Labor2 Mental Jugger

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. Part one: Introduction Labor Relations Policy – A211 A. a. primacy of collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes b. Free Trade unionism: instrument for enhancement of  democracy and promotion of social justice and development c. Free and Voluntary Organization of a Strong and United Labor Movement d. Enlightenment of workers concerning their rights and obligations as union members and as EEs e. adequate administrative machinery for expeditious settlement of labor or industrial disputes f. stable but dynamic and just industrial peace g. participation of workers in decision and policy-making processes affecting their rights, duties and welfare B. GR: no court or administrative agency shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment X: otherwise provided by LC[compulsory arbitration, minimum wage fixing, wage distortion dispute] So areas of concern, summary: Sec3* ] [211ALC, AXIII, Sec3*] 1) Meth Method od of of Dispu Dispute te Settl Settlem ement ent 2) Trade Uni Unio onism nism 3) Work Worker er Enli Enligh ghte tenm nmen entt 4) Disp Disput ute e Sett Settle leme ment nt 5) Indu Indust stri rial al Peac Peace e 6) Worker Worker Parti Participa cipation tion in Decis Decision ion Making Making 7) Wage Fixing 8) Tripartism

Definitions *take note of “means” and “includes” 212e: ER -includes: …any person acting in the interest of an employer …directly or indirectly -shall not include: any labor organization or any of its officers or agents except when acting as ER 212f: EE -includes: …any person in the employ of an employer …not limited to EEs of a particular ER, unless LC explicitly states so …any individual whose work has ceased as a result of or in connection with >any current labor dispute >any unfair labor practice + has not obtained any other substantially equivalent and regular employment 212g: Labor organization -means any union or association of employees -exists in whole or in part for the purpose of  >collective bargaining >dealing with ERs concerning terms and conditions of  employment *not limited to 1 ER: emphasis on purpose for which the union is established, not membership Airline membership  Airline Pilots Association of  the Philippines v. CIR, 76 SCRA 274 (1977) 212h: Legitimate Labor Organization -means any labor organization -duly registered with DOLE -includes any branch or local thereof (the branch should also be a legitimate labor organization Lopez Sugar Corp v. SOLE, 247 SCRA 1 (1995) 212l: Labor dispute -includes any controversy or matter

-concerning >terms and conditions of employment of  employment >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 employer and employee

Part two: Right to Self-organization basis of right 1. Consti Constitut tutio ion n (Art (Art XIII XIII,, Sec.3 Sec.3)) 2. Sta Statutory: ry: LC 3. Unive Universa rsall declar declarat atio ion n of HR 4. ILO ILO con conve vent ntio ion n No. No. 48 SCOPE A243:All persons employed -in commercial, industrial and agricultural enterprises -in religious, charitable, medical or educational institutions -whether operating for profit or not …shall have the right A. to self self-o -org rgan aniz izat atio ion n B. to form, form, join, join, or or assist assist labor labor orga organiza nizatio tions ns of their their own choosing -for purposes of collective bargaining *those who may form labor organization for their mutual aiid and protection: -ambulant -intermittent -itinerant workers -self-employed people -rural workers -those without any definite employers EXTENT of RIGHT -includes right to refuse/refrain from exercising right to selforganization Reyes v. Trajano, 209 SCRA 484 (1992) -includes right to raise issues to the ERs in behalf of the EEs Union of Supervisors v. SOLE, 109 SCRA 139 (1981) -includes right to disaffiliate Central Negros v. SOLE, 201 SCRA 584 (1991) *Members of Religious Group -they cannot be compelled to join unions Victoriano v. Elizalde Workers Union, 59 SCRA 54 (1974) -they can form their own union in accordance with the right to self-organization Kapatiran sa Meat and Canning Division v. Calleja, 162 SCRA 367 (1988) A244: Government Employees *established under Corporation Code: right to organize and to bargain collectively with their respective employers *all other employees in the civil service: right to form associations for purposes not contrary to law A245: Managerial Employees ~Managerial employees: NOT ELIGIBLE to join, assist or form any labor organization ~~Supervisory employees: NOT ELIGIBLE for membership in a labor organization of rank and file employees; BUT MAY  join, assist, or form separate labor organization of their own …rank and fie union and the supervisor’s union operating within the same establishment may join the same federatin or national union (as amended) ~one who is vested with the powers or prerogatives a. to lay lay down down and and exec execute ute mana managem gement ent poli policie cies s b. to hire, hire, transfer, transfer, suspe suspend, nd, lay-of lay-off, f, recall, recall, discharge, discharge, assign assign or discipline EEs

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. ~~effectively recommend such managerial actions if the exercise of  such authority is not merely routinary or clerical in nature but requires the use of independent judgment

A269: Aliens Can only exercise right to s elf-organization and join or assist labor organizations iff: a. alie alien n hol holds ds work work perm permit it b. alien alien is a nationa nationall of a country country which which grants grants the the same same or similar rights to Filipino workers *NOW: Security guards can exercise right to self-organization. Prohibition removed by EO 111 Workers with NO RIGHT TO SELF-ORGANIZATION 1. Managerial and Confidential Employees Confidential EEs -by necessary implication, ONLY has right to organize for mutual aid and protection -Jurisprudential rules: [1] Deemed Deemed confidentia confidentiall EE IF he *acts in a confiden confidentia tiall capac capacit ity, y, *assi *assists sts anot another her indivi individua duall who who formul formulat ates, es, determi determines, nes, effectuate effectuates s mgt policie policies s in the field of labor labor relatio relations, ns, and *has access access to informat information ion re labor labor mgt. relations as *an integral part of his job (nature of access + nature of info). [2] If the info relates to non-labor mgt relations, no right to SO. 2. Cooperative members a. if individual also an EE and member of cooperative: Can’t exercise right Rural Bank of Davao Case b. if only EE, not a member of cooperative, can exercise right to self-organize *the *the fact fact of owner ownershi ship p of the coope cooperat rative ives s (membe (members rs of  cooperatives cooperatives are co-owners of the cooperative) cooperative) is the basis of  prohibition prohibition as the owner cannot bargain with himself  Benguet  Electric Cooperative v. Calleja, 180 SCRA 740 (1989) *What about stockholders: Corporation vs. Cooperative (Rural Rural Bank of Davao Davao Case): Case): differen differentt from cooperati cooperative ve so different rules apply  Cooperative Corporation purpos service profit e owners 1 share Many shares hip 3. Non-employees 4. *EEs outside the bargaining unit: A245-A - EEs outside the bargaining unit who became union members shall shall be autom automat atica ically lly deeme deemed d remov removed ed from from the the list list of  membersh membership ip of said union – should should join union union in their own bargaining unit? (NOTE: this provision is new. And weird. What about national and federal unions?)

Part three: Labor Organization 212g: Labor organization -means any union or association of employees -exists in whole or in part for the purpose of  >collective bargaining >dealing with ERs concerning terms and conditions of  employment *not limited to 1 ER: emphasis on purpose on  purpose for which the union is established, not membership Airline membership  Airline Pilots Association of the Philippines v. CIR, 76 SCRA 274 (1977) Legitimate Labor Organization -duly registered with DOLE -includes any branch or local thereof (the branch should also be a legitimate labor organization Lopez Sugar Corp v. SOLE, 247 SCRA 1 (1995)

Labor union and Government Gover nment Regulation A234 Requirements for registration in general -a federation …national union …industry or trade union center …an independent union -shall -shall acquire acquire legal personal personality ity and shall shall be entitle entitled d to the right rights s and and privil privileg eges es gran grante ted d by law law to legit legitima imate te labo laborr organizations -WHEN: upon issuance of the certificate of registration -required to be submitted: (a) P50.00 registration fee (b)names of its officers …their addresses …the principal address of the labor organization …the minutes of the organizational meetings …the list of the workers who participated in such meetings (c) if applicant: independent union: union: names of ALL its members compr comprisi ising ng at least least 20% OF ALL THE EMPLOY EMPLOYEES EES IN THE THE BARGAINING UNIT where it seeks to operate (d) if applica applicant nt union union in existence existence for 1+ years: years: copies copies of  annual financial reports (e)4 copies of the constitution and by-laws of the applicant union …minutes of its adoption or ratification …list of the members who participated in it ~cert ~certifi ified ed under under oath oath by sec/tr sec/trea easur surer; er; atte atteste sted d to by president (A235) A234-A Chartering and Creation of a Local Chapter -duly registered federation/national federation/national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter *rights of Local chapter -leg -legal al pers person onal alit ity y for for purp purpos oses es of fili filing ng a peti petiti tion on for for Certific Certificati ation on Election Election (CE): from the date it was issued issued a charter certificate -all -all othe otherr righ rights ts and and priv privil ileg eges es of a legi legiti tima mate te labo laborr organization: upon submission of the following documents: (a) names of the chapter’s officers …their addresses …the principal office of the chapter (b) chapter chapter’s ’s constit constitutio ution n and by-laws; by-laws; if the same as the constit constitutio ution n and by-laws by-laws of the federat federation/ ion/nati national onal union, union, indicate fact accordingly ~cert ~certifi ified ed under under oath oath by sec/tr sec/trea easur surer; er; atte atteste sted d to by president (A235) A237. Additional requirements for Federations/National Unions (aside from those in 234) locals/chapters, (a) proof of the affiliation of  at least 10 locals/chapters, each of which must be duly recognized collective bargaining agent  in the establishment or industry in which it operates, supporting the registration of such applicant federation/national union (b)names and addresses of the companies where the locals or chapters operate …and the list of all the members in each company involved Additional Jurisprudence Rules: *Book *Book of accounts accounts not required required to be submitt submitted ed anymore anymore since since prot protect ectio ion n of labor labor can be achi achieve eved d thro through ugh the reportorial requirements in LC Pagpalain Haulers v. Trajano, 310 SCRA 354 (1999) *By-laws of the union not needed to be submitted if it is part of the union’s constitution SMC v. Mandaue, 467 SCRA 107 (2005) *Registration is merely a condition sine quo non for 1. the acquisition of legal personality 2. possession of rights and privileges not guaranteed by the constitution or by statutory creations PAFLU v. SOLE, 27 SCRA 40 (1969)

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. Action or Denial of Application and Remedy A235: Bureau shall act on application for registration within 30 days from filing -All requisite documents and papers shall be certified under oath by the secretary or the treasurer and attested by the president. A236: appeal within in 10 days days from from rece receip iptt of  appeal denial denial with notice Rights of legitimate labor organization A242 of  its members for CB (a) act as representative of its (b) certifie certified d as exclusive exclusive represent representativ ative e of ALL EEs in an appropriate bargaining unit (ABU) for purposes of CB (c) (c) to be furn furnis ishe hed d by ER upon upon writ writte ten n requ reques estt with with annual annual audited audited financia financiall stateme statements nts (after (after being being certified as duly recognized bargaining repre represen senta tati tive ve or w/n 60 calend calendar ar days days before before expiration of CBA or during CB negotiations (d) own proper property ty for labor labor org org and membe members rs (e) (e) sue sue and and be sued sued (f) underta undertake ke all other other activi activitie ties s designed designed to benefi benefitt the org and its mems Effect of nonregistration nonregistration:: Cannot avail of A242 rights Cancellation of Union Certificate Registration A238: may be cancelled by the Bureau, -after due hearing -only on A239 grounds A238-A: Effe ffect of a Petit etitio ion n for for Canel anella lati tion on of  Registration -shall not suspend the proceedings for Certification Election -shall not prevent the filing of a petition for CE A239: Grounds Grounds for cancellatio cancellation n of Union Registration Registration (NOW ONLY 3):

(a)

misrepresentation, f alse alse statement or f raud raud (MFF) in connection connection with the adoption adoption or ratification ratification of the constitution and by-laws or amendments thereto , the minutes of ratification and the list of members who took part in the ratification

(b)

MFF in connection with elections of officers, minutes of the election of officers, and the list of voters (c) Voluntar Voluntary y dissolut dissolution ion by by the membe members rs A239-A: Voluntary Cancellation -cancelled by LO itself  -at least 2/3 of its general membership votes …in a meeting duly called for that purpose to dissolve the organization -appl -applic icat ation ion to cance cancell submi submitt tted ed by the the board board of the LO, attested by president Union-member relations Nature of relationship: fiduciary in nature, arises out of  (1) degree degree of depend dependen ence ce of the individ individual ual EE on the unin (2) (2) comp compre rehe hens nsiv ive e powe powerr vest vested ed in the the unio union n with with respect to the individual *Union is the agent of its members Heirs of Cruz v. CIR, 30 SCRA 917 (1969) *Issues: A. Admission and Discipline of Members -union can set rules and regulations for Union membership (A249a) -an EE is entitled to union membership regardless of status, from day 1 (A277c) B. Retention of Membership C. Discipline

-rooted on self-preservation Villar v. Inciong, 121 SCRA 444 (1983) D. Due Process Rules - a member of a labor union may be expelled only for valid causes and by following the procedure outlined in the LO’s const constit itut ution ion and and by laws laws Bugna Bugnay y v. Kapisa Kapisana nan n ng mga Manggagawa sa MRR, 4 SCRA E. Election Officers A241(c) -by secret ballot -at intervals of 5 years -no qualification requirements for candidacy to any position other than good standing in the subject LO -SOLE provided with a list of newly-elected officers within 30 calen calendar dar days days after after the the elect electio ion n of office officers rs or from from the occurrence of any change in the list of officers   Jurisprudential Rules: -only -only members members of the LO are qualified qualified to vote, vote, except except as otherwise provided by Consti and by-laws UST Faculty Union v. Bitonio, 318 SCRA 185 (1999) -previ -previous ous misco miscond nduct uct of candi candidat dates es is not not a grou ground nd for disqualification disqualification of as an officer Manalad Manalad v. Trajano, Trajano, 174 SCRA 322 (1989) F. Major Policy Matter A241d -by secret ballot -after due deliberation -any -any ques questi tion on of majo majorr poli policy cy affe affect ctin ing g the the enti entire re membership of the organization -unless -unless the nature nature of the organizati organization on or force force majeure majeure renders such secret ballot impractical: impractical: board of directors may make the decision in behalf of the general membership G. Union Funds, Source of payment A241 b: membe members rs entit entitled led to full full and detai detailed led repor reports ts of all financial transactions g. no collection of any fees, dues or other contributions or make any disbursements unless duly authorized h. payment of fees, dues or other contributions evidenced by receipt i. disbursement of funds: …purpose or object expressly provided by consti and bylaws …expressly authorized by written resolution adopted by the majority of the members at a general meeting meeting duly called for the purpose  j. record of financial records l. treasur treasurer er of any labor labor organiza organizatio tion n and every officer officer responsible for the account of such organization …shall render to the organization and to its members a true and correct account of all moneys received m. book of accounts accounts and other records records of the financia financiall activities open to inspection n. LEVY: no special assessment or other extraordinary fees may be levied upon the members of a LO unless …authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose …secretary of the LO record the minutes of the meeting …president attest the record o. CHECK-OFF: other than for mandatory activities under LC: no special assessment, attorney’s fees, negotiation fees or any other extraordinary fees may be checked-off from any amount due to an EE *requirements for it to be allowed  -an individ individual ual writte written n authori authorizati zation on duly duly signed signed by the employee -authorization should specifically state …the amount …purpose …beneficiary of deduction

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. *Re Attorney’s fees: distinguish distinguish between extraordinary extraordinary fees in A241 and atty’s fees in A222  A222 speaks of atty’s fees re disputes  A241 speaks speaks of special special assessmen assessments ts and extraord extraordinar inary y expenses; this can be processed thru check off  *ABS-CB *ABS-CBN N case: when when atty’s fees effected effected through through forced forced contribu contribution tions s from the workers’ workers’ own funds, funds, and not from union’s funds, it is prohibited unless it has complied with the requirements in LC – no shortcuts

Part four: Union Security 248 (e) ULP ERs Nothing in LC or in any other law shall stop the parties from requiring membership in a recognized CB Agent as a condition for employment, except -EEs who are already members of another union at the time of  the signing of the CBA Closed-shop: an enterprise in which by agreement between the ER and EE, no person may be employed in any or certain agreed departments unless he/she is, becomes, and for the durat duratio ion n of the agree agreemen ment, t, remain remains s a member member in good good standing of a union entirely comprised of or of which the EE in interest are apart (Rothenberg) *for there to be a closed-shop agreement (CSA) in the CBA, the membership membership in the union should be a requirem requirement ent for continuing employment in the company Coverage: a. persons to be hired b. EEs who are not yet members of any LO Rationale: -promote unionism -encourage -encourage workers to join and support the union of choice in the protection of their rights and interest against ER Implementation of the CSA -ER bound to exercise exercise caution caution in dismissing dismissing EEs based on CSA; should inquire into the lawfulness of the dismissal Financial Security A248e -EEs of an appropriate bargaining unit who are not members of the recognized CB agent may be assessed a reasonable fee equivalent equivalent ot the dues and other fees paid by members of the recognized CB agent, if such non-union members accept the benefits under the CBA Types

CLOSED SHOP UNION SHOP MAINTENAN CE

Access to labor market Membership required, only hire members Open – no membership requirement Free access

Post employment Retain membership

 Termination Could terminate if  not member provided due process observed

If join union, maintain membership

Part Five: Appropriate Bargaining Unit Rothenberg Definition: 1. composit composition: ion: all all or less less than than all all the EEs EEs of a particul particular ar ER 2. ER’s ER’s equity equity must must be conside considered red (admi (adminis nistr trat ation ion of  CBA) 3. grou group p EEs EEs in their their mutua mutuall and and comm common on inter interes est: t: wages, hours of work, other terms and conditions of  employment

-bes -bestt assu assure re worke orkers rs their their recipr reciproc ocal al rights rights in accordance with law -best assure workers of exercise of right -maximum exercise of rights granted by law Factors to determine ABU *Standard test: Community or mutuality of interest: basic test of an asserted bargaining bargaining unit’s acceptability acceptability is WON it is fundamentally the combination which will best assure to all EEs the exercise exercise of their their collecti collective ve bargain bargaining ing rights rights UP v. Ferrer-Calleja, 211 SCRA 452 (1992) *factors considered in Democratic Labor Association v. Cebu Stevedoring Co. Inc. (103 Phil 1103 [1958]): (1) will of employees (Glove Doctrine); (2) affin affinit ity y and and unity unity of employ employee' ee's s inter interest est,, such such as substantial similarity of work and duties or similarity of  compensation and working conditions; (3) prior collective bargaining history; and (4) employment status, such as temporary, seasonal and probationary employees". *Geography: when when diff diff kind kinds s of work works, s, prob proble lems ms and and interest interests s of EEs are peculia peculiarr in each each camp camp or department department Benguet Benguet Consoli Consolidat dated ed v. Bobok Bobok Lumberja Lumberjack ck Assn Assn., ., 103 Phil 1150 (1958) On Corporate Entitles Gen. Gen. Rule: Rule: Dayotoga Dayotogan n and Interph Interphil il – Corpora Corporate te fiction, fiction, trea treate ted d as disti distinct nct corpo corporat ratio ions ns even even if there there’s ’s commo common n ownership. Exception: Philippi Philippine ne Scouts Scouts Veterans Veterans case – If ther there’ e’s s pervasive commonality, piercing the corporate veil is justified. Unit Severance/Globe Doctrine (from BarOps reviewer)] It is best explained in the context of a market place and the demand of employment on such market place. The GLOBE DOCTRINE usually applies to employees with rare skills or highly technical ones. Example given: Case of Pilots and Stewardess. If ,ori ,origi gina nall lly, y, pilo pilots ts and and stew stewar arde dess sses es belo belong ng to ONE ONE barg bargai aini ning ng unit unit (uni (unitt A) for for the the purp purpos ose e of coll collec ecti tive ve bargaining, with the use of the GLOBE DOCTRINE a plebiscite can be held to determine if the pilot employees would want to form a separate bargaining unit (unit B). Illustration: Unit Unit A (ori (origi gina nall barg bargai aini ning ng unit unit)) : 100 100 Pilo Pilots ts + 200 200 Stewardesses = 300 employees Unit B (proposed new unit): Pilots = 100 employees.   Those Those in unit B (100 pilots) pilots) will vote in a plebisci plebiscite. te. Their choices will be (1) To vote for Unit A: this would mean that they do not wish to separate from the original bargaining unit. (2) To vote for Unit B: This would mean that they would want to form their OWN bargaining unit, composed of pilots only. (3) Neither: They do not want the choices If you have one BIG bargaini bargaining ng unit, unit, most probably probably you are groupin grouping g togethe togetherr DIFFERENT SKILLED workers. Rationale Rationale of the Globe Doctrine: Doctrine: highly skilled workers have to separate to increase their market value. employees is the Under Under the Globe Globe Doctrine Doctrine,, will of the employees determinative factor. *Effect *Effect of prior prior agreement agreement:: A prior prior agre agreeme ement nt on the compo mposit sition of a bargai gaining ning unit is not not bindi nding. ng. Appropriateness of bargaining unit composition may change. DLSU v. DLSU Employees Assn, 330 SCRA 363 (2000) Part Six: Union Representation: Establishing Union Majority Status Precondition: EER -abse -absent nt EER, EER, there there’s ’s no duty duty to bargai bargain; n; absen absentt duty duty to bargain, no need to conduct CE

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. Purpose: -determi -determine ne will will of workers workers on crucial crucial questio question n of who shall represen representt them in their their negotia negotiatio tions ns with with the manageme management nt and for a CBA that will best project and promote their interest interest Port Workers Union of the Philippines v. Laguesma, 207 SCRA 329 (1992) -Reyes v. Trajano: to ascertain wishes of the majority of EEs in ABU …to be represented or not …if to be represented, by whom Methods of Establishing Majority Status Certifica icatio tion n electi election on vs. Consen Consentt Electi Election on Warren *Certif Manufactur Manufacturing ing Workers Union v. BLR, 159 SCRA 387 (1988) CE ConE Ordered Agreed upon by the parties Determines sole and Dete Determ rmin ines es the the issu issue e of  exclusive bargaining agent or majority representation of all representative for CB the workers in the appropriate CBU *separate and distinct proce process; ss; has has nothin nothing g to do with the import and effect of  a CE *Run-off election: -when CE provides 3+ choces -no choice receives majority of the valid votes cast -conducted between the 2 LO receiving the highest number of  votes, total number of votes for all contending unions is at least 50% of the number of votes cast *Voluntary Recognition -process of determining, through secret ballot the sole and exclusiv exclusive e represen representat tative ive of the employees employees in an ABU for purposes of CB + reported with the Regional office + Only 1 legitimate LO in establishment Before VR recognized: -no direct certification -statutory policy that cannot be circumvented -law is partial to CE: most democratic and efficient means to determine will of EE Now: with DO no. 40-03: VR bar to CE within 1 year (so for 1 year, ER compelled to recognize a LO that may not represent the majority opinion in the establishment)

Laguesma, 238 SCRA 389 389 (1994; DO 40-03 requires that PCE be filed with the Regional Office which issued the petitioning LO’s certificate of registration )] -within 60-day period before period  before the expiration of the CBA (during the freedom period) -Med-Arbiter -Med-Arbiter shall automatically automatically order an election by secret  verified petition is supported supported by the ballot  when the verified written consent of at least 25% of al the employees in the bargaining unit to unit to ascertain the will of the employees in the appropriate bargaining unit. [substantial support may be submitt submitted ed within within a reasona reasonable ble period period from filing PCE Port  Workers Workers Union of the Philippine Philippines s v. DOLE, 207 SCRA SCRA 329 (1992); even even if some some of the EEs with withdre drew w their their writ writte ten n consent, if the 25% requirement is still complied with, there is still still substant substantial ial support support Tagayt Tagaytay ay Highland Highlands s v. Tagayta Tagaytay  y  Highlands Union, 395 SCRA 699 (2003); If LO did not reach the 25% support requirement, BLR can exercise discretion to dete determ rmin ine e WON WON CE must must be cond conduc ucte ted d Scout Scout Albano Albano Memorial College v. Noriel, ] of all eligible voters -VALID ELECTION: at least a majority of all in the unit must have cast their votes -TO WIN AS THE Exclusive Bargaining Agent/Rep (EBA/EBR): majority of the valid votes cast certified -Run-off election if no choice received the majority: top 2 Los (should have received a total of 50% of the votes cast when combined) -In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of  the local chapter’s officers and members -At the expir expirat atio ion n of the freedom freedom period period + no PCE PCE filed filed incumbent BA should still be recognized with majority status B. Unorganized Establishment A257 -establishment where there is no certified bargaining agent -CE automatically conducted by Med-Arbiter upon filing of a PCE by any Legitimate LO including …a national union or federation which has already issued a charter certificate to the local/chapter participating in the CE …or …or a loca local/ l/ch chap apte terr whic which h has has been been issu issued ed a char charte terr certificate by the national union or federation Organized vs. Unorganized A256 establ establish ishme ment nt Organi Organized zed (has (has exist existing ing BA) PCE Verified petition

When to file

*No direct certification by ER of a LO as the EBR Colgate Palmolive Palmolive v. Ople, 163 SCRA 323 (1988) Process: Filing a PCE I. The UNION as initiating party A. Organized Establishment A256. -Verifie -Verified d petitio petition n questio questioning ning majority majority status status of incumbe incumbent nt bargaini bargaining ng agent agent (PCE) (PCE) [a formal formal requisit requisite; e; even if lacking lacking,, court may dispense with the requirement in the interest of   justice National Mines and Allied Workers Union v. SOLE, 227 SCRA 821 (1993)] -filed by any LEGITIMATE LO including ….a national union or federation federation which has already issued a charter certificate to its local chapter participating in the CE …a local chapter which has been issued a charter certificate by the the nati nation onal al unio union n or fede federa rati tion on [acq [acqui uire res s lega legall perso personal nalit ity y to file a PCE from the date it was was issue issued d a charter certificate – A234-A] -VEN -VENU UE: befo before re the the DOLE DOLE [sin [since ce the the work worker er is the the disadvantaged party, the LO may file PCE in the nearest DOLE office – not necessarily the regional office Cruz Valle Inc. v.

Substantial support

Can only file PCE within the the 60-d 60-day ay freedom period QUESTION: what if 60day day peri period od expi expire red d then no PCE filed. When When can the PCE be filed filed? ? Foreve Foreverr na ung incumbent BA? With substantial suppo support rt of 25% of all all employees in the ABU

A257 Unor Unorga ganiz nized ed (no existing BA) No verification needed Anytime

No sub substan stanttial support needed

II. ER as the initiating party A258 -ER requested to bargain collectively -ER may file PCE with BLR -if NO EXISTING CBA, BLR order a CE after hearing (NOTE: Not automatically) -Certification cases decided within 20 working days -BLR shall conduct a CE within 20 days in accordance with IRR Role of ER: a bystander (A258-A)

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. -ER always not considered considered a party to the CE (cannot oppose a PCE) -participation limited to: (1) being notified or informed of PCE (2) submitt submitting ing a list of employee employees s during during the pre-elec pre-electio tion n confe conferen rence ce should should the Med-A Med-Arbi rbite terr act favora favorably bly on the the petition Process: CE Procedure Nature: Young Men Labor Union Stevedores v. CIR, 13 SCRA 285 (1965) -Investigatory in nature -Object: not the decision of any alleged commission of wrong nor asse sserted depri privat vation of rig right BUT is merel rely a dete determ rmin inat atio ion n of prop proper er barg bargai aini ning ng unit units s and the ascertainment of the will and choice of EEs in selection of BR. -doesn’t entail entry of remedial orders/redress of rights BUT culmination solely in an official designation of bargaining units and an affirmation of EEs expressed choice of BA. Procedure: DO 40-03 Who may 1. any legi legiti tima mate te LO file (sec1) 2. ER, ER, if reques requeste ted d to bargai bargain n colle collect ctive ively ly (Regional Office order CE if no existing certified CBA) Where to -in -in the the Regi Region onal al Offi Office ce whic which h issu issued ed the the file (sec2) petitio petitioning ning LO’s certific certificate ate of registra registration tion/of  /of  chartered local -if many PCE + filed in different regional office, consolidate in office where first PCE was filed When to file GR: anytime (sec3) X (when cannot file):

1.

2.

3.

4.

when a fact of voluntar voluntary y recognit recognition ion has been entered or a valid certific certificatio ation/co n/consen nsent/ru t/run-of n-offf electio election n conduct conducted ed – 1 year bar (appeal (appeal filed from order order of Med-Arbi Med-Arbiter ter certifyi certifying ng the the CE resu result lts, s, runn runnin ing g of 1 year year period period sus suspen pende ded d unti untill decisi decision on on appeal final and executory) when hen the duly uly certi rtified ied unio nion has has commenced and sustained nego negoti tiat atio ions ns in GF with with the the ER in accordance with A250-1 year bar when when a barga bargain inin ing g deadl deadloc ock k to which which an incumbe incumbent nt or certifie certified d bargaini bargaining ng agent is a party had been submitted to conc concil illa lati tion on or arbi arbitr trat atio ion n or had had become the subject of a valid notice of  strike or lockout when a CBA bet ER and duly recogniz recognized ed or certifie certified d BA has been registered: can only file PCE within 60 days prior to expiration of the CBA

Candidates for CE *incumbe *incumbent nt BA automat automatical ically ly one of the choices choices in the CE (Sec7, DO 40-03) *A petitio petition n for cancellati cancellation on of union union registra registration tion shall not suspend the proceeding for CE nor shall it prevent the filing of  a PCE (A238-A) Voter’s List *Company payroll may be used as basis for determining who are qualified to vote  Acoje Workers Union v. National Mines &  Allied Workers Union, 7 SCRA 730 (1963) *Only the EEs themselves, being the real parties in interest, may question their removal from the voters list Notre Dame v. Laguesma, 433 SCRA 225 (2004) *All the employees in the ABU should be entitled to vote

*failure to participate in the t he previous CEs is not a bar to the right to participate in future elections Reyes v. Trajano, 209 SCRA 484 (1992 Others *posting of notice of CE required, but may be waived  Jiescor  Independent Union v. Torres, 221 SCRA 699 (1993) *election should be conducted on a regular working day within the ER’s premises (regardless if there’s a strike)  Asian Design and Manufacturing v. Calleja, 174 SCRA 477 (1989) *Require *Requirement ments s in order order that a protest protest filed would would prosper prosper (Philippi Philippine ne Fruit Fruit and Vegetabl Vegetables es Industri Industries es v. Torres, Torres, 211 SCRA 95 (1992): 1. protest filed with the representation officer and made of  record in the minutes of the proceedings before the close of  election proceedings, 2. the protest must be formalized before the Med-Arbiter within 5 days after the close of the election proceedings. *the LO receiving the majority of the valid votes cast shall be certified as the EBA of all workers in the unit for purpose of  CB. BUT an individual EE or group of EE still have the right to present grievances to ER. (A255) Bars to CE [1] Contra Contract ct Bar Rule Rule (A232) (A232) – CBA valid and contract contract complete (incorporates all that is needed) If contract is incomplete, it can be completed to invoke the contract-bar rule If CBA expired, still continuing in force and effect UNTIL new CBA shall have been validly executed If CBA registered, bar [2] 1 yr bar rule – from the time time electio elections ns results results were certified a. volu volunt ntar ary y rec recog ogni niti tion on b. cert certif ific icat atio ion n elect electio ions ns c. cons consen entt elec electi tion on d. runrun-of offf ele elect ctio ions ns [3] deadlock bar rule – 2 req’ts: *there was effort to bargain but it failed, failed, and, and, *that *that such deadlock deadlock had already already been submitted for conciliation or arbitration Suspension Rule: refers to prejudicial question/ -the conduct of CE may be suspended upon a petition of a LO which filed a ULP against ER based on A248(d) – company union -basis: to level the playing field, remove undue advantage of  the company union in the CE -status of the alleged company union must first be cleared before CE could take place or else may lead to selectin of an ER-dominated union as EE’s EBA United CMC Textile Workers Union v. BLR, 128 SCRA 316 (1984) -THE ONLY PARTY WHO COULD ASK FOR SUSPENSION OF THE CE IS THE LO WHICH FILED A COMPLAINT FOR ULP AGAINST  THE ER!

Part Seven: CB: Processes, Procedures, and Issues General Concepts -CB is designed to stabilize the relation between labor and manageme management nt and to create a climate climate of sound sound and stable industrial peace. It is a mutual responsibility of the ER and Union and is characterized as a legal obligation Kiok Loy v. NLRC, 142 SCRA 179 (1986) -company’s refusal to make counter-proposals to the union’s proposal is an indication of its BF. Where the ER did not even bother to answer to the bargaining proposal, there is a clear evasion of duty to bargain Kiok Loy v. NLRC (1986, supra) -the right to free CB includes the right to suspend it Rivera v. Espiritu, 374 SCRA 352 (2001) Bargaining Procedure 1. Priv Privat ate e Proc Proced edur ure e

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr.

2.

A251: agreement or other voluntary arrangement arrangement providing for a more expeditious manner of collective bargaining vs. LC LC Proce roced dure ure A251: if not private procedure, LC applies A250: Procedure

a.

WRIT WRITTE TEN N noti notice ce of desi desire re to nego negoti tiat ate e an agreeme agreement nt + statemen statementt of proposa proposals ls – reply reply within 10 calendar days from receipt of notice [nonco [noncompl mplia iance nce with with reply reply perio period d is merel merely y procedural, not a ground for ULP PROVIDED the othe otherr part party y DID DID REPL REPLY Y Nati Nationa onall Union Union of  Restaurant Workers v. CIR,10 SCRA 843 (1964)]

 b.

DIFF DIFFER EREN ENCE CES: S: eith either er part party y requ reques estt for for CONFERENCE (begun not later than 10 calendar days from date of request) c. If DISP DISPUT UTE E NOT NOT SETT SETTLE LED D in the the conf confer eren ence ce:: Board shall intervene *upon request of EITHER or BOTH PARTIES PARTIES or *at its own initiative initiative and then then Board Board shall shall immedi immediat ately ely call call CONCI CONCILIA LIATOR TORY Y MEETINGS -Board has power to subpoena -Parties has DUTY TO PARTICIPATE FULY & PROMPTLY in the meetings d. DURI DURING NG CONC CONCIL ILIA IATO TORY RY MEETI EETING NGS: S: part partie ies s prohibited prohibited from doing any act which may disrupt or impede early settlement of disputes e. Board Board exert exert all efforts efforts to settle settle amica amicably bly

Duty to Bargain A252: A252: -performance of a mutual obligation -to meet and convene …promptly and expeditiously …in GF -for the purpose of negotiating an agreement with respect to …wages …hours of work …and all other terms and conditions of employment …including >proposals for adjusting any grievances >questions arising under such agreement -and executing a contract incorporating such agreements -if requested by either party -BUT -BUT such duty does does not not compe compell any any party party to agree agree to a proposal or to make any concessions *ER has duty to bargain if Union has done the following (Kiok Loy): 1. status of majority representative of EEs established 2. Proof of being a majority representative presented 3. demand to bargain * Where a proposal raised by a contracting party does not find print in the CBA, it is not part thereof and the proponent has NO claim claim whatso whatsoeve everr to its its implem implement entat atio ion n Samahang Manggagawa sa Top Form v. NLRC, 295 SCRA 171 (1998) *suspension of CB negotiations(Collegio negotiations(Collegio de San Juan de Letran v. Assn. of Employees, 340 SCRA 587 (2000): (2000) : 1. existence of a valid PCE raising a legitimate legitimate representation representation issue 2. PCE filed within the 60-day freedom period Bargainable issues A252: 1. wages wages 2. hours of work 3. conditions conditions of employment employment including a. proposals for adjusting any grievances b. questions arising under such agreement

Mandatory vs. Permiss Permissive ive MANDATORY Consists of A252

Refusal bargain impasse

to

PERMISSIVE Other is i ssues wh w hich have nexus with the nature of work of   No ULP

ULP on part refusing party Can use economic weapons

Cannot use economic weapons

CBA Definition -a contract contract executed executed upon request request of either either the ER or the EBR/EBA EBR/EBA incorpor incorporati ating ng the agreemen agreementt reached reached after after the negot negotiat iation ions s with with respe respect ct to wages wages,, hours hours of work work,, and conditions of employment -a contract in personam, not in rem -a sub-standard CBA is not a ground for cancellation of Union registration with the amended A239 -a CBA hastily hastily conclude concluded d despite despite order order from Med-Arbite Med-Arbiterr enjoining ER and Union from doing so was concluded in BF – not a valid CBA ALU CBA ALU v. Calleja, 173 SCRA 179 (1989) Contents and duration: A253-A 1. Representation Aspect: in force for 5 years -no PCE entertained, no CE conducted conducted outside the 60-day period immediately before the date of expiry of 5-year term 2. Economic Aspect: can be renegotiated not later than 3 years after execution -agreements entered within 6 months from the date of  expi expiry ry of 3-ye 3-year ar term term shal shalll retr retroa oact ct to the the day day immediately following such date *if agreemen agreementt entered entered beyond beyond 6 months months (after (after expiry expiry date), parties shall agree on the duration of retroactivity thereof  *IF deadlock in negotiations, parties may exercise rights under LC -should include grievance procedure (A260): …should …should include include provisi provisions ons that would ensure ensure the mutual mutual observance of its terms and conditions. …Sho …S hould uld establ establish ish a machin machiner ery y for the adjust adjustmen mentt and resolution of grievances arising >from the interpretation or implementation of the CBA >arising from the interpretation or enforcement of company personnel policies Registration requirements (A231) 1. subm submit it copi copies es of CBA dire direct ctly ly to BLR or the the DOLE DOLE regional offices within 30 days from execution 2. subm submit it verif verifie ied d proo proofs fs of post postin ing g in 2 cons conspi picu cuou ous s places in the place of work 3. submit submit verifi verified ed proof proof of of ratific ratificati ation on by the the majorit majority y of  all the workers in the bargaining unit 4. ER pay pay the registra registratio tion n fee of not not less less than than P1k P1k Contract Beneficiaries A255: all employees in the ABU -A255: -even non-members (of the EBA) are entitled to the benefits of  the CBA or else lse it would amount ount to ULP of und undue discrimination New Pacific Timber and Supply Co v. NLRC, 328 SCRA 404 CBA and Transfers -Manli Manlimos mos v. NLRC, NLRC, 242 SCRA 145 (1995) (1995): if tran transf sfer er of  ownership done in GF, the transferee is under no legal duty to absorb the transferor’s transferor’s EEs as there is no law compelling such absorption. ...However, transferee liable for ULP if: 1. liab liabil ilit ity y assu assume med d by trans ransfe fere ree e unde underr cont contra ract ct making the transfer

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. 2.

liabili liability ty arises arises because because of of transfer transferee’s ee’s parti participa cipation tion in in ULP (transferee as ER)

CBA and Disaffiliation -even -even if EBA/EBR EBA/EBR changes, changes, the CBA continu continues es to bind the parties up to the expiration date. The new EBA/EBR takes the place of the older one. Eliso-Elirol Labor Union v. Noriel, 80 SCRA 682(1977) Effect of Expiration A253: it shall be the duty of both parties (ER and EBA) to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60day period and/or until a new agreement is reached by the parties

Part Eight: ULP Definition 212k: any unfair labor practice as expressly defined by LC 247: violate the constitutional right of workers and employees to self-organization and collective bargaining -inim -inimica icall to the the legit legitim imat ate e inte interes rests ts of both both labor labor and and management -violations of civil rights of both labor and management -als -also o crim crimin inal al offe offens nses es agai agains nstt the the Stat State, e, subj subjec ectt to prosecution and punishment 248: ER IRC (interfere, restrain, coerce) 249: Union RC (restrain, coerce) Requisite Relationship (Phelp-Dodge (Phelp-Dodge Co vs. NLRB) NLRB ) GR: in order for ULP to exist, there must be EER X: discrimination in hiring by union affiliation Construction LC leaves the court the work of applying the law’s general prohibit prohibitory ory languag language e in the light of infinite infinite combinati combination on of  events which may be charged as violative of its terms HSBC Employee Union v. NLRC, 281 SCRA 509 (1997) Acts violating right to self-organization 1. IRC

2.

non non-uni -union on memb member ersh ship ip or with withdr draw awal al membership as condition of employment

3.

Contracting out to discourage unionism comp compan any y domi domina nate ted d uni union on discrimi discriminati nation on to encoura encourage ge or disco discourag urage e unionis unionism m Reta Retalia liati tion on Testi Testimon mony y again against st ER Exac Exacti tion on – Feat Feathe herb rbed eddi ding ng:: caus cause e or attem attempt pt to cause an ER to discriminate against an EE

4. 5. 6. 7.

from from

Other Acts under IRC 1. Interrogation -subjection by the ER of its EEs to a series of questioning regar regardin ding g their their membe membersh rship ip in the union union or the the union union activities, in such a way as to hamper the exercise of  free choice on their part  2. Polling 3. Speech: “totality of conduct doctrine” -eval -evaluat uate e the remar remarks ks on the basis basis of their their IMPLIC IMPLICIT IT IMPLICATIONS, but appraise against the background of and in conjunction with collateral circumstances -expressions, though innocent in themselves, were culpable because uttered: …under circumstances …history of labor relations …connection with established collateral plan of coercion or interference 4. Espionage -espionage of ER of union activities, or surveillance thereof 

5. Economic Coercion and and Inducement: test of WON ER interfered with and coerced EEs: -WON ER has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of EE’s rights -not necessary that there be direct evidence that any EE was in fact intimidated or coerced by statement or threats of ER if there there is a reasona reasonable ble inference inference that anti-uni anti-union on conduct conduct of the ER does have an adverse effect effect on selfselforganization and CB 6. Union Solicitation and Distribution of Literature and Materials: Access test GR: ER can impose limitations on exercise of union activities re: information dissemination within its property to preserve it X: When When the inacce inaccessi ssibi bilit lity y of EEs makes makes ineffe ineffecti ctive ve the reasonable attempts by non-EEs to communicate with EEs through usual channels, the right of ER to exclude from its prop proper erty ty must must yiel yield d to the the exte extent nt need needed ed to perm permit it communication and information on the right to organize 7. Discrimination -if discriminatory, striked down -no discrimination when: a.EEs not similarly situated (e.g. not covered by CBA) b. its within the prerogative of the management to regulate all aspects of employment c. GF exercise + without ulterior motive 8. Run-Away Shop -ER moves to another location or temporarily closes down business for anti-union purposes ULP and Right to CB 1. Violate right to bargain Kiok Kiok loy: loy: shou should ld repl reply y to pro proposa posals ls prom prompt ptly ly and and expeditiously expeditiously in GF Standard Charter v. NLRC: where the employer refused to bargain with the labor union, allegedly because the union was propo pro posin sing g “bl “blue ue sky sky” ” pro propo posal sals s sai said d to be ou outr trage ageou ous, s, unrealistic and outlandish, the court held that the company cannot refuse to bargain without any proof that the proposal proposals s of the union were indeed unrealistic. 2. Negotiation or Attorney’s Fees to settle issue in CBA or disputes A248h: ER pays A249e: Union asks for or accepts it 3. Violation of CBA – onl only y a ULP if gros gross s (fla (flagran grantt and/ and/or or malicious malicious refusal to comply with the economic provisions of CBA) [A261] Test WON ULP: [a] Was there a reasonable tendency to succeed? [b] Did anti-union anti-union bias contrib contribute ute to his decision decision? ? (mixed(mixedmotive test) Enforcement, Remedies Sanctions Against whom ULP Committed A248: against EE or Union A249: against ER Parties Liable A248: A248: officers officers and agents agents of corporat corporations ions,, associa association tions s or partnerships who have actually participated in, authorized or ratified ULP A249: officers, members of governing boards, representatives representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified ULP Prosecution and Prescriptive Period 1. Civil Aspect A257:may A257:may include claims for ..Actual …Moral

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. …Exemplary …other form of damages …Atty’s fees …other affirmative relief  -jurisdiction of Labor Arbiter: resolve within 30 calendar days from time submitted for decision A290: A290: filed within 1 year from accrual of such ULP, otherwise forever barred 2 Criminal Aspect -criminal prosecution of the ULP can only be instituted when FINAL JUDGMENT finding that an ULP was committed has been obtained -pendency of ULP case before Labor Arbiter interrupts running of period of prescription of the criminal offense -final -final judgmen judgmentt in administ administrat rative ive proceed proceedings ings shall shall not be binding in the criminal cases not be considered as evidence of  guilt ULP and Compromise GR: ULP cannot be subject to compromise, contrary to public policy X: when compromise entered to avoid protracted litigation, volun volunta tari rily ly entere entered, d, reaso reasonab nable le - AND AND forge forged d under under the the authority of the SOLE in a compulsory arbitration proceedings, with with represen representat tatives ives from the Union and the ER Reformist  Union of RB Liner v. NLRC, 266 SCRA 713 (1997)

Part nine: Concerted Activities Basis of the right 1. Co Cons nsti titu tuti tion on (AX (AXII III. I.3) 3) peac pe acef eful ul an and d co conc ncer erte ted d ac acti tivi viti ties es,, in incl clud udin ing g th the e RIGHT TO STRIKE, IN ACCORDANCE WITH LAW

-

why IN ACCORDANCE WITH LAW: the law does not look with favor upon strikes and lockouts because of  their DISTURBING AND PERNICI PERNICIOUS OUS EFFECTS upon social order and public interest Luzon Marine Dept. Union v. Roldan, 86 Phil 507 (1950) 2. St Stat atut utor ory y (A2 (A263 63b) b) -worker -wor kers s shal shalll have the righ rightt to engage in conc concerte erted d activities for purposes of …collective bargaining …or for their mutual benefit and protection -the right of a legitimate LO to strike and picket and of  ERs to loc lockout kout,, consisten consistentt with national intere interest, st, shall continue to be recognized and respected -NO labor union may strike, NO ER may declare a lockout on grou grounds nds invol involving ving interinter-union union and intraintra-union union disputes 3. In Inte tern rnat atio iona nall Co Cove vena nant nt on Ec Econ onom omic ic,, So Soci cial al an and d Cultural Rights (Art8d)

Strike Activity Definition Strike (A212o) …any temporary stoppage of work  …by concerted action of EEs …as a result of an industrial or labor dispute -includes economic slowdown and strike on installments San Miguel Case Lockout (212p) -any temporary refusal of an ER to furnish work …as a result of an industrial or labor dispute Strike v. Lockout Similarities -both cause TEMPORARY cessation of work -both arise from an industrial or labor dispute -both observe same procedure

Differences Strike: by LO Lockout: ER Nature and Purpose -EEs enforce their demands deman ds -Company -Company engaged engaged in profitab profitable le business business cannot cannot afford afford to have production interrupted nor paralyzed Philippine Can Co v. CIR, 87 Phil 9 (1950) Effect on Work Relationship -EER not severed or dissolved, may improve EER …better working conditions …more efficient services Types, Changes and Conversion Types 1. ULP ULP Str Strik ike e (A2 (A263 63c) c) -arose from a ULP by the ER -act -actor ors: s: the the duly duly cert certif ifie ied d or reco recogn gniz ized ed BA (or (or a legitimate LO in behalf of its members if there is no BA) -aims to correct an act declared by law to be a ULP 2. Econom Economic ic Strike Strike (Deadl (Deadlock ock)\ )\ -aims to forge wage and concessions not required by law to grant *it is possible that an Economic Strike would be converted into a ULP strike when the ER does acts as may be classified under A248 Consoli Consolidate dated d Labor Labor Associat Association ion of the Philippi Philippines nes v. Marsman and Co., 11 SCRA 5589 (1964) *However, the union’s offer to wok which was not heeded by the ER is not equivalent to an illegal lockout on the part of the ER that may give rise to a ULP strike Rizal Cement Workers Union v. CIR, 6 SCRA 841 (1962) Grounds for Strike/Lockout 1. Allowed strikes (A263c) -deadlocks -ULP -union busting 2. Prohibited Strikes -A263b: intraunion, intraunion disputes -263g: in industry indispensable to national interest -264a: …not yet bargained collectively …not yet filed notice required …not …not yet obtaine obtained d and report reported ed to the the DOLE DOLE a stri strike ke or lockout vote …after assumption of jurisdiction by the President or by the SOLE …aft …after er the submis submissio sion n of the the dispu dispute te to compu compuls lsory ory or voluntary arbitration …during the pendency of cases involving the same grounds for the strike or lockout -265: after a vote the improved offer was conducted conducted and had favorable results -wage distortion Ilaw at Buklod ng Manggagawa Manggagawa v. NLRC, 198 SCRA 586 (1991) No Strike Clause -it is a valid valid stipulat stipulation ion BUT may ONLY BE INVOKED INVOKED by an employer when …the strike is economic in nature …strike …strike is one which is conducte conducted d to force wage or other other concessions from the employer that are not mandated to be granted by the law itself  Panay Electric Co. v. NLRC, 248 SCRA 688 (1995) Striking Party 263c: Bargaining deadlocks: deadlocks: duly certified or recognized BA

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. ULP strikes: strikes: duly certified or recognized BA …if no duly certified or recognized BA: any legitimate LO in behalf of its members Union busting: union being busted Procedural Requirement 1. bargain first (A264a) Procedure (see A250) 2. file notice of intention  A263c: periods Bargaining deadlocks: at least 30 days before the intended date ULP: 15 days before Union busting: take action immediately   A26 A263d 3d:: noti notice ce shou should ld be in acco accord rdan ance ce with with IRR IRR  promulgated by SOLE   A263e: A263e: SOLE exert efforts efforts during during the cooling cooling-off -off period  (period to file notice) to effect a voluntary settlement   A264a: notice first before strike/lockout or else illegal 3. conduct strike/lockout vote first (A263f) Stri Strike ke:: appr approv oved ed by a majo majori ritty of the the total otal unio union n membership in the bargaining unit concerned …by secret ballot …in meetings or referenda called for that purpose Lockout: approved approved by a majority of the board of directors directors of  the corporatio corporation n or associatio association n or of the partners partners in a partnership …obtained by secret ballot …in a meeting called for that purpose -264a: no majority obtained, no strike – or else illegal -IRR: -IRR: may reque request/ st/on on its its own own initia initiati tive, ve, the the Boar Board d my supervise the conduct of the strike vote/lockout vote. The union or the ER should furnish the Board with notice 24 hours hours before before the conduct conduct of the election. election. The results results should be submitted to the Board at least 7 days before the intended strike or lockout 4. observe cooling-off period Wait: according to DPD, the cooling off period is different from the periods stated in A263c. it is the 7 day period before the date of the strike provided in the IRR. Further, according to him, it is observed after strike vote has been conducted

-

  The requisite requisite 7-day period is intended intended to give the DOLE an opportunity to verify whether the projected strike really carries the approval of the majority of  the union members. members. The notice notice of strike strike and the cooli coolingng-of offf period period were were inte intende nded d to provi provide de an opportu opportunity nity for mediati mediation on and concili conciliatio ation. n. Grand  Boulevard Hotel v. Genuine Labor Organization, 406 SCRA 688 (2003)

* The requirements are mandatory and failure of a union to comp comply ly ther therew ewit ith h rend render ers s the the stri strike ke ille illega gal. l. A stri strike ke simultaneously with or immediately after a notice of strike will render the requisite periods nugatory. nugatory. Grand Boulevard Hotel v. Genuine Labor Organization (2003), supra Test of Legality 1. purpose and means test Peaceful – A264 is the measure In accordance with law – A263 -Luzon -Luzon Marin Marine e Dept Dept.. Union Union v. Rolda Roldan n (1950) (1950),, supra: supra: the legality or illegality of a strike depends on 1. the purpose for which it is maintained 2. means employed 2. Balancing of Interest -if ULP strike: the violent acts of SOME union members does not render the strike strike illegal. illegal. The right right of manageme management nt to prevent strikes does not render strike illegal. ight ight to preven preventt strik strike e < right right of EE agains againstt ULP Shell Shell Oil Workers Unin v. Shell Phils, 39 SCA 276 (1971)

Defenses: GF and ULP -A strike doesn’t automatically automa tically carry the stigma of illegality even if no ULP was committed by ER. It suffices if such a belief  in GF is entertained entertained by labor as the inducing factor for staging a strike. Indeed, the presumption of legality prevails even if  the allegation allegation of ULP is subseque subsequently ntly found to be untrue, untrue, provided that the union and its members believed in GF in the truth of such averment PNOC Dockyard v. NLRC, 291 SCRA 231 (1998) Illegal Strikes (see prohibited strikes) Effect of Illegality A264a Unlawful lockout: lockout: EE terminated -EE entitled to reinstatement with full backwages Illegal Strike: who would lose their employment status -union officer who knowingly participates -any worker or union officer: any worker or union officer who knowingly participates in the commission of illegal acts during a strike Employment of Strike-breakers -prohibited (264c) -definit -definition ion (212r): (212r): any person person who obstruct obstructs, s, impedes, impedes, or interferes with … …by force, violence, coercion, threats or intimidation …any peaceful picketing affecting >wages >hours of work >conditions of work …or in the exercise of right to self organization or collective bargaining Burden of Economic Loss -a fair day’s wage for a fair day’s labor: …if strike, strike, no backwages backwages (EEs wanted wanted to do so, so suffer consequences) …if lockout, pay backwages (EEs could have done their jobs but ER prevented them from doing so) Improved Offer of Balloting Balloting (A265) Strike -DOLE conduct referendum by secret ballot on the improved offer of the ER -on or before the 30 th day of the strike -when -when at least least major majorit ity y of the the union union vote vote to accept accept the improved offer: …striking workers shall immediately return to work …ER shall readmit the workers upon signing of the agreement Lockout -DOLE conduct referendum by secret ballot on the reduced offer of the Union -on or before the 30 th day of the lockout -when at least majority of the board of   director directors/tr s/truste ustees/p es/partn artners ers holding holding the control controlling ling interest interest vote to accept the reduced offer: …workers immediately return to work …ER shall readmit the workers upon signing of the agreement Picketing -marchin -marching g to and from at the premises premises of the ER, usually usually accompanied by display of placards and other signs, making known the facts involved in a labor dispute Sta. Rosa Cocacola Plant Employees Employees v. Coca-Col Coca-Cola a Bottler Bottlers, s, 512 SCRA 437 (2007) Right to picket: PAFLU v. Cloribel, 27 SCRA 465 (1969) -means of communicating facts of a labor dispute -phase of freedom of speech, guaranteed by the constitution -right -right may be regul regulat ated ed at the instanc instance e of 3 rd parties parties or “innocent bystanders” bystanders” if the inevitable inevitable result of its exercise is

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. to create an impression of a labor dispute with which they have no connection or an interest exists between them

unequivocally Viver Vivero o v. CA, CA, 344 SCRA 268 (2000)

*A labor dispute may give rise to strong emotional response far from likely that the language employed should be both courteous and polite. PCIB v. Philnabank Employees Assn, 105 SCRA 314 (1981)

a. Compulsory Arbitration (263g) -when in the opinion of the SOLE there exists a labor dispute causing or likely to cause a strike or lockout in an IINI -SOLE -SOLE assumes assumes jurisdic jurisdiction tion over the dispute or certify certify the same to the NLRC for compulsory arbitration *rationale: soonest solution, damage might be caused upon national national interest interest minimize minimized d as much much as possible possible;; preserve preserve status quo *Process: i. initiating party: SOLE/President ii. arbitration agencies: NLRC: labor arbiter -would -would include include all questio questions ns and contro controvers versies ies arising arising from labor dispute, including cases over which the labor arbiter has exclusive jurisdiction or otherwise submitted to him for resolution iii. effect of certification: automatic return to work order -it is deemed to have been issued once SOLE assumes  jurisdiction over the dispute -it is an obligation, not a luxury -it is not involuntary servitude: the EE has an option not to return to work, subject to termination in work iv. effect of appeal: appeal: return to work work order order should should still be complied with

Restrictions of right to Picket: Innocent 3P Rule PAFLU v. CLORIBEL, supra 1. WON case case aro arose se fro from m labor labor dispu dispute te  YES: apply LC, labor laws NO: apply ROC - injunction 2. WON appel appellee lee is is a 3P/inn 3P/innocen ocentt bystande bystanderr whose whose right right has been invaded,  YES: entitled to protection by the courts NO: no labor injunction 3. righ rightt may be regu regula late ted d at the inst instan ance ce of a 3P or innocent bystanders if: … it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they they have no connecti connection on or interest interest arises between between them …the …the picketi picketing ng of the union union constit constitute utes s invasion invasion nof  their rights

Part ten: Labor Injunction GR: no injunction against strike X: labor labor disput dispute e arise arises s in an indust industry ry indis indispen pensab sable le to national interest *could only enjoin UNLAWFUL activities *Issuing Agency: NLRC *Can *Can only be exercise exercised d by the NLRC when there’s there’s a labor labor dispute (A218e) *cannot be issued ex parte: requires hearing and procedure in 218 should be followed *note: injunction in EO 180 is different in LC *what are industries indispensable to national interest? -DPD: there’s no test since it is within the discretion of the President or the SOLE  Jurisprudential rules re: IINI 1. indus industr try y shoul should d affec affectt nati nationa onall econo economy: my: invol involved ved in generation or distribution of energy, or are banks, hospitals, or export-oriented GTE Corp v. GTE Union 2. in schools: the number of students affected PSBA v. Noriel 3. not IINI if there are alternative industries equally efficient to provide the service of said industry

Part eleven: Alternatives to use of economic force Conciliation and Arbitration as Modes of Labor Dispute Settlement 1. Conciliation -part of the collective bargaining process (A250c-e): resorted to upon request or at the National Conciliation and Mediation Board’s own initiative when the difference in the proposals of  the EBA/EBR and the ER is not settled in the conference 2. Arbitration Compulsory By operation of law LA Jurisdiction: termination (A217)

Voluntary By agreement of the parties VA ille gJurisdi Jur al isdictio ction: n: A261 and 262: any and all disputes -eve -even n disp disput utes es with within in the the jurisdiction of the LA, provid provided ed that that both both partie parties s agre agree e to it, cle clearly rly and

b. Voluntary Arbitration *arbitrable issues A261: A26 1: unreso unresolve lved d grieva grievance nces s in the the interp interpret retat atio ion n and and enforcement of the CBA or company personnel policies A261: upon agreement of the parties: -all other Labor disputes disputes (if dispute is under under the exclusive exclusive  jurisdiction of the LA, VA could only assume jurisdiction over the same if the parties has clearly and unequivocally agreed to confer the same to the VA Vivero v. CA(2000), supra) supra) -ULP -bargaining deadlocks *Selection of VA (A260) -part -parties ies to CBA name and desig designa nate te in advan advance ce a list list of  qualified arbitrators of NCMB -if none, NCMB would choose for the parties *Procedure (A262-A) -hold hearings -receive evidence -take whatever action is necessary -render decision within 20 calendar days -the decision should contain contain the facts and the law upon which it is based *Awards and Orders -awards of VA has same legal effect as judgment of a court *finality and execution of awards -decision final after 10 d -VA can issue writ of execution *Appeal -to the CA (R43, ROC) -note that there is no appeal procedure provided in the LC *Costs (A262-B) -shouldered by the parties (proportionate sharing scheme); or -subsidized by special voluntary arbitration fund -take into account the following; a. nature of the case b. time consumed c. professional standing of the VA d. capacity of the parties to pay

part twelve: labor relations in the public sector EO 180 *provisions of EO 180 heavily borrowed from LC

UP Portia Bar Mental Jugger Labor Relations Based on the outline of Professor D.P. Disini, Jr. Distinction: EEs EEs in the the publ public ic sect sector or has has NO RIGH RIGHT T TO STRIKE because there is no law which authorizes public EE to exercis exercise e it; Public Public EEs can engage engage in mass demonstrati demonstrations ons during their freetime -right -right to CB: the terms terms and conditions conditions of employm employment ent not provided for by law can be negotiated *EEs who do not have the right to self-organization: 1. member of AFP 2. PNP 3. Firemen 4. Jailguards *Regis *Registra tratio tion n of Trade Trade Union: Union: with with DOLE DOLE and and CSC, CSC, processing performed by BLR *Exclusive Representation Union recognition a. voluntary recognition >duly registered >no other employee organization >majority support of all rank and file employees b. Recognition after certification election > there are 2 or more employee organization >petition filed >BLR conduct, certify elections *Bargaining Unit Composition: GR: all rank and file EEs X: unless circumstances require otherwise *Exclusive Representative 1. duly registered 2. majority of EE in ABU supports it