jurisdiction overt he place where it principally operates Multi-ER bargaining— filed with BLR 2 duly signed copies of (certified under oath): (1) The CBA (2) Statement that the CBA was posted in 2 conspicuous places in the establishment at least 5 days before ratification (3) Statement that the CBA was ratified by at least majority of the employees in the bargaining unit Documents must be certified under oath by the representatives of the employer and labor organization. Payment of registration fee

A registered CBA is a bar to a petition for CE (contract bar)

Q: The Ang Sarap Kainan Workers Union appointed Juan Javier, a law student, as bargaining representative. Mr. Javier is neither an employee of the Ang Sarap Kainan Company nor a member of the union. Is the appointment of Mr. Javier as a bargaining representative in accord with law? Explain. Suggested answer: Yes, the law does not require that the bargaining representative be an employee of the company nor an officer or member of the union (Art 212 (j), LC) Q: A CBA was signed between the Ang Sarap Kainan Workers Union and the Ang Sarap Kainan Workers Union. Should the CBA be registered with the Bureau of Labor Relations? If so, why? Suggested answer: So that the contract bar rule may apply, the CBA should be registered, assuming it has been validly ratified and contains the mandatory provisions. (Art 232, LC) Q: The Samahan ng mga Manggagawa sa Pids and Co., Inc. lost its majority status in the bargaining unit one year after the signing of the CBA. Bickering among all the three other unions in the bargaining unit was a daily occurrence, with each union asserting majority status. To resolve this pestering problem, the Company and the three other unions agreed to hold a consent election under the supervision of the Bureau of Labor Relations. In the consent election, Pids and Co. Workers Union won, and was accordingly recognized by the Company as the exclusive bargaining representative in the bargaining unit. Is the Pids and co. Workers Union bound by the CBA signed between the Company and the Samahan ng mga Manggagawa sa Pids and Co., Inc.? Explain. Suggested answer:

Yes, because the CBA is not invalidated by the change of the bargaining agent while the CBA is still effective. (Benguet Consolidate Inc v. BC Employees (1968)) Q: Shortly after the consent election, Pids and Co., Inc. sold the Groceries division to Metro Manila Grocery Inc. the employees of the sold division formed part of the bargaining unit described in the CBA. And all were absorbed by Metro Manila Grocery Inc. is M Metro Manila Grocery Inc., as the new employer, bound by the CBA existing at the time of the sale? Explain. Suggested answer: No. There are no indications that the sale is simulated or intended to defeat the employees’ right to organize. A bona fide sale terminates the employment relationship between the selling company and its employees. The CBA does not bind the purchaser in good faith because the CBA is a contract in personam, unless the buyer agrees to be bound. (Associated Labor Union v. NLRC (1993)) (2000 Bar Question)

Effect of Substandard CBA—ground for cancellation of union registration Beneficiaries of CBA—all EEs in the collective bargaining unit, including those who do not belong to the labor organization (union). Q: May a rank-and-file EE, who is not a member of the union representing his bargaining unit, avail of the wage increases which the union negotiated for its members? Suggested Answer: Yes. The beneficiaries of a CBA include Non-Union members; otherwise, there will be discrimination which is prohibited by law. [New Pacific Timber v. NLRC, 328 SCRA 424 (2000)]. (2005 Bar Question)

CBA Provision on Grievance Procedure (Art. 260)— machinery established by the CBA for the adjustment and resolution of grievances arising from (“grievance” is limited to these only): (1) the interpretation or implementation of the CBA and (2) those arising from the interpretation or enforcement of company personnel policies. •

Grievances submitted to the machinery not settled within 7 calendar days from submission shall automatically be referred to voluntary arbitration prescribed in the CBA.

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The CBA must designate in advance a Voluntary Arbitrator (VA) or panel of VAs, or include in the agreement a procedure for the selection of such. In case the parties fail to select, the NCMB shall designate the VAs or panel of VAs. A grievance procedure is a “must” provision in any CBA and no CBA can be registered in the absence of such procedure.

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CBA and 3rd Party Liability • Unless expressly assumed, labor contracts (such as employment contracts and CBAs) are not enforceable against a transferee of an enterprise; labor contracts being binding only between the parties. General rule: There is no law requiring a bona fide purchaser of assets of an ongoing concern to absorb in its employ the employees of the latter. However, the parties are liable to the employees if the transaction is colored or clothed with bad faith. (Associated Labor Unions v NLRC, 1991) Q: FACTS: Jensen & Jensen (J&J) is a domestic corporation engaged in the manufacturing of consumer products. Its rank-and-file workers organized the Jenson EEs Union (JEU), a duly registered local union affiliated with PAFLU, a national union. After having been certified as the exclusive bargaining agent of the appropriate bargaining unit, JEU-PAFLU submitted its proposals for a CBA with the company. In the meantime, a power struggle occurred within the national union PAFLU between its National President, Manny Pakyao, and its National Secretary General, Gabriel Miro. The representation issue within PAFLU is pending resolution before the Office of the Secretary of Labor. By reason of this intra-union dispute within PAFLU, J&J obstinately and consistently refused to offer any counter-proposal and to bargain collectively wioth JEU-PAFLU until the representation issue within PAFLU shall have been resolved with finality. JEU-PAFLU filed a Notice of Strike. The Secretary of Labor subsequently assumed jurisdiction over he labor dispute.

1. Will the representation issue that has arisen involving the national union PAFLU, to which the duly registered local union JEU is affiliated, bar collective bargaining negotiation with J&J? Explain briefly. Suggested Answer: The representation issue that has arisen involving the national union PAFLU should not bar collective bargaining negotiation with J&J. it is the local union that has the right to bargain with the ER J&J, and not the national union PAFLU. It is immaterial whether the representation issue within PAFLU has been resolved with finality or net. Said squabble could not possibly serve as a bar to any collective bargaining since PAFLU is not the real partyin-interest to the talks; rather, the negotiations are confined to the corporation and the local union JEU. Only the collective bargaining agent, the local union JEU, possesses the legal standing to negotiate with the corporation. A duly registered local union affiliated with a national union or federation does not lose its legal personality or independence. [Adamson and Adamson, Inc. v. CIR and Adamson and Adamson Supervising Union (FFW), 127 SCRA 268 (1984)] 2. Can the Secretary of Labor decide the labor dispute by awarding JEU CBA Proposals as the CBA of the parties? Suggested Answer: Yes. The Secretary of Labor can decide the labor dispute by awarding the JEU CBA proposals as the CBA of the parties because when the Secretary of Labor [under Art. 263 (g)] assumes jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor exercises the power of compulsory arbitration over the labor dispute, meaning that as an exception to the general rule, the Secretary of Labor now has the power to set or fix wages, rates of pay, hours of work or terms and conditions of employment by determining what should be the CBA of the parties. (See Divine Word University vs. Secretary of Labor, 213 SCRA 759) Alternative Answer: What is involved in the case in the question is a corporation engaged in the manufacturing of consumer products. If the consumer products that are being manufactures are not such that a strike against the company cannot be considered a strike in an industry indispensable for the national interest, ten the assumption of jurisdiction by the Secretary of Labor is not proper. Therefore, he cannot legally exercise the powers of compulsory arbitration in the labor dispute. (1999 Bar Question)

PART 6 UNFAIR LABOR PRACTICE UNFAIR LABOR PRACTICES (Arts. 247-249) - Violate the constitutional right of workers and employees to self-organization - Disrupt industrial peace - Violations of the civil rights of both labor and management and criminal offenses against the State Q: Define unfair labor practice. Suggested Answer: Unfair labor practice means any unfair labor practice as expressly defined by the Labor Code (Arts. 248 and 249, LC). Essentially, an unfair labor practice is any act committed by an employer or a labor organization, its officers, agents or representatives which has the effect of preventing the full exercise byb employees of their rights to self-organization and collective bargaining. Q: Give three examples of ULP on the part of the employer and 3 examples of ULP on the part of the labor union. Suggested Answer: Any three from the enumeration in Art. 248, ULP of employers and Art. 249 ULP of labor organizations. (1996 Bar Question)

Civil aspect may include claims for damages under Labor Arbiter’s jurisdiction. recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.

Criminal prosecution - needs final judgment (in the civil case) that ULP was committed before criminal prosecution Who are criminally liable? If ULP of ER—only the officers and agents of corps who have actually participated in, authorized or ratified ULPs shall be held criminally liable. If ULP of LOs— only the officers, members of governing boards, reps, or agents or members of LOs or associations who have actually participated in, authorized or ratified ULPs shall be held criminally liable. Q: Is the commission of an unfair labor practice by an ER subject to criminal prosecution? Answer: Yes, the 2nd paragraph of Art. 247, LC expressly so provides. The last paragraph of Art. 247 provides that no criminal prosecution for unfair labor practice may be made without a prior final judgment in an unfair labor practice administrative case (filed before the Labor Arbiter of the NLRC pursuant to Art. 217(a)(1), LC. And even with such final judgment in an administrative case, still, the final judgment would not be binding in t he criminal case. Neither would such final judgment be considered as evidence in the criminal case. At best, it would only serve as proof of compliance of the required prior exhaustion of administrative complaint. (2005 Bar Question)

Elements of ULP (1) ER-EE Relationship (2) Act done must be specifically defined as ULP in the Code (Arts. 248-249). * Not every unfair act is ULP. It has a technical meaning. It has to be related to the right to selforg and to the observance of the CBA ULP of ERs Totality of Conduct Doctrine— culpability of an ER’s remarks is to be evaluated not only on the basis of their implications, but against the background of collateral circumstances. (1) Interference, restraint or coercion of EEs in their exercise of right to self-org— broadest of all the 9 proscriptions •

Subjection by the company of its EEs to questionings regarding their union memberships or activities, in such a way as to hamper their exercise of free choice constitutes ULP ( Philsteam v. Phil Marine Officers Guild, 1965)

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Espionage by an ER of union activities, or surveillance thereof constitutes ULP (Insular Life Assurance Employees Assn v. Insular Life Assurance, 1971)

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Interference and restraint of demonstrations held purely as an exercise of freedom of expression and right of assembly constitute ULP. (Phil Blooming Mills Employees Assn v Phil Blooming Mills, 1973)

Q: Around 100 workers of a mill in a coconut plantation organized themselves for the purpose of promoting their common interest and welfare. The worker’s association prepared a petition for increasing the daily pay of its members in compliance with minimum wage rates for their sector in the region, and for granting benefits to which they are entitled under the law. However, the workers became restless and anxious after the owner-manager threatened them with mass lay-off if the association would press for their demands. Most of its members have worked in the mill for 10 to 15 years with no improvement in working conditions and monetary benefits. The leaders of the workers’ association approached you and asked: What legal steps could they take to protect their security of tenure? What advice could you give them? Suggested Answer: I would advise them to register the worker’s association with the Department of Labor and Employment. Then, have the workers’ association file a ULP case against the employer. Another Suggested Answer:

The workers are entitled to the constitutional (Art XIII, Sec. 3, 1987 Constitution) and statutory (Art. 279, LC) guarantees of security of tenure. When this right to security of tenure is violated, an action for illegal dismissal is an available remedy. If they are dismissed because of union activities, an action for unfair labor practice can be filed (Sec. 3, Art. XIII; Art. 243,LC). If successful, the workers will be entitled to full backwages, including money value of benefits, and reinstatement without loss of seniority (Art. 279, LC). (2004 Bar Question)

(2) To require as a condition of employment that a person or an EE shall not join a labor org or shall withdraw from one which he belongs (yellow dog contract) – non-union membership or withdrawal from membership as a condition of employment. (3) Contracting out services or functions being performed by union members to discourage unionism (subcontracting)  It is ULP when it is motivated by a desire to prevent his EEs from organizing and selecting a collective bargaining representative.  Not ULP when it is for business reasons Q: company “A” contracts out its clerical and janitorial services. In the negotiations of its CBA, the union insisted that, henceforth, the company may no longer engage in contracting out these types of services, which services the union claims to be necessary in the company’s business, without prior consultation. Is the union’s stand valid or not? For what reason/s? Suggested answer: The union’s stand is not valid. It is part of management prerogative to contract out any work, task, job or project that it is an unfair labor practice to contract out services or functions performed by union members when such will interfere with, restrain, or coerce employees in the exercise of their rights to selforganization. Art 248 (c), LC) Another suggested answer: The union’s stand that there must be a prior consultation by the employer with the union before contracting out can be effected is valid. Art XIII, Sec 3 of the Constitution, and Art 255, LC guarantee the right of workers to participate in policy and decision-making processes which affect their rights and benefits. Job contracting will undoubtedly and directly affect their rights, benefits and welfare. (PAL v. NLRC) (2001 Bar Question)

(4) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor org, including the giving of financial or other support to it or its organizers or supporters (company-domination of union) (5) Discrimination to encourage / discourage membership in any labor org 

If the discrimination is to influence the union activity of EEs, the discrimination is unlawful. But the discrimination is not the same as differentiation or classification (e.g., management classifies jobs and grants them varying levels of pay of benefits)

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Test WoN dismissal is discriminatory: look at the reason. The fact that a lawful cause for the dismissal is available is not a defense where the EE is actually discharged because of his union activities. But if the dismissal was actually motivated by a lawful reason, the fact that the EE is engaged in union activities will not prevent the ER from discharging the EE for cause.

Union security clause— any form of agreement which imposes upon the EEs the obligation to acquire or retain union membership, otherwise their employment will be terminated. - It is discrimination favoring unionism. It is a valid kind of discrimination. - But this union shop stipulation should be strictly construed. - To validly dismiss an EE under this, there should be:  a clear and unequivocal statement that loss of good standing in the union is a cause for dismissal; and  ER must observe due process - All EEs in the BU covered by a closed-shop agreement are subject to its term except:

(1) An EE who at the time the closed-shop agreement takes effect is a bona fide member of a religious org which prohibits its members from joining labor unions based on religious grounds (2) EE already members of a union other than the majority at the time the closed-shop agreement took effect; and (3) EEs excluded from the closed-shop agreement by express terms (also, those who are not members of the BU) Hiring Union Shop

Closed Shop

Maintenance shop

EEs have access to labor market; Can be hired even if not union member.

EE must become a member at the time of hiring

Already a member at the time of hiring

Continued Employment After some time, EE must become a member

Must be a member all through-out

Must maintain membership, otherwise ground for termination

Ground for Termination If the EE does not join the union after reasonable time, it will be a ground for termination After due process is observed. If not a member at anytime, ground for termination After due process is observed If disaffiliates from union, grounds for termination After due observed

process

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Closed Shop/ Agency Shop Q: Describe a “closed shop agreement”. Does it differ from an “agency shop agreement”? Are the above agreements legal? Answer: A “closed shop agreement” is that agreement embodied in a collective bargaining agreement (CBA) whereby the employer binds itself not to hire any person unless he is first a union member of the collective bargaining representative. An “agency shop agreement” is different from a closed shop agreement in that under the former, the employer does not bind itself not to hire a person unless he is first a union member of the collective bargaining representative. Instead, the employer binds itself to check off from those who are not union members of the collecting bargaining representative reasonable fee equivalent to the des and other fees paid by union members I the non-union members accept the benefits of the CBA. The above agreements are legal or they are expressly allowed by the Labor Code. (1997 Bar Question) Q: A group of EEs in XYZ Factory belonging to a religious sect, in conformity with the teachings and dictates of their religion, refused to join the labor union in the factory. The labor union was able to negotiate a substantial wage increase in its collective bargaining agreement with the management. A provision therein stated that the wage increase would be paid to the members of the union only in view of a “closed shop” union security clause in the new agreement. The members of the sect protested and demanded that the wage increase be extended to them. The officers of the union countered by demanding their termination from the company pursuant to the “closed shop” provision in the just-concluded CBA. (a) Is the CBA provision valid? Suggested Answer: No, the CBA provision is not valid. The benefits of a CBA are extendible to all EEs regardless of their membership in the union, because to withhold the same from non-union members would be to discriminate against them. [National Brewery & Allied Industries Labor Union of the Phils. V. San Miguel Brewey, 8 SCRA 805 (1963)]. (b) Should the company comply with the union’s demand of termination the members of the religious sect?

Suggested Answer: No, the company should not comply with the union’s demand. In the case of Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54 (1974)], religious freedom is superior to the freedom to contract. In the hierarchy of values, religious freedom takes a preferred position and the right to contract must yield; accordingly, the CBA provision which is contractual in nature must not prevail over the duty to respect the workers’ constitutional right to religious freedom. (2005 Bar Question) Q: FACTS: In a certification election conducted by the Department of Labor, Associated Workers Organization in Laguna (AWOL) headed by Cesar Montayo, won over Pangkat ng mga Manggagawa sa Laguna (PML), headed by Eddie Garciaa. Hence, AWOL was certified as the exclusive bargaining agent of the rank-and-file EEs of the Laguna Transportation Company (LTC). Shortly, thereafter, a CBA was conducted by LTC and AWOL which provided for a closed shop. Consequently, AWOL, demanded that Eddie Garciaa and all the PML members be required to become members of AWOL as a condition for their continued employment; otherwise, they shall be dismissed pursuant to the closed shop provision of the CBA. The union security clause of the CBA also provided for the dismissal of the EEs who have not maintained their membership in the union. For one reason or another, Francis Magallona, a member of AWOL, was expelled from the union membership for acts inimical to the interest of the union. Upon receipt of the notice that Francis Magallona failed to maintain his membership in good standing with AWOL, LTC summarily dismissed him from employment. 1. Can Eddie Garciaa and all the PML members be required to become members of the AWOL pursuant to the closed shop provision of the CBA? Why? Suggested Answer: Eddie Garciaa and all the PML members can not be required to become members of AWOL pursuant to the closed shop provision of the CBA. According to the Labor Code [Art. 248 (e)], a closed shop provision cannot be applied to those EEs who are already members of another union at the time of signing of the CBA. 2. Is the termination from employment of Francis Magallona by LTC lawful? Why? Suggested Answer: Pursuant to the closed shop provision of the CBA entered into by AWOL with LTC, membership in AWOL has become a condition of employment in LTC. As long as the expulsion of Francis Magallona from AWOL was done in accordance with applicable provisions of law and with the Constitution and By-Laws of the AWOL, then it was lawful for LTC to terminate Magallona. Panel: The termination is unlawful (Ferrer v. NLRC) (1999 Bar Question) Q: MPH Labor Union is the duly certified bargaining representative of the rank and file employees of MM Park Hotel since the 1970’s. The collective bargaining agreement contained union shop security provisions. After signing of the 2000-2005 CBA, the Union demanded the dismissal of 3 employees, XX, YY and ZZ, pursuant to the union security clause in the CBA. The Hotel Management replied that it was legally impossible to comply with the demand of the Union. It might even be construed as unfair labor practice. For it appeared that XX, YY and ZZ had been recently promoted as supervisors and resigned from the Union. But according to the Union, the three submitted their resignations outside the freedom period after the 1996-2000 CBA expired on June 30, 2000. The Union argued that the Hotel Management could not skirt its obligation to respect and implement the union security clause by promoting the three employees. That could be viewed as rewarding employees for their disloyalty to the union, said the union officers. Does the union security clause sufficiently justify the demand for dismissal of the three employees or not? May the Hotel Management validly refuse the Union’s demand? Suggested Answer: No. The union security clause does not justify the dismissal of the promoted supervisors who were formerly members of the rank and file union. Yes. The Hotel Management may validly refuse to dismiss the supervisors. As supervisors, they are no longer covered by the CBA of the employer and the rank and file union. The law does not require a promoted supervisor to resign upon promotion from their membership in the rank and file union; rather, by operation of law, they can no longer continue their membership with the rank and file union.

Art. 245 of the Labor Code provides that supervisory employees shall not be eligible for membership in a labor organization of the rank and file employees but may join, assist, or form separate labor organizations of their own. (2004 Bar Question)

(6) To dismiss, discharge, or otherwise prejudice or discriminate against and EE for having given or being about to give testimony under this Code. (7) To violate the duty to bargain collectively (8) To pay negotiation or atty’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute (9) Violation of the CBA— to constitute ULP, violation must be gross, i.e., flagrant and malicious refusal to comply with the economic provisions of the CBA (cf. Art. 261). If not gross, then it is not ULP. ULP of Labor Orgs (1) To restrain or coerce EEs in their exercise of right to self-org. However, a labor org shall have the right to prescribe its own rules re membership. (2) To cause ER to discriminate against an EE, including discrimination on the basis of membership/ non-membership in the org (3) Violation of duty to bargain collectively (4) To cause an ER to pay money or other things of value, in the nature of an exaction, for services which are not performed, including the demand for fee for union negotiations (featherbedding/ make-work schemes)—spreading or creating employment by unnecessarily maintaining or increasing the number of EEs used, or amount of time consumed, to work on a particular job. (5) To ask for or accept negotiations or atty’s fees from ERs as part of the settlement of any issue in CB or other dispute (sweetheart contract)— here, a CBA does not substantially improve the EEs’ wages and benefits. It is a juicy deal between the ER and the bargaining agent. (6) To violate a CBA—to constitute ULP, violation must be gross, i.e., flagrant and malicious refusal to comply with the economic provisions of the CBA (cf. Art. 261). If not gross, then it is not ULP. PART 7 UNION CONCERTED ACTIVITIES (Arts. 263-266) LABOR DISPUTE[(Art. 212 (l)]—— includes any controversy or matter concerning terms or conditions of employment or the 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 ER and EE. STRIKE/ LOCKOUT  The law treats strike and lockout similarly because both connote the temporary stoppage of work in relation to a labor dispute.  The only difference is in the identity of the doer. Strike [(Art. 212 (o)]—any temporary stoppage of work by the concerted action of EEs as a result of an industrial or labor dispute. * if not based on a labor dispute= illegal strike Lockout [(Art. 212 (p)]—any temporary refusal of an ER to furnish work as a result of an industrial or labor dispute. Q: a division manager of a company taunted a union officer two days after the union submitted to the DOLE the result of the strike vote. The division manager said: “Your union threat of an unfair labor practice strike is phony or bluff. Not even the ten percent (10%) of your members will join the strike.” To prove union

members support for the strike, the union officer immediately instructed its members to crease working and walkout. Two hours after the walk-out the workers voluntarily returned to work. Was the walkout a strike? And if so, was it a valid activity? Can the union officer who led the short walkout, but who likewise voluntarily led the workers back to work, be disciplined by the employer? Suggested answer: Yes, it was a strike because there was a work stoppage by concerted action and there is an existing labor dispute. It was not a valid activity because the requisites for a valid strike were jot observed. (Art 212 (o), (l), LC) Yes, the employer may discipline the union officer. An illegal strike is a cause for the union officer to be declared to have lost its employment status. (Art 263 (c)(d)(e)(f); Art 264 (a), LC) (2000 Bar Question) Q: Eaglestar Company required a 24-hour operation and embodied this requirement in the employment contracts of its EEs. The EEs agreed to work on Sundays and Holidays if their work schedule required them to do so for which they would be paid additional compensation as provided by law. Last March 2000, the union filed a notice of strike. Upon Eaglestar’s petition, the Secretary of Labor certified the labor dispute to the NLRC for compulsory arbitrator. On April 20, 2000 (Maundy Thursday), while conciliation meetings were pending, the union officers and members who were supposed to be on duty did not report for work. Neither did they report for work on April 21 (Good Friday) and on April 22 (Black Saturday), disrupting the factory’s operations and causing it huge losses. The union denied it had gone on a strike because the days when its officers and members were absent from work were legal holidays. Is the contention of the union correct? Explain briefly. Suggested Answer: The contention of the union is NOT correct. In the case, it is clear that the EEs agreed to work on Sundays and Holidays of their work schedule required them to do so for which they would be paid additional compensation as provided by law. The above-mentioned agreement that the EEs voluntarily entered into is valid. It is not contrary to law. It is provided in the agreement that if they will work Sundays or Holidays that they will be aid additional compensation as provided by law. Neither is the agreement contrary to morals, good customs, public order or public policy. Thus, when the workers did not report for work when by agreement they were supposed to be on duty, there was a temporary stoppage of work by the concerted action of the EEs as a result of an industrial or labor dispute because they were on strike. [See Interphil Laboratories EEs Union-FFW v. Interphil Laboratories Inc., Dec. 19, 2001] (2002 Bar Question)

Valid grounds for strike or lockout (Art. 263) (1) Bargaining deadlock (economic strike) (2) ULP When ULP is found to have been actually committed; or When the union/ ER believed in good faith that ULP was committed, although found subsequently as not committed (“good faith strike”) Procedure (Art. 263) *Note: ER or labor org must have first bargained collectively (1) filing notice of strike/ lockout (cooling-off period)  If bargaining deadlock—30 days before intended date who files? Only the exclusive bargaining agent

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If ULP— 15 days before intended date except in case of union busting (i.e., where existence of union is threatened, e.g., dismissal from employment of union officers) who files? the exclusive bargaining agent; or if none, the LLO affected by the ULP (remember: only a legitimate labor org can legally hold a strike)



In case of union busting, the union may take action immediately (i.e, they can disregard the 15-day cooling-off period) but only after the strike-vote is obtained and results submitted to the NCMB at least 7 days before the intended date of strike/ lockout (this 7day period cannot be disregarded)

(2) Observance of the cooling-off period  Duty of NCMB to exert all efforts at mediation and conciliation to effect a voluntary settlement.  If still unsettled after cooling-off period, union may strike/ER may declare lockout. Decision to declare a strike / lockout - must be approved by a majority of the total union membership in the bargaining unit / majority of the board of directors of the corporation - obtained by secret ballot in meetings for that purpose › decision is valid for the duration of the dispute based on substantially the same ground as when the vote was taken. › The union or ER shall furnish the NCMB the results of the voting (strike-vote) at least 7 days before the intended strike or lockout, subject to the cooling-off period (hence strike/ lockout should only be after the appropriate cooling-off period PLUS 7 days; the cooling-off period and the 7-day period are counted separately) Q: Magdalo, a labor union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood, filed with the Department of Labor and Employment (DOLE) a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its officers and union members including Cesar Tinio, a rank and file employee, who led the “walk out.” Oakwood filed a petition to declare illegal the strike which Magdalo staged without observing the seven-day ban under the Labor Code. Oakwood claimed that the strike being illegal, all those who participated therein, including Cesar Tinio, could be dismissed as, in fact, they were so dismissed by Oakwood. Decide the case. Suggested Answer: When Oakwood dismissed all the officers and members of the union who participated in the strike which was declared illegal because it was staged without observing the seven-day ban under the Labor Code, Oakwood illegally dismissed the union members, including Cesar Tinio. The Labor Code provides that a union officer who knowingly participates in an illegal strike loses his employment status. Thus, the union officers were legally dismissed. But for a union member to lose his employment status, he should have committed illegal acts during the strike, like acts of violence, coercion or intimidation or obstruction of ingress to or egress from the employer’s premises for lawful purposes or obstruction of public thoroughfares. The union members, including Cesar Tinio, did not commit any of these acts. Thus, it would be illegal to dismiss them. (2003 Bar Question) Q: What are the statutory requisites for a valid strike by the workers? Should these requisites be complied with substantially or strictly? Suggested Answers: 1.The statutory requisites for a valid strike are the following: A strike may be declared only in cases of bargaining deadlocks or unfair labor practices. Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable. No strike or lockout may be declared on grounds involving inter-union and intra-union disputes. No strike may be declared without first having filed a notice of strike or without the necessary strike vote having been obtained and reported to the National Conciliation and Mediation Board. A strike may actually take place only after a 30-day waiting period after notice was filed for a strike arising from a bargaining deadlock or after a 15-day waiting period for an unfair labor practice strike. Notice about a strike vote should be given seven days before the intended strike. No strike can be declared after assumption of jurisdiction by the Secretary of Labor and Employment or after certification or submission of the dispute to compulsory or voluntary arbitration ar during the pendency of cases involving the same grounds for the strike or lockout. The above requisites are to be complied with strictly. Thus, the Supreme Court has ruled that noncompliance of the requirements of notice or a strike vote or of the waiting periods makes a strike an illegal strike. Another Suggested Answer: 1. Statutory Requirements for a Valid Strike a. Status of Striking UnionFor a ULP strike or bargaining deadlock strike, only duly-certified or recognized bargaining representative may declare such strike.

b. Procedural Requirements 1. Notice of Intent. Filing of Notice of Intent to Strike with the NCMB 2. Cooling –off Period. Observance of Cooling-off period: (a) ULP- 15 days before the intended date of strike (b) Bargaining deadlock-30 days before intended date of strike 3. Strike Vote and Filing of the same with the NCMB and the observance of seven (7) days strike ban. (Art. 263 (c-f), LC) 4. Cause- The cause of a strike must be a labor or industrial dispute. (Art 212 (o), LC). Compliance with all legal requirements is meant to be and should be mandatory. (National Federation of Sugar Workers v. Ovajera) (2004 Bar Question)

Assumption of Jurisdiction by the Sec. of Labor/ Certification to NLRC for compulsory arbitration— in cases of labor dispute in an industry indispensable to national interest (as determined by the Pres. of the Phils) Effect of AJ or certification:  automatically enjoins the intended or impending strike or lockout as specified in the assumption or certification order.  If one has already taken place at the time of assumption, all striking or locked out EEs shall immediately return-to-work and the ER shall immediately resume operations and readmit all workers  Before or at any stage of the compulsory arbitration, the parties may opt to submit the dispute to voluntary arbitration (VA); also, the Pres. of the Phils is not precluded from intervening at anytime and assuming jurisdiction over the dispute  Sec., NLRC, or VA shall decide within 30 days. Decision of these or the Pres shall be final and executory 10 days from receipt of the parties. •

The moment there is Presidential (or by Secretary of Labor) assumption of jurisdiction, whether a return-to-work order is issued or not, the return-to-work order is an integral part of the assumption of jurisdiction. (Sarmiento v. Tuico, 1988)

Q: The Secretary of Labor assumed jurisdiction over a strike in Manila Airlines and eventually issued a return-to-work order. The Manila Airlines EEs Union defied the return-to-work order and continued with their strike. The management of Manila Airlines then declared all the EEs who participated in the strike dismissed from employment. (a) Was the act of Manila Airlines’ management in dismissing the participants in the strike valid? (b) What are the effects of an assumption of jurisdiction by the Secretary of Labor upon the striking EEs and Manila Airlines? Answer: (a) Yes. The act of Manila Airlines’ management in dismissing the participants in the strike is valid. In a number of Supreme Court decisions, it has ruled that the defiance by workers of a return to work order of the Secretary of Labor issued when he assumes jurisdiction over a labor dispute is an illegal act and could be the basis of a legal dismissal. The return to work order imposes a duty; it must be discharged as a duty even against the workers’ will. (b) When the Secretary of Labor assumes jurisdiction over a strike, all striking EEs shall immediately return to work and the ER shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike. (1997 Bar Question) Q: The Secretary of Labor and Employment, after assumption of jurisdiction over a labor dispute in an airline issued a Return to Work Order. The airline filed a Motion for Reconsideration of the Order and pending resolution of the motion deferred the implementation of the Order. Can the airline defer the implementation of the return to work Order pending the resolution of the motion of reconsideration? Suggested answer: The airline cannot defer the implementation of the Return to Work Order on the basis of there being a pending Motion for Reconsideration re: the assumption of jurisdiction by the Secretary of Labor and Employment of a labor dispute.

According to the Supreme Court, the Return to Work Order issued by the Secretary of Labor upon his assumption of jurisdiction over a labor dispute in an industry indispensable for the national interest is immediately executory. Another suggested answer: No, the airline cannot defer the implementation of a return to work order pending resolution of a Motion for Reconsideration. (See Art 263 (g), LC) The Supreme Court, in Baguio Colleges Foundation v. NLRC (1995), ruled: “xxx assumption and certification orders are executory in character and are to be strictly complied with by the parties even during the pendency of any petition questioning their validity. Being executory in character, there was nothing for the parties to do but implement the same.” (underscoring supplied) (1998 Bar Question) Q: In a labor dispute, the Secretary of Labor issued an “Assumption Order.” Give the legal implications of such an order. Suggested Answer: Under Art. 263(g) of the Labor Code, such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution. Under Art. 264 of the Labor Code, no strike or lockout shall be declared after the assumption of jurisdiction by the Secretary. (2003 Bar Question) Q: Which of the following may be considered among industries most vital to national interest as to be subject of immediate assumption of jurisdiction by the Secretary of Labor and Employment or certification for compulsory arbitration in case of strike or work stoppage arising from a labor dispute? (1) Bulletin daily newspaper publishing company (2) Local franchise of Jollibee and Starbucks (3) Shipping and port services in Cebu and Manila (4) Enchanted Kingdom, Elephant Island and Boracay Resort (5) LBC, DHL and FedEx centers Justify your answer or choice. Suggested Answer: Certification of labor dispute for immediate assumption of jurisdiction by the Secretary of Labor and Employment, as indispensable to national interest. (Art. 263 (g), LC). 1. Bulletin Daily Newspsaper. Access to information, e.g. local. Foreign, or otherwise are requirements for an informed citizenry 2. Shipping and port services in Cebu and Manila. The country needs domestic sea transport due to our topography and for the smooth flow of business and government operations. 3. LBC, DHL, FedEx Center. Couriers are essential to foreign and domestic government operations. (2004 Bar Question)

Not valid grounds for strike/ lockout [RA 6727; Book V, Rule XXII, Sec. 5] (1) Inter-union dispute— conflict between and among LLOs involving representation for purposes of CB or other conflict [Book V, Rule I, Sec. 1 (x)] (2) Intra-union dispute— conflict between and among union members (violation of rights and conditions of membership, disagreement over the union’s consti and by-laws or those arising from chartering or affiliation of union) [Book V, Rule I, Sec. 1 (bb)] (3) Wage distortion, per RA 6727 (Wage Rationalization Act) (Ilaw at Buklod ng Manggagawa v. NLRC, 1991)

PICKETING— walking and patrolling the vicinity of a place of business involved in a labor dispute (this may happen even if no strike or work stoppage) •

Peaceful picketing is entitled to protection as an exercise of free speech but the courts are empowered to confine or localize the sphere of demonstration to the parties to the labor dispute. Court may insulate establishments/ persons with no connection to the dispute. (this is the “innocent by-stander” rule, giving third persons right to regulate the dispute)

PROHIBITED ACTIVITIES (hence making it an illegal strike/ lockout/ picketing) (Art. 264) (1) Strike/ lockout without (a) Bargaining collectively first (b) Filing the notice required or (c) Obtaining the necessary strike or lockout vote and reporting it to the NCMB (2) Strike/ lockout after AJ by the Pres. or the Sec. or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. (3) Obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining (strike-beaker), or shall aid or abet such obstruction or interference (4) Employment of strike-breaker/ employed as strike-breaker (5) Public official / employee, AFP or PNP officers / personnel bringing in, introducing, or escorting in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. Rule: Police shall keep out of the picket lines unless 1.actual violence or other criminal acts occur; or 2.taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. (6) Acts of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares. CONSEQUENCES OF CONCERTED ACTIONS ON THE EMPLOYMENT STATUS (1) Lawful Strike/ Lockout a. Dismissal in a lawful economic strike— reinstatement (no backwages because “no work, no pay”) b. Dismissal in a lawful ULP strike i. EEs who were discriminatorily dismissed because of union activities— reinstatement + backwages ii. EEs who voluntarily went on strike because of such ULP— reinstatement only • Court has still the discretion, despite the finding of ULP, WoN to grant backpay  

Any worker or union officer who knowingly participates in the commission of illegal acts during a lawful strike—justified dismissal Mere participation of a worker in a lawful strike—not a ground for his dismissal, even if a replacement had been hired by the ER during the lawful strike [Art. 264 (a)]

Q: As a result of bargaining deadlock between ROSE Corporation and ROSE Employees Union, its members staged a strike. During the strike several employees committed illegal acts. The company refused to give in to the union’s demands. Eventually, its members informed the company of their intention to return to work. Can ROSE Corporation refuse to admit all the strikers? Suggested Answer: Article 264 of the Labor Code provides that “mere participation of the worker in a lawful strike shall not constitute sufficient ground for termination of employment even if a replacement had been hired by the employer during such lawful strike.”

On the other hand, the same Article of the LC also provides: “Any worker or union officers who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status.” Because of the above-quoted provisions of the Labor Code, ROSE Corporation cannot refuse to admit all the strikers who inform the company of their intention to return to work, except those workers who may have committed illegal acts during the strike who can be declared as having lost their employment status. Q: Assuming the company admits all the strikers, can it later on dismiss those employees who committed illegal acts? Suggested Answer: Even if as its initial response, the company admitted all the strikers, the company is not estopped from afterwards dismissing those employees who committed illegal acts during the strike. Article 264 of the Labor Code expressly states that “any worker xxx who knowingly participates in the commission of illegal acts during strike may be declared to have lost his employment status.” Q: If due to the prolonged strike, ROSE Corporation hired replacements, can it refuse to admit the replaced workers? Suggested Answer: ROSE Corporation cannot refuse to admit the strikers if they did not commit any illegal acts during a lawful strike. The Labor Code is very clear: Workers who went on strike have not lost their employment status even if the company had hired their replacements. (2006 Bar Question) Q: A strike was staged in Mella Corporation because of a deadlock in CBA negotiations over certain economic provisions. During the strike, Mella Corp. hired replacements for the workers who went on strike. Thereafter, the strikers decided to resume their employment. Can Mella Corp. be obliged to reinstate the returning workers to their previous positions? Answer: Yes. Mella Corp. can be obligated to reinstate the returning workers to their previous positions. Workers who go on strike do not lose their employment status except when, while on strike, they knowingly participated in the commission of illegal acts. The Labor Code expressly provides: Mere participation of a worker in a lawful strike should not constitute sufficient ground for the termination of his employment even if a replacement had been hired by the ER during such lawful strike. (1997 Bar Question)

(2) Unlawful Strike/ Lockout a. Dismissal of EE in an unlawful lockout— reinstatement + full backwages [Art. 264 (a)] b. Dismissal of EE in an unlawful strike i. Union officer who knowingly participates in an illegal strike— justified dismissal ii. Any worker or union officer who knowingly participates in the commission of illegal acts during an illegal strike—justified dismissal iii. Participation of a worker— not ground for dismissal. There must be proof that he committed illegal acts during the strike. Note: The penalty imposable to erring strikers does not always have to be dismissal. It may be scaled down to suspension esp. of there is a finding that both the ER and EEs contributed to the volatile atmosphere. (PAL v. Brilliantes, 1997) WHEN IS A STRIKE ILLEGAL  Contrary to statutory prohibition - If EEs do not have the right to strike (e.g., govt EEs)  Violates a specific requirement of law (procedural requirements) - If did not observe the procedural requirements in Art. 263  Validity of grounds - If not because of bargaining deadlock or ULP  Employing unlawful means - If prohibited activities were committed such as:

   

Violence, coercion or intimidation Obstruct the free ingress to or egress from the ER’s premises Obstruct public thoroughfares Coercing or threatening non-srtiking EEs (amounts to ULP by labor org)

 If there is an injunction (in national interest strikes)  Violation of agreement of the parties - If there is a no-strike clause in the CBA (applies only to economic strikes) Q: The day following the workers voluntary return to work, the Company Production Manager discovered an unusual and sharp drop in workers’ output. It was evidently clear that the workers are engaged in a work slowdown activity. Is the work slowdown a valid form of strike activity? Suggested answer: A work slowdown is not a valid form of strike activity. If workers are to strike, there should be temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (See Art 212(o),LC) Another suggested answer: No, a slowdown is no a valid form of strike activity. The Supreme Court in Ilaw at Buklod ng Manggagawa v. NLRC (1991) ruled: “The Court is in substantial agreement with the petitioner’s concept of a slowdown as a “strike on the installment plan”, as a willful reduction in the rate of work by concerted action of workers for the purpose of restricting the output of the employer, in relation to a labor dispute, as an activity by which workers, without a complete stoppage of work retard production or their performance of their duties… The Court also agrees that such slowdown is generally condemned as inherently illicit and unjustifiable, because while the employees “continue to work and remain at their positions, and accept wages paid to them”, they at the same time select what part of their allotted tasks they care to perform of their own volition or refuse openly, or secretly, to the employers damage, to do other work; in other words, they work on their own terms.” Like wise, a slowdown is not a valid form of concerted activity, absent a labor dispute between the parties. (See Art 212 (o),LC) € Another suggested answer: No. It is a prohibited activity. It can be said to be a violation of the duty to bargain collectively. The union is guilty of bad faith. The workers should resume operations under the same terms and conditions prevailing prior to the strike. (1998 Bar Question)

IMPROVED OFFER BALLOTING (Art. 265)— referendum by secret balloting involving the union members on the improved offer of the ER on or before 30th day of strike.  If at least majority of the union members/ BOD, trustees, or the partners holding the controlling interest vote and accept the improved/ reduced offer, the workers shall immediately return to work and the ER shall thereupon readmit them upon the signing of the agreement. Q: The Kilusang Kabisig, a newly-formed labor union claiming to represent a majority of the workers in the Microchip Corporation, proceeded to present a list of demands to the management for purposes of collective bargaining. The Microchips Corporation, a multinational corporation engaged in the production of computer chips for export, declined to talk to union leaders, alleging that they ha not as yet presented any proof of majority status. The Kilusang Kabisig then charged Microchip Corporation with unfair labor practice, and declared a “wildcat” strike wherein means of ingress and egress were blocked and remote and isolated acts of destruction and violence were committed. Was the strike illegal? Answer: Because what was declared is a “wildcat” strike, the strike is illegal. A “wildcat” strike is one that is one declared by a group of workers without formal union approval. Thus, it is illegal because the Labor Code requires that for a strike to be legal, among others, the decision to declare a strike must be approved by majority of the total union membership in the bargaining unit concerned, obtained by a secret ballot in meetings or referenda called for that purpose. Alternative Answers:

1) The strike is illegal. The Labor Code recognizes only one of two (2) grounds for a strike to be legal: bargaining deadlock or unfair labor practice. A strike to compel the employer to recognize a union is not allowed by law. 2) The strike is not illegal. For the strike to be illegal because of violence, it should be characterized by pervasive violence. Here, there were only remote and violated acts of destruction and violence. But even if the strike is not illegal, those strikers who committed illegal acts, namely those who blocked the ingress and egress and who committed acts of destruction and violence, these strikers can be legally dismissed. Q: Was the company guilty of unfair labor practice when it refused to negotiate with the Kilusang Kabisig? Suggested Answer: No. It is not an unfair labor practice (ULP) not to bargain wit the union which has not presented any proof of its majority status. The Labor Code imposes on an employer the duty to bargain collectively only with a legitimate labor organization designated or selected by the majority of the employees in an appropriate bargaining unit. It is not ULP for an employer to ask a union requesting to bargain collectively that such union first show proof of its being a majority union. (1997 Bar Question) Q: What is the rationale for the State regulation of strike activity and what are the interests involved that the State must balance and reconcile? Q: Cite two examples on how the law regulates the use of strike as a from of concerted activity Suggested answer: 1. the first rationale is the constitutional provision that the right to strike is to be exercised “ in accordance with law”. Another rationale is the Civil Code provision that the relations between employer and employee are imbued with public interest and are subject to the provisions of special law. A third rationale is the police power of the State. The interests to be balanced are the rights of the workers, as primary socio-economic force, to protection of the law, to security of tenure, to concerted activities, etc. these should be balanced with the right of the employer to reasonable, return on investment and to expansion and growth. General welfare or the general peace and progress of society should also be considered. This is why assumption of jurisdiction and certification to NLRC are allowed in “national interest”: cases. (Art 263, LC; Lapanday Workers Union v. NLRC (1995)) 2. Examples: (1) procedural requirements should be observed, namely, filing of notice of strike, observance of cooling-off period, taking of strike vote, and report of the strike vote, and report of the strike vote; (2) use of violence, intimidation or coercion and blockade of ingress-egress are not allowed. (Art 263 (b)(c)(f)(g), LC) (2000 Bar Question)

LABOR INJUNCTION ON LABOR DISPUTES (Arts.254,218 (e), 264) Issuing agency—NLRC Rule: No temporary or permanent injunction or restraining order in any case involving labor dispute. Except: Under Arts. 264 and 218 (e) Procedure for issuance of injunction (not ex parte) (1) Hearing of the testimony of witnesses, (2) with opportunity for cross-examination, in support of the allegations of a complaint made under oath, (3) and testimony in opposition thereto, if offered, and (4) only after a finding of fact by the commission, to the effect: (a) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained (no injunction or TRO shall be issued except against those making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof); (b) That substantial and irreparable injury to complainants property will follow; (c) That greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; (d) That complainant has no adequate remedy at law; and

(e) That the public officers charged with the duty to protect complainants’ property are unable or unwilling to furnish adequate protection. (5) Personal notice to: all known persons against whom relief is sought to the Chief Executive and other public officials of the province or city within which the unlawful have been threatened or committed charged with the duty to protect complainant's property [Art. 218 (e)] 

With regard to allegations under Art. 264 (prohibited activities), follow the same procedure. [Art. 264 and 218 (e) differ only in the allegations]

Conditions for Issuance of TRO ex parte 1. a substantial and irreparable injury to complainant's property will be unavoidable 2. there is testimony under oath, sufficient, if sustained, to justify the NLRC in issuing a temporary injunction upon hearing after notice 3. the complainant shall first file an undertaking with adequate security in an amount to be fixed by the commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction; and 4. the TRO shall be effective for 20 days only. [Art. 218 (e)] Q: Professor Juan dela Cruz, an author of the textbook Commentaries on the Labor Code of the Philippines, citing an American case, wrote: “It is said that the prohibition against the issuance of a writ of injunction in labor cases creates substantive and not purely procedural law.” Is there any statutory basis for the statement/ comment under Philippine law? Suggested answer: Yes. The statutory basis is Art 254 of the Labor Code. It prohibits issuance of injunction, as a matter of policy, to resolve disputes except as otherwise provided in Arts 218 and 264 of the Labor Code. (Caltex Filipino Managers and Supervisors Assn. V. CIR (1972)) (2000 Bar Question)

SUMMARY OF JURISDICTION VOLUNTARY ARBITRATORS (VA) (Arts. 261-262) • supervised by the National Conciliation and Mediation Board (NCMB) Original and Exclusive jurisdiction 1. Unresolved grievances from the interpretation or implementation of the CBA except gross violation of the CBA (which is a ULP, hence under LA’s jurisdiction) 2. Unresolved grievances arising from the interpretation or enforcement of company personnel policies 3. Any other labor dispute, upon agreement of the parties Procedure Grievances submitted to the grievance machinery of the CBA, if unresolved within 7 days from submission

voluntary arbitration (to be decided within 20 cal. days)

Decision (final and executory in 10 cal. daysfrom receipt of the parties)

Q: State the cases when a labor dispute would fall under the jurisdiction of voluntary arbitrators or panel of voluntary arbitrators. Answer: A labor dispute falls under the jurisdiction of a voluntary arbitrator or a panel of voluntary arbitrators if a labor dispute arises from an unresolved grievance which in turn arises from the interpretation or implementation of a CBA or of company personnel policies. (Art. 261). Upon agreement of parties, a voluntary arbitrator or panel of voluntary arbitrators may also hear and decide all other labor disputes including unfair labor practices and bargaining deadlock. (Art. 262) (1997 Bar Question) Voluntary Arbitrator Q: The employer company, in a directive to the union president, ordered the transfer of some of its employees, including a number of union officials, to its plant offices. The order was opposed by the union. Ultimately, the union filed an unfair labor practice against the company alleging that the purported transfer of its union officials was unjust and in violation of the Collective Bargaining Agreement (CBA). Pursuant to the terms of the CBA, the dispute was referred to a voluntary arbitrator who later ruled on the issues raised by the parties. Could it later be validly asserted that the “decision” of the voluntary arbitrator would have no “compulsory” effect on the parties? Explain. Suggested Answer: No. A voluntary arbitrator chosen under the Grievance Machinery of a CBA can exercise jurisdiction not only on disputes involving interpretation/implementation of a CBA and/or company rules, personnel policies (Art. 261, LC) but also, upon agreement of the parties, “all other labor disputes including unfair labor practice” (Art. 262, LC). As no objection was raised by any of the parties when “the dispute referred to a voluntary arbitrator who later ruled on the issues raised by the parties”, it follows that what we is voluntary arbitration agreed upon by the parties. His decision is binding upon the parties and may be enforced through any of the sheriffs, including those of the NLRC, he may deputize. Another Suggested Answer: No. The award of voluntary arbitrators acting within the scope of their authority determines the rights of the parties, and their decisions have the same legal effects as a judgment of the Court. Such decisions on matter of fact or law are conclusive, and all matters in the award are thenceforth res judicata on the theory that the matter has been adjudged by the tribunal which the parties have agreed to make final as tribunal of last resort. (Volkschel Labor Union v. NLRC, 98 SCRA 314 [1980]). (2003 Bar Question) Q: Company A and Union B had a 3-year CBA that expired on June 12, 1990. Negotiations proved futile so the unresolved issues were referred to an Arbiter who rendered a decision on March 15, 1992 retroactive to December 1, 1990. is the Arbiter’s decision providing for retroactivity tenable or not? Why? Suggested answer: The referral of he unresolved issues of the collective bargaining negotiations to an Arbiter is not within the jurisdiction of the Arbiter. But assuming that the unresolved issues in the collective bargaining negotiations were properly referred to the Arbiter pursuant to the provision of the Labor Code (art 262) that states that a Voluntary Arbitrator may hear and decide any labor dispute, including bargaining deadlocks, the Arbiter’s decision providing for retroactivity is tenable. Exercising his compulsory arbitration power, the Arbiter could decide the issue of retroactivity in any way which is not contrary to law, morals, good customs, public order or public policy. But in a case (Manila Electric Co. v. Quisumbing) the Supreme Court said that an arbitral award shall retroact to the first day after the six-month period following the expiration of the last day of the CBA that was being re-negotiated. Another suggested answer: The retroactive Order of the Labor Arbiter is void for want of jurisdiction. Jurisdiction is conferred by law. Nowhere in the Labor Code, more specifically Art 217, is the Labor Arbiter given jurisdiction over unresolved issues in collective bargaining, including determining the period or duration of a Collective Bargaining Agreement. (2001 Bar Question)

NATIONAL CONCILIATION AND MEDIATION BOARD (NCMB) [created by EO 251 (1987)] • absorbed the conciliation, mediation, and voluntary arbitration functions of the Bureau of Labor Relations Functions (1) formulate policies/ guidelines pertaining to effective mediation and conciliation of labor disputes (2) perform preventive mediation and conciliation functions

(3) formulate policies/ guidelines pertaining to the promotion of non-adversarial schemes, grievance handling, voluntary arbitration, and other voluntary modes of dispute settlements (4) administer the voluntary arbitration program, maintain/ update a list of VAs (5) provide counseling and preventive mediation assistance NATIONAL LABOR RELATIONS COMMISSION (NLRC) (Arts. 213, 217, 223)— the country’s labor court (principal government agency that hears and decides labor-mgt disputes). The NLRC has regional arbitration branches or RABS. The labor arbiters or executive labor arbiters are the NLRC representatives in the country’s various regions. Original and exclusive jurisdiction of the Labor Arbiter (LA)Compulsory Arbitration - ULP cases - Termination disputes - Cases involving wages, rates of pay, hours of work, and other terms and conditions of employment, if accompanied with a claim for reinstatement - Claims for damages arising from ER-EE relationship - Cases arising from Art. 264, including questions involving the legality of strikes and lockouts - Whether accompanied with claim for reinstatement , all other claims arising from ER-EE relationship, including those of persons in domestic or household service involving an amount exceeding P5,000 (if not exceeding P5,000, Regl Dir of DOLE has jurisdiction) Note: these cases may be under the jurisdiction of the VA based on the agreement of the parties (without clear agreement, LA has jurisdiction) Exclusive appellate jurisdiction of the Commission over all cases decided by the LA— not any more compulsory arbitration (Note: it is only in national interest strikes that the Commission conducts compulsory arbitration) Powers of the NLRC (Arts. 218-219) (1) Power to make rules and regulations pertaining to its functions; (2) Power to administer oath and issue subpoena and summons; (3) Power to investigate, hear, and decide disputes within its jurisdiction; (4) The power to hold persons in contempt; (5) The power to issue restraining orders and injunctions; (6) Power to conduct ocular inspection; (7) Power to decide appealed cases Procedure Labor Arbiter [Note: a decision of the LA reinstating a dismissed EE, insofar as the reinstatement aspect is concerned, shall be immediately executory (readmitted to work or reinstated in the payroll at the option of the ER), pending appeal]

appeal to the NLRC (within 10 calendar days from receipt of the decision) Commission shall decide (within 20 calendar days from receipt of answer of the other party)

Finality of the decision of the Commission (after 10 calendar days from

receipt of notice by the parties)

Remedies available to challenge final decision 1. MR within 10 calendar days from receipt of the decision based on palpable or patent errors; only 1 MR is allowed; or 2. Special civil action for certiorari under Rule 65 not later than 60 days from receipt of notice of judgment; filed with the CA (St. Martin Funeral Homes v. NLRC). BUREAU OF LABOR RELATIONS (BLR) and the Labor Relations Divisions in the Regl Offices of DOLE (Art. 226-233; DO 40-03) • Hearing Officer: Med-Arbiter in the BLR or Regl Office • Jurisdiction is largely confined to union matters, CB registry, and labor education because of the creation of NCMB (BLR no longer handles labor-mgt disputes). Original and exclusive jurisdiction Inter-union/ Intra-Union disputes— may be filed only by a LLO Inter-union conflicts (e.g., representation issue/ cancellation of registration) Intra-union conflicts (e.g., election of officers of the union/ compliance with CBL/ violations of rights of union membership) -

Other related labor relations disputes between the union and the ER or any individual or group that is not a LO or worker’s assn (e.g., cancellation of registration of unions/ petition for interpleader) (added by DO 40-03)— may be filed by any party-in-interest

Procedure File with DOLE Regl Office where registered (if independent union/chartered local)

Regl Dir (if cancellation of registration) or Med-Arb (other dispute) (decide within 20 days from last hearing)

File with the BLR (if federation/national union)

Bureau Dir (20 days from last hearing within which to decide)

Appeal to Sec. Appeal to Bureau (10 days from receipt of decision; Bureau will decide within 20 days from receipt of records) Finality of decision of the Sec. after 10 days from receipt of parties Finality of decision of the Bureau after 10 days from receipt of parties (appeal stays decision of Med-Arb/ Regl Dir.) (appeal stays decision of Bureau Dir.)  

Relationships/ rights of the parties prior to the filing of the complaint or petition shall continue during pendency of the proceedings. (Book V, Rule XI, Sec. 3) Pendency of an intra/ inter-union dispute and other related labor relations dispute is not a prejudicial question to any petition for CE nor is it a ground for dismissal of such petition. (Book V, Rule XI, Sec. 3)

Q: The affected members of the rank and file elevated a labor arbiter’s decision to the NLRC via a petition for review filed after the lapse of the 10-day reglementary period for perfecting an appeal. Should the NLRC dismiss the petition outright or may the NLRC take cognizance thereof? Suggested answer: The NLRC should dismiss the appeal outright because the same was filed beyond the reglementary period of appeal. Art 223, LC reads: “Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within (10) calendar days from receipt of such decisions, awards, or orders.” Another suggested answer: The NLRC could dismiss outright the appeal for being filed out of time. But if there are good reasons that may justifiably explain why there was a delay in the filing of the appeal, substantial justice may be the basis for the NLRC to take cognizance of the appeal. Q: Company A within the reglementary period appealed the decision of the Labor Arbiter directing the reinstatement of an employee and awarding backwages. However, A’s cash bond was filed beyond the ten day period. Should the NLRC entertain the appeal? Why? Suggested answer: No, the NLRC should not entertain the appeal, as the same ws not perfected for failure to file a bond. Art 223, LC reads: “In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond… In the amount equivalent to the monetary award in the judgment appealed from.” In Aba v. NLRC (1999), the Supreme Court ruled: “An appeal bond is necessary….the appeal may be perfected only upon the posting of cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.” Another suggested answer: The NLRC may still entertain the appeal. It is true that the Labor Code (in Art 223) provides that the appeal is perfected only upon the posting of a cash or surety bond. But if Company A filed a motion for the reduction of the bond, and said motion was only acted upon after the reglementary period, then, the NLRC, in the interest of substantial justice, may still take cognizance of the appeal. (2001 Bar Question)

ADMINISTRATION AND ENFORCEMENT OF LABOR LAWS (Arts. 128-129) Powers Visitorial and enforcement powers (Art. 128)—no court/ entity can issue TRO or injunction against enforcement orders issued here 1. Inspection a. Access to ER’s records and premises b. Right to copy records c. Right to question any EE d. Investigate any fact, condition or matter which may be necessary to determine violations, or which may be necessary to aid enforcement of the LC or any labor law or order 2. Issue compliance orders to give effect to labor law regulations based on the findings of inspection and issue writs of execution for enforcement of the orders 3. To order suspension of operations of an establishment whose non-compliance with law poses grave danger to workers Money Claims Adjudication under Art. 129— Summary Proceeding 4 Jurisdictional Requirements: 1. If claimant is an EE or person in domestic or household service; 2. Claim arises from ER-EE relationship 3. No claim for reinstatement; 4. Aggregate claims of each EE or househelper does not exceed P5,000 (if there is a question of reinstatement or claim exceeds P5,000, LA has jurisdiction)

Difference between Art. 128 and Art. 129 Nature

Jurisdictional requirements Who exercises power (officers designated) Appeal

Art. 128 Inspection of establishments and issuance of orders to comply with labor legislation in general; proceedings here are offshoots of the inspection) These do not apply here

Art. 129 Adjudication of money claims (labor standards only); proceedings are initiated by complaints See above

Sec. of Labor or duly authorized reps (may or may not be the DOLE Regl Dir.)

Regl Dir or any Hearing Officer of DOLE

Appealable to Sec

Appealable to NLRC

Q: the national council of X Union, the exclusive bargaining representative of all daily paid workers of Z Corp., called a general meeting and passed a resolution which provides that each union member was to be assessed P1,000 to be deducted from the lump sum of P10,000 which each EE was to receive under the CBA. Sergio, a Union member, protested and refused to sign the authorization slip for the deduction. X Union then passed a resolution expelling Sergio from the Union. Sergio filed a complaint before the Labor Arbiter for illegal deduction and expulsion from the union. Will the complaint prosper? Explain. Suggested Answer: The complaint will not prosper before the Labor Arbiter because there is here an intra-union conflict which is under the jurisdiction of the Med-Arbiter. (See Art. 226 and Rule V of Book V of the Rules and regulations Implementing the Labor Code). (1996 Bar Question) Q: Mr. Jonathan Pe, a registered stockholder of New Wave Beauty Shop, Inc. was elected Vice-President of New Wage at a regular monthly meeting. At a subsequent meeting of the Board of Directors, it was resolved to dismiss Jonathan as VP due to loss of trust and confidence. Jonathan Pe filed with the NLRC a complaint for illegal dismissal with damages against New Wage claiming that he was dismissed without due process. New Wage filed a Motion to Dismiss based on lack of jurisdiction. Resolve the motion. Suggested Answer: The Motion to Dismiss should be granted. The election of Jonathan Pe as VP of New Wave Beauty Shop, Inc., made him a corporate officer. His subsequent dismissal as such corporate officer is considered an intra-corporate matter. Thus, the dismissal of Pe is not a case of termination dispute which is under the jurisdiction of the NLRC. Instead it is under the jurisdiction of the Securities and Exchange Commission, it having jurisdiction of the SEC, it having jurisdiction over intra-corporate matters. (1996 and 1997 Bar Questions) Q: On 01 August 1992, Pro-Knit, a corporation engaged in the manufacture of textile garments, entered into a collective bargaining agreement with the Kamao Union in representation of the rank and fie employees of the corporation. The CBA was effective up to 20 June 1995. The contract had an automatic renewal clause which would allow the agreement after its expiry date to still apply until both parties would have been able to execute a new agreement. On 20 May 1995 Kamao Union submitted to Pro-Knits management their proposals for the renegotiation of a new CBA. The next day, Pro-Knit suspended negotiations while Kamao Union sine Pro-Knit had entered into a merger with Eagle Garments, a corporation also engaged in the manufacture of textile garments. Eagle Garments assumed al the assets and liabilities of Pro-Knit. Kamao filed a complaint with the Regional Trial Court for specific performance and damages with a prayer for preliminary injunction against Pro-Knit and Eagle Garments. Pro-Knit and Eagle Garments filed a motion to dismiss based on lack of jurisdiction. How would you rule on the Motion to Dismiss? Answer:

I will grant the motion to dismiss. The act of Pro-Knit suspending the negotiations with Kamao Union could be an unfair labor practice. It could be a violation of the duty to bargain collectively. As such, the case is under the jurisdiction of a Labor Arbiter and not of a regular court. Alternative Answer: I will deny the Union’s Motion to Dismiss. There is no labor dispute between the parties; hence, the Regional Trial Court has jurisdiction over the complaint. Art. 212 of the Labor Code, reads— “Labor dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment regardless of whether the disputants stand in the proximate relations of employer and employee.” In addition, the Company can claim that labor contracts are contracts in personam and do not generally bind successors in interest except under special circumstances. In Sundowner Development Corporation v. Drilon, the Court said: “The rule s that unless expressly assumed, labor contracts such as xxx collective bargaining agreements are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. (1997 Bar Question) Q: Under a seaman’s contract of employment with a local manning agent of a foreign shipping company. Capt. TROY embarked on an ocean-going vessel in good health. One stormy night at sea, he was drenched with rainwater. The following morning, he contracted fever which lasted for days. He suffered loose bowel movement, lost his appetite, and eventually died before a scheduled airlift to the nearest port. Subsequently, the widow of Capt. TROY complained against the local manning agent and its foreign principal before the Regional Arbitration Branch of DOLE, for actual and exemplary damages and attorney’s fees. She invoked the Labor Code provision which requires the employer to provide all necessary assistance to ensure the adequate and necessary medical attendance and treatment of the injured or sick employee in case of emergency. Respondents moved to dismiss the complaint on the ground that the Labor Arbiter has no jurisdiction over the complaint for damages arising from illness and death of Capt. TROY abroad. Resolve the motion with reasons. Suggested Answer: In Tolosa v. NLRC, the Supreme Court held that what we have in this case is a claim arising from tort or quasi-delict. In such a situation, the seaman who died on November 18, 1992, cannot sue before the Labor Arbiter. But this will not apply now, as under Sec. 10, RA 8042, (effective June 7, 1995), what we have is a claim “arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers fro overseas deployment including claims for actual, moral, exemplary and other forms of damages”, cognizable by the “Labor Arbiters of the National Labor Relations Commission (NLRC)” who have the original and exclusive jurisdiction thereon. (2004 Bar Question) Q: FACTS: Polaris Drug Company had an existing CBA with Polaris Workers Union (PWU) which was due to expire on May 31, 1999. PWU had a total membership of 100 rank-and-file EEs of the company. Mike Barela, a militant member of the union, suspected that the union officers were misappropriating union funds as no financial report was given to the general membership during the union’s general assembly. Hence, Mike Barela prepared a sworn written complaint and filed the same with the Office of the Secretary of Labor on May 10, 1999, petitioning for an examination of the financial records of PWU. 1. Is the Secretary of labor authorized by law to examine the financial records of the union? If so, what power? If not, why not? Suggested Answer: The Secretary of Labor is expressly authorized by the Labor Code (in Art. 274) to examine the financial records of the unions to determine compliance or non-compliance with the pertinent provisions of the Labor Code and to prosecute any violation of the law and the union constitution and by-laws. But this authority may be exercised only upon the filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the labor organization concerned. Alternative Answer: Among the rights and conditions of membership in a labor organization is the right implied by the proviso of the Labor Code [Art. 241(m)] stating that the books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hours. As a union member, Mike Barela could file an intra-union case that may entail the act of the Secretary of Labor examining the financial records of the union. (See La Tondeña Workers Union v. Secretary of Labor and Employment, 239 SCRA 117)

2. Under the facts given above, could an examination or audit of the financial records of the union be ordered? Why? Suggested Answer: Under the facts given in the question, an examination or audit of the financial records of the union can not be ordered because for such examination or audit to take place, there should be a complaint under oath and duly supported by written consent of at least 20% of the total membership of the labor organization concerned. In this case, the aforementioned requirement was not fulfilled. It was only a sworn written complaint by one union member that was filed. Also, the Labor Code provides that an examination of the books of a union shall not be conducted during the 60-day freedom period nor within 30 days immediately preceding the date of election of union officials. In the case, the complaint was filed on May 10, 1999 which is within the freedom period of the current CBA which was to expire on May 31, 1999. (1999 Bar Question) NB- Jurisdiction is a favorite bar question.

PRESCRIPTIVE PERIODS ULP 1 year Money Claims 3 years Offenses under LC 3 years Illegal Dismissal

4 years

Q: A. State your agreement or disagreement with the following statement and explain your answer briefly: A criminal case filed against an EE does not have the effect of suspending or interrupting the running of the prescriptive period for the filing of an action for illegal dismissal. Suggested Answers: A. I agree. The 2 cases, namely: the criminal case where the EE is the accused; and the case for illegal dismissal, where the EE would be the complainant, are 2 separate and independent actions governed by different rules, venues, and procedures. The criminal case is within the jurisdiction of the regular courts of law and governed by the rules of procedure in criminal cases. The action for administrative aspect of illegal dismissal would be fled with the NLRC and governed by the procedural rules of the Labor Code. Another Suggested Answer: I agree. An action for illegal dismissal is an administrative case which is entirely separate and distinct from a criminal action. Each may proceed independently of each other. The right to file an action for illegal dismissal is not dependent upon the outcome of the criminal case. Guilt or innocence in the criminal case is not determinative of the existence of a just or authorized cause for dismissal. [Pepsi Cola Bottling Co. v. Guanzon, 172 SCRA 571 (1989)]. (2002 Bar Question) B. State your agreement or disagreement with the following statement and explain your answer briefly: The period of prescription in Art. 291, LC applies only to money claims so that the period of prescription for other cases of injury to the rights of EEs is governed by the Civil Code. Thus, an action for reinstatement for injury to an EE’s rights prescribes in 4 years as provided in Art. 1146, CC. Suggested Answer: B. I agree with the statement. A case of illegal dismissal filed by an EE who has been terminated without a just or authorized cause is not a money claim covered by Art. 291, LC. An EE who is unjustly dismissed from work is entitled to reinstatement and backwages. A case of illegal dismissal is based upon an injury to the right to security of tenure of an EE. Thus, in accordance with Art. 1146, it must be instituted within 4 years. [Callanta v. Carnation Phil., 145 SCRA 268 (1986); Baliwag Transit v. Ople, 171 SCRA 250 (1989); International Harvester Macleod, Inc. v. NLRC, 200 SCRA 817 (1991)] (2002 Bar Question)

SOCIAL LEGISLATION SALIENT FEATURES

EMPLOYER

Social Security Act of 1997 (RA 8282) Any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade, business,

Government Service Insurance Act of 1997 (RA 8291) (1) The national government, its political subdivisions, branches, agencies or

industry undertaking or activity of any kind and uses the services of another person who is under his orders as regards employment

EMPLOYEE

DEPENDENT

Exempt ERs: (1) Government and any of its political subdivisions, branches and instrumentality, including GOCCs (2) Self-employed person who is both ER and EE at the same time (1) Any person who performs services for an ER in which either or both physical or mental efforts are used and who receives compensation for such services, where there is an ER-EE relationship (2) Self-employed person who is both ER and EE at the same time (1) Spouse— legal spouse entitled by law to receive support from member (2) Child— (a) Legitimate; legitimated; legally adopted; and illegitimate; (b) Not married; (c) Not gainfully employed; and (d) Has not reached 21 years of age, or if over 21 years, is congenitally incapacitated or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally (3) Parent— who is receiving support from the member

instrumentalities (2) GOCCs, and financial institutions with original charters (3) The Constitutional Commissions and the Judiciary

(1) Any person receiving compensation while in the service of an ER whether by election or appointment, irrespective of status of appointment; (2) Barangay officials; and (3) Sanggunian officials (1) Spouse— legitimate and dependent for support upon member or pensioner (2) Child— (a) Legitimate; legitimated; legally adopted; and illegitimate; (b) Not married; (c) Not gainfully employed; and (d) Has not age of majority, or if over the age of majority but incapacitated and incapable of self-support, due to mental or physical defect acquired prior to age of majority (3) Parent— who is dependent upon member for support

BENEFICIARIES (1) Primary

(2) Secondary

(a) Dependent spouse until remarriage; and (b) Dependent legitimate and legitimated or legally adopted and illegitimate children Dependent parents, in the absence or primary beneficiaries

(3) Others

(a) Legal, dependent spouse until remarriage; and (b) Dependent children (a) Dependent parents; and (b) Legitimate descendants subject to restrictions on dependent children

Absent primary and secondary beneficiaries, any other person designated by member as secondary beneficiary BENEFITS

(1) (2) (3) (4)

Monthly pension Dependents’ pension Retirement Death (if no beneficiary qualifies

(1) All members (a) Life insurance (b) Retirement (c) Disability

(5) (6) (7) (8)

under the Act, benefits shall be paid to legal heirs in accordance with the law of succession) Permanent disability Funeral Sickness Maternity (but only for the 1st 4 deliveries or miscarriages)

(d) Survivorship (e) Separation (f) Funeral (2) Judiciary and Const. Commissions— life insurance only All are tax-exempt

All are tax-exempt COVERAGE (1) Compulsory

(1) All EEs not over 60 years of age and their ERs (2) Domestic helpers with monthly income not less than P1,000 (3) Self-employed EEs as may be determined by the Commission, including, but not limited to: (a) All self-employed professionals (b) Partners and single-proprietors of business (c) Actors and actresses, directors, scriptwriters and news correspondents, who do not fall within definition of EEs (d) Professional athletes, coaches, trainers and jockeys; (e) Individual farmers and fishermen Effectivity: For EEs—first day of employment For ERs—first day of his operation For self-employed—upon their registration with the SSS (1) Filipinos recruited by foreign-based ERs for employment abroad (2) EE under compulsory coverage is separated from employment (3) Self-employed— realizes no income in any given month (4) Spouse who devotes full time managing household and family affairs unless employed subject to mandatory coverage

(2) Voluntary

Any foreign government, international organization or their wholly- owned instrumentality employing workers in the Philippines or employing Filipinos outside the Philippines may enter into agreement with Philippine govt for inclusion of such EEs in SSS except those already covered by their respective civil service retirement system.

Compulsory for all EEs receiving compensation who have not reached compulsory retirement age, irrespective of employment status Members of Judiciary and Constitutional Commissions qualify for life-insurance only

(3) By arrangement

EXCEPTIONS FROM COVERAGE

BASIS OF CLAIM

(1) Employment purely casual and not for purpose occupation, or business of ER (2) Service performed by an EE on or in connection with alien vessel, if employed when such vessel is outside of Phils (3) EEs of Phil govt or instrumentality or agency thereof (4) Service performed in the employ of a foreign government, or international organizations, or their wholly-owned instrumentalities (5) Services performed by temporary and other EEs excluded by SSS regulation (6) EEs of bona fide independent contractors shall not be deemed EEs of the ER engaging the services of an independent contractor Non-work connected disability, sickness, maternity, death and old age and other contingencies resulting in loss of income or financial burden

(1) Members of the AFP (2) Members of the PNP (members of the judiciary and constitutional commissions— life insurance only)

GSIS is exempt from liability where permanent disability due to his grave misconduct, habitual intoxication, or willful intention to kill himself or another

Q: State the respective coverages of (a) Social Security Law; (b) the Revised Government Service Insurance Act and (c) the Employees Compensation Acts. Answer: (a) Coverage of SSS (Sec. 9, RA 8282) shall be compulsory upon all EEs not over 60 years of age and their ERs. Filipinos recruited in the Philippines by foreign-based ERs for employment abroad may be covered by the SSS on a voluntary basis. Coverage in the SSS shall also be compulsory upon all self-employed persons earning P1,800 or more per annum. (b) Membership in the GSIS (Art. 3, RA 8291) shall be compulsory for all permanent EEs below 60 years of age upon appointment to permanent status, and for all elective officials for the duration of their tenure. Any person, whether elected or appointed, in the service of an ER is covered EE if he receives compensation for such service. (c) Coverage in the State Insurance Fund (Art. 168, LC) shall be compulsory upon all ERs and their EEs not over 60 years of age; Provided, that an EE who is over 60 years of age and paying contributions to qualify for the retirement or life insurance benefit administered by the System shall be subject to compulsory coverage. The Employees Compensation Commission shall ensure adequate coverage of Filipino EEs employed abroad, subject to regulations as it may prescribe. (Art. 170) Any person compulsorily covered by the GSIS including the members of the Armed Forces of the Philippines, and any person employed as casual, emergency, temporary, substitute or contractual, or any person compulsorily covered by the SSS are covered by the Employees Compensation Program. (1997 Bar Question)

Q: how are the “portability” provisions of RA 7699 beneficial or advantageous to SSS and GSIS members in terms of their creditable employment services in the private sector or the government, as the case may be, for purposes of death, disability or retirement? Please explain your answers briefly. A: The “portability” provisions of RA 7699 allow the transfer of funds for the account and benefit of the worker who transfers from one system to another. This is advantageous to the SSS and GSIS members for purposes of death, disability or retirement benefits. In the event the EEs transfer from the private sector to the public sector, or vice-versa, their creditable employment services and contributions are carried over and transferred from one system to the other. (2005 Bar Question) Q: Efrenia Reyes was a classroom teacher assigned by the DECS in Panitan, Capiz. She has been in the government service since 1951 up to Nov, 1985 when she retired at 55 due to poor health. In March, 1982, while she was teaching her Grade 1 pupils the proper way scrubbing and sweeping the floors, she accidentally slipped. Her back hit the edge of a desk. She later complained of weak lower extremities and difficult in walking. After an X-ray examination, she was founds to be suffering from Pott’s disease and was advised to undergo an operation. In 1985, she filed with the GSIS a claim for disability benefits under PD 626, as amended. The GSIS granted the claim and awarded Efrenia permanent partial disability benefits. After she underwent a surgical operation on her spine in Nov, 1985, her condition worsened. In 1990, Efrenia filed with the GSIS a petition for conversion of her disability status to permanent total disabilities with corresponding adjustment of benefits. GSIS denied the claim stating that after Efrenia’s retirement, any progression of her ailment is no longer compensable. Is the GSIS correct in denying the claim? Explain. Suggested Answer: Considering that the disability of Reyes is work connected, the provisions of the Labor Code dealing with EEs compensation should determine her right to benefits. According to said provisions, if any EE under permanent partial disability suffers another injury which results in a compensable disability greater than the previous injury , the State Insurance Fund shall be liable for the income benefit of the new disability even after her retirement. Was Reyes still an “employee” for the purpose of applying the above provision of the Labor Code? Liberally construing said provision, Reyes may be considered still as an EE so that she could receive additional benefits for the progression of her ailment. Alternative Answers: a) No. When an EE is constrained to retire at an early age due to his illness and the illness persists even after retirement, resulting in his continued unemployment such condition amounts to total disability which should entitle him to the maximum benefits of the law. Her disability which should entitle her to the maximum falls within the definition of permanent disability. b) No, the GSIS erred in denying the claim. Note, that the original claim and grant of benefits was based on PD 626, or Book IV, Title II, LC: Employees Compensation and State Insurance Fund. The same law does not provide for separation fee from employment as a basis for denial of benefits. The worsening of the school teacher’s condition I a direct result, or a continuing result of the first injury which was deemed work-connected by the GSIS and hence compensable. In Diopenes vs. GSIS, 205 SCRA 331 (1992), the Supreme Court cautioned against a too strict interpretation of the law which may be detrimental to the claimants and advised the GSIS of the constitutional mandate on protection to labor and the promotion of social justice. Said the Court: The GSIS and the ECC should be commended for their vigilance against unjustified claims that will only deplete the funds intended to b disbursed for the benefit only of deserving disabled EEs. Nevertheless, we should caution against too strict interpretation of the rules that will result in the withholding of full assistance from those whose capabilities have been diminished if not completely impaired as a compensation of their service in the government. A humanitarian impulse dictated by no less than the Constitution itself under the social justice policy, calls for a liberal and sympathetic approach to the legitimate appeals of disabled public servants. Compassion for them is not a dole but a right. (1996 Bar Question) Q: The Collective Bargaining Agreement of the Golden Corporation, Inc. and the Golden Corporation Workers Union provides a package of welfare benefits far superior in comparison with those provided for in the Social security Acts of 1997. The welfare plan of the company is funded solely by the employer with no contributions from the employees. Admittedly, it is the best welfare plan in the Philippines. The company and the union jointly filed a petition with the Social security System for exemption from coverage. Will the petition for exemption from coverage prosper? Reason.

Suggested answer: No, because coverage under the SSS is compulsory where employer-employee relations exist however, if the private plan is superior to that of the SSS, the plan may be integrated with the SSS plan. Still, it is integration and not exemption from SSS law. (Philippine Blooming Mills Co., Inc. v. SSS; RA 1161, as amended by RA 8282) (2000 Bar Question) Q: Pablo was a farm-hand in a plantation owned by ABC & Co., working approximately 6 days a week for a good 15 years. Upon Pablo’s death, his widow filed a claim for burial grant and pension benefits with the Social Security System (SSS). The claim was denied on the ground that Pablo had not been a registered member-employee. Pablo’s widow filed a petition before the SSS asking that ABC & Co. be directed to pay the premium contributions of Pablo and that his name be reported for SSS coverage. ABC & Co. countered that Pablo was hired to plow, harrow and burrow, using his own carabao and other implements and following his own schedule of work hours, without any supervision from the company. If proven, would this factual setting advance by ABC & Co. be a valid defense against the petition? SUGGESTED ANSWER: ABC and Co. has a valid defense. Pablo should be an employee of ABC & Co. to be under the compulsory coverage of the SSS. To be an employee, Pablo should be under the control of ABC & Co. as regards his employment. But the facts show that he was not under the control of ABC & Co. as regards his employment. Among others, he had his own schedule of work hours without any supervision from the company. Thus, he is an independent contractor and not an employee. An independent contractor is not under the compulsory coverage of the SSS. He may be covered as a self-employed person. But the as such, ABC & Co. has no legal obligation to report Pablo for coverage under the SSS because ABC & Co. is not Pablo’s employer. ANOTHER SUGGESTED ANSWER: It is not a valid defense, for Pablo could be considered an employee of ABC & Co. The element of hiring, payment of wages, power to dismiss and power to control are presumed from the fact that Pablo is working six days a week, for fifteen years now. Pablo’s use of his plow, harrow, burrow, carabao and other implements and his having his own schedule of work hours without any supervision from the company do not erase the element of control on the part of ABC & Co. because under the “control test”, it is enough that the employer’s right to control exists. It is not necessary thus the same be exercised by the employer, it is enough that such right to control exists. (Religious of the Virgin Mary v. NLRC) (2003 Bar Question)