LaborLawII

PART I INTRODUCTORY MATERIALS Section 1. Introduction 1.1

Statutory Source and Interpretation

Statutory provisions of the Labor Code are construed liberally in favor or EE’s, unless otherwise intended by or patent from the language of the statute itself. (Caltex Filipino Managers and Supervisors Assistant vs. CIR) 1.2

Definitions

ER and EE Art. 212 :  An “ER” – Any person acting in the interest of the ER, directly or indirectly. The term shall not include any labor organization or any of its officers except when acting as an ER.  “EE” – Any person in the employ of an ER. The term shall not be limited to the EE’s of a particular ER, unless this Code explicitly states. It shall include any individual whose work has ceased as a result or in connection with any current labor dispute or because of fair labor practice if he has not obtained any other substantially equivalent or regular employment. Labor Organization and Legitimate Labor Organization 1. Art. 212 :  “Labor Organization” – Any union for association of EE’s which exists for the purpose of collective bargaining or of dealing with E’s concerning terms and conditions of employment.  “Legitimate Labor Organization” – Any labor organization duly registered with the DOLE that includes any branch or local. 2. A local chapter becomes a legitimate labor organization only upon submission of: A. Charter certificate within 30 days from its issuance by the laborfederation or national union. B. Constitution and by-laws, statement on set of officers, and books of accounts which are certified under oath by secretary or treasurer, and attended to by its president. (Phoenix Iron vs. Secretary of Labor and Employment)

2 Labor Dispute 1. Art. 212 : Any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of ER and EE. 2. What is the test to determine whether a labor controversy comes within the definition of labor dispute? It depends on whether it involves or concerns terms, conditions of employment or representation. (Azucena) 1.3 Labor Relations Policy 1. What is the policy of the state with respect to the trade unionism, collective bargaining and labor relations? It is the policy of the State to : A. Promote and emphasize the primacy of free Collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor and industrial disputes. B. Promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development. C. Promote the Enlightenment of workers concerning their rights and obligations as union members and as EE’s. D. To provide an adequate administrative Machinery for the expeditious settlement of labor or industrial peace. E. To ensure a stable but dynamic and just Industrial peace. F. To ensure the participation of Workers in Decision and policymaking processes affecting their rights, duties and welfare. G. To encourage free trade Unionism and free collective bargaining. (Art. 263)  Collective bargaining – Negotiations towards a collective agreement designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. (Kiok Loy vs. NLRC)  The Secretary of Labor shall have the power and duty to inquire into aspects of ER-EE relations concerning the promotion of harmony and understanding between the parties. (Art. 273)  A line must be drawn between policies which are purely businessoriented and those which affect the rights of EE’s.  Workers and ER’s shall, as far as practicable, be represented in decision and policy-making bodies of the government. The Secretary of

3 Labor and Employment or his duly authorized representatives may call a tripartite conference of representatives of government, workers and EE’s for the consideration and adoption of voluntary codes of principles designed to promote industrial peace or to align labor movement relations with established priorities in economic and social development. (Art. 275) (ME vs. CUPID) Section 2. Right to Self-Organization 2.1

Constitutional Basis of Right

1. Art. III, Sec. 8, Const. : The right of the people, including those employed in the public or private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. 2. Art. XIII, Sec. 3, Const. : The State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities including the right to strike in accordance with law. 2.2 Coverage I. Art. 243 : Coverage and EE’s right to self-organization – 1. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions --- whether operating for profit or not, shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for purposes of collective bargaining. 2. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without definite ER’s may form labor organizations for their mutual aid and protection. II. Art. 244 : Rights of EE’s in the public service – 1. EE’s of government corporations established under the Corporation Code shall have the right to organize and bargain collectively with their respective ER’s. 2. All other EE’s in the civil service shall have the right to form associations for the purposes not contrary to law. III. Art. 245 : 1. Managerial EE’s are not eligible to join, assist, or form any labor organization. 2. Supervisory EE’s shall not be eligible for membership in a labor organization of the rank-and-file EE’s but may join, assist or form separate labor organizations of their own. 2.3 Extent and Scope of Right I. Art. 246 : Non-abridgement of right to self-organization – It shall be unlawful for any person to : 1. Restrain 2. Coerce 3. Discriminate against or

4 4. Unduly interfere with EE’s and the workers in their exercise of the right to self-organization II. The right to self-organization includes the right not to form or join a union (Reyes vs. Trejano) However, by virtue of the operation or enforcement of a closed shop clause in a CBA, an ER may be compelled on pain of dismissal, to become a member of a labor union. (Alcantara) III. May an ER impose as condition for employment that the applicant shall not join a labor organization or shall withdraw from the one he belongs to? No. Such a condition partakes of the nature of a “yellow dog contract” and constitutes an unfair labor practice. It is interference with the individual’s right to self-organization. (Alcantara) 2.4 Workers with Right Collective Bargaining

to

Self-Organization

for

Purposes

of

All EE’s 1. Art. 243 : All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for purposes of collective bargaining. 2. The Macho hair Saloon refused to bargain with the union of the barbershop composed of 8 barbers on the ground that the shop was a service establishment and the number of the barbers was less than 10. Is the contention tenable? No. The law does not fix the minimum number of EE’s for the exercise of the right to self-organization and the right extends to all types of establishments. (Alcantara) 3. The faculty members of a non-profit school converted their club into a labor union. Is this allowed? Yes. Even EE’s in non-profit or religious organizations are entitled to exercise this right. (Alcantara) A. RELIGION The right of the members of the Iglesia ni Kristo sect not to join a labor union for being contrary to their religious beliefs does not bar the members of that sect from forming their own union. (Kapatiran vs. Calleja) Government Corporation EE’s Art. 244 : Rights of EE’s in the public service –  EE’s of government corporations under the Corporation Code shall have the right to organize and bargain collectively with their respective ER’s.

5 Supervisors 1. Art. 245 : Supervisory EE’s shall not be eligible for membership in a labor organization of the rank-and-file EE’s but may join, assist or form separate labor organizations of their own. [“Supervisory EE’s] – Those, who, in the interest of the ER, effectively recommend such managerial actions if in the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. (Art. 212) The criterion which determines whether a particular EE is within the definition of a statute is the character of the work performed rather than the title or nomenclature of position held. (NSRC vs. NLRC) 3. If the recommendation of the teacher area supervisor is subject to evaluation, review and final approval of the principal, is the teacher a supervisory EE? No. This is merely ineffective or clerical recommendation. (Laguna Colleges vs. CIR) 4. Supervisors were given the job of “either to assist the foreman if the effective dispatch of manpower and equipment” or “execute and coordinate work plans emanating from his supervisors.” Are these “supervisors” supervisory personnel? No. They only execute approved and established policies leaving little or no discretion at all whether to implement the said policies or not. (Southern Philippines Federation vs. Calleja) A. RIGHT TO ORGANIZE and LIMITATION 1. A supervisory union cannot represent the professional/technical and confidential EE’s whose positions are more of the rank and file than supervisory. The professional/technical EE’s may join the existing rank and file union, or form a union separate and distinct from the existing union organized by the rank and file EE’s. The intent of the law is to avoid a situation where supervisors would merge with the rank and file, or where the supervisor’s labor organization would represent conflicting interests. (Philippine Phosphate vs. Torres) 2. The union of supervisory personnel affiliated with a national federation. The local union of rank and file was also affiliated with the said national federation. Is this allowed? No. A local supervisors’ union should not be allowed to affiliate with a national federation of union of rank and file EE’s. Supervisors should be given an occasion to bargain together with the rank and file against the interests of the ER regarding terms and conditions of employment. (Atlas Litographic vs. Laguesma)

Aliens Art. 269 : Aliens working in the country with valid permits issued by the DOLE, may exercise the right of self-organization and join or assist labor

6 organizations of their own choosing for purposes of collective bargaining, provided, that said aliens are nationals of a country which grants the same or similar rights to Filipino workers. Security Guards Security guards may join rank and file or supervisors union depending on their rank. (MERALCO vs. Secretary of Labor and Employment) 2.5 Workers with no Right of Self-organization Managerial and Confidential EE’s 1. Art. 245 : Managerial EE’s are not eligible to join, assist, or from any labor organization. [“Managerial EE’s” – Those whose primary duty consists of the management of the establishment of which they are employed or of a department or subdivision thereof, and to other officers and members of the managerial staff. (Art. 82)] 2. The nature of the job determines whether the EE’s fall under the definition of “managerial”. A managerial EE is one “who is vested with powers of prerogatives to lay down and execute management policies and/or hire, transfer, suspend, lay-off, recall discharge, assign or discipline EE’s or to effectively recommend such managerial actions. (SPFL vs. Calleja) The rationale for this is that the union is not assured the loyalty of managerial EE’s in view of evident conflict of interests or that the union can become company-dominated with the presence of managerial EE’s in the membership. (Golden Farms vs. Calleja) 3. Confidential EE’s are also prohibited from forming unions. (Pier8 Arrastre vs. Confesor) Having access to confidential information, they may become a source of undue advantage. They may act as spies of either party to a CBA. These include accounting personnel, radio and telephone operators and confidential secretaries. (Golden Farms vs. Calleja) 4. The major patron’s duties include taking complete charge and command of the ship and performing the responsibilities of the ship captain; the minor patron also commands the vessel, plying the limits of island waterway, ports and estuaries. Are they eligible to join or form a union? No. The exercise of discretion and judgment in directing a ship’s course is managerial in nature. (Association of Marine Officers vs. Laguesma)

Worker/Member of Cooperative The right to forming or joining a labor organization for purposes of collective bargaining is not available to an EE of a cooperative who at the same time is a member and co-owner thereof. It is the fact of ownership of the cooperative and not the involvement in the management thereof, which disqualifies a member from joining any labor organization within the

7 cooperative with respect however, to EE’s who are neither members or coowners, they are entitled to the rights of self-organization for purposes of collective bargaining (Benguet Electric vs. Ferrer-Calleja). However, a member/owner has the right to withdraw as owner of the cooperative for purposes of joining the union (Central Negros Electric vs. Of DOLE). Non-EE’s Art. 243 : Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without definite ER’s may form labor organizations for their mutual aid and protection. However, they are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. (Singer vs. Drilon) 2.6 Part Protected It is well-settled doctrine that the benefits of a CBA extend to the laborer’s and EE’s in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organization. (MWU vs. Aboitiz) 2.7 Sanctions for Violation of Right 1. Art. 248 : It shall be unlawful for an ER to interfere with, restrain or coerce EE’s in the exercise of their right to self-organization. 2. Art. 249 : It shall be unfair labor practice for a labor organization, its officers, agents and representatives to restrain or coerce EE’s in the exercise of their rights to self-organization. 3. Art. 288 : Penalty –  Fine of not less than P1,000.00 nor more than P10,000.00  Imprisonment of not less than 3 months nor more than 3 years , or  Both, at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service. Any provision of the law to the contrary notwithstanding any criminal offense punished under this Code shall be under the concurrent jurisdiction of the Municipal or City Courts and the RTC. 4. Art. 289 : If the offense is committed by a corporation, trust, firm, partnership, association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity. Section 3. Labor Organization 3.1 Policy Sec. 211 : It is a policy of the State to : 1. Promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development. 2. Foster the free and voluntary organization of a strong and united labor movement.

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3.2 Labor Organization - Unions Definitions A. LABOR ORGANIZATION Art. 212 : Any union or association of EE’s which exist for the purpose of collective bargaining or of dealing with ER’s concerning terms and conditions of employment. B. LOCAL UNION Sec. 1, Rule I, Book V, IRR’s : Any labor organization operating at the enterprise level. C. NATIONAL UNION FEDERATION Sec. 1, Rule I, IRR’s : Any labor organization with at least 10 locals or chapters each of which must be duly recognized bargaining agent. D. LEGITIMATE LABOR ORGANIZATION Art. 212 : Any labor organization duly registered with the DOLE, and includes any branch or local thereof. D.1 Dole Registration Basis A labor organization acquires legitimacy only upon registration with the DOLE. (Progressive Development vs. Secretary of Labor and Employment) A SEC registration cannot suffice. (Cebu Seamen’s Association vs. Ferrer-Calleja) E. COMPANY UNION Art. 212 : Any labor organization whose information, function administration has been assisted by any act defined as ULP by this Code.

or

3.3 Union Rationale When is a labor organization wholesome? A labor organization is wholesome if it serves its legitimate purpose of promoting the interests of labor without unnecessary labor disputes. That is why it is given personality and recognition in concluding CBA’s. but if it is made use as a subterfuge, or as a means to subvert valid commitments, it defeats its own purpose, for it tends to undermine the harmonious relations between management and labor. (United Seamen’s Union vs. Davao Shipowners Association) 3.4 Labor Union and Government Regulation Union Registration and Procedure Requirements What are the requirements for registration of a labor organization? Art. 234 : Any applicant labor organization shall acquire legal personality and shall be entitled to rights and privileges of legitimate labor organizations upon

9 issuance of a certificate of registration upon submission of the following requirements: A. Registration Fee B. Names of its officers, addresses, principal address of the organization, minutes of meetings and list of workers who participated in meetings. C. Names of all its members comprising at least 20% of all its EE”s in the bargaining unit. D. Copies of annual financial reports if union has been in existence for more than 1 year. E. Copies of constitution and by-laws. Sec. 3, Rule II, Book V, IRR’s : Sworn statement by applicant union that there is no certified bargaining agent in bargaining unit concerned. When there is an existing CBA duly submitted to the DOLE, a sworn statement that the application for registration was filed during the last 60 days of the agreement.  The application and all accompanying documents shall be verified under oath by the secretary or the treasurer as the case may be, and attested to by the president. (Id.) II. What are the additional requirements for federations or national unions? A. Proof of affiliation of at least 10 local chapters.  Each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates. B. Names and addresses of the companies where the locals or the chapters operate and list of all the members in each company involved. III. What is the period for action on application? 30 days from filing (Art. 235) A. REQUIREMENT AND RATIONALE Registration is a condition sine qua non for the acquisition of legal personality by a labor organization. (Protection Technology vs. Secretary of Labor and Employment) However, it is not a limitation on the right of assembly or association which may be exercised with or without said registration. (PAFLU vs. Sec. of Labor) The statutory and regulatory provisions of defining the requirements of legitimate labor organizations are an exercise of the overriding police power of the State designed for the protection of workers against potential abuses by unions that recruit them. (Protection Technology vs. Sec. of Labor) or fly-by-night unions whose sole purpose is to control union for dubious ends. (Phoenix Iron vs. Sec. of Labor and Employment) Action or Denial of Application, and Remedy 1. Sec. 6, Rule II, Book V, IRR’s : Any applicant union may appeal to the Bureau the denial of registration by the Regional Office, or to the secretary if the denial is by the Bureau, within 10 calendar days from receipt of such decision on grounds of : A. grave abuse of discretion ; and B. gross incompetence

10  The appeal shall be filed in the Regional Office/Bureau which shall cause the transmittal of records to the Bureau/Secretary within 5 calendar days from receipt of the appeal.  The Bureau/Secretary shall decide the appeal within 20 calendar days from receipt of the records of the case. 2. Can the Regional Office/Bureau exercise discretion in the registration of the applicant union? No. As long as the applicant union complies with all the legal requirements for registration, it becomes the Office’s/Bureau’s ministerial duty to do register the union. (Vassar vs. Estrella) Effects on Freedom of Association While disaffiliation from a labor union is not open to legal objection, since it is implicit in the freedom of association ordained in the Constitution, a closed shop agreement is a valid form of union security and is not a restriction of the right of freedom of association guaranteed by the Constitution. Rights of Legitimate Labor Organization [REFOSAF] I. What are the rights of legitimate labor organization? A. Act as Representative of its members in collective bargaining B. To be certified as the Exclusive representative of all the EE’s in an appropriate collective bargaining unit for purposes of collective bargaining. C. To be furnished by the ER, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within 30 calendar days from the date of receipt of request  After the union has been duly recognized by the ER or certified as the sole and exclusive bargaining representative of the EE’s in the bargaining unit, or  Within 60 calendar days before the expiration of the existing CBA, or  During the collective bargaining negotiation. D. To own property for the use and benefits of the labor organization and its members. E. To sue and be sued in its registered name. F. To undertake all other Activities designed to benefit the organization and its members. G. Its income and properties which are directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only be a special law expressly repealing this provision. (REFOSAF) II. Can the union effect a compromise of the money claims of workers?

11 Money claims due to laborers cannot be the object of settlement or compromise effected by a union or counsel without the specific individual consent of each laborer concerned. (Kaisahan ng mga Manggagawa sa La Campana vs. Sarmiento) III. May a union waive a right of union members to reinstatement provided for in an NLRC decision? No, the waiver of reinstatement, must be regarded as a personal right which must be exercised personally by workers themselves. (Jag vs. NLRC) A. EFFECT OF NON-REGISTRATION Union, must comply with all the requirements of registration as a legitimate labor organization. (Protection Technology vs. Sec. of Labor & Employment). However, if the union has filed application for registration and has submitted all the legal requirements, the fact that it does not yet have the certificate of registration will not annul the designation of the labor union as sole bargaining agent by the virtue of a certification election since the defect is not fatal. (UE Automotive EE’s vs. Noriel) Cancellation of the Union Certificate Registration I. What are the grounds for its cancellation of union registration by the Bureau? 1. Misrepresentation, false statement or fraud by the union with respect to the required documents submitted to the Bureau. 2. Failure to submit the documents within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto. 3. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the elections and list of voters of failure to submit these documents within 30 days from election [or from the occurrence of any change in the list of officers of the labor organization (Art. 241)]. 4. Failure to submit annual financial report within 30 days after closing of fiscal year and misrepresentation of fraud in the preparation of the financial report. 5. Acting as labor contractor of “cabo” system. 6. Entering into CBA’s which provide terms and conditions of employment below minimum standards. 7. Asking for or accepting attorney’s fees or negotiation fees from ER’s. 8. Other than for mandatory activities under this Code, Checking of special assessment or other fees without duly signed individual written authorization of members. 9. Failure to submit list of individual members once a year or when required (MACED MALL)

12 II. If a union declares an illegal strike, is this a good ground for cancellation of union registration? No. While Art .239 provides the phrase “acting as a labor contractor… or otherwise engaging in any activity prohibited by law,” this phrase refers to an activity partaking the nature of a labor contractor. Thus, an illegal strike is not one of the grounds for cancellation of registration. (Itogon-Sayoc vs SangiloItogin Worker’s Union) 3.5 International Activities of Union Prohibition and Regulation I. What activities by aliens are prohibited?  All aliens, whether natural or juridical are strictly prohibited from engaging directly or indirectly in all forms of trade, union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers. The prohibition does not apply to the formation of labor organizations by aliens working in the country with valid working permits. (Art. 269) “Trade Union Activities” – shall mean : organization formation and administration of labor organizations; negotiation and administration of CBA’s; all forms of concerted union action; organizing, managing or assisting union action; any form of participation or involvement in representation proceedings, representation elections, union elections; and 6. other analogous activities. (Art. 270)]  1. 2. 3. 4. 5.

II. What activities by aliens are regulated?  No foreign individual, organization or entity may give any form of assistance, in cash or in kind directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Sec. of Labor  This prohibition also applies to foreign donations or other forms of assistance, in cash or in kind, given directly or indirectly to any ER or ER’s organization to support any activity or activities affecting trade unions. III. The strike declared by Union M has reached its 60th day. Taking pity on the hungry and sick strikers, B and G, French missionaries, distributed food and drinks to the strikers. Has any one committed any illegal act? Yes. B and G, distributing food and drinks to the strikers violated the prohibition against aliens from engaging directly or indirectly in all forms of trade union activities. The term “trade union activities” includes all forms of concerted union actions and analogous activities. (Alcantara) 3.6 Union-Member Relations Nature of Relationship The union may be considered but the agent of its members for the purpose of securing for them fair and just wages and good working conditions and is

13 subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it. (Heirs of Cruz vs. CIR) Rights of Union Members Summarize the basic rights of union members : 1. Political right – Member’s right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. 2. Deliberative and decision-making right – Member’s right to participate in deliberations on major policy questions and decide them by secret ballot. 3. Right over money matter – Member’s right against excessive fees, right against unauthorized collection of contributions or unauthorized disbursements; the right to require adequate records of income and expenses and the right of access to financial records; the right to vote on proposed special assessments and be deducted a special assessment only with the member’s written authorization. 4. Right to information – Member’s right to be informed about the organization’s constitution and by-laws and the CBA and about labor laws. Issues A. ADMISION AND DISCIPLINE OF MEMBERS 1. Art. 249 : A labor organization shall have the right to prescribe its own rules and with respect to the acquisition or retention of membership. 2. Art. 277 : Any EE, whether employed for a definite period or not, shall, beginning on his 1st day of service, be considered an EE for purposes of membership in any labor union. A. 1. Admission 1. Labor unions are not entitled to arbitrarily exclude qualified applicants for membership, and a closed-up provision would not justify the ER in discharging, or a union in insisting upon the discharge of it, an EE whom the union refuses to admit to membership, without any reasonable ground therefor. Thus, while generally the State may not compel the union to admit the individual as a member, this scenario is not an exception to that general rule. (Salunga vs. CIR) 2. The union’s constitution and by-laws provides that no individual who previously belonged to another union may be admitted as member thereof. Is this provision valid? No. While a union is in general free to select its own members, it cannot impose arbitrary and discriminatory conditions for admission to membership. It is very clear that the provision discriminates against an individual for having exercised his right to self-organization. (Alcantara) 3. The union constitution and by-laws provides that only EE’s with 2 years service in the company are eligible for membership therein. Is the provision valid?

14 No. The provision is an unreasonable restriction on the workers’ exercise of his right to self-organization. It would have those who have less than 2 years of service without representation in bargaining with the ER. (Alcantara) A. 2 Due Process Rules 1. An officer or a member of a labor union is entitled to due before he can be expelled. The member of the labor union expelled only for a valid cause and by following the procedure in the constitution and by-laws of the union. (Kapisanan Mangagawa vs. Bugay)

process may be outlined ng mga

2. The union constitution and by-laws provides that a member may be expelled from the union upon a vote of 2/3 of all the members. Is the rule valid? No. The expulsion of a union member cannot be made to depend upon the whims and caprices of cp-members. It must be founded on some just and serious grounds. (Alcantara) 3. 5 regular EE’s were dismissed allegedly pursuant to a union security clause. They had previously been expelled from the union for attempting to oust the union leadership, but they were not given an opportunity to explain their side. The company also did not conduct an investigation into the matter. Is the dismissal of the EE’s lawful? No. The union should have given them an opportunity to explain their side before expelling them. And the company should have complied with procedural due process before dismissing them. (Ferrer vs. NLRC) B. ELECTION COMPENSATION

OFFICERS

–

QUALIFICATION,

TENURE

AND

Give the rules of the Labor Code governing union officers : 1. The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of 5 years.  No qualification requirements for candidacy to any position shall be imposed other than membership in good standing.  No person who has been convicted of a crime involving moral turpitude shall be eligible for election or appointment as a union officer. [“Moral turpitude” – Act of baseness, vileness or depravity in the private of social duties which a men owes to his fellowmen, or to society in general. (Tak vs. Republic)  The officers of any labor organization shall not be paid by compensation other than the salaries and expenses due their positions as specifically provided in the constitution and by-laws, or in a written resolution duly authorized by the majority of all the members at a general membership meeting duly called fort he purpose. o Any irregularity in the approval of the resolution shall be a ground for impeachment or expulsion from the organization. (Art. 241)

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B.1 Voters List Submission of the EE’s names with the BLR as qualified members of the union not a condition sine qua non to enable said members to vote in the election of union officers. Question of eligibility to vote may be determined through the use of applicable payroll period and EE’s status. (Tancinco vs. Ferrer-Calleja) B.2 Disqualification of Candidates Disqualification of winning candidates will not automatically result in the assumption of office of those who garnered the second highest number of votes. (Manalad vs. Trajano) B.3 Expulsion Remedy Remedy against erring union officers is not referendum but union expulsion. However, re-election of union officers and non-election of complaining union members is convincing show of faith on union officer’s leadership. (KMP vs. Trajano) B.4 Election Invalid 1. Free and honest elections are indispensable to the enjoyment of EE’s and workers of their right to self-organization. This right will be diluted if the election is not fairly and honestly conducted. Thus, elections for union officers attended by grave irregularities are invalid. (Rodriguez vs. BLR) 2. Will failure to comply with the technical requirements or formalities in relation to the election of union officers invalidate the election? No, as long as it does not appear that such failure resulted in the deprivation of any substantial right or prerogative of anyone or caused the perpetration of fraud or other serious anomaly, or preclude the expression and ascertainment of the popular will in the choice of officers. (Timbungco vs. Castro) B.5 Qualification of Union Officers Atty. R won a big case for the union at the University of the West. He became very popular with the union members that they elected him as union president. Is this allowed? No. Atty. R is not an EE of the University. He is disqualified from becoming an officer of any union therein. (Alcantara) C. MAJOR POLICY MATTER 1. Art. 241 : The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical.  In which case the board of directors of the organization may make the decision in behalf of the general membership.

16 2. Z, a member of a union was surprised to know that the union had disaffiliated with the national federation. Has Z any ground to complain? Yes. As union member, he has the right to participate, by secret ballot, to determine any question of major policy affecting the entire membership. Disaffiliation is a major policy issue. (Alcantara) D. UNION FUNDS Give the rules of the Labor Code governing union funds : 1. The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions. 2. No officer, agent or member of a labor organization shall collect any fees, dues or other contributions in its behalf or make any disbursement of funds unless he is duly authorized by the constitution and by-laws. 3. Every payment of fees, dues or other contributions by a member shall be evidences by a receipt signed by the officer or member making the collection and entered into the record of the organization. 4. The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and bylaws or those expressly authorized by written resolution adopted by a majority of the members at a general meeting duly called for the purpose. 5. Every income or revenue of the organization shall be evidenced by a record showing its source or by a receipt from the person to whom payment is made. 6. Any action involving the funds of legitimate labor organization shall prescribe after 3 years from date of submission of the annual financial report to the DOLE or from date the same should have been submitted, whichever comes earlier. 7. The treasurer shall render a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account. The account shall be duly audited and verified by affidavit and a copy shall be rendered by the DOLE. The rendering of the account shall be made : a. At least once a year and within 30 days after the close of its fiscal year. b. At such other times as may be required by a resolution of the majority of the members of the organization. c. Upon vacating his office. 8. The books of accounts and other financial records shall be open to inspection by any officer or member thereof during office hours. 9. No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the membership meeting duly called for the purpose.

17 a. The secretary shall record the minutes of the meeting which shall be attested by the president. 10. Other than for mandatory activities under this Code, no special assessments, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from the amount due to an EE without an individual written authorization duly signed by the EE. 11. The Sec. of Labor or his duly authorized representative is hereby empowered to inquire into the financial activities of the legitimate labor organization upon filing of a complaint under oath and duly supported by a written consent of at least 20% of the total membership to determine compliance with the law. a. Such inquiry shall not be conducted during the 60-day freedom period within the 30 days immediately preceding the date of election of the union officials. D.1 Source-Payment-Attorneys Fees 1. Payment of attorney’s fees is an obligation of the union and not of the EE’s. Money of EE’s are not to be used to pay attorneys fees of a lawyer. (Pacific Bank vs. Clave) 2. Atty. S was hired by a union to assist its president in negotiating a CBA. After the execution of the CBA, Atty. S sought to collect his attorney’s fees out of the benefits due to the EE’s by virtue of the agreement. Is this proper? No. Atty. S’s claims for attorneys fees should be satisfied out of the funds of the union. (ALU vs. NLRC) D.2 Source-Payment-Special Assessment 1. Written resolution of a majority of all members of the union at a general membership meeting, required for validity of levy of a special assessment. (Palacol vs. Ferrer-Calleja) 2. The law does not require that disauthorization must be in individual form. (Id.) 3. The Board of Directors of a union passed a resolution assisting every union member of P2.00 to be used in the purchase of a birthday gift for the courageous lawyer of the union. The union members refused to pay assessment. Is the refusal justified? Yes. The assessment was not authorized by a written resolution of a majority of all the members at a general membership meeting for the purpose. 4. At a general membership meeting, a majority of the members of the union voted for a written resolution assessing each member P5.00. A member who did not vote affirmatively and did not execute an individual written authorization refused to pay the same. Is his refusal justified? No. He is bound by the resolution. However, the absence of a written check-off authorization means that the assessment cannot be deducted by the ER from his wages or other amounts due him, but he is still obliged to pay the same. (Alcantara)

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E. MANDATORY ACTIVITY Art. 214 : Other than for the mandatory activities under the Code : no special assessment, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an EE without an individual written authorization duly signed by the EE. E.1 Definition What is a mandatory activity? Judicial process of settling dispute laid down by law. (Vengco vs. Trajano) E.2 CBA Negotiation 1. Placement of re-negotiation for a CBA under compulsory process does not make it a “mandatory activity” as to authorize check-off from EE’s salary for attorneys fees without written, signed authorization. (Galvadores vs. Trajano) 2. May a union collect “union service fee” for its appearance in labor proceeding? Yes. This is in accordance with the liberalized scheme and theory of representation for labor. (RCPI vs. Sec. of Labor and Employment) F. UNION INFORMATION Art. 241 : It shall be the duty of any labor organization and its officers to inform its members on the : 1. Provisions of its constitution and by-laws. 2. CBA 3. Prevailing labor relations system and 4. All their rights and obligations under existing labor laws. For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminars and other labor education activities. (Responsibility of officers for dissemination of union information and for respect of the law is greater than that of the members. (NLU vs. Continental Cement) Enforcement and Remedies – Procedure and Sanctions 1. Art. 241 : Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officer from office, whichever is appropriate. At least 30% of all the members or any member or members especially concerned may report such violation to the Bureau. Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts. 2. When is the 30% requirement not needed? When such violation directly affects only 1 or 2 members, then only 1 or 2 members would be enough to report such violation and seek redress. (Kapisanan ng mga Manggagawa vs. Bugay)

19 A. JURISDICTION – EXHAUSTION INTERNAL REMEDIES I. In case of intra-union disputes, redress must first be sought within the organization itself in accordance with its constitution and by-laws. (Villar vs. Inciong) II. What are the exceptions to the exhaustion of internal remedies? 1. Futility of intra-union remedies. 2. Improper expulsion procedure. 3. Undue delay in appeal as to constitute substantial injustice. 4. When action is for damages. 5. Lack of jurisdiction of the investigating body. 6. When action of administrative agency is patently illegal, arbitrary and oppressive. 7. When issue involves is a pure question of law. 8. Where administrative agency has already prejudged the case. 9. Where the administrative, agency was practically given an opportunity to act on the case but did not. (Azucena) 3.7 Union Affiliation, Local and Parent Union Relations I. Sec. 3, Rule II, Book V, IRR’s : An affiliate of a labor federation or national union may be a local or an independently registered union. RULES: 1. The labor federation or national union shall issue a charter certificate which shall be submitted to the Bureau within 30 days from issuance. 2. An independently registered union shall be considered an affiliate after submission to the Bureau of the contract or agreement of affiliation within 20 days after its execution. 3. All existing labor federations or national unions are required to submit a list of their affiliates, their addresses and including the names and addresses of their respective officials. 4. The local or chapter of a labor federation or national union shall maintain a constitution and by-laws, set of officers and books of accounts. 5. No person who is not an EE or worker of the company or establishment where an independently registered union, affiliate, local or chapter of a national federation or national union operates shall henceforth be elected or appointed as an officer of such union, affiliate, local or chapter. Affiliation; Purpose of; Nature of relations A. NATURE OF RELATIONSHIP The mother union is merely an agent of the local union. (NAFLU vs. Noriel) B. EFFECT – LEGAL PERSONALITY Affiliation by a duly registered local union with a national union or federation does not make the local union lose its legal personality. Furthermore, notwithstanding affiliation, the local union remains the basic unit to serve the common interest of all its members. (Adamson vs. CIR)

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Local Union Disaffiliation A. NATURE RIGHT DISAFFILIATION The right of a local union to disaffiliate from its mother union is consistent with the constitutional guarantee of freedom of association. (Volkschel Labor Union vs. BLR) B. RULE – LEGALITY ACT - DISAFFILIATION The validity of the legal union disaffiliation is to be determined on the basis of the provisions of the constitution and by-laws of the local union with respect to the process of disaffiliation. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills) C. MINORITY DISAFFILIATION Generally, a labor union may disaffiliate from the mother union only during the 60-day period immediately preceding the expiration of the CBA (Tanduay vs. NLRC). However, a mere minority cannot file a petition for a union disaffiliation, even within the prescribed 60-day period before the expiry of an existing CBA. (Villar vs. Inciong) D. EFFECT OF DISAFFILIATION – SUBSTITUTIONARY DOCTRINE What is the substitutionary doctrine? EE’s cannot revoke the validly executed CBA with their ER by the simple expedient of changing their bargaining agent. (NAFLU vs. Noriel) Thus, the CBA continued to bind the members of the new of disaffiliated and independent union up to the CBA’s expiration date. (Associated Workers Union vs. NLRC) However, the substitutionary doctrine is not applicable to the personal undertaking of the deposed union i.e. no-strike stipulation. (Benguet Consolidated vs. PAFLU) Section 4. The Appropriate Bargaining Unit 4.1 Law and Definition Define the appropriate bargaining unit : Group of EE’s of a given ER, comprised of all or less than all of the entire body of EE’s, consistent wit the equity to the ER, indicated to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. (SMC vs. Laguesma) Within one unit there may be one or more unions, but for bargaining with the ER only one union – the majority of incumbent union – should represent the whole bargaining unit. (Azucena) 4.2 Determination of Appropriate Bargaining Unit Factors – Unit Determination The fundamental factors in determining collective bargaining unit are : [W A P E] 1. Will of the EE’s.

the

appropriate

2. Affinity and unity of the EE’s interest, such as substantial similarity of work and duties, or similarity in compensation and working conditions.

21 3. Prior collective bargaining history. 4. Similarity of employment status, such as temporary, probationary and seasonal EE”s. Among these factors, the Supreme Court has consistently ruled that the test of grouping is mutuality or commonality of interests. The EE’s sought to be represented by the collective bargaining agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they perform. (SMC vs. Laguesma) In this respect, the basic test of an asserted bargaining unit’s acceptability is whether or not it is fundamentally the combination which will best assure to all the EE’s the exercise of their collective bargaining rights. (Belyca vs. Ferrer-Calleja) 1. In making judgments about “community of interest” in these different settings, the Bureau of Labor and Relation will look to such factors as : 1. Similarity in the scale and manner of determining earnings. 2. Similarity in employment benefits, hours of work, and other terms and conditions of employment. 3. Similarity in the kinds of work performed. 4. Similarity in the qualifications, skills and training of EE’s. 5. Frequency of contact or interchange among the EE’s. 6. Geographic proximity. 7. Continuity or integration of production processes. 8. Common supervision and determination of labor-relations policy. History of collective bargaining. 9. Extent of union organization. (Azucena) 2. A cigar manufacturing company has 7 departments, namely administrative, raw leaf, cigar, cigarette, engineering and garage, dispensary and sales. May the rank-and-file in the administrative, sales and dispensary be grouped separately from the rank-and-file of the other departments? Yes. They are engaged in work different from those performed in the other departments. Thus, they have a community of interest different from that of the other departments. (Alhambra vs. PAFLU) 3. Golden Farm has 2 sets of EE’s : monthly-paid clerical workers and daily-paid agricultural workers. May the monthly-paid EE’s constitute a separate bargaining unit? Yes. The monthly-paid EE’s have very little in common with the daily-paid EE’s in terms of duties and obligations, working conditions, salary rates, and skills. (Golden Farms vs. Sec. of Labor) 4. May the non-academic personnel of UP be joined with the academic personnel? No. The 2 groups do not have community or mutuality of interests. (UP vs. Ferrer-Calleja) Unit Severance and the Globe Doctrine What is the Globe Doctrine? The relevancy of the wishes of the EE’s concerning their inclusion or exclusion from a proposed bargaining unit is

22 inherent in the basic right of self-organization. While the desire of EE’s with respect to their inclusion in bargaining unit is not controlling it is a factor which would be taken into consideration in reaching a decision. Single or ER Unit is Favored 1. It has been the policy of the Bureau to encourage the information of an ER unit unless circumstances otherwise require. The proliferation of unions in an ER unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of EE’s the right to self-organization for purposes of collective bargaining. (Philtranco vs. BLR) 2. It is proposed in a certification election that the professors of L. College be grouped into 2 units : high school and college professor. The proposal is based on the fact that the rules governing the 2 are different, that the set up of the 2 departments are different and that the manner of their payment is different. This proposal is opposed on the following grounds : that the 2 departments are under the control of only 1 board of trustees; that they are housed in the same building; that there is but 1 cashier and registrar for the 2 departments; that there are teachers who are teaching in both departments; that the elementary department would be left without a bargaining representative; and that there are only 130 teachers involved in the proceedings. How many bargaining units should there be? The facts show community of interests of the teachers in the college and high school departments. Beside, the establishment of separate units would leave the elementary teachers without a bargaining representative. And considering that there are only 130 teachers, the division of the bargaining unit dissipate their strength for collective bargaining purposes. Finally, the ER would be contending with 2 different unions vying for each other for better benefits to gain more members. (Laguna College vs. CIR) Two Companies with Related Businesses Two corporations cannot be treated as a single bargaining unit even if their business are related. (Diatogon vs. Ople) However, when if in reality, the companies constitute a single business entity i.e. 3 corporations acting as security agencies were under the same management and had interlocking incorporators and officers, the veil of corporate fiction may be lifted for the purpose of allowing the EE’s to form a single union and be part of a single bargaining unit. (PSVSIA vs. Torres) Section 5. Union Representation : Establishing Union Majority Status 5.1 Pre-condition – ER-EE Relationship The duty to bargain collectively exists only between the ER and its EE’s. When there is no duty to bargain collectively, it is not proper to hold certification election in connection therewith. (PLUM vs. Compania vs. Maritima) 5.2 Methods of Establishing Majority Status Elections – Certification Election ; Consent Election ; and Run-Off Election

23 Define certification election, consent election, and run-off 1. Certification Election – Process of determining through secret ballot, the sole and exclusive bargaining agent of the EE’s in an appropriate bargaining unit, for purposes of collective bargaining. (Certification proceedings directly involve two issues): a. proper composition and constituency of the bargaining unit; and b. validity of majority representation claims of the asserted bargaining representative or of competitive bargaining representative. (Azucena) 2. Consent Election – Election voluntarily agreed upon by the parties to determine the issue of majority representation of all the workers in the appropriate bargaining unit. 3. Run-Off – Election between the labor unions receiving the 2 highest number of voted when a certification election which provides for 3 or more choices results in no choice receiving a majority of the valid votes cast.  Exclude spoiled ballots  where the total number of votes for all contending unions is at least 50% of the number of votes cast. Distinguish consent election from certification election : A consent election is an agreed one; its purpose being merely to determine the issue of majority representation of all the workers in the appropriate collective bargaining agent of all the EE’s in the appropriate bargaining unit for the purpose of collective bargaining. (Warren Workers Union vs. BLR) Policy A. NO DIRECT CERTIFICATION Direct certification is no longer allowed as a method of selecting the bargaining agent. Where a union has a filed petition for certification election, the mere fact that no opposition is made does not warrant a direct certification. (CENECO vs. Sec. of Labor) B. EFFECT OF ONE UNION ONLY Certification election is the best and most appropriate means of ascertaining the will of the EE’s as to their choice of an exclusive bargaining representative. That there are no competing unions involved should not alter that principle, the freedom of choice of the EE’s being the primordial consideration besides the fact that the EE’s can still choose between “union” and “no union”. (George and Peter Lines vs. ALU) C. ONE-UNION, ONE-COMPANY POLICY Give a brief description on the “one-union, one-company policy” : The proliferation of unions in an ER unit is discouraged as a matter of policy unless compelling reasons exist which deny a certain and distinct class of EE’s the right to self-organization for purposes of collective bargaining. (Pagkakaisa ng mga Manggagawa sa triumph vs. Ferrer-Calleja)

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D. RATIONALE The holing of a certification election is based on a statutory policy that cannot be circumvented. The workers must be allowed to freely express their choice in a determination where everything is open to their sound judgment and the possibility of fraud and misrepresentation is eliminated. (Progressive development vs. Sec. of Labor) Venue of Petition 1. Sec. 1, Rule V, Book V, IRR’s : A petition for certification election may be filed with the Regional Office which has jurisdiction over the principal office of the ER. 2. Sec. 6, Rule V, Book V, IRR’s : Upon receipt of the petition, the regional director shall assign the case to a Med-Arbiter to appropriate action. The Med-Arbiter shall have 20-workign days from submission of the case for resolution within which to dismiss or grant the petition. 3. In case the place of work of the EE’s and the principal office of the ER are located within the territorial jurisdiction of different regional offices, may the workers file the application in their place of work? Yes. The word “jurisdiction” as used in the provision refers to venue, and venue touches more to the convenience of the parties rather substance of the case. Since the worker is more economically disadvantaged, the nearest government machinery to settle a labor dispute must be placed at his immediate disposal. (Cruzvale vs. Laguesma) 5.3 Certification Election Union as Initiating Party A. ORGANIZED ESTABLISHMENT 1. Under what conditions may the Med-Arbiter automatically order a certification election by secret ballot in an organized establishment? a. Petition questioning the majority status of the incumbent bargaining agent is filed before the DOLE within the 60-day freedom period. b. Such petition is verified. c. The petition is supported by the written consent of at least 25% of all EE’s in the bargaining unit : (Art. 256) 2. In case there are 3 or more unions contending in a certification election, what will happen if no union receives a majority of the valid votes cast? Provided that the total number of votes of all contending unions is at least 50% of the number of votes cast [that is, the contending unions got more votes than the vote for “no union”], a run-off election will be conducted between the 2 unions with the highest number of votes. (Alcantara)

25 3. A certification election was held between 3 contending unions, A, B and C. Of the 50 eligible voters, only 500 actually cast their votes. A got 220 votes, B got 242 votes and C got 30 votes, while the rest of the ballots were considered spoiled. How do you determine the majority vote in the certification election ? The majority vote in the certification election is 50% plus 1 of the valid votes cast. Spoiled ballots are excluded. (Id.) A.1 Definition What is an organized establishment? It is a firm or company where the EE have selected an exclusive bargaining representative or where there is a CBA duly submitted to the DOLE. (Sec. 6, Rule V, Book V, IRR’s) Freedom period 1. When may a petition for certification be filed in an organized establishment? A petition for certification election may be filed during the last 60 days (freedom period) of the CBA. Any petition filed before or after the 60-day freedom period shall be dismissed outright. (Sec. 3, Rule V, Book V, IRR’s) 2. Is the freedom period affected by any amendment, extension or renewal of the CBA? No. The 60-day freedom period based on the original CBA, shall not be affected by any amendment, extension or renewal of the CBA for purposes of certification election. (Sec. 6, Rule V, Book V, IRR’s) 3. May a new CBA executed by the incumbent exclusive bargaining representative and the company, and ratified during the 60-day freedom period be considered a bar to the certification election? No. The representation case shall not be adversely affected by a CBA registered before or during the last 60 days of a subsisting agreement or during the pendency of the representation case. (Sec. 4, Rule V, Book V, IRR’s) A.3 Filing Party 1. Among the legal requirements before a petition for certification election may be ordered by the Med-Arbiter is that the petitioning union must be a legitimate labor organization in good standing. (Lopez Sugar vs. Sec. of Labor) 2. May a federation file such a petition in behalf of its chapter or local? The mother federation may file a petition for certification as agent of the local or chapter provided both the mother federation and the local or chapter is a legitimate labor organization. (Progressive Development vs. Sec. of Labor) A.4 Signature verification It is the Director of Labor Relations, rather than a union that is required to determine whether there has been compliance with the requirement that at least 25% of all the EE’s in the bargaining consented in writing to the holding of a certification election. (Today’s Knitting vs. Noriel)

26 A.5 Substantial Support 1. What percentage of the EE’s should support the petition for certification election in an organized establishment? The required number is 25% of all the EE’s in the bargaining unit. 2. Is there a need simultaneous submission of the signatures together with the petition for certification election? No. The mere filing of a petition for certification election within the freedom period is sufficient basis for the issuance of an order for holding of a certification election subject to the submission of the consent signatures within a reasonable period of time. (PWUP vs. Laguesma) 3. May a certification election be called by the Med-Arbiter although the 25% statutory requirement has not been complied with? Yes. Even conceding that the statutory requirement of 25% is not strictly complied with, the Med-Arbiter is still empowered to order that the certification election be held precisely for the purpose of ascertaining which of the contending labor organizations shall be the exclusive bargaining agent. The requirement then is relevant only when it becomes mandatory in conduct a certification election. (CMC vs. Laguesma) Once the statutory requirement is met, it is mandatory for the Med-Arbiter to conduct a certification election. (Belyca vs. FerrerCalleja) In all other instances, however, the discretion ought to be ordinarily exercised in favor of a petition for a certification election. (CMC vs. Laguesma) 4. The NFSW filed a petition for certification election. It was contended however by another union that more than 20% of the membership of NFSW disaffiliated and thus the union cannot meet the 25% support requirement. Should the petition be dismissed? If there is a y reasonable doubt as to whom the EE’s have chosen as their representative for the purpose of collective bargaining, the Bureau shall order a certification election by secret ballot. To hold otherwise would violate the liberal approach constantly followed in labor litigation. (VICMICO vs. Noriel) A.6 Motion for Intervention – Support Under the law, the requisite written consent of at least 25% of the workers in the bargaining unit applies to petition for certification election only, and not to motions for intervention. (PAFLU vs. Ferrer-Calleja) Unorganized Establishments Art. 257 : 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. A. FILING PERIOD When may a petition for certification be filed in an unorganized establishment? A petition for certification election may be filed at any time. (Sec. 3, Rule V, Book V, IRR’s)

27 ER as Initiating Party Art. 258 : When requested to bargain collectively, an ER may petition the Bureau for an election. If there is no existing CBA in the unit, the Bureau shall, after hearing, order a certification election. The certification case shall be decided within 20 working days, and the certification election shall be conducted within the 20 working days from the decision. A. ROLE ER ER has no role in certification election except when asked to bargain collectively under the “Bystander Rule.” (Philippine fruits and vegetable Industries vs. Torres) It was a well-settled rule that ER has no standing to question a certification election since it is the sole concern of the workers. (PTTC vs. Laguesma) Conducting Agency 1. Art. 226 : The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the DOLE shall have exclusive and original authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces whether agricultural or nonagricultural, except those arising from the implementation or interpretation of CBA’s which shall be subject of grievance procedure and/or voluntary arbitration. 2. The practice of the Board referring certification cases to the TUCP, a private entity, is not sanctioned by the Labor Code. (PLUM vs. Noriel) Nature of Proceeding The certification election is the most democratic and expeditious method by which the laborers can freely determine the union that shall act as their representative in their dealings with the establishment where they are working. (PWUP vs. Laguesma) It is not litigation in a sense. It is a mere investigation of a non-adversary fact-finding character in which the BLR of the DOLE plays the part of a disinterested investigator seeking merely to ascertain the desires of the EE’s as to the matter of their representative. (Airline Pilots Association vs. CIR) Certification Election – Process and Procedures Sec. 1, Rule VI, Book V, IRR’s : The Regional Division, shall cause the necessary posting of offices at least 5 working days before the actual date of election in 2 most conspicuous places in the company premises. A.1 Waiver The execution of an agreement to waive the mandatory 5 days posting election notices binds the parties thereto by the doctrine of estoppel. (JISSCOR vs. Torres) B. VOTING LIST AND VOTER

28 B.1 All EE’s 1. Only EE’s who are directly employed by the ER and working along the activities to which the ER is engaged and linked by ER-EE relationship are qualified to participate in the certification election “irrespective of the period of their employment.” (Eastland Manufacturing vs. Noriel) 2. Are EE’s prohibited by their religion to be members of a labor organization be allowed to vote in a certification election? Yes. The plainly discernible intendment of the law is to grant the right to vote to all bona fide EE’s in the bargaining unit, whether they are members of a labor organization or not. (Reyes vs. Trajano) B.2 Dismissed EE’s EE’s who have been improperly laid-off but who have a present, unabandoned right to the expectation of reemployment, are eligible to vote in certification elections. (Phil. Fruits and Vegetables Industries vs. Torres) B.3 Probationary EE’s Probationary EE’s in the appropriate bargaining unit are entitled to vote. (Airtime Specialists vs. Director of Labor Relations) C. VOTING DAY 1. Sec. 2, Rule VI, Book V, IRR’s : The election shall be set during the regular business day of the company unless otherwise agreed upon by the parties. 2. May a party to a certification election contend that the election was not held on a regular business day due to the occurrence of a strike that day? No. While it may have affected the actual performance of work, by some EE’s, it did not necessarily make said date an irregular business day of the company. (Asian Design vs. Ferrer-Calleja) D. PROTEST 1. When should a protest be raised? a. On-the-spot during the conduct of the election. b. Before the close of proceedings with the representation officer. Protests not so raised are deemed waived. Such protest shall be contained in the minutes if the proceedings. (Sec. 3, Rule VI, Book V, IRR’s) The protest should be formalized with the Med-Arbiter within 5 days after the close of the election proceedings, otherwise the protest shall be deemed dropped. (Sec. 4, Rule VI, Book V, IRR’s) E. APPEAL Art. 259 : Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Sec. of Labor and Employment on the ground that the rules and regulations established by the Sec. have been violated.

29  Such appeal shall be decided within 15 calendar days. F. ANNULMENT Circumstances showing irregularities in the holding of the certification election are sufficient to invalidate the same. (Confederation of Citizens LaborUnion vs. Noriel) 5.4 Certification of Designated Majority Union Majority Union Art. 255 : The labor organization designed or selected by the majority of the EE’s in the appropriate collective bargaining unit shall be the exclusive representative of the EE’s in such unit for the purposes of collective bargaining. 5.5 Bars to Certification Election One year Bar Rule (Certification year) A. GENERAL RULE Sec. 3, Rule V, Book V, IRR’s : No certification election may be held within 1 year from the date of issuance of a final certification result. The phrase “final certification result” means that there was an actual conduct of election. In case where there was no certification election conducted precisely because the first petition was dismissed, on the ground of a defective petition, the certification year bar does not apply. (R. Transport vs. Laguesma) B. EXCEPTIONS A petition for certification election may be entertained where unusual circumstances exist. A circumstance would be unusual or out of the ordinary if it affects the structure, functions or membership of the contracting union i.e. the number of EE’s in the appropriate bargaining unit has more than doubled since the last certification election. (Azucena) Deadlock Bar Rule What is the deadlock bar rule? A petition for certification election can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration of which has become the subject of a valid notice of strike or lockout. (NASUCIP-TUCP vs. Trajano) A. NO DEADLOCK Bargaining deadlock presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties. (Divine World vs. Sec. of Labor) Contract Bar Rule 1. What is the contract bar rule? The existence of a CBA duly filed and submitted to the DOLE, in compliance with the requirements and

30 standards of the said office bars a certification election in the collective bargaining unit except within the 60 days prior to the expiration of the life of such contract. (Foamtex Labor Union vs. Director of Labor Relations) 2. Give the statutory recognition of the contract bar rule : The Bureau shall not entertain any petition for certification election which may disturb the administration of duly registered existing CBA’s affecting the parties. (Art. 232) 3. The exclusive bargaining union entered into a 5-year CBA with the company. Because of intra-union conflict the ratified CBA was only registered with the DOLE 3 months after it was ratified. A month later, another union filed a petition for certification election. The petitioning union contends that the contract was registered beyond the 30-day period prescribed by Art. 231. Is the petition barred by the contract bar rule? Yes. Non-compliance with the procedural requirements of Art. 231 should not adversely affect the substantive validity of the CBA. A CBA is more than a contract. It is highly impressed with public interest for it is an essential instrument to promote industrial peace. To set it aside o technical grounds is not conducive to the public good. (TUCP vs. Laguesma) 4. Company A signed a 3-year CBA with Union X, the duly authorized bargaining representative. The CBA was never formally ratified by the EE’s, although they all accepted and enjoyed the benefits under the CBA. 18 months after the CBA was signed, Union Y filed a petition for certification election. Will the petition of Union Y prosper? No. While there was no express ratification by the EE’s, the fact that they received the benefits is an implied ratification of the CBA. The nonsubmission of a copy of the CBA to the DOLE is a mere formal requirement which should not prevent the application of the “contract bar” rule. (Alcantara) A. DEFECTIVE CBA The contract bar rule does not apply when the CBA which is the basis of the rule is defective. (ALU vs. Ferrer-Calleja) B. INCOMPLETE CONTRACT To be a bar to a certification election, the CBA must be adequate in that it comprises substantial terms and conditions of employment. (Buklod ng Saulog vs. Casalia) C. HASTILY CONCLUDED CBA 1. 8 months prior to the expiration of the CBA, the company and the union renewed the same for another 3 years. Can the renewed CBA be set up as a bar to the holding of the certification election? If the CBA is prematurely renewed, such is not a bar to the holding of a certification election. The ER and a friendly union can not by the mere expedient of prematurely renewing their CBA, effectively deprive the

31 workers of their right to freely select their bargaining agent. (General Textiles Allied Workers Association vs. Director of Labor Relations) 2. ALU had a CBA with PASAR. Several days before the expiration of the CBA NAFLU filed a petition for certification election. During the pendency of the representation case, the Med-Arbiter enjoined PASAR from entering into a CBA with any union. However, ALU and PASAR concluded a CBA. Is the new CBA a bar to certification election? No. The CBA was hastily concluded, showing that the parties were in bad faith when they concluded the CBA. (ALU vs. Ferrer-Calleja) D. CBA THAT DOES NOT FOSTER STABILITY More than half of the members of a union resigned from it to form another union. It later filed a petition for certification election within the 60day freedom period. Meanwhile the old union and the company entered into a new CBA. Is the contract bar rule applicable? No. It is doubtful if any contract that may have been entered into between ALU and the company will foster stability in the bargaining unit in view of the substantial number of EE’s that have resigned from the old union and joined the new union. (Firestone vs. Estrella) E. EXCEPTION Deviation from the contract bar rule is justified only where the need for industrial stability is clearly shown to be the imperative. (PWUP vs. Laguesma) F. VALIDITY OF CBA SIGNED DURING REPRESENTATIONS DISPUTE When a CBA is entered into at the time when a petition for certification election had already been filed by a union and was then pending resolution, the said CBA cannot be deemed permanent, precluding the commencement of negotiations by another union with management. (ATU vs. Trajano) 5.6 Suspension of Certification Election Prejudicial Question Rule 1. United CMC Textile Workers filed a complaint for unfair labor practice against CENTEX and PAFLU, alleging the CENTEX helped and cooperated in the organization of PAFLU. During the pendency of the case, PAFLU filed a petition for certification election. May the certification election be suspended pending the determination of the case? Yes. Pendency of a formal charge of company domination is a prejudicial question that bars proceedings for certification election. (United CMC Textile Workers vs. BLR) 2. Who can file and maintain an opposition to the holding of the certification election based on a charge of company domination? Only the union who made the charge since it is the entity that stands to lose and suffer prejudice by the certification election. (Id.)

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What if there is a pending unfair labor practice charge by the ER against the union. Can this stay the certification election? No. (Barrera vs. CIR) 3. What kind of charge of company domination will not suspend the certification proceedings? A charge that is flimsy, made in bad faith or filed purposely to forestall the certification election. (Id.) 5.7 Effect of Pending Petition for Cancellation of Trade Union registration An order to hold a certification election is proper despite the pendency for cancellation of the registration certificate of union which is a party to the representation dispute. The rationale for this is that all the time the respondent union filed its petition, it still had the legal personality to perform such act absent an order directing a cancellation. (Association of CA EE’s vs. Ferrer-Calleja) Section 6. Collective Bargaining, Process, Procedures and Issues 6.1 General Concepts 1. What is collective bargaining? Collective bargaining has been defined as the process of negotiation between an ER or ER’s and the EE’s organization or union to reach an agreement on the terms and conditions of employment for a specified period. It covers the entire range of organized relationships between ER’s and EE’s represented by union, this includes the negotiation, administration, interpretation or application of the labor contract. (Alcantara) 2. What are the most important aims or aspects of collective bargaining? The most important aims are : a. To establish industrial peace by enabling capital and labor to resolve their disputes and controversies on terms mutually acceptable and satisfactory to themselves. b. To enhance industrial efficiency through speedy resolution of labor disputes concerning fixing of wages, working hours and other terms and conditions of contracts incorporating such agreements, and the adjustment or settlement of any grievance arising thereunder. c. To establish benefits of labor higher or greater than those fixed by law. The various aspects are : d. The duty of the parties to bargain and negotiate on proposals concerning wages, working hours and other terms and conditions of employment. e. The duty of the parties to adhere to statutory standards of good faith, promptness and expeditious actions. f. The duty to refrain from unilateral changes concerning matters subject to bargaining.

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g. In case there is an existing CBA, the duty to adhere faithfully to its terms and not terminate or modify the same during its period of effectivity. (Alcantara) 3. What is the nature and purpose of collective bargaining? Collective bargaining is a democratic framework to stabilize the relation between labor and management to create a climate of sound and stable industrial peace. It is a mutual responsibility of the ER and the union and is their legal obligation. (loy vs. NLRC) 4. What are the bargaining?

jurisdictional

preconditions

of

collective

The mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are present : a. Possession of the status of majority representation of the EE’s representative in accordance with any of the means of selection or designation provided by the Labor Code. b. Proof of majority representation. c. Demand to bargain under Art. 250. (Id.) 6.2 Bargainable Issues Obligation to Negotiate Mandatory Bargaining Subjects 1. It is the obligation of the ER and the EE’s representative to bargain with each other with respect to “wages hours and other terms and conditions of employment”. They are statutory of “mandatory” proposals requiring the party to whom they are made to bargain in good faith concerning them. (Azucena) However, the law does not compel agreements between ER’s and EE’s and neither party is obligated to yield even on a mandatory bargaining subject, for as long as they bargain in good faith. (Id.) 2. What are considered mandatory subjects of bargaining? a. Wages and other types of compensation b. Working hours c. Vacations and holidays d. Bonuses e. Pensions and retirement plans f. Seniority g. Transfer h. Lay-off i. EE’s workloads j. Work rules and regulations k. Rent company houses l. Union security arrangements (Azucena) m. No-Lockout Clause n. Clause fixing contractual term.

34 Non-Mandatory Subjects 1. The right to bargain on a non-mandatory subject does not include to right to insist on the inclusions of the non-mandatory subject in the CBA as a condition to any agreement. (Azucena) 2. Give a. b. c.

some examples of non-mandatory subjects : Management prerogative clauses. Union discipline clause. Arbitration, strike vote or no-strike clauses.

6.3 Bargaining Procedure Private Procedure Art. 251 : In the absence of the CBA, it shall be the duty of the ER and the representatives of the EE’s to bargain collectively. Code Procedure Describe the procedure in collective bargaining : In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, the following procedures shall be observed : 1. When a party desires to negotiate an agreement, it shall serve a written notice upon the other with a statement of its proposals. The other party shall make a reply thereto not later than 10 calendar days from the receipt of such notice. 2. Should difference arise on the basis of such notice and reply, either party may request a conference which shall begin not later than 10 calendar days from date of request. 3. If the dispute is not settled, the Board shall intervene upon request of either or both parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call. 4. During the conclusion proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the dispute. 5. The Board shall exert efforts to settle disputes amicably and encourage the parties to submit their case to voluntary arbitration. (Art. 250) 6. The parties shall at the request of either of them, make available such up-to-date financial information on the economic situation of the undertaking, as is material and necessary for meaningful negotiations. Where the disclosure of some of the information could be prejudicial to the undertaking, its communication may be made condition upon a commitment that it would be regarded as confidential to the extent required. (Sec. 5, Rule XIII, Book V, IRR’s) 7. Information and statements made at conciliation proceedings shall be treated as privilege communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in

35 any court or body regarding any matters taken up at conciliation proceedings conducted by them. (Art. 233) 8. The agreement negotiated by the EE’s bargaining agent should not be ratified or approved by the majority of all the workers in the bargaining unit. (Art. 231) [Ratification in not needed when the CBA is a product of an arbitral award. The arbitral award may result from voluntary arbitration or from the secretary’s assumption of jurisdiction or certification of the dispute to the NLRC. (Azucena)] A. NATURE OF PROCEDURE Collective bargaining does not end with the execution of an agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation “ to meet and confer promptly and expeditiously and in good faith for the purpose of adjusting any grievances or question arising under such agreement. (RSB vs. CIR) Duty to Bargain Explain the meaning of the duty to bargain effectively : The duty to bargain collectively means the performance of a mutual obligation to meet and confer promptly and expeditiously and in good faith 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 grievances or questions arising under such agreement and executing a contract incorporating such agreement if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession. (Art. 252) In case there is an existing collective contract, the duty shall include the obligation to adhere faithfully to its terms and not terminate or modify the same during its period of effectivity. (Art. 253) 6.4 The CBA What is the CBA? It is a negotiated contract between a legitimate labor organization and the ER concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries. (Sec. 1, Rule VI, Book V, IRR’s) Registration - Period, Requirements and Actions Art. 231 : Within 30 days from the execution of a CBA the parties shall submit copies of the same directly to the Bureau of Regional Office of the DOLE for registration accompanied with verified proofs of its posting in 2 conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau of Regional Offices shall act upon the application for registration of such CBA within 5 calendar days from the receipt thereof. The Regional office shall furnish the Bureau with a copy of the CBA within 5 days from its submission. The Bureau shall maintain a file of all CBA’s and other related agreements and records of settlements of labor disputes and copies of orders, decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Sec. of Labor and Employment.

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Contract Beneficiaries 1. When a CBA is entered into by the union representing the EE’s and the ER, even the non-member EE’s are entitled to the benefits of the contract. (Rivera vs. SMC) 2. A CBA provides for the deduction of union dues from nonmember of the bargaining union. Is the stipulation valid? Yes. It provides for the collection of an agency fee from the members who accept and enjoy the benefits attained through the efforts of the bargaining agent. The non-union members should not be unjustly enriched at the expense of the bargaining agent. (Alcantara) 3. How about if the stipulation was not provided for in the CBA but was merely requested by the bargaining union from the ER? The stipulation is still valid. EE’s of an appropriate collective bargaining unit who are not members of the recognized collective agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such union members accept the benefits under the CBA. The individual authorization required under Art. 241 shall not apply to the non-members recognized collective bargaining agent. (Art. 248) The law does not impose as a condition for the collection of the agency fee that the same be provided in the CBA, the basis of the union’s right to the agency fee is quasi-contractual, not contractual. (Alcantara) 4. The CBA negotiated by union Y provides for wages to EE’s in the production and maintenance department. To avoid discrimination, the company also granted the increases to EE’s in the administrative and sales department. Union Y now demands an agency fee from the EE’s of these departments. Is such demand valid? No. In the 1st place, the EE’s in the latter 2 departments do not belong to the bargaining unit covered by the agreement. In the 2nd place, the wage increases were not obtained through the efforts of union Y. (Id.) Contract Administration and Enforcement A. NATURE OF CONFLICT 1. While the terms and conditions of a CBA constitute the law between the parties, it is not, however, an ordinary contract to which is applied the principles of law governing ordinary contracts. A CBA, as a labor contract within the contemplation of Art. 1700, NCC which governs the relations between labor and capital, is not merely contractual in nature but impressed with public interest, thus it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and the purpose which it is intended to serve. (Davao Integrated vs. Abarquez) However, like ordinary contracts, ignorance of its terms by either party, including the EE’s who are principals of the bargaining union, will not justify the breach of the contract. (Manalang vs. Artex) 2. The CBA was not formally ratified by the majority of the workers in the bargaining unit. However, the workers received and enjoyed the

37 benefits under the CBA. Can the EE’s later on have the contract invalidated for lack of formal ratification? No. The EE’s have already enjoyed benefits from it. They cannot receive benefits under provisions favorable to them and later insist that the CBA is void simply because other provisions turn out not to the liking of certain EE’s. (Planters Product vs. NLRC) 3. Are wage increases paid by the ER pursuant to laws and wage orders compliance with the wage increases provided for under a CBA? No. In the absence of a provision of law or the CBA to the effect that benefits provided by the former encompass those provided by the latter, benefits derived from either law or a contract should be treated as separate from each other. A CBA is a contractual obligation imposed by law. EE benefits derived from law are exclusive of benefits arrived through negotiation and agreement unless otherwise provided by the agreement itself or by law. (Meycauayan College vs. Drilon) B. GRIEVANCE PROCEDURE – DISPUTE SETTLEMENT: ISSUES AND INDIVIDUAL GRIEVANCE 1. Art. 260 : The parties to the CBA shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish machinery for the adjustment and resolution of grievances arising from the interpretation of their CBA and those arising from the interpretation or enforcement of company personnel police. All grievances submitted to the grievance machinery which are not settled within 7 calendar days from its date of submission shall automatically be referred to voluntary arbitration prescribed in the CBA. 2. Art. 225 : However, an individual EE or group of EE’s shall have the right at any time to present grievances to their ER. 3. J, a member of a union has been certified as the sole and exclusive bargaining representative of the EE’s, sends a letter to management requesting, in view of inflation, for an increase in his wages. Is this allowed? Yes. Although there may be an exclusive bargaining agent, an individual EE or group of EE’s have the right to present grievances to their ER. It would have been different if J demanded for wage increases for the other EE’s. (Alcantara) C. CONTRACT DURATION AND RENEWALS 1. Art. 253-A : a. Any CBA that the parties may enter into shall, insofar as the representation aspect is concerned; be for a term of 5 years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the DOLE outside of the 60-day period immediately before the expiry date of the CBA.

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b. All other provisions of the CBA shall be renegotiated 3 years after its execution. c. Any agreement on such other provisions of the CBA entered into within 6 months from the date of expiry of the term of such other provisions in the CBA, shall retroact to the day immediately following such date.  If any such agreement is entered into beyond 6 months, the parties shall agree on the duration of retroactivity thereof. 2. Contract continue to have legal effects even after its expiry date, until a new CBA is renegotiated and extended into. (Lopez Sugar Corporation vs. FFW) 4. Union A and Co. B concluded a CBA with a duration of 3 years. Upon the expiration of the 3-year period, Co. B discontinued to benefits under the CBA. Is this legal? No. Art. 253 requires the parties to keep the status quo and discontinue in full force, and effect until a new agreement is reached. (Alcantara) D. CBA AND 3RD PARTY APPLICABILITY Unless expressly assumed, labor contracts such as employment contracts and CBA’s are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between parties. As a general rule, there is no law requiring a bona fide purchaser of assets of an ongoing concern to absorb in its employ the EE’s of the latter. However, although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the EE’s of the seller of such assets or enterprise the parties are liable to the EE’s if the colored or clothed with bad faith. (ALU vs. NLRC) E. CBA AND THE SEC. OF LABOR AND EMPLOYMENT May the parties be required by the Sec. of Labor and Employment to execute a CBA embodying terms and conditions that the latter may determine? Yes. This is pursuant to the power of compulsory arbitration vested in the Secretary. (Art. 263) Section 7. Unfair Labor Practice 7.1 Introductory Concepts Give the concept of unfair labor practice under the Labor Code : Unfair labor practices 1. Violate the constitutional right of workers and EE’s to Self-organization 2. Are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect. 3. Disrupt industrial peace.

39 4. Hinder the promotion of healthy and stable labor management relations. (HIDS) 7.2 Requisite Relationship Conditions precedent to an Unfair Labor Practice What are the conditions precedent to an unfair labor practice charge? 1. The injured party comes within the definition of “EE” as that term is defined by the Code. 2. The act charged as unfair labor practice must fall under Art. 248 or 249. 7.3 No Unfair Labor Practice : Illustrative Instances of Valid Exercise of Management Rights Personnel Movements 1. As a rule, it is the prerogative of the company to promote, transfer or even demote its EE’s to the other positions when the interests of the company reasonably demand it. Unless there are instances which directly points to interference by the company with the EE’s rights to self-organization, the transfer of an EE should be considered as within the bounds allowed by law. (Rubberworld vs. NLRC) 2. 9 teachers were hired by a school on a yearly basis. The nine are members of a union. After their 2nd yearly contract, the school refused to renew their contract on the ground that their teaching performances were not satisfactory. Is the refusal unfair labor practice? No. The refusal was not by reason of their union membership but by reason of their poor teaching performances. (Bilboso vs. Victorias Mining) Grant of Profit-Sharing Benefits to Non-Union Members It is the prerogative of management to regulate, according to its discretion and judgment, all aspects of employment. Such management prerogative may be availed of without fear of any liability so long as it is exercised in good faith for the advancement of the ER’s interest and not for the purpose of defeating or circumventing the rights of EE’s under special laws or valid agreement and are not exercised in a malicious, harsh oppressive, vindictive or wanton manner or out of malice or spite. (Wise vs. Wise EE’s Union) Forced Vacation Leave The forced vacation leave without pay in view of the economic crisis, being neither malicious, oppressive or vindictive, does not constitute unfair labor practice. (Philippine Graphic vs. NLRC) Issuance of Rules or Policy Every business enterprise endeavors to increase its profits. In the process, it may adopt or devise means designed towards that goal. (SMC vs. Ople)

40 Taking Action Against Slowdown EE’s have the right to strike, but they have no right to continue working while rejecting the standards desired by their ER. Hence, the ER does not commit as unfair labor practice by discharging EE’s who engaged in slowdown, even if their object is a pay increase and therefore is lawful. (Azucena) EE Discipline The dismissal of a union member because of threats made against the life of the ER and there being evidence that more active members of the union were retained is not an unfair labor practice. (PTUC vs. CIR) Closed Shop Agreements Dismissal of an EE upon demand of a union pursuant to a closed shop agreement is not an unfair labor practice. (Lirag Textile vs. Blanco) 7.4 Unfair Labor Practice of ER’s Restraint, Interference or Coercion Art. 248 : It shall be unlawful for the ER to interfere with, restrain or coerce EE’s in the exercise of their right to self-organization. 1. Although experience has shown that certain forms of conduct, however disguised, either directly or indirectly result in actual interference with or intimidation of EE’s in exercising their rights, to distinguish between culpable “interference” from an innocent and non-interfering course of conduct is often difficult. Interference with EE organizational rights was found where the superintendent of the ER threatened the EE’s with cutting their pay; increasing rent of the company houses, or closing the plant if they supported the union and where the ER encouraged the EE’s to sign a petition repudiating the union. (Azucena) A. INTERROGATION In order that questioning of an EE concerning his union activities would not be deemed coercive, the ER must communicate to the EE the purpose of the questioning, assure him that no reprisal would take place, and obtain his participation on a voluntary basis. In addition, questioning must also occur in a context free from ER hostility to union organization and must not itself be coercive in nature. (Id.) B. PROHIBITING AND INTERFERING IN ORGANIZING ACTIVITIES Give instances of unfair labor practice in the form of prohibitions against union organizing activities : 1. Rule prohibiting solicitation of union membership in company property during non-working and working time. (Id.) But if the prohibition is merely during working hours, this is not unfair labor practice since the ER has the prerogative of promulgating rules and enhance production within its premises during working hours. (Alcantara)

41 2. Dismissal of union members upon their refusal to give up their membership, under pretext of retrenchment due to reduced dollar allocations. (Manila Pencil Co. vs. CIR) 3. Refusal over period of years to give salary adjustments according to improved salary scales in the CBA’s. (Benguet Consolidated vs. BCI EE’s Union) 4. Dismissal of an old EE allegedly for inefficiency, on account of her having joined a union and engaging in union activities. (East Asiatic vs. CIR) 5. Issuance of suspension and termination orders for EE’s participating in a verification election. (Gochangco Workers Union vs. NLRC) 6. Dismissal of EE’s who refused to resign from their union and to affiliate with another one which was formed at the instance of the ER. (Progressive Development vs. CIR) 7. C, the duly elected president of the union, was dismissed by the company for allegedly threatening the lives of 4 EE’s. It was however established that he was very active in union affairs and that he was dismissed a day after his union sent collective bargaining proposals to the company; and that C, had no reason to threaten the 4 EE’s. (Royal Undergarment vs. CIR) 8. Refusal to renew teaching contracts of teachers because of fear of the school that there will be a strike the succeeding semester. (RizalMemorial Colleges Union vs. NLRC) C. VIOLENCE OR INTIMIDATION Violation must have been found where the ER threatened EE’s favoring the union with force or violence. (Azucena) In another case, the ER was found guilty of unfair labor practice when 2 EE’s were provoked into a fight by 2 recently hired EE’s pursuant to a strategy of the company designed to provide an apparent lawful cause for their dismissal and said dismissed EE’s had not figured in similar incidents before or violated company’s rules in their many years with the company. (Visayan Bicycle vs. NLU) D. ESPIONAGE AND SURVEILLANCE One form of “pressure” which some over-eager ER’s sometimes use is the practice of spying upon EE’s. Inasmuch as the “pressure” results more from the EE’s apprehension than from the ER’s purpose in spying, and the use of its results, it has been held to be no answer to a charge of unfair labor practice that the fruits of espionage were not used. When an ER engages in surveillance or takes steps leading his EE’s to believe it is going on, a violation results because the EE’s come under threat of economic coercion or retaliation for their union activities. (Azucena) E. ECONOMIC INDUCEMENTS 1. A violation results from an ER’s announcements of benefits prior to a representation election, where it is intended to induce the EE’s to vote against the union. (Id.)

42 2. While a strike is going on, the president of the company sent each worker a letter stating among others that if the latter returned to work, he can have his meals within the office, make a choice whether to go home at the end of the day or to sleep nights at the office, enjoy free coffee and occasional movies. Is the writing of the letter unfair labor practice? Yes. The letter tends to undermine the concerted activity of the EE’s, an activity which they are entitled free from the ER’s molestation. (Insular Life EE’s Association vs. Insular Life) F. EXPRESSION OF ANTI-UNION OPINION If the ER evinced willingness to be guided by and to accept the EE’s choice, criticism or depreciating remarks made by the ER concerning a particular labor union or labor unions generally did not constitute an unfair labor practice, provided, of course, the remarks were not so hostile as to evidence or produce a coercive or intimidating purpose or effect. (Azucena) F.1 Totality of Conduct Doctrine The culpability of ER’s remarks were to be evaluated not only on the basis of their implicit implications, but were the be appraised against the background for and in conjunction with the collateral circumstances i.e. history of particular ER’s labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference. (Id.) G. MASS LAY-OFF 1. A company’s capital reduction efforts, a subterfuge, a deception, to camouflage the fact that it has been making profits and to justify mass lay-off of its EE ranks, especially of union members, were an unfair labor practice. (Madrigal and Company vs. Zamora) 2. There is unfair labor practice in the lay-off of a bank of 65 EE’s who were active union members allegedly by reason of retrenchment, although the bank was not suffering any losses. (People’s Bank vs. People’s Bank EE’s Union) G. LOCKOUTS, CLOSURE 1. A lockout, actual or threatened, as a means of dissuading the EE’s from exercising their rights clearly an unfair labor practice. (Azucena) 2. An ER which closes its business to put an end to a union’s activities and which made no effort to allow the EE’s attempt to exercise their right to self-organization and collective bargaining commits unfair labor practice. (Sy Chi Junk Shop vs. Federacion Obrero de la Industria) 3. Where there is a simulated sale as a device to merely get rid of the EE’s who were members of the union, the company is guilty of unfair labor practice. (Moncada Bijon Factory vs. CIR) The acquiring company created to relieve the old company of its obligations is liable for the old company’s obligations. (PLASLU vs. Sy Indong) The doctrine of “piercing the veil of corporate identity” will be utilized, to the effect, that the

43 separateness of corporate personality will be disregarded if it is being used to run away from corporate obligations. (Delfin vs. Inciong) H. RUN-AWAY SHOP The transfer of an industrial plant from one location to another in order to discriminate against EE’s at the old plant because of their union activities. (Azucena) I. REFUSAL TO HIRE STRIKING WORKERS There is unfair labor practice in the refusal of ER to reinstate strikers who abandoned their strike and who voluntarily and unconditionally offered to return to work. (Cromwell vs. CIR) Yellow Dog Contract 1. Art. 248 : It shall be unlawful for the ER to require as a condition of employment that a person or an EE shall not join a labor organization or shall withdraw from one to which he belongs. 2. What is a yellow dog contract? It is a promise exacted from workers a condition of employment that they do not belong to, or attempt to foster, a union during their period of employment. The typical yellow dog contract contains a representation by the EE that he is not a member of a labor union and a promise by him not to join a labor union or upon joining a union to quit his employment. (Alcantara) 3. X, a member of a union, applied for employment with Y Co. The union is not among the unions in the bargaining unit. He was told by the personnel manager that he cannot be employed unless he resigned from his union. X refuses to do so. He was not hired. Is this unfair labor practice? Yes. This is an example of an exaction of a yellow dog contract. The defense that X is not yet an EE of Y is not tenable since the unfair labor practice covered by a “yellow dog” contract may be committed against a prospective EE. (Alcantara) Contracting Work Out 1. Art. 248 : It shall be unlawful for an ER to contract out services or functions being performed by union members when such will interfere with, restrain or coerce EE’s in the exercise of their rights to selforganization. 2. Shell dissolved its security guard section, transferred 18 guards to other departments and eventually dismissed them, then contracted out to an independent security agency. Such section was among the departments covered by the existing CBA. In the absence of an express reservation in the CBA of Shell’s right to abolish the section, did the ER commit unfair labor practice? Yes. The dissolution of a section is a violation of the CBA, the terms of which cannot be unilaterally disregarded by either party. Shell should have specifically reserved its right to dissolve the section; a statement of management prerogatives couched in general terms is not sufficient. (Shell Oil vs. Shell)

44 Company Dominated Union 1. Art. 248 : It shall be unlawful for an ER to initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial aid or other support to it or its organizers or supporters. 2. What are the various manifestations of domination of labor union? a. Initiation of the company union idea. b. Financial support to the union. c. ER encouragement and assistance i.e. immediately granting the union exclusive recognition as a bargaining agent without determining majority representation. d. Supervisory assistance i.e. solicitation of membership. (Philippine American Cigarette Factory Union vs. Philippine American Cigarette Factory) Discrimination 1. Art. 248 : It shall be unlawful for an EE to discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. [Discouraging membership in a labor organization includes not only discouraging adhesion to union membership but also discouraging participation in union activities such as a legitimate strike. (Azucena)] 2. Give some examples of discrimination resulting in unfair labor practices : a. Discrimination in work quota between members and nonmembers of union. (AHS/Philippines EE’s Union vs. NLRC) b. Discrimination in dissemination of bonus allocation of salary adjustments between members and non-members of union contrary to previous practice of dividing equally the percentage of net profits. (Manila Hotel vs. CIR) c. Even where business conditions justified a lay-off of EE’s, unfair labor practices in the form of discriminatory dismissal were found where only unionists were permanently dismissed while nonunionists were not. (Manila Pencil vs. CIR) d. Discrimination in regularization between old EE’s who were members of union and new EE’s who were non-members. The new EE’s were immediately given permanent appointments after their hiring. (Manila Railroad vs. Kapisanan ng mga Manggagawa sa Manila Railroad) e. Indirect discrimination i.e. the discharge of an EE due to the union activities of wife, brother or husband. (Azucena) 3. What is the test of discrimination to be considered unfair labor practice? It is necessary that the underlying reason for the discharge be established. The fact that a lawful cause for discharge is available is not a defense where the EE is actually discharge because of his union activities. If the discharge is actually motivated by a lawful reason, the fact that the EE is engaged in union activities at the time will not lie

45 against the ER and prevent him from the exercise of his business judgment to discharge an EE for cause. (Id.) 4. A company considers one factor for promotion the fact that an EE is Ilocano. Assuming this is discriminatory, is this unfair labor practice? No. Only such act as would interfere with the EE’s right to selforganization, encourage or discourage membership in a labor organization, or discriminate against an EE of having given or being about to give testimony under the Code are considered unfair labor practices. The said provisions, being penal in character, should be strictly construed. (Alcantara) Violation of Duty to Bargain 1. Art. 248 : It shall be unlawful for an ER to violate the duty to bargain collectively as prescribed by this Code. 2. While the law does not compel the parties to reach an agreement, it does contemplate that both parties will approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement. (Kiok Loy vs. NLRC) 3. ALU was certified as the bargaining agent of Balmar Farms. Balmar subsequently received a letter by the president of the union of its workers that they wanted to negotiate directly with the company and not through ALU. Because of this, Balmar refused to negotiate with ALU. Is this unfair labor practice? Yes. ALYU has been certified as the exclusive bargaining agent, and it is not for Balmar to question which group in the bargaining representative of its workers. (Balmar farms vs. NLRC) Testimony of EE Art. 248 : It shall be unlawful for an ER to dismiss , discharge or otherwise prejudice or discriminate against an EE for having given or being about to give testimony under this Code. Negotiation or Attorneys Fees Art. 248 : It shall be unlawful for an ER to pay negotiation of attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute. Violation of CBA 1. Art. 248 : It shall be unlawful for an EE to violate a CBA. 2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer be treated an unfair labor practice and shall be resolved as grievances under the CBA. 7.5 Unfair Labor Practice of Labor Organizations Restraint or Coercion by Labor Organization 1. Art. 249 : It shall be unfair labor practice for a labor organization to restrain or coerce EE’s in the exercise of their right to self-organization. 2. The provision is violated by a union’s restraining or coercing an EE in the exercise of his right to refuse to participate or recognize a strike

46 i.e. blocks their ingress and egress from the plant or damages their automobiles. (Azucena) Discrimination 1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to cause an ER to discriminate against an EE, including discrimination against an EE with respect to who, membership in such organization has been denied or to terminate an EE on any ground other than the usual terms and conditions under which membership is made available to other members. 2. The union may not arbitrarily use the union security clause to unjustly discriminate against non-members of the union. (Salunga vs. CIR) 3. Due to negligence of a mother federation in attending to a case filed by its local against the ER, 32 out of the 36 members of the local union signed a resolution of disaffiliation from the mother federation. The federation demanded dismissal of the union members pursuant to the maintenance of membership clause in the CBA. Thereafter, the union members were dismissed. Is there unfair labor practice? Yes. The union members were dismissed by reason of their freedom to disaffiliate. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills) 4. What is the liability of the ER and the mother federation? The company’s liability should be limited to reinstatement considering that the dispute revolve around the mother federation and its local. The mother federation at whose instance the workers were dismissed, should be held liable for payment of backwages. (Id.) Refusal to Bargain Art. 249 : It shall be unfair labor practice for a labor organization to violate the duty, or refuse to bargain collectively with the ER, provided  it is the representative of the EE’s. Featherbedding and Make-Work Arrangements 1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to cause an ER to deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed including the demand for free for union negotiations. 2. Define featherbedding : Name given to EE practices which create or spread employment by “unnecessarily” maintaining or increasing the number of EE’s used, or the amount of time consumed to work on a particular job. (Azucena) 3. A union in a company declares a strike to compel the ER to assign 2 checkers to 1 container. If it can be established that only 1 checker is needed for a container, has the union committed in unfair labor practice? Yes. The union is guilty of featherbedding.

47 Negotiation Fees Art. 249 : It shall be unfair labor practice for a labor organization to ask for or accept negotiations or attorneys fees from the ER’s as part of the settlement of any issue in collective bargaining or any other dispute. Violation of CBA 1. Art. 249 : It shall be unfair labor practice for a labor organization to violate a CBA. 2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA. {“Gross Violations of a CBA”] “ Flagrant and/or malicious refusal to comply with the economic provisions of such agreement. (Alcantara) 7.6 Enforcement, Remedies and Sanctions Parties Liable for Acts 1. Who may commit an unfair labor practice? The ER or a labor organization may commit unfair labor practices. (Id.) 2. In case the ER committing the unfair labor practices is a corporation, association or partnership, who may be held criminally liable? Only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified the unfair labor practices shall be held criminally liable. (Art. 248) 3. Who may be held criminally liable for the unfair labor practices committed by labor unions? Only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified the unfair labor practices shall be held criminally liable. (Art. 249) Prosecution and Prescriptive Period A. CIVIL ASPECT 1. Art. 247 : Subjects to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Arts. 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters.  The Labor Arbiters shall revolve such cases within 30 days from the time they are submitted for decision.  Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. 2. Art. 290 : All unfair labor practices shall be filed with the appropriate agency within 1 year from the accrual of such unfair labor practice, otherwise, they shall be forever barred.

48 B. CRIMINAL ASPECT 1. Art. 247 : No criminal prosecution may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the administrative proceedings. During the pendency of the administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted. The final judgment in the administrative proceeding shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. 2. Art. 290 : All unfair labor practices shall be filed with the appropriate agency within 1 year from the accrual of such unfair labor practice, otherwise, they shall be forever barred. 3. Art. 228 : The criminal charge shall fall under the concurrent jurisdiction of the Municipal or regional trial Court. 4. When is an unfair labor practice deemed to be purely an administrative offense and not a criminal act? When the acts complained of hinges on a question of interpretation or implementation of ambiguous provisions of an existing CBA. (Art. 288) Compromise Unfair labor practice is not subject to compromise. (Gochangco Workers Union vs. NLRC) Relief in Unfair Labor Practice Cases What are the various forms of relief available in unfair labor practice cases? 1. Cease and Desist Order – Order served upon such person requiring him to cease and desist from such unfair labor practice. 2. Affirmative order – Directing full reinstatement of EE with back pay. 3. Disestablishment – Orders directing the ER to withdraw all recognition from a company-dominated labor union and to disestablish the same. 4. Order to bargain – Affirmative order to the respondent to “bargain” with the bargaining agent. Penalties Art. 288 : Except as otherwise provided in this Code, or unless the acts complained of hinges on a question of interpretation or implementation of ambiguous provisions of an existing CBA, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with 1. A fine of not less than P1,000.00 nor more than P10,000.00 or 2. Imprisonment of not less than 3 months or more than 3 years , or 3. Both such fine and imprisonment at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence.

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Section. 8. Union Security 8.1 Statutory Basis Art. 248 : Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition of employment, except those EE’s who are already members of another union at the time of the signing of the CBA. 8.2 Types – Union Security Provisions What are the different types of union security arrangements? 1. Closed shop – Agreement whereby an ER binds himself to hire only members of the contracting union who must continue to remain members of the union in good standing for the duration of the agreement as a for the continued employment. 2. Union shop – Only whereby an ER is permitted to employ a unionworker, but to retain employment such worker must become a union member after some period and maintain his membership therein in good standing for the duration of the agreement. 3. Maintenance and membership clause – Does not require nonmembers to join the union but provides that those who do not join must maintain their membership for the duration of the union contract, under penalty of discharge. 4. Agency shop – An agreement whereby EE’s must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by members. Distinguish closed shop from union shop : * Closed shop –  The ER cannot hire any worker who is not a member of the contracting union.  Membership in the contracting union is a condition for employment and retention of employment. * Union shop –  ER may hire worker who is not a member of the contracting union but the worker must within a specified period after his employment become a member of the contracting union.  Membership in the contracting union is a condition for continued employment. 8.3 Rationale The validity of a union security provisions is largely recognized; it is intended to make the union strong that true collective bargaining may be assured. Statutes recognizing the validity of closed shop agreements have been justified on the basis of police power. The recognition of the validity of such agreements has been held to the most prized achievement of unionism. (Juat vs. CIR) 8.4 Validity Agreement and Effect on Freedom of Choice

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A union security provision is not a restriction of the right of freedom of association guaranteed by the Constitution. (Villar vs. Inciong) 8.5 Contract Drafting and Interpretation of Provisions – Union Security 1. A CBA provides : The union shall have the exclusive right and privilege to supply the company with laborers and the company agrees to hire only such persons who are members of the union. If the union member is expelled, is the company obliged to terminate the EE’s employment? No. The stipulation does not establish a closed-shop agreement : Dismissal pursuant to a closed-shop clause must clearly appear in the CBA. (Confederated Sons of Labor vs. Anakan) 2. A CBA provides : The ER agrees to employ only members in good standing of the union. The ER, however, reserves its rights to accept or reject EE’s where they fail to meet its requirements. The ER agrees not to employ any new EE unless he is a member of good standing of the union provided such new EE meets the qualifications required by the ER. Is the ER obliged to terminate an expelled member of the union? No. The contract does not clearly prescribe the period within which the EE must remain a member of good standing of the union. And it is not clear that membership in the union is a condition for continuation or retention of employment. Stipulations of this nature are strictly construed; doubts are resolved against the existence of the right to dismiss. 8.6Closed Shop Agreement 1. When is a closed shop provision not applicable? All EE’s in the bargaining unit covered by a closed shop agreement are subject to its terms, except: a. Any EE who at the time the closed shop agreement takes effect is a bona fide member of a religious organization which prohibits its members from joining labor unions on religious grounds (Victoriano vs. Elizalde Rope Workers Union) b. EE’s already in the service and already members of a labor union or unions other than the majority union at the time the closed shop agreement took effect. (Sta. Cecilia Sawmills vs. CIR) c. Supervisors ineligible to join the majority union because of the membership therein of EE’s under their supervision. (BISCOM vs. PAFLU) d. EE’s excluded from the closed shop by express terms of the agreement. These exclusions applies to other types of union security arrangements, such as the agency shop. (National Brewery and Allied Industries Labor Union vs. SMC) 2. X union has a CBA with Y. Co. which provides “The Company undertakes not to employ anyone who is not a member of the Union

51 and to dismiss from employment any EE who resigns or is expelled from the Union.” Z, an EE, resigns from the union. By reason of the agreement, he is dismissed. Is the dismissal valid? Yes. His dismissal was effected pursuant to the closed shop provision of the CBA. The validity of such provision is recognized. (Just vs. CIR) 3. Union A wins over Union B in a certification election, then enters into a CBA with the ER. The CBA contained a closed shop provision. Is the ER obliged to dismiss the members of union? No. The closed shop agreement cannot be enforced against EE’s who are already members of another union at the time of the signing of the CBA. To compel the members of a minority union to disaffiliate from their union and join the majority or contracting union would render nugatory the right of the EE’s to self-organization. (Freeman Shirt vs. CIR) 4. The Bagong Buhay Union had with the Artex Development a CBA with a closed shop stipulation. 3 of its members affiliated themselves with another union. When being dismissed, they claimed they were unaware of the contents of the CBA. Is the contention tenable? No. Neither their ignorance, nor their dissatisfaction with the CBA would justify breach thereof or the formation by them of a union of their own. A union member who is employed under an agreement between the union and his ER is bound by the provisions thereof. (Manalang vs. Artex Development) 8.7Maintenance of Membership 1. A CBA provides : Both parties agree that all EE’s of the company who are already members of the union at the time of the signing of this agreement shall continue to remain members of the union for the duration of the agreement. 3 members of the union resigned to join a new union. They were dismissed. Is their dismissal legal? No. The contractual provision relied upon does not expressly provide that membership in the union is a condition for continued employment in order that an ER may be bound to dismiss EE’s who does not maintain their membership in the union is a condition for continued employment. In order that an ER may be bound to dismiss EE’s who do not maintain their membership in the union, the stipulation to this effect must be so clear as to leave no room for doubt. An undertaking of this nature is so harsh that it must be strictly construed and doubts must be resolved against the existence of the right to dismiss. (Manila Cordage vs. CIR) 2. About 8 months after the execution of a CBA, some union members joined another union and even filed a petition for certification election. As the CBA contained a maintenance of membership clause the bargaining agent sought the dismissal of the EE’s. Is this valid? Yes. The union members committed acts of disloyalty. When members seek the destruction of the organization to which they belong, they forfeit their right to remain as members. (Tanduay Distillery Union vs. NLRC)

52 3. Does the expiration of the CBA preclude the dismissal of the guilty unionmembers? No. The expiration of the CBA did not cleanse from them from the acts of disloyalty. They committed such acts while the CBA was in force. (Id.) 4. If the act of disloyalty was committed during the “freedom period”, could the union security clause still be enforced? No. The requirement for union members to maintain their membership is good standing ceases to be binding during the 60-day freedom period immediately preceding the expiration of the CBA. (Id.) 5. X union has a CBA with Y Co., containing a maintenance of membership clause. Due to the refusal of Z to join it, X demanded the dismissal of Z pursuant to the clause. Is this valid? No. The maintenance of membership clause only applies to EE’s who are members of the contracting union at the time of the execution of the CBA and to those who may thereafter on their own volition join the union. (Alcantara) 8.8 Financial Security – Agency Shop Art. 248 : EE’s of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the CBA. The individual authorization required under Art. 242 of this Code shall not apply to the nonmembers of the recognized collective bargaining agent. 8.9 Liabilities of Union and ER Liability of Union to Pay Wages and Fringe Benefits of Illegally Dismissed EE Where the ER compelled the EE to go on forced leave upon recommendation of the union for alleged violation of the EE of the closed shop agreement, the union is the party liable to pay the wages and fringe benefits which the EE failed to receive. The ER would not have compelled the EE were it not for the union’s insistence. (Manila Mandarin EE’s Union vs. NLRC) ER in Good Faith not Liable Where the ER dismissed his EE’s in the belief in good faith that such dismissal was required by the closed shop provisions of the CBA with the union, he may not be ordered to pay back compensation to such EE’s although their dismissal is illegal. (NLU vs. Zip Venetian Blind) Section 9 : Union Concerted Activities 9.1 Basis of Right to Engage in Concerted Activities Art. 263 : Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket

53 and of ER’s to lockout, consistent with national interest shall continue to be recognized and respected. Policy Statement In line with the policy of the State to encourage free trade unionism and free collective bargaining, workers shall have the right to engage in concerted activities for purposes of collective bargaining or for mutual benefit and protection. A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recognized in respect of ER’s. (Ilaw at Buklod ng Manggagawa vs. NLRC) 9.2 Strike Activity 1. Define a strike. It is a temporary stoppage of work by the concerted action of EE’s as a result of an industrial or labor dispute. (Art. 212) A valid strike needs a labor dispute. (Azucena) [“Labor dispute” – Any controversy or matter concerning conditions of employment or the association of representation in negotiation, fixing, maintaining, changing or arranging the conditions of employment, regardless of whether or not the stand in the proximate relations of ER’s and EE’s. (Art. 212)

terms and of persons terms and disputants

2. Fruit Canning Co. has been requiring workers to render overtime work of 5 hours everyday for the past 6 months. Due to the refusal of the ER to stop this practice, all the EE’s refused to work overtime and left the plant after working 8 hours during the day. They reported for the regular work schedule the following morning. Is this a strike? Yes. It is a temporary stoppage of work by the concerned action of the EE’s by reason of a labor or industrial dispute. A labor dispute includes any controversy or matter concerning terms and conditions of employment. (Alcantara) 3. The EE’s due to a dispute involving wages worked for only 8 hours a day instead of 10 hours in accordance with a practice which had been followed for 5 years. Is the refusal of the workers to adhere to the 10hours work schedule a strike? Yes. It is a limited or partial strike. (Id.) Nature and Purpose A strike is coercive activity resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, mush less, paralyzed. Because of this threat or danger of loss, the company gives in to the demand of the strikers, just so it can maintain continuity in production. (Philippine Can Company vs. CIR) Effect of Work Relationship EE’s who go on strike do not quit their employment. It is a mere temporary stoppage of work. The declaration of a strike does not amount to renunciation of the employment relation. The relationship of ER and EE

54 continues. (Rex Taxi vs. CIR) During a strike, the ER-EE relationship is not terminated but merely suspended as the work stoppage is not permanent but only temporary. The EE’s status during a strike remains but the effects of employment are suspended, hence, a striking EE, as a rule, is not entitled to his wage during a strike. (Azucena) Avoidance of Strikes 1. Pacific measures must first be exhausted before strikes are to be declared. Strikes and other coercive means of settling the dispute are deemed justified only when peaceful alternatives have proved unfruitful in settling the dispute. (PHILMAROA vs. CIR) 2. The union sent demands for the dismissal of a foreman on grounds that he maltreated an EE. The company refused to dismiss the foreman but reopened his case in the fiscal’s office. Because of the company’s refusal, the union went to strike. Is the strike legal? No. The demand for the dismissal had been accorded the attention it merited. (NLU vs. CIR) Protection of Strike What are the general protections of the right to strike? The right to strike is given the following protections: 1. It is generally not subject to labor injunctions or restraining order. (Art. 254) 2. EE’s may not be discriminated against merely because they have exercised the right to strike. (Art. 248) 3. The use of strike breakers is prohibited. (Art. 264) 9.3 Types, Changes and Conversion - Strikes Definitions 1. Define an economic strike – Intended to forge wage and other concessions from the ER, which is not required by law to grant. (Consolidated Labor Association vs. Marsman) Also known as bargaining strikes. 2. Define unfair labor practice strike – Called against the unfair labor practices of the ER, usually for the purpose of making him desist from further committing such practices. (Azucena) 3. Define sympathetic strike – One in which the striking EE’s have no demands or grievances of their own, but strike for the purpose of property of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers. (Id.) 4. What are the tests in determining the existence of an unfair labor practice strike? There are two tests in determining the existence of an unfair labor practice strike:

55 a. Objectively, when the strike is declared in protest of unfair labor practice which is found to have been actually committed; b. Subjectively, when a strike is declared in protest of what the union believed to be unfair labor practices committed by management, and the circumstances warranted such belief in good faith although subsequently as not committed. (Id.) It is not required that there be as such in fact unfair practice committed by the ER. It suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a strike. (Shell Oil Workers Union vs. Shell) Violations of CBA’s except flagrant and/or malicious refusal to comply with its economic provisions and shall not be considered unfair labor practice and shall be strikeable. (Sec. 1, Rule XIII, Book V, IRR’s) Change in Type An economic strike may be converted into an unfair labor practice strike, as when a strike for greater benefits is called off in anticipation of negotiations and eventual agreement but is resumed upon the commission by the ER of acts of discrimination against the leaders of the strike. (Consolidated Labor Association vs. Marsman) Non-Conversion –Strike to Lockout A strike is not converted into a lockout by the filing of notice of offer to return to work during pendency of dispute. (Rizal Cement Workers Union vs. CIR) Sympathetic Strike Because a valid strike presupposes a labor dispute, it follows that a sympathetic strike is illegal. (Azucena) 9.4 Lockout Definition Define a lockout : Lockout means that temporary refusal to any ER to furnish work as a result of an industrial or labor dispute. (Art. 212) It is an ER’s act excluding EE’s who are union members from his business and factory premises. (Sta. Mesa Slipways vs. CIR) A valid lockout needs a labor dispute. (Azucena) [“Labor dispute” – Any controversy or matter concerning terms and 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 or not the disputants stand in the proximate relation of ER’s and EE’s. (Art. 212) Nature and Purpose Lockout is recognized as a valid weapon of management in collective bargaining. It may be declared to bring pressure upon the union, where a impasse has arisen during bargaining negotiations or where the union commits unfair labor practices, subject to statutory requirements. (Azucena)

56 Effect of Work Relationship Strike and lockout are similar in the sense that they connote temporary stoppage of work. The relationship of ER and EE continues. (Id.) 9.5 Legality of Strike or Lockout What are the 6 factors affecting the legality of strike or a lockout? An illegal strike or lockout is one which : 1. Is contrary to a specific prohibition of law; 2. Violates a specific requirement of law; 3. Declared for an unlawful purpose 4. Employs unlawful means; 5. Declared in violation of an existing injunction; 6. Contrary to an existing agreement (Azucena) Contrary to Specific Prohibition of Law Government EE’s have the right to organize but they do not have the right to strike. Since the terms and conditions of government EE’s are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their EE’s. (SSEA vs. CA) Procedural Requirements [N, C, SV, 7] What are the procedural requisites for a strike to enjoy the protection of law? 1. A notice of strike or lockout with the required contents, should be filed with the DOLE, specifically the regional branch of the National Conciliation and Mediation Board, copy furnished the ER or the union, as the case may be. (Art. 263) 2. A cooling –off period must be observed i.e. a time gap is required to cool off tempers between the filing of notice and the actual execution of the strike or lockout; the cooling off period is 30 days in case of bargaining deadlock and 15 days in case of unfair labor practice. However, in cases of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the cooling off period need not be observed. (Id.) 3. During the cooling-off period, the NCMB mediates and conciliates the parties. They are not allowed to do any act which may disrupt or impede the early settlement of the dispute. A part of their duty to bargain, they are obliged to participate fully and promptly in the NCMB meetings. (Id.) 4. Before a strike or lockout may actually be started, a strike vote or lockout vote should be taken by secret balloting, with 24-hour prior notice to the NCMB. The decision to declare a strike requires the secret ballot approval of the majority of the total union membership in the bargaining unit concerned. Similarly, a lockout needs the secret ballot concurrence of majority of the directors or partners. (Id.)

57 5. The result of the strike or lockout vote should be reported to the NCMB at least 7 days before the intended strike or lockout, subject to the cooling off period. (Id.) This is intended to give the DOLE an opportunity to verify whether the projected strike or lockout really carries the imprimatur of the majority of union members or board of directors, as the case may be. A strike or lockout held within 7-day waiting period is plainly illegal. (Lapanday Workers Union vs. NLRC) 6. No strike or lockout may be declared on grounds involving inter-union and intra-union disputes. (Id.) 7. No strike or lockout shall be declared without the labor organization or the ER first having bargained collectively i.e. exhaustion of grievance procedure before declaration of strike. (Art. 264) 8. No strike or lockout shall be declared after assumption of jurisdiction by the President of the Secretary of Labor. (Art. 263) 9. No strike or lockout shall be declared after certification or submission of the dispute to compulsory or voluntary arbitration, nor may a strike or lockout be declared during the pendency of cases involving the same grounds for the strike or lockout. (Azucena) 10. Non-observance of procedural requirement makes strike illegal. (NFSW vs. Ovejera) Economic and Unfair Labor Practice Strike 1. The Labor Code recognizes only two valid grounds for the declaration of a strike. The 2 are : a. collective bargaining deadlock; and b. ER’s unfair labor practice. A strike not based on any of these 2 causes is necessarily tainted with illegality. (Azucena) 2. When does a deadlock arise? A deadlock arises when there is an impassé which presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude the agreement between the parties. Where for instance, the ER never made any serious efforts to respond to proposals from the union, it cannot be maintained that a deadlock arose. (Divine Word University vs. Secretary of Labor) 3. Legality of strike is not dependent upon the ability of management to grant demands. If said demands cannot be granted for being unjust or unreasonable, the only consequence should be their rejection and not the punishment of the workers who presented them. (Caltex vs. PLO) Give some examples of strike having a lawful purpose. 1. Strike incident to collective bargaining. (Id.) 2. Self-defenses i.e. strike held against the formation of a company dominated union. (Davao Free Workers vs. CIR)

58 3. Strike against ER’s unfair labor practice. (Zamboanga Wood Products vs. NLRC) 4. Unfair labor practice strike in good faith, although such acts by the ER were not found to be unfair labor practices. (Pepsi-Cola Labor Union vs. NLRC) 5. Strike to compel recognition of and bargaining with majority union. (Caltex Filipino Managers and Supervisors Association vs. CIR) [However, a strike for union recognition is through a certification election. (Azucena) Give some examples of strikes with no lawful purposes: 1. Strike due to rearrangement of office. (Reliance Surety vs. NLRC) 2. Strike due to company’s sales evaluation policy (GTE Directories vs. Sanchez) 3. Strike to compel removal of an EE not due to violation of union security arrangement. (Azucena) 4. Salary distortion under the Wage Rationalization Act (IBM vs. NLRC) 5. Inter-union or intra-union dispute. (Art. 263) 6. Strike to compel company to produce bank statements to show actual financial condition of the company. What the union may only require are up-to-date financial information normally submitted to relevant government agencies such as balance sheets and financial statements. (Sec. 5, Rule XIII, Book V, IRR’s) Means and Methods 1. Even if the purpose of a strike is valid, the strike may be held invalid where the means employed are illegal. (United Seamen’s Union of the Philippines vs. Davao Shipowners Association) The use of violence, intimidation, restraint or coercion in carrying out concerted activities, which are injurious to the rights of property, or to particular individuals make a strike illegal. (Liberal Labor Union vs. Phil. Can Co.) However, minor disorders will not suffice to make a strike illegal (Insular Life EE’s Assn.vs. Insular Life) 2. The strike by a union in a gasoline company was attended with violence in 4 or 5 occasions. The strike is sought to be declared illegal on grounds that it was attended by violence. Is this allegation tenable? It depends on the factual circumstance of the case. If the acts of violence are not pervasive, and the responsibility for the acts are individual, then the strike may be considered still legal. (Shell Oil Workers Union vs. Shell) 3. If some management officials were unable to leave the premises because of a strike, may the strikers be held guilty of illegal detention? No. The detention was not done in criminal intent. While no doubt to be deplored, such conduct cannot be made a basis for a finding of criminal guilt. (People vs. Barba)

59 Injunction A. RULE ON INJUNCTIONS As a general rule, labor disputes are not subject to injunction. However, the protective force of the law will be applied when prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party. (Azucena) B. REQUIREMENTS OF VALID INJUNCTION Art. 218 : 1. Unlawful acts are being committed or threatened to be committed. 2. The act, if not enjoined or if not performed forthwith, may cause grave or irreparable damage. 3. Witnesses must be heard an opportunity for cross-examination provided. 4. The complaint is made under oath. 5. As to each item of relief, the injury to the complainant will be greater by its denial than to defendant by its grant. 6. Complainant has no adequate remedy at law. 7. Public officers are unwilling or unable to do their duty to adequately protect complainant’s property. C. TEMPORARY RESTRAINING ORDER The Code allows the issuance of a temporary restraining order without prior notice to other parties concerned. The issuance is predicated on complainant’s testimony or petition under oath that unless the order is issued without notice, substantial or irreparable injury to complainant’s property will be unavoidable. A temporary restraining order, however, automatically expires after 20 days. (Id.) D. JURISDICTION TO ISSUE INJUNCTION Lies not with the regular courts but with the Commission. (Maria Cristina Fertilizer Plant EE’s Assn. Vs. Tandayag) However, regular courts may issue injunction if it is to prevent strikers from preventing to lawful movement of 3rd parties. (Republic Flour Mill Workers Assn. vs. Reyes) E. INJUNCTION IN NATIONAL INTEREST CASES When is a strike enjoined by the assumption of jurisdiction of the president or the Secretary of Labor and Employment? A strike or lockout is prohibited after assumption of jurisdiction by the President or the Secretary of Labor : 1. in industries indispensable to the national interest; or 2. after certification or submission of the dispute to compulsory or voluntary arbitration. (Art. 264) The Code vests the President and the

60 Secretary of Labor almost unlimited discretion as to what industries may be considered indispensable to national interest. (Azucena) E.1 Power to Assume Jurisdiction Constitutional Art. 263 and 264 have been enacted pursuant to the police power to the State. It is an inherent power of the State which does not need to be expressly conferred by the Constitution. (Union of Filipro EE’s vs. Nestle) E.2 Certification of Labor Dispute : Automatic Injunction Such assumption of the Secretary or certification to the NLRC for compulsory arbitration has the effect of automatically enjoining the intended or ongoing strike or lockout as specified in the assumption or certification order. (Azucena) Their assumption or certification order is immediately effective even without a return-to-work order. (Union of Filipro EE’s vs. Nestle) A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal. (Zamboanga Wood Products vs. NLRC) Not only union officers but also union members who defy return-to-work order are subject to dismissal for participation in an illegal act. (St. Scholastica’s College vs. Torres) E.3 Effect of Certification for Compulsory Arbitration The certification for compulsory arbitration overrides under unresolved proceedings before the NLRC. Proceedings in the injunction and unfair labor practice cases filed by the ER necessarily have to be suspended to await the outcome of the compulsory arbitration proceedings. (Bagong Bayan Realty vs. Ople) E.4 Incidental Issues May the Secretary of Labor, in the exercise of his jurisdiction under Article 263 (g) takes cognizance which is merely incidental to the labor dispute over which he has assumed jurisdiction? Yes, provided said issue in involved in the labor dispute itself or otherwise submitted to him for resolution. (St. Scholastica’s College vs. Torres) Agreement of the Parties 1. A no strike prohibition in a CBA is applicable only to economic strikes. An unfair labor practice strike is not covered and workers may go on strike based on the unfair labor practice despite the no-strike provision. (Master Iron Labor Union vs. NLRC) 2. Is no-strike clause binding on the newly certified bargaining agent? No. This is a personal undertaking of the old certified bargaining agent which does not bind the newly certified bargaining agent. (Benguet Consolidated vs. BCI EE’s Union) 3. There is no violation by the union of the no-strike clause if the work stoppage was not initiated or supported by the union. (Azucena) 4. About 1,400 EE’s of a company staged a mass walk-out. The strike was staged without prior notice and in violation of the no-strike clause. It is not however disputed that the company did not pay the salaries of the

61 EE’s for 2 months. In the exercise of his power of compulsory arbitration, may the Secretary of Labor declare the strike illegal? Even on the assumption that the illegality of the strike is predicated on its violation of the lack of notice of strike and the no-strike clause, still the automatic finding of the illegality of strike finds no authoritative support in the light of the attending circumstances. (Bacus vs. Ople) 9.6 Employment of Strike breakers and Role of Peace Officers during Strikes Art. 264 : 1. No ER shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. 2. No public official or EE including officers and personnel of the AFP or the PNP, or armed person, shall bring in, introduce or escort any individual who seeks to replace strikers in entering or leaving the premises of a strike are, or work in place of strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur. 9.7 Improved Offer Balloting What is meant by improved or reduced offer balloting? 1. Strike – In an effort to settle a strike, the DOLE shall conduct a referendum by secret balloting on the improved offer of the ER on or before the 30th day of the strike. When at least a majority of union members vote to accept the improved offer, the striking workers shall immediately return to work and the ER shall thereupon readmit them upon signing of the agreement. 2. Lockout – In case of a lockout, the DOLE shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of partnership vote to accept the reduced offer, the workers shall immediately return to work and the ER shall thereupon readmit them upon signing of the agreement. (Art. 265) 9.8 Picketing, Slowdown and other Concerted Activities A. DEFINITION Define picketing – Walking or patrolling in the vicinity of a place of business involved in a labor dispute and, by word of mouth, banner or placard, undertaking to inform the public concerning the dispute. Picketing includes stationing persons at the site of the labor dispute for the purpose of exercising coercion or intimidation on other. However, the requirement of the law is that the picket must be a moving picket. (Azucena) B. PICKETING AND LIBEL LAWS The mere fact that the language employed by the picketers is far from being courteous and polite does not give rise to a cause for libel and damages. (PCIB vs. Philnabank EE’s Assn.)

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C. ER-EE RELATIONSHIP Absence of an ER-EE relationship does not make picketing illegal. (De Leon vs. NLU) D. RESTRICTIONS 1. Art. 264 : No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the ER’s premises for lawful purposes, or obstruct public thoroughfares. 2. A picketing labor union has no right to prevent EE’s of another company from getting in and out of its rented premises, otherwise it will be held liable for damages against an innocent by-stander. (Liwayway vs. Permanent Concrete Workers Union) 3. Picketing as a concerted activity is subject to the same limitations as strike, particularly as to lawful purpose and lawful means. Like the freedom of expression in general, it has limits. Thus, to the extent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. (Security Bank EE’s Union vs. Security Bank) E. PROHIBITED ACTIVITIES Art. 264 : No person shall obstruct, impede or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by EE’s during any labor controversy or in the exercise of the right of selforganization or collective bargaining, or shall aid or abet such obstruction or interference. F. POWER OF COURTS TO CONFINE PICKETING While peaceful picketing is entitled to protection as an exercise of free speech, courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. (PAFLU vs. Cloribel) Slowdown 1. Define slowdown. Method by which one’s EE’s, without seeking a complete stoppage of work, retard production and distribution in an effort to compel compliance by the ER with the labor demands made upon by him. (Azucena) 2. Slowdown is considered inherently illicit and unjustifiable because while the EE’s continue to work and remain at their positions and accept wages from them, they at the same time select what part of their allocated task they care to perform of their own volitions or refuse openly or secretly to the ER’s damage to the other work. (IBM vs. NLRC)

63 Boycott 1. Define boycott : It is the concerted refusal to patronize an ER’s goods and services and to persuade others to a like refusal. (Id.) 2. Is a boycott lawful? EE’s may lawfully exert economic pressure on their ER by means of a boycott, provided they act peaceably and honestly. (Alcantara) 9.9 Consequences of Concerted Actions Strikers Retention or Loss of Employment Does participation in a strike mean loss of employment for the worker? A mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the ER during such lawful strike. (Art. 264) However, if the strike is illegal.: 1. The union officer who knowingly participated in an illegal strike; and 2. Any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost their employment status. An ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof that he committed illegal acts during a strike. (INPORT vs. NLRC) Who Declares Loss of Employment Status The law grants the ER the option of declaring loss of employment status. (Id.) No Financial Assistance to Dismissed Strikers Financial assistance is not required to be given to a worker who participated in an illegal strike. (Chua vs. NLRC) Strike on Good Faith Belief that Company Committed Unfair Labor Practice Strikers who conducted an illegal strike on the good-faith belief that the company had committed unfair labor practice, which turns out to be false, do not forfeit their employment. They are entitled to reinstatement. (Ferrer vs. CIR) Strike not Marked with Good Faith Strikers who conducted a strike which is illegal and not marked with good faith forfeit their employment. (Reliance Surety vs. NLRC) Application of the Pari-Delicto Rule Is the pari-delicto rule applicable in strikes and lockouts? Yes. When the parties are in pari delicto – the EE’s having staged an illegal strike and the ER having declared an illegal lockout – such situation warrants the

64 restoration of the status quo ante and brining back the parties to their respective positions before the illegal strike and illegal lockout through reinstatement, without backwages, of the dismisses EE’s. (Philippine InterFashion vs. NLRC) Backwages 1. In an economic strike, the strikers are not entitled to backwages on the principle that a “fair day’s wage” accrues only for a “fair day’s labor.” (SMB vs. NLU) For an unfair labor practice strike, the right of the workers to receive backpay depends on whether they are voluntary or involuntary strikers. If they are involuntary strikers, they are entitled to backpay. (Macleod vs. Progressive Federation of Labor) However, when they are voluntary strikers, that is, they were not discriminatorily dismissed by the ER, then they are generally not entitled to backpay, except when they voluntary offer to return to work and the ER refuses to readmit them. (Cromwell EE’s Assn. vs. CIR) 2. Are EE’s who are unable to work by reason of a lockout validly declared by the ER entitled to wages corresponding to the period of the lockout? No. The refusal of the ER to furnish work is unlawful. And since the EE’s did not render any service, they should not get paid; this in accordance with the “no wok no pay” rule. (Alcantara) ER’s Right to Hire Replacement during Strike Discuss the principles governing the hiring of worker replacements during a strike? During the pendency of an economic strike, the ER may hire replacements on a permanent basis and is not bound to discharge such permanent replacements in the event that the strikers decide to resume their employment. (Consolidated Labor Assn. vs. Marsman) On the other hand, while replacements may also be hired by the ER to take the places left vacant by the EE’s engaged in unfair labor practice strike, such replacements are not permanent and the ER under a duty to dismiss them as soon as the strikers request reinstatement in their previous position. (Insular Life EE’s Assn. vs. Insular Life) Damages Union officers may not be vicariously held liable for illegal act of strikers. The rule of vicarious liability no longer applies. (Benguet Consolidated vs. BCI EE’s Assn.) Section 10. Remedies  What are the different remedies available in labor disputes? 1. Grievance procedure – In adjustment of complaint following steps prescribed in the CBA or company policy. 2. Conciliation – Process where a disinterested 3rd party meets with management and labor, at their request or otherwise, during a labor dispute or in collective bargaining conferences, and by cooling tempers, aids in reaching an agreement.

65 3. Mediation – A 3rd party studies each side of the dispute then makes proposal for the disputants to consider, but a mediator cannot render an award. 4. Enforcement or compliance order – An act of the Secretary of Labor in the exercise of his visitorial or administrative authority to enforce labor laws, polices, plans, programs, rules and regulations. 5. Certification of bargaining representatives – Determination of which union shall represent EE’s in collective bargaining. This is handled by “Med-Arbiters” of DOLE. 6. Arbitration – The submission of a dispute to an impartial determination on the basis of impartial evidence and arguments of the parties. 7. Assumption of jurisdiction – An authority vested by law to the Secretary of Labor or the President to decide a dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. 8. Certification to NLRC – An action of the Secretary of Labor empowering the NLRC to compulsorily arbitrate a dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. 9. Injunction – An extraordinary remedy and is not favored in labor law. As a general law, an injunction or a restraining order to prevent or stop the doing of an act is avoided in resolving a labor dispute because the state policy and aim is to encourage the parties to use the non-judicial processes of negotiation and compromise, mediation and arbitration. 10. Judicial action – Complaint with regular court in cases falling under its jurisdiction i.e. criminal case of unfair labor practice. 11. Appeal – Process by which an order, decision or award is elevated to a higher authority, on specified grounds, so that the order, decision or award may be modified or set aside and a new one issued. 12. Judicial review – No law allows appeal from decision of the Secretary of Labor or of the NLRC, or of a voluntary arbitrator. In these cases, the “special civil action” of certiorari, prohibition and mandamus may be lodged with the Supreme Court. 13. Compromise settlement – In any stage of these settlement processes, the labor dispute may be resolved by the parties through a compromise agreement, provided the agreement is freely entered into and is not contrary to law, moral or public policy. (Azucena)  What cases fall under the exclusive and original jurisdiction of labor arbiters? Labor arbiters shall have exclusive and original jurisdiction to hear and decide within 30 working days after submission of the case by the parties for decision without extension the following cases involving all workers, whether agricultural or non-agricultural :

66 1. Unfair labor practices. 2. Termination disputes. 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment. 4. Claims for actual, moral and exemplary and other forms of damages arising form the ER-EE relations. 5. Cases arising from any violation of Art. 264 of this Code, including questions involving the legality of strikes and lockouts. 6. Except claims for EE’s compensation, social security, medicare and maternity benefits, all other claims arising from ER-EE relations, including those of persons in domestic or household service, involving an amount exceeding P5,000.00 whether or not accompanied with a claim for reinstatement.  Does service of notice of hearing upon respondent confer jurisdiction of the former? No. Notices of hearings are not summonses. In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the Labor Arbiter are null and void. (Larkins vs. NLRC)  Do labor arbiters have jurisdiction to hear and decide claims for damages arising from unfair labor practices? Yes. The civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorney’s fees and other affirmative reliefs, shall be under the jurisdiction of the labor arbiters. (Art. 247)  Does the Regional Director of the DOLE have jurisdiction to hear and decide money claims of workers? Yes. He is empowered through summary procedure, to hear money claims and benefits, including legal interest, owing to a househelper provided the complaint does not include a claim for reinstatement and the aggregate money claims of each EE or househelper does not exceed. (Art. 129)  How are disputes arising from wage distortions settled? When there is a CBA, through the grievance procedure and, if it remains unresolved, through voluntary arbitration. When there is no CBA, the dispute shall be settled through the NCMB and, if it remains unresolved after 10 calendar days of conciliation, shall be referred to the appropriate branch of the NLRC. (Art. 124)  Cases not falling under the jurisdiction of labor arbiters: 1. Civil action to collect sum of money owed by the EE to the ER. (Georg Gortjahm vs. Isnani) 2. Action for damages for breach of contractual stipulations. (Dai-Ichi Electronis vs. Villarama) 3. Tortious acts by the president of a company against EE’s. (Medina vs. Bartolome) 4. Replevin case to recover fishing vessel from striking crew members. (Basaya vs. Militante)

67 5. Civil case to annul the public auction sale of several properties of the ER used to pay liabilities to the EE’s on the ground that the properties were owned by 3rd parties. (Manliguez vs. CA) In contrast to the Pucan vs. Bengzon case, what was being questioned was not the writ of executions issued by the DOLE but the ownership over the property in question. (Alcantara) 6. Suit filed by an independent contractor. (Cabe vs. Tumang) 7. Intra-company disputes. (Dy vs. NLRC)  Cases falling under the jurisdiction of the labor arbiters: 1. Legality of strikes and lockouts. (Samahang Manggagawa ng Liberty Commercial Center vs. Pimentel) 2. Suit for damages from picketing that accompany a strike. (NFL vs. Eisma) 3. Complaint arising from implementation of union security clause. (Sanyo Philippines Workers Union vs. Canizares)  May an illegally dismissed EE still file a civil case for tort against the ER if he was already awarded damages in the illegal dismissal case that he filed with the labor arbiter? No. The judgment of the labor arbiter granting the illegally dismissed EE separated pay operated as a bar to his subsequent action for a tort against the ER if he was already awarded damages in the illegally dismissed EE separation pay operated as a bar to his subsequent action for the recovery of damages before the regular court under the doctrine of res judicata. (Primero vs. IAC)  In his complaint with the labor arbiter for illegal dismissal, A sought payment for holiday pay and the 13th month pay and holiday pay even if he did not prove that he was paid these benefits? Yes. The claimant’s allegation which need not be supported by evidence unless it is an essential part of the cause of action. The burden of proving that payment of said benefits have been made rests with the ER. (Seaborne Carriers vs. NLRC)  May the labor arbiter increase the original award it made after its decision was rendered final and executory by a dismissal of the NLRC of an appeal with respect to the said case? Yes. The backwages merely correspond to the period of dismissal when the case was originally heard by the labor arbiter. Recomputation is necessary to arrive at a just and proper determination of the monetary awards. (Industrial Timber vs. NLRC)  May the labor arbiter adjudicate on claims not alleged in the complaint?

68 Yes, provided the claims are made in the complaint’s position paper. But claims for wage differentials are not made in the complaint or in the position paper cannot be passed upon. (DBP vs. NLRC)  May the labor arbiter decide the case on the basis of a supplemental position paper submitted after the parties have filed their position papers and agreed to consider the case submitted for the decision? No. After submitting the case for decision, the parties shall not be allowed to allege facts not referred to and any cause of action not included in the complaint or position papers, affidavits and other documents. (Manebo vs. NLRC)  Does the labor arbiter have jurisdiction over a claim of an EE of the SEAFDEC-AQD an international organization? No. Being an international organization SEAFDEC-AQD enjoys functional independence and freedom from control of the state in whose territory its office is located. (SEAFDEC-AQD vs. NLRC)  How about JUSMAG? No. The act of hiring cannot be considered a waiver of the foreign state’s immunity from suit. (JUSMAG vs. NLRC)  Does the Med-Arbiter have jurisdiction over inter-union conflicts? Yes. The decision of the Med-Arbiter is appealable to the Secretary of Labor. (Pepsi Cola Sales and Advertising Union vs. Secretary of Labor)  May a legally dismissed EE be entitled to receive moral and exemplary damages? Yes, provided the dismissal is effected in an anti-social and oppressive manner. (Quisaba vs. Sta. Ines Veneer and Plywood)  What matters falls under the exclusive and original jurisdiction of voluntary arbitrators provided for in a CBA? Unresolved grievances arising from the: 1. Interpretation or implementation of the CBA and those arising from the interpretation of enforcement of company personnel policies; 2. Interpretation and enforcement of company personnel policies; and 3. All other disputes including unfair labor practices and bargaining deadlocks submitted to them by agreement of the parties. (Art. 262)  Within what period should a complaint for unfair labor practice, illegal dismissal and money claims be filed with the labor arbiters? 1. Unfair labor practice – 1 year from accrual thereof (Art. 290) 2. Illegal dismissal – 4 years from accrual thereof (Art. 1146, NCC)

69 3. Money claims – 3 years form the time the cause of actions accrues (Art. 291)  Give the effect of the pendency of a money claim before the labor arbiter on criminal and civil actions arising from or based on the same cause of action? Money claims shall be filed independently of the criminal action that may be instituted in the proper courts. Pending the final determination of the merits of the money claims, no civil action arising from the same cause of action shall be filed with any court. (Art. 292)  Are the technical rules of evidence followed in proceedings before labor arbiters? No. (Art. 221)  May non-lawyers appear before labor arbiters? Non lawyers may appear before labor arbiters only if they represent themselves or their organizations or members thereof. (Art. 222)  What are the grounds so that decisions of labor arbiters are appealable? Decisions of labor arbiters are appealable within 10 calendar days to the NLRC on the following grounds: 1. If there is prima facie evidence of abuse of discretion on the part of the labor arbiter. 2. If the decision, order or award was secured through fraud or coercion, including graft and corruption. 3. If made purely on questions of law. 4. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. (Art. 223)  How is appeal perfected? Filing by the appellant with the labor arbiter his memorandum of appeal, copy furnished the appellee, and the payment of the appeal within 10 calendar days. (Vir-Jen Shipping vs. NLRC)  Is order of reinstatement of a labor arbiter stayed by an appeal? Yes, for any information or date concerning any matter or question relative to the object of the investigation. (Art. 219)  May the NLRC order the reinstatement of workers who did not appeal from a decision of the labor arbiter ordering payment of separation pay in lieu of reinstatements? No. An appellee who has not himself appealed cannot obtained from the appellate court below. (SMI Fish Industries vs. NLRC)  Is the decision of the NLRC appealable to the Secretary of Labor? No. Decisions of the NLRC before the Supreme Court by means of a petition for certiorari. (Alcantara)

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 May the NLRC consider evidence submitted for the first time on appeal? Yes. (Bristol Laboratories vs. NLRC)  Does the NLRC exercise any original jurisdiction? Yes. In cases of labor disputes certified to it by the Secretary of Labor for compulsory arbitration and it can also entertain positions for injunction. (Id.)  Is PD 1508, the Katarungang Pambarangay Law, applicable to labor cases? No. (Montoya vs. Escayo)  Give the scope of visitorial powers of the Secretary of Labor and Employment and regional directors under Art. 128 of the Labor Code? The visitorial power provided for under Art. 128 is confined to checking compliance with labor standard laws, then the regional director must order the necessary rectifications. However, this does not include adjudication of money claims clearly within the ambit of the labor arbiter’s authority under Art. 217 of the Labor Code. (Ong vs. Parel)  If a party submits to the jurisdiction of a labor tribunal and obtains an unfavorable judgment, can later on question the jurisdiction of the said tribunal? No. When a party has voluntarily submitted to the jurisdiction of a court tribunal, he cannot later on, if he gets an unfavorable judgment adopt an inconsistent posture and attack the latter’s jurisdiction. (Tijam vs. Sibonghanoy)  Is the reinstatement aspect of the decision of the labor arbiter self-executory even pending appeal? No. There must be a writ of execution which may be issued by the Labor Arbiter motu proprio or on motion of an interested party. (Maranaw Hotel vs. NLRC)  Do courts or administrative bodies have the power to set or fix rates of pay, wages, hours of work and other terms and conditions of employment? As a rule, courts and administrative bodies cannot fix the terms and conditions of employment because what is being promoted is collective bargaining. (Alcantara) Section 11. Choice Questions on Public Sector EE’s 1. J, a supervisor of Casino Filipino was dismissed by PAGCOR due to loss of confidence. He filed a case for damages with the RTC. PAGCOR filed a motion to dismiss on ground of lack of jurisdiction of the RTC to hear thecase. Is the ground valid? Yes. The case involving whether J was illegally dismissed falls under the jurisdiction of the Merits Systems Protection Board and the Civil Service Commission. The claim for damages was merely incidental to the illegal dismissal. (PAGCOR vs. CA)

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2. Is the case not cognizable by the labor arbiter? No. PAGCOR is a GOCC with an original charter. (Id.) 3. What is GOCC with original charter? It is a GOCC with a legislative charter i.e. PAGCOR and DBP. (Alcantara) 4. May EE’s of the government go on strike and may the latter declare a lockout? No. The terms and conditions of government EE’s are fixed by law and thus they are prohibited from using the normal instruments available to private sector EE’s. However, under Sec. 13 of EO 180, the terms and conditions or improvements thereof not fixed by law may be the subject of negotiations between duly recognized EE’s organizations and appropriate government authorities. (Id.) 5. Assuming that EE’s of GOCC’s with original charters cannot go on strike, may they nevertheless from unions and petition for certification election? Yes. Although they are covered by civil service laws, they are guaranteed the right to self-organization. Under EO 180, where there are two or more duly registered EE’s organizations in the appropriate bargaining unit, the BLR shall, upon petition order the conduct of certification election and certify the winner as the exclusive representative of the rank-and-file EE’s in the said organizational unit. (TUPAS vs. NHA) 6. Some 800 public school teachers did not conduct their classes and instead converged at Liwasang Bonifacio to protest the non-payment of their benefits. Is the mass action lawful? No. EE’s in the public service do not have the right to strike. (MPSTA vs. Laguio) 7. The NHC is 100% government-owned organized in accordance with EO 399, the Uniform Charter of Government Corporations. Are its EE’s covered by the provisions of the Labor Code? Yes. The NHC is incorporated under and pursuant to a general legislation and not by an act of Congress or by special law. (TUPAS vs. NHC) 8. The Public Sector Management Council has jurisdiction to hear charges of unfair labor practice filed by a government EE against their ER. In deciding the unfair labor practice charge, the PSLMC may also rule on the complainant’s dismissal if the two issues are unavoidably linked. (PLM vs. CSC)