Ungos.labrel.recit

LABOR RELATIONS I. COLLECTIVE BARGAINING (Arts. 227-277) --------------------------------------------------------------------------------------------------LEGITIMATE LEGITIMATE LABOR LABO R ORGANIZA ORGAN IZATIONS TIONS --------------------------------------------------------------------------------------------------1.

WHAT WHAT ARE THE 2 WAYS OF BECOMI BECOMING NG A LEGITIMATE LEGITIMATE LABOR ORG. (LLO)?

a.  b.

R egistration egistration with the BLR (INDEPENDENT UNION) Chartering or issuance of a federation or national union of a charter certificate (LOCAL CHAPTER)

2.

A) HOW CAN A NON-REGI NON-REGISTE STERED RED UNION UNION APPLY FOR AN AFFILIATION TO BECOME A L.L.O.? OR ACQUIRE LEGITIMACY?

By application of the union with the federation for the issuance of a charter certificate to be submitted to the Bureau accompanied by the following: a) Copies of its constitution and by-laws;  b) Statement of the set of officers and books of accounts, all of which must be certified by the Secretary/ Treasurer Treasurer and attested attested to by the the President. In such case, the union becomes a local chapter of the federation. NOTE:  The issuance of charter certificate confer legal  personality  persona lity only for purposes purpose s of filing a petition petitio n for certification election. 3.

4.

CER CERTIFI TIFICA CATI TION ON ELE ELECT CTIO ION N – the process of determining by secret ballot the sole and exclusive  bargaining agent of the employees in an appropriate  bargaining unit, for purposes of collective bargaining (employees in the 3 payroll period prior to the certification election may vote) [Art.256] F O R M AL AL I T I ES ES R E Q U IR IR E D I N C R E AT AT I N G LOCAL CHAPTER BEFORE SUBMISSION OF DOCUMENTS?

A duly registered federation or national union may directly create a local chapter by ISSUING A CHARTER CERTIFICATE indicating the establishment of the local chapter. This supporting requirement shall be certified under oath by the Secretary or the Treasurer of the local/chapter and attested by its President (as Amended by DO 40-B-03). The chapter shall acquire legal personality ONLY for purposes of filing a PCE from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a LLO ONLY UPON THE SUBMISSION OF DOCUMENTS DOCUMENTS in addition to its charter certificate.

5.

A) LEGAL LEGAL EFFECTS EFFECTS OF AFFILI AFFILIA ATION TION OF AN UNREGISTERED UNION.

Affiliation Affiliation of a local chapter is generally understood to be that of agency, where the local union is the principal and the federation is the agent. B) LEGAL EFFECTS OF AFFILIATION OF AN INDEPENDENTLY INDEPENDENTLY REGISTERED UNION.

Affiliation would allow an independent union to secure support or assistance during the formative stage of unionization from the national union or federation. It would also allow to utilize the expertise in preparing and pursuing  bargaining proposals, and marshal the mind and manpower of national unions or federations in the course of group actions such as strikes. NOTE:  For both affiliating unions, the legal effect is that it  becomes subject to the laws of the federation, with respect to the enforcement of constitution, by-laws and rules. It creates and between the parent body (federation) and the subordinate union (affiliation/local (affiliation/local union) and between the members of the subordinate union inter se. se. 6.

THE EFFECT EFFECT OF DISAFFI DISAFFILIA LIATIO TION N TO TO (A) (A) AND (B)?

The effect of disaffiliation to the union by an unregistered union is that it would cease to be a legitimate labor organization and would no longer have legal personality and the rights and privileges granted by law to legitimate organization, unless the local chapter is covered by a duly registered CBA. CBA. In the latter case, the the local or chapter will will not lose its legal personality until the expiration of the CBA. After the CBA expires it will lose its legal personality unless it registers as an independent union. The effect of disaffiliation by an independently registered union is that it WOULD NOT AFFECT ITS BEING A LEGITIMATE LABOR ORGANIZATION and therefore it would continue to have legal personality and to possess all the rights and privileges of a LLO. 7.

MANNER MANNER ON DISA DISAFFI FFILIA LIATIN TING G BY A LOCAL LOCAL UNION FROM A FEDERATION? PERIOD?

When affiliated, a local union may disaffiliate from the federation. The general rule is that a labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately  precedin  prec edin g the expirat exp iration ion of the CBA. [LIMITATION:  Disaffiliation  Disaffiliation should be in accordance with the rules and  procedures  procedures stated in the Constitution and By-Laws of the  Federation]. The exception is when there is disaffiliation disaffiliation by majority. majority. Even  before the onset of the freedom period, disaffiliation may still  be carried out, but such disaffiliation disaffiliation must be effected by a majority of the union members in the bargaining unit (through secret ballot). This happens when there there is a substantial shift in in allegiance on the part of the majority of the members of the union. In such a case, however, the CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s CBA’s expiration expiratio n date. A consent election to determine the union which shall administer the CBA may be conducted.

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8.

A) RIG RIGHT HTS S OF LL LLO? O? (US (USER ERFO FOE) E)

a. b. c. d. e. f. g.

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

B) CONDITIONS REQUIRED BEFORE A RIGHT TO AUDITED FINANCIAL STATEMENTS STATEMENTS BE GRANTED.

To better equip the union in preparing for or in negotiating with the employer, the law gives it the right to be furnished with the employer’s employer’s audited financial statements. statements. There are 4  points in time when the union may ask in writing for these statements: a. after the union has been recognized by the employer as sole  bargaining representative of the employees in the bargaining unit;  b. after the union is certified by DOLE DOLE as such sole bargaining representative; c. within the last 60 days of the life of a CBA; d. during the collective bargaining negotiation. The audited statements, including the balance sheet and the  profit and loss statement, should be provided by the employer within 30 calendar days after receipt of the union’s union’s request. 9.

GROUN GROUNDS DS FOR FOR CANC CANCELL ELLA ATION TION OF OF UNIO UNION N REGISTRATION.

a.

Misrepres Misrepresentat entation, ion, false statement statement or fraud in connection connection with the adoption or ratification of the constitution and by laws; Amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; Misrepres Misrepresentat entation, ion, false statement statementss or fraud fraud in connection connection with the election of officers, minutes of the election of officers, and the list of voters; and Volunta oluntary ry diss dissolu olutio tion n by the the memb members ers.. (Art.239 LC As  Amended by RA RA 9481)

 b. c.

d.

 NOTE: Failure to submit reportorial requirements is no longer a ground for cancellation but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. (Art.242-A  Inserted by RA 9481)

10. W H O C A N F I L E P E T I T I O N F O R CANCELLATION OF UNION REGISTRATION?

of the labor organization  concerned if grounds are actions involving violations of Art.241, subject to the 30% rule. 11. A R E P E T I T I O N S F O R C A N C E L L A T I O N APPEALABLE?

YES. Cancellation orders issued by the Regional Director (for legitimate independent labor union/chartered local and worker’s association), are appealable to the Bureau of Labor Relations (BLR). The BLR’s BLR’s decision is final and executor, hence, not appealable to the DOLE Secretary, but it may be elevated to the CA by certiorari. Cancellation cases that originated at the BLR itself may be appealed to the DOLE Secretary, Secretary, and again, by certiorari to the CA. 12. WHAT WHAT IS THE EFFECT EFFECT OF CANCELLATION CANCELLATION PROCEEDINGS?

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

( Principle  Principle of Agency  Agency  applied – the employees are the  principals and the labor organization is merely an agent of the former, consequently, the cancellation of the union’s registration would not deprive the consenting memberemployees of their right to continue the case as they are considered as the principals.)

13. CAN THE THE L.O. CANCEL ITS REGISTR REGISTRA ATION? PROCEDURE?

YES. The registration of a LLO may be cancelled by the organization itself PROVIDED: a) At least 2/3 of its general membership votes, in a meeting duly called for that purpose to dissolve the organization; and b) An application to cancel registration is submitted by the board of the organization, attested to by the president thereof. (Art.239-A LC. New  Provision  Provision inserted by RA RA 9481).

14. RIGHTS AND CONDITIO CONDITIONS NS OF MEMBERSHIP MEMBERSHIP (DIMP)

If it is for a legitimate individual labor union, chartered local, or a worker’s association, the petition may be filed by any party-in-interest, if the ground is: a) Failure to comply with any of the requirements under Art.234, 237 and 238 LC; and  b) Violation Violation of any provision under Art.239 LC.

A.  Deliberative and Decision-Making Right   The right to participate in deliberations on the major policy questions and decide by secret ballot;

If it is for federations, national or industry unions, or trade union centers, the petition may be filed only by the members

B.  Right to Information – the right to be informed about: a) the organization’s constitution and by laws; and b) the CBA and Labor laws;

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C.  Right Over Money Matters – the rights of the members: a) Against imposition of excessive fees; b) Right against unauthorized collection of contributions or unauthorized disbursements; c) To require adequate records of income and expenses; d) To access financial records; e) To vote on officers’ compensation; f) To vote on special assessment; g) To  be deducted a special assessment only with the member’s written authorization; D.  Political Right – the right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications.  NOTE: Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of an officer from office, whichever is appropriate. At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau.

18. GROUNDS FOR EXPULSION / IMPEACHMENT OF UNION OFFICERS (4)

Union officers may be expelled from the union or removed from office on the following grounds: a. violation of the rights and conditions of membership in labor organization under Art. 241  b. commission of irregularities in the approval of the resolution regarding compensation of union officers c. membership in another labor organization d. culpable violation of the constitution and by-laws NOTE:  The power to expel or remove union officers from office is within the jurisdiction of BLR.

15. QUALIFICATIONS OF UNION OFFICERS (3)

One should be employed in the company to qualify as officer of a union in that company. The union officer must not  possess any disqualification such as “moral turpitude” defined as an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man or conduct contrary to justice, honesty, modesty or good morals.

--------------------------------------------------------CHECK-OFF & SPECIAL ASSESSMENT / ULP --------------------------------------------------------1.

REQUISITES OF VALID LEVY OF SPECIAL ASSESSMENT (RAMM)

a.  b.

There must be a written R esolution; The resolution must have been A pproved by a majority of all the members; and The approval must be at a general Membership meeting duly called for that purpose; The Secretary of the organization shall record the minutes of the meeting, which shall be attested to by the President. The Minutes include: d1) The list of all members present; d2) The votes cast; and d3) The  purpose of the assessment or fees.

c. 16. QUALIFICATIONS OF VOTERS Only members of the union have the eligibility to take part in the election of union officers. Eligibility to vote may be determined through the use of the applicable payroll period and the status of the employees during the applicable period. This pertains to the payroll of the month next preceding the labor dispute, in case of regular employees, and the payroll  period at or near the peak of operation, in case of employees in seasonal industries.

d.

 NOTE: Substantial compliance with the aforementioned  procedure is not enough – the requirements must be strictly complied with. 2.

 LIMITATIONS (RI-SU-RE): a. The labor organization cannot compel employees to  become members of their labor organization if they are already members of a RIVAL UNION;  b. Th e pe rs on s me nt io ne d in Ar t. 24 1 (e ) LC – SUBVERSIVES – are prohibited from becoming a member of a labor organization; c. The members of RELIGIOUS ORG whose religion forbids membership in labor organization could not be compelled into union membership.

17. A R E U N I O N O F F I C E R S E N T I T L E D T O COMPENSATION?

Union officers shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the  purpose. (Art. 241 [k])

WHAT IS A CHECK-OFF?

A check-off is a method of deducting from an employee’s pay at prescribed period, the amounts due to the union for fees, fines or assessments. 3.

WHAT ARE THE REQUISITES OF A VALID CHECK-OFF?

 No special assessment, attorney’s fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the (APB): a) Amount; b) Purpose; and c) Beneficiary of the deduction. 4.

A R E T H E R E Q U IS I T ES F O R C H E C K- O F F RE QU IR ED FO R AL L AC TI VI TI ES ? MANDATORY ACTIVITIES?

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 NO. The requisites for check-off are not required for all activities. The exception to the rule requiring the requisites for check off are: a. For MANDATORY ACTIVITIES provided under the LC  b. When NON-MEMBERS OF THE UNION AVAIL OF THE BENEFITS OF THE CBA: b1) Said non-members may be assessed union dues equivalent to that paid by members; and b2) Only by a board resolution approved  by majority of the members in a general meeting called for the purpose.  NOTE:  No individual written authorization required for non-union members assessed of agency fees, who has  benefited from the CBA. 5.

CAN AN EMPLOYEE WITHDRAW HIS CHECK OFF AUTHORIZATION? HOW?

YES. A withdrawal of individual authorizations is equivalent to no authorization at all. Documents containing the withdrawals have the signature of union members. These retractions are valid. There is nothing in the law which requires that the withdrawals must be in individual form. 6.

WHO CAN FILE FOR THE VIOLATION OF ART. 241?

At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau. 7.

IS THE 30% RULE REQUIRED FOR FILING A VIOLATION OF ART.241 MANDATORY?

Gen. Rule: YES. Exception: May be less than 30% provided there is substantial compliance.

- The 30% may be dispensed when such violation directly affects only one or two members, then only one or tow members would be enough to report such violation. 8.

A) WHAT IS AN UNFAIR LABOR PRACTICE (ULP)?

A1. Any unfair labor practice as expressly defined by the Code; A2. Any act intended or directed to weaken or defeat the worker’s right to self-organize or to engage in lawful concerted activities. B) ESSENTIAL ELEMENTS?

B1. Employer-Employee relationship between the offender and the offended; and B2. Act done is expressly defined in the code as an act of unfair labor practice (Art.248, 249)  NOTES: -

The Essential Element is the violation of the right of employees to self-organization.

-

9.

Except for Art.248 (f) – Dismissing Employee for Giving Testimony – all prohibited acts are related to the worker’s self-organizational right and the observance of the CBA.

CAN ULP BE COMMITTED AGAINST MANAGERIAL EMPLOYEES?

Generally NO. Managerial employees are the alter ego of the employers and thus they are supposed to be on the side of the employer to act as its representatives, and to see to it that its interests are well protected. 10. HOW DO WE DETERMINE IF AN EMPLOYER COMMITTED A ULP? Totality of Conduct Doctrine  – The culpability of employer’s remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.

Check also the MOTIVE. 11. THE SPECIFIC ACTS OF ULP OF EMPLOYERS? (ICC-FDD-PVV)

To interfere with, restrain or coerce employees in the exercise of their right to self-organization; b. To require as a condition for employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; c. To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to selforganization; d. To initiate, dominate, assist or otherwise interfere with the f ormation or administration of any labor organization, including the giving of financial or other support to it or its organizers or officers. e. 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; f. To d ismiss, discharge or otherwise prejudice or discriminate against an employee for having given or  being about to give testimony under this Code; g. To violate the duty to bargain collectively as prescribed  by this Code; h. To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other disputes; i. To grossly violate the CBA. The violation must be “gross” or a flagrant and/or malicious refusal to comply with the economic provisions of the CBA. a.

12. A) WHAT IS THE TEST OF INTERFERENCE? B) EXAMPLE.

A) Whether the employer has engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the employees’ right and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements of threats or the

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employer if there is a reasonable interference that the antiunion conduct of the employer does have an adverse effect of self-organization and collective bargaining. (The Insular Life  NATU vs. The Insular Life) B) EXAMPLES: B1. Outright and unconcealed intimidation B2. In order that interrogation would not be deemed coercive: a) The employer must communicate to the employee the  purpose of questioning;  b) Assure him that no reprisal would take place; and c) Obtain employee participation voluntarily. B3. Must be free from employer hostility to union organization B4. Must not be coercive in nature B5. Intimidating expressions of opinion by employer An employer who interfered with the right to self-organization  before a union is registered can be held guilty of ULP (Samahan ng Manggagawa sa Bandolino vs. NLRC)

1.

A) CAN AN ULP BE COMMITTED AGAINST SUPERVISORY EMPLOYEES?

It depends. GENERAL RULE:  Supervisory employees can form labor organization. Hence, LO = ULP. EXCEPTION: If the supervisory employee exercise functions that of the same as managerial employee (test of supervisory status), they are disqualified from forming or joining labor organizations. Hence, no LO = no ULP.  NOTE: Test of supervisory status – supervisory status should  be determined on whether the recommendatory power of the employee is effective and not merely routinary or clerical in nature, but requires the use of independent judgment. B) CONFIDENTIAL EMPLOYEES?

It depends. If the confidential employees have access to labor relations information they are disqualified  from forming or joining labor organizations, therefore no LO = no ULP. (Doctrine of necessary implication)

13. WHAT IS THE TOTALITY DOCTRINE? 2. Totality of Conduct Doctrine  – The culpability of employer’s remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.

HOW DOES INTERFERENCE MANIFESTED?

(See No. 12A, page 5) 3.

YELLOW DOG ONTRACT?

(See No.14, page 5) 14. WHAT IS A YELLOW DOG CONTRACT? 4.

A yellow dog contract is a promise exacted from workers as a condition of employment that they are not to belong to, or attempts to foster, a union during their period of employment. It is null and void because it is contrary to public policy coz tantamount to involuntary servitude, it is entered without consideration for employees in waiving their right to selforganization, and the employees are coerced to sign contracts disadvantageous to their family.

(See No.15, page 5) 5.

Contracting out services is not ULP per se. It is ULP only when the following conditions exist: a) The service contracted out are being performed by union members; and  b) Such contracting out interferes with, restrains, or coerce employees in the exercise of their right to self-organization.

----------------------------------UNFAIR LABOR PRACTICE -----------------------------------

REMEDY IF THE UNION IS DOMINATED BY EMPLOYER?

DISESTABLISHMENT 6.

15. WHEN DOES CONTRACTING OUT SERVICES BECOME ULP?

HOW DOES CONTRACTING OUT SERVICES MANIFESTED?

A) HOW DOES DISCRIMINATION MANIFESTED?

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. B) WHEN CAN DISCRIMINATION?

WE

S AY

THERE

IS

Whenever benefits or privileges given to one is not given to the other under similar or identical conditions when directed to encourage or discourage union membership. 3 COMPONENTS OF DISCRIMINATION: B1. It prohibits discrimination in terms and conditions of employment in order to encourage or discourage membership in the union; B2. It gives validity to union security agreements; and B3. It allows an agency shop arrangement whereby agency fees may be collected from non-union members. 7.

UNION SECURITY AGREEMENTS?

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They are stipulations in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company. 8. TYPES OF UNION SECURITY AGREEMENTS (CUMM-PA-BE)

a. CLOSED-SHOP AGREEMENT  – The employer undertakes not to employ any individual who is not a member of the contracting union and the said individual once employed must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment;  b. UNION SHOP AGREEMENT – Stipulation whereby any  person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the CBA; c. MAINTENANCE OF MEMBERSHIP SHOP AGREEMENT  – The agreement does not require non members to join the contracting union but provides that those who are members thereof at the time of the execution of the CBA and those who may thereafter become members must maintain their membership for the duration of the agreement; d. MODIFIED UNION SHOP  – Employees who are not union members at the time of signing the contract need not  join the union, but all the workers hired thereafter must join; e. PREFERENTIAL SHOP AGREEMENT – An agreement whereby the employer merely agrees to give preference to the members of the bargaining union in hiring, promotion or filling vacancies and retention in case of lay-off; f. AGENCY SHOP AGREEMENT – An agreement whereby employees must either join the union or pay to the union as the exclusive bargaining agent a sum equal to that paid by the members; g. BARGAINING FOR MEMBERS ONLY – The union is recognized as the bargaining agent only for its own members; h. EXCLUSIVE BARGAINING SHOP  – The union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not.

The duty to bargain collectively means the performance of mutual obligation: a. TO MEET AND CONVENE promptly and expeditiously 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 any grievances or questions arising under such agreement; and  b. TO EXECUTE A CONTRACT incorporating such agreements if requested by either party.  LIMITATIONS: a. The duty to bargain collectively does not compel any  party to: 1) agree to a proposal; 2) make a concession; or 3) make room for ‘take it or leave it’  posture.  b. The parties cannot stipulate terms and conditions of employment which are below the minimum requirements prescribed by law. Where CBA Exists (Art.253) When there is an existing CBA, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. It is the duty of both parties to: a. Keep the status quo; and  b. To continue in the full force and effect the terms and conditions of the existing CBA.  EXCEPTION: During the 60-day period prior to its expiration, upon service of a written notice of a party’s intention to terminate or modify the same, a party may choose to terminate or modify the non-representational aspect of the CBA only after the expiration of CBA of fixed duration. 11. H O W T H E V I O L A T I O N CONSIDERED AN ULP?

OF

CB A BE

Violations of a CBA shall no longer be treated as ULP and shall be resolved as grievances under the CBA, except if the violations of the CBA are gross in character. For purposes of this article, gross violations of the CBA shall mean flagrant and/or malicious refusal to comply with the economic  provisions of such agreement. (Art.261) 12. CAN A LABOR ORG COMMIT ULP?

YES. (Art.249) [R-Cd-V / Cp-A-V] 9.

WHEN DOES GIVING A TESTIMONY BECOME A ULP?

It is the employer’s retaliatory act regardless of the subject of employee’s complaint or testimony. In effect, if a retaliatory act is done under Art.118, the consequence is ULP under Art. 248(f). 10. H O W D O E S T H E D U T Y T O B A R G A I N COLLECTIVELY MANIFESTED? (Art.252 & 253)

Where NO CBA Exists (Art.252)

a.

 b.

To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; To cause or attempt to cause an employer to d iscriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members;

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c.

d.

e.

f.

To violate the duty or refuse to bargain collectively with the employer provided that it is the representative of the employees; To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be  performed, including the demand for a fee for union negotiations; To ask for or accept negotiation or Attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; To grossly violate a collective bargaining agreement.

actually participated in, authorized or ratified ULP shall be held criminally liable. (Art.249)

-----------------------------------------------COLLECTIVE BARGAINING PROCESS -----------------------------------------------1.

JURISDICTIONAL PRECONDITIONS OF CBA (EPPD)

a.  b.

13. WHAT IS FEATHERBEDDING?

Featherbedding (make-work activities) refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of exaction, for services which are not performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latter’s requirements.  NOTE:  It is not featherbedding if the work is performed no matter how unnecessary or useless it may be.

c.

d.

2.

 FOUR (4) FORMS OF ULP IN BARGAINING a. Failure or refusal to meet and convene;  b. Evading the mandatory subjects of bargaining. ( Mandatory Subjects includes wages, hours or work, grievance machinery, voluntary arbitration, family  planning, rates of pay, and mutual observance clause); c. Bad faith in bargaining (boulwarism, which occurs when the employer directly bargains with the employee disregarding the union. The employer submits its proposals and adopts a ‘take it or leave it’ stand. This is not negotiation because such stand implies threat). Bad faith bargaining also includes failure or refusal to execute the CBA if requested; and d. Gross violation of the CBA. [ NOTE: Violations of the CBA, except those which are GROSS in character, shall no longer be treated as an ULP but as a grievance under the CBA (Art.261).] 15. WHO ARE CRIMINALLY LIABLE FOR ULP?

ULP OF EMPLOYERS (Art.248) Only the officers and agents of corporations, associations or partnerships who have actually  participated in, authorized or ratified ULP shall be held criminally liable. ULP OF LABOR ORGANIZATIONS (Art.249) The officers, members of governing boards, representatives or agents or members of labor associations or organizations who have

FUNDAMENTAL FACTORS IN FIXING AN APPROPRIATE BARGAINING UNIT (4)

1.

14. HOW DOES A UNION VIOLATE THE DUTY TO BARGAIN COLLECTIVELY BE CONSIDERED AN ULP?

2.

3. 4.

3.

Employer-employee relationship; Possession of the status of majority representation by the employees’ representative in accordance with any of the means of selection or designation provided for  by the Labor Code; Proof of majority representation (Certification of the BLR that the representative of the employees is the sole and exclusive bargaining agent having won in a certification election); and Demand to bargain under Art. 250(a) of the Labor Code.

Globe Doctrine – the express will or desire of the employees; Community of Interest Doctrine or the Substantial Mutual Interest Rule – the substantial and mutuality interests factor. [ NOTE: Things To Consider in  Determining Community of Interest: (a) Similarity in  scale/manner of determining earnings; b) Similarity in employment benefits, hours of work and other terms & conditions of employment; (c) Similarity in kinds of work performed; (d) Similarity in qualifications, skills and training of the employees; (e) Similarity in supervision and determination of labor relations policy; (f) Frequency of contract or interchange among the employees; (g) History of  previous collective bargaining; (h) Desires of the affected employees; and (i) Extent of union organization. History or the prior CBA history; Employment status such as: (a) Temporary, (b) Seasonal, (c) Probationary Employee

A) ONE COMPANY – ONE UNION POLICY

The proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to self-organization for purposes of collective bargaining. B) EXCEPTIONS (3)

a)

Supervisory employees who are allowed to form their own unions apart from the rank-and-file employees;  b) Two companies cannot be treated into a single  bargaining unit even if their businesses are related; c) Subsidiaries or corporations formed out of former divisions of a mother company following a

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reorganization may constitute a separate bargaining unit. 4.

A) VOLUNTARY RECOGNITION

Voluntary Recognition is the process whereby the employer recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after a showing that the labor organization is supported by at least a majority of the employees in the bargaining unit.

c.

The employer - when requested by the employees – may file a PCE in an unorganized establishment.

NOTE: DURING THE PENDENCY FOR REGISTRATION, THE L.O. CAN ALREADY FILE A PCE. ALSO UPON THE ISSUANCE OF CHARTER CERTIFICATE TO A LOCAL CHAPTER.

8.

REQU ISITE S IN AN ESTABLISHMENT (Art.256)

ORGA NIZED

B) REQUIREMENTS (U1M)

B1. Voluntary recognition is possible only in an U NORGANIZED establishment; B2. Only ONE ( 1) UNION is asking for recognition; B3. The union voluntarily recognized should be the MAJORITY union as indicated by the fact that members of the bargaining unit did not object to the projected recognition. C) LEGAL EFFECTS OF VOLUNTARY RECOGNITION

Through voluntary recognition by the employer, the labor organization is recognized by the employer as the exclusive  bargaining agent which may collectively bargain with such employer. 5.

CERTIFICATION ELECTION

Certification Election is the process of determining by secret  ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining (employees in the 3 payroll period prior to the certification election may vote). The election is conducted under the supervision and control of DOLE officials. It ends up with a formal and official statement of results, certifying which union won, if any. Hence, the election is appropriately called “certification election.” Certification election can be filed anytime if there is no CBA or is not registered. It can be filed during the freedom period if there is an incumbent CBA. 6.

CONTRACT BAR RULE

While a valid and registered CBA is subsisting for a FIXED PERIOD OF 5 YRS, the Bureau is not allowed to hold an election contesting the majority status of the incumbent union EXCEPT during the sixty (60) day-period immediately prior to its expiration, which period is called the FREEDOM PERIOD. (Art.231) 7.

WHO CAN FIL E A PET ITI ON CERTIFICATION ELECTION (PCE)?

FOR

In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any LLO including a national union or federation which has already issued a charter certificate to its local chapter participating in the CE or a local chapter which has been issued a charter certificate by the national union or federation before the DOLE within the 60-day period before the expiration of the CBA, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least 25% of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. 9.

RULES IN THE 25% CONSENT REQUIREMENT INCLUDING WITHDRAWAL OF CONSENT

In deciding whether the 25% requirement is applicable or not, the law considers the CBU involved, not the whole enterprise. This, again, makes it easy for workers to unionize, a basic objective of labor relations law. In an organized establishment, the PCE must be supported by the written consent of at least 25% of all the employees in the appropriate bargaining unit (Art.256). The 25% initial support indicates that the petitioner has a fair chance of winning and that the petition is not just a nuisance. But in an unorganized establishment, the 25% consent signature requirement is not applicable. A group of supervisors (unionized) who files a PCE does not need to  present 25% minimum support because such is considered unorganized. The petition for CE involves only the supervisors, not the rank-and-file. Insofar as the supervisors are concerned, the “establishment” is considered unionized. Hence the requirement for 25% support to the petition does not apply.  Effect of Withdrawal of Signatories

a.

 b.

Legitimate Labor Organization (LLO) including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election Local chapter which has been issued a charter certificate by the national union or federation

A critical fact to consider is whether the withdrawal happened  before or after the filing of the petition. If it happened before the filing, the withdrawal is presumed voluntary and it does not affect the propriety of the petition; if after, the withdrawal is deemed involuntary  (perhaps pressured by the employer) and it does not necessarily cause the dismissal of the petition

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The presumption would arise that the withdrawal was  pr oc ur ed th ro ug h du re ss , co er ci on or fo r va lu ab le consideration. In other words, the distinction must be that withdrawals made before the filing of the petition are  presumed voluntary unless there is convincing proof to the contrary, whereas withdrawals made after the filing of the  petition are deemed involuntary. The reason for such distinction is that if the withdrawal or retraction is made before the filing of the petition, the names of employees supporting the petition are supposed to be held secret to the opposite party. Logically, any such withdrawal or retraction shows voluntariness in the absence of proof to the contrary.

that a certification is ordered by the Department while a consent election is voluntarily agreed upon by the parties, with or without the intervention of the Department. Two or more unions are involved in a consent election. And like certification election, consent election may take place in an unorganized or organized establishment.

13. GROUNDS FOR DISMISSAL ON THE PETITION FOR CERTIFICATION ELECTION (5) (D.O.40-03)

a.

10. WHEN TO FILE MOTION FOR INTERVENTION?

 b. Section 6, Rule V, Book V of the implementing Rules provides that a petition for certification election or a motion for intervention can only be entertained within sixty days prior to the expiry date of an existing collective bargaining agreement. c. NOTE: Incumbent CBA is an automatic intervenor on the PCE, meaning it need not file a Motion for Intervention. 11. JURISDICTION OF MED ARBITER ON THE ACTION FOR PCE

A Med Arbiter may determine if there is employer-employee relationship and if the voters are eligible. He will decide whether to grant or deny the PCE. All issues pertaining to the existence of employer-employee relationship or to eligibility to union membership shall be resolved in the order or decision granting or denying the  petition for certification election. In other words, those issues do not stall the PCE and they are not grounds for dismissing a PCE. It is absurd to suggest that the Med-Arbiter and Secretary of Labor cannot make their own independent finding as to the sentence of such relationship and must have to rely and wait for such a determination by the Labor Arbiter or NLRC in a separate proceeding. For then, given a situation where there is no separate complaint filed with the Labor Arbiter, the MedArbiter and/or the Secretary of Labor can never decide a CE case or any labor-management dispute properly brought before them as they have no authority to determine the existence of an employer-employee relationship. Such a proposition is, to say the least, anomalous. Once there is a determination as to the existence of such a relationship, the med-arbiter can then decide the CE case. As the authority to determine the employer-employee relationship is necessary and indispensable in the exercise of jurisdiction  by the Med-Arbiter, his finding thereon may only be reviewed and reversed by the Secretary of Labor who exercises appellate jurisdiction under Article 259 of the LC, as amended. 12. CONSENT ELECTION

d.

e.

Petitioner is not listed in the department’s registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality; Petition was filed before or after the freedom period of a duly registered CBA, provided that the 60 day  period based on the original CBA shall not be affected by any amendment, extension, or renewal of the CBA; Petition was filed within 1 year from entry of voluntary recognition or a valid certification, consent, or run-off election and no appeal on the results thereof is pending; A duly certified union has commenced an sustained negotiations with the employer or there exists a  bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party; In case of an organized establishment, failure to submit the 25% support requirement for the filing of the PCE.

14. W H O A R E Q U A L I F I E D T O V O T E I N CERTIFICATION ELECTION?

All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. The list of voters should be based on the employer-certified list of employees in the CBU or payrolls. If the employer does not submit the list or payrolls, the union may submit its own list. Even the list of employees submitted to the SSS may be used as basis to comprise the list of voters for the CE. “It should ideally be the payroll which should have been used for the  purpose of the election. However, the unjustified refusal of a company to submit the payroll in its custody, despite efforts to make it produce it, compelled resort to the SSS list as the next  best source of information. After all, the SSS list is a public record whose regularity is presumed.” Only the employees who are directly employed by the employer and working along the activities to which the employer is engaged and linked by employer-employee relationship are qualified to participate in the certification election, “irrespective of the period of their employment.”

Like a CE, its purpose is the same, namely, to find out which union should serve as the bargaining agent. The difference is Labor Review on Labor Relations Q&A (Prof.Ungos) – Balamban, Paruginog, Saidamen-Basman

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Employees of an independent contractor who undertakes to do a piece of work for his account and responsibility, with minimum interference on the part of the other contracting  party (indirect employer), not being laborers or employees of the latter, are not qualified to participate therein. In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule.

in the minutes of the election proceedings. Protests not so raised are deemed waived. The protesting party must formalize its protest with the MedArbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed  period, the protest shall be deemed dropped. NOTE: “After the close of election proceedings” means the  period from closing of the polls to the counting and tabulation of the votes.

15. NOTICE OF ELECTION REQUIREMENTS 18. RUN-OFF ELECTION

The Election Officer shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company  premises. The notice shall contain: (a) the date and time of the election; (b) names of all contending unions; (c) the description of the bargaining unit and the list of eligible and challenged voters. The posting of the notice of election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer. It is mandatory.

When an election which provides for three (3) or more choices results in none of the contending unions receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materially alter the results, the Election Officer shall motu propio conduct a run-off election within ten (10) days from the close of the election  proceedings between the labor unions receiving the two highest number of votes; provided, that the total number of votes for all contending unions is at least fifty (50%) percent of the number of votes cast. "No Union" shall not be a choice in the run-off election.  Notice of run-off elections shall be posted by the Election Officer at least five (5) days before the actual date of run-off election.

16. A) GROUNDS FOR CHALLENGING VOTES?

An authorized representative of any of the contending unions and employer may challenge a vote before it is deposited in the ballot box only on any of the following grounds: 1.

(a) that there is no employer-employee relationship between the voter and the company; (b) that the voter is not a member of the appropriate bargaining unit which petitioner seeks to represent. B) RULES IN CHALLENGING OF VOTES

When a vote is properly challenged, the Election Officer shall  place the ballot in an envelope which shall be sealed in the  presence of the voter and the representatives of the contending unions and employer. The Election Officer shall indicate on the envelope the voter's name, the union or employer challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions and employer. The Election Officer shall note all challenges in the minutes of the election and shall be responsible for consolidating all envelopes containing the challenged votes. The envelopes shall be opened and the question of eligibility shall be passed upon only if the number of segregated voters will materially alter the results of the election.

----------------------------------------------PCE / BAR TO PCE / APPEAL ---------------------------------------------F O U R C O N D IT I O NS B E F O RE R U N - OF F ELECTION MAY BE CONDUCTED

A run-off election is proper if these concurrent conditions exist, namely: a. a valid election took place because majority of the CBU members voted.  b. the election presented a least three choices, e.g., Union One, Union Two, and No Union, meaning there are at least two union “candidates.” Further, not one of the unions obtained the majority of the valid votes. c. the total number of votes for all the unions is at least 50% of the valid votes cast. d. there is no unresolved challenge of voter or election protest.

2.

WHO ARE QUALIFIED TO VOTE FOR CERTIFICATION ELECTION

(See No.15, page 10) 17. RULES ON ELECTION PROTEST 3.

Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded

A) CAN PROBATIONARY OR NON-REGULAR EMPLOYEES VOTE FOR CERTIFICATION ELECTION?

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YES. In a certification election all rank-and-file employees in the appropriate bargaining unit are entitled to vote. This  principle is clearly stated in Art. 255 of the Labor Code which states that the "labor organization designated or selected by the majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining."

administrative rule nor jurisprudence requires that only employees affiliated with any labor organization may take part in a certification election. On the contrary, the plainly discernible intendment of the law is to grant the right to vote to all bona fide employees in the bargaining unit, whether they are members of a labor organization or not. D) STRIKING EMPLOYEES?

Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rank-and-file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility in supporting the  petition for certification election. The law refers to "all" the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the "bargaining unit".

Strikers are eligible to vote in a certification election because they continue to enjoy employee status during the strike, unless, in the meantime, they are declared to have lost their employee status. (R. Transport Corp. vs. Laguesma) 4.

A) IN CASE A VOTE IS CHALLENGED, WHAT SHOULD BE DONE? / RULES ON CHALLENGING OF VOTES?

(See No.16B, Page 10) B) DISMISSED EMPLOYEES WHO FILED PETITION FOR ILLEGAL DISMISSAL?

IT DEPENDS. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless  his/her dismissal was declared final  judgment at the time of the conduct of the certification election. In Philippine jurisprudence it is now settled that employees who have been improperly laid off but who have a present, unabandoned right to or expectation of re-employment, are eligible to vote in certification elections. Thus, and to repeat, if the dismissal is under question, as in the case now at bar whereby a case of illegal dismissal and/or unfair labor practice was filed, the employees concerned could still qualify to vote in the elections.

5.

POSTING OF NOTICE OF ELECTION IS A MANDATORY REQUIREMENT

(See No.15, page 10) 6.

GROUNDS FOR CHALLENGING OF VOTES

(See No.16A, Page 10) 7.

C A N A C E R T I F IC A TI O N E L E C T I O N B E CONDUCTED DURING A STRIKE?

YES. (Check Asian Design vs. Ferrer-Calleja)

8.

A) CAN A LABOR ORGANIZATION FILE A MO TI ON FO R IN TE RVE NT IO N IN UNORGANIZED ESTABLISHMENT?

C) MEMBERS OF RELIGIOUS SECT?

YES. In the CE all members of the unit, whether union members or not, have the right to vote. Union membership is not a  prerequisite. If majority of the unit members do not want a union, as expressed in the CE, such majority decision must be respected. Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign from a labor organization, is subsumed in the right to join, affiliate with, or assist any union, and to maintain membership therein. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. The respondents' argument that the petitioners are disqualified to vote because they "are not constituted into a duly organized labor union" — "but members of the Iglesia Ni Cristo (INC) which prohibits its followers, on religious grounds, from  joining or forming any labor organization" — and "hence, not one of the unions which vied for certification as sole and exclusive bargaining representative," is specious. Neither law,

In unorganized establishments, a legitimate labor organization with substantial interest in the certification election may file a motion for intervention… (Sec. 8, Rule VIII, Book V, Rules Implementing the Labor Code)

B) AT WHAT PERIOD OF TIME?

… at any time prior to the decision of the Med-Arbiter.

9.

CAN AN EMPLOYER FILE A PCE?

Yes, in an UNORGANIZED establishment. (Art.258) 10. EXCEPTIONS TO THE BY-STANDER PRINCIPLE

By-stander principle may not be applied if the employer invokes the following grounds to protect his interest: a. Non-existence of Er-Ee relationship  between the company and the employees sought to be represented by the petitioning union.

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b. Petitioning union has no legitimacy or

agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession.

legal personality. c. Petition is not supported by the written consent of 25% of the employees within the bargaining unit. d. Bargaining unit being represented by the  petitioning union is not an appropriate bargaining unit. e. Contract-bar rule f. Voluntary recognition-year bar rule g. Election-year bar rule h. Negotiation-year bar rule i. Deadlock bar rule

19. ESSENTIAL ELEMENTS IN DUTY TO BARGAIN COLLECTIVELY

(See. No.18 - Art. 252 & No.20A - Art 253) 11. CONTRACT BAR RULE 20. A) WHEN IS THERE A DUTY TO BARGAIN COLLECTIVELY WHEN A CBA EXISTS? (ART. 253)

(See No.6, page 8) 12. VOLUNTARY RECOGNITION RULE

 No PCE may be filed within one year from the date of a valid certification, consent, or run-off election or from the date of voluntary recognition.

When there is a collective bargaining agreement, the duty to  bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day  period and/or until a new agreement is reached by the parties.

14. NEGOTIATION YEAR BAR RULE

B) WHEN THERE IS NO EXISTING CBA? (ART.252)

A PCE cannot be entertained if, before the filing of the PCE, the duly recognized or certified union has commenced negotiation with the employer in accordance with Art.250.

(See No.18)

 No PCE may be filed within one year from the date of a valid voluntary recognition. 13. ELECTION YEAR BAR RULE

15. DEADLOCK BAR RULE 1.

A PCE cannot be entertained if before the filing of the PCE, a  bargaining deadlock to which an incumbent or certified  bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. The one-year bar is not necessary. 16. A) APPEAL IN UNORGANIZED ESTABLISHMENT

If petition is granted, the case is not subject to appeal.  petition is dismissed, the case is appealable.

If

Art.243 – Coverage and Employee’s Right to SO Art.244 – Right of Employees in the Public Service Art.245 – Ineligibility of managerial employees to join any labor organization; Right of Supervisory Art.246 – Non-abridgement of Right to SO Art.247 – Concept of ULP and Procedure for Prosecution thereof Art.248 – ULP of Employers 2.

B) APPEAL IN ORGANIZED ESTABLISHMENT Whether petition is granted or dismissed, the case is subject to appeal. 17. TWO MODES OF DETERMINATION OF COLLECTIVE BARGAINING AGENT

a.  b.

Certification Election – includes consent, run-off election Voluntary Recognition

18. DEFINITION OF DUTY TO BARGAIN COLLECTIVELY (Art.252)

The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an

-----------------------------------------------------THE COLLECTIVE BARGAINING PROCESS -----------------------------------------------------ORGANIZATION (ART.243-248)

REGISTRATION / AFFILIATION (ART.234-244)

Art.234 – Requirements of registration Art.235 – Action on Application Art.236 – Denial of Registration; Appeal Art.237 – Additional requirements for Federations or National Unions Art.238 – Cancellation of Registration; Appeal Art.239 – Grounds of Cancellation of Union Registration Art.240 – Equity of the Incumbent Art.241 – Rights and Conditions of Membership in Labor Org Art.242 – Rights of LLO Art.243 – Coverage and Employee’s Right to SO Art.244 – Right of Employees in the Public Service 3.

DEMAND TO BARGAIN (ART.250 – Procedure in CB)

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The ff procedures shall be observed in collective bargaining: a. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;  b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request; c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the 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; d. During the conciliation proceedings in the Board, the  parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator.

PURPOSE: Contract Bar Rule

1.

------------------------------------------------CERTIFICATION ELECTION PPROCESS ------------------------------------------------Outline of the Certification Election Process.

1.1. FILING OF PETITION 1.2. HEARING 1.2.1. Motion to Dismiss 1.2.2. Motion to Suspend Proceedings  NOTE: GROUNDS FOR SUSPENDING  PROCEEDINGS a. When the union is a company-dominated union,  prejudicial question b. When the legal personality of the union is seriously challenged

1.2.3. Motion for Intervention 1.2.4. Parties may agree to Consent Election

Voluntary Recognition -In Unorganized Establishment a. Joint statement of fact of voluntary recognition, fact of  posting, and fact of only 1 union  b. Notice of Voluntary Recognition with DOLE c. Recording

 NOTE: When the parties agreed to have consent election, the 3rd  step is skipped off. The 4th step – Preelection Conference follows.

1.3. ISSUANCE OF ORDER / DECISION -Petition for Certification Election a. LLO  b. Federation c. Employer

4.

PRE-ELECTION CONFERENCE

5.

POSTING OF NOTICE OF ELECTION  Mandatory Requirement. 10 Days before the election

-

4.

NEGOTIATIONS

DEADLOCK Conciliation Arbitration Strikes / Lockouts CBA -

-

-

Signed Any agreement on such other provisions of the CBA entered into within 6 mos. from the date of expiry of the term of such other provisions, shall retroact to the day immediately following such date. If any such agreement is entered into beyond 6 mos., the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the CBA, the parties may exercise their rights under this Code. If there’s deadlock – the effectivity date shall be when the arbitrator renders its final decision.

5.

POSTING (ART.231)

6.

RATIFICATION

6.

ELECTION

7.

CANVASSING

8.

PROCLAMATION

------------------------------------------------------------------------GRIEVANCE MACHINERY & VOLUNTARY ARBITRATION ------------------------------------------------------------------------1. WHAT IS A GRIEVANCE?

A grievance is defined as “any question by either the employer or the union regarding the interpretation or application of the collective bargaining agreement or company personnel  policies or any claim by either party that the other party is violating any provision of the CBA or company personnel  policies.” If the term grievance is to be applied in the loose or generic sense, any dispute or controversy respecting terms and conditions of employment which an employee or group of employees may present to the employer can be a grievance, even without a union or CBA.

7. REGISTRATION (ART.231) Labor Review on Labor Relations Q&A (Prof.Ungos) – Balamban, Paruginog, Saidamen-Basman

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The expansion of the original and exclusive jurisdiction of voluntary arbitrators to include questions arising from the interpretation and enforcement of company personnel policies has the effect of widening the meaning and interpretation of a grievance to include a situation where there is no collective  bargaining agent and no CBA. 2.

IF THERE IS GRIEVANCE, TO WHAT BODY IT SHOULD BE PRESENTED?

All grievances arising from the implementation or interpretation of the collective bargaining agreement and/or interpretation and enforcement of company personnel policies are compulsorily subject to the grievance machinery. Upholding the requirement, the Court has ruled that the grievance procedure provided in the CBA should be adhered to by the parties. Refusal or failure to do so is an unfair labor  practice, because the grievance procedure is part of the continuous process of collective bargaining. It is intended to  promote friendly dialogue between labor and management as a means of maintaining industrial peace. Before an aggrieved employee may resort to the courts to enforce his individual rights under a bargaining contract, the employee must exhaust all the remedies available to him under such contract. And a court should not entertain any complaint  by an aggrieved employee until proper use has been made of the contract grievance procedure agreed upon  by employer and the bargaining representative. The grievance machinery under the agreement is the very heart of industrial selfgovernment. 3.

IS A VIOLATION OF CBA A GRIEVANCE? (Art. 261)

YES. Violations of a CBA shall no longer be treated as ULP and shall be resolved as grievances under the CBA, except those which are gross in character. 4.

WHEN THE VIOLATION OF CBA IS GROSS, WHO HAS JURISDICTION?

The Labor Arbiter. (Art.17) 5.

WHAT IS VOLUNTARY ARBITRATION

Voluntary Arbitration Voluntary arbitration has been defined as a contractual proceeding whereby the parties to any dispute or controversy, in order to obtain a speedy and inexpensive final disposition of the matter involved, select a judge of their own choice and by consent submit their controversy to him for determination. Under voluntary arbitration, on the other hand, referral of a dispute by the parties is made, pursuant to a voluntary arbitration clause in their collective agreement, to an impartial third person for a final and binding resolution. 6.

A) WHO IS A VOLUNTARY ARBITRATOR?

A voluntary arbitrator is chosen by the parties themselves ( preferably  accredited by the NCMB). The choice is usually influenced by the trust in the person’s fairness and knowledge of the dynamics, including law, of labor-management relation.

B) CAN THE PARTIES AGREE TO APPOINT LABOR ARBITER AS A VOLUNTARY ARBITRATOR?

YES. The parties are afforded the latitude to decide for themselves the composition of the grievance machinery as they find appropriate to a particular situation. A voluntary arbitrator is chosen by the parties themselves ( preferably  accredited by the NCMB). The choice is usually influenced by the trust in the person’s fairness and knowledge of the dynamics, including law, of labor-management relation. The preferred method of selection is by mutual agreement of the parties. Alternative methods include the selection or appointment by an administrative agency like the NCMB. 7.

WHAT IS THE JURISDICTION OF VOLUNTARY ARBITRATOR? (Art.261)

The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. By “unresolved grievance” it means that the grievance must have passed the grievance machinery. 8.

A) CAN THE VOLUNTARY ARBITRATOR HAVE JURISDICTION OVER LABOR DISPUTES?

YES. In labor-management relations voluntary arbitration is a master procedure. Any and all kinds of labor disputes may be submitted to, settled or resolved through voluntary arbitration, if the parties so desire. Money claims, bargaining deadlocks, strike or lockout, employment termination, and even questions about existence or absence of employer-employee relationship, may be resolved by the parties—with finality—by availing themselves of voluntary arbitration. As a master procedure voluntary arbitration takes precedence over other dispute settlement devices (i.e., cases before the labor arbiter or Secretary of Labor or the NLRC) B) IS THERE ANY DIFFERENCE BETWEEN THE TERMINATION DISPUTES UNDER ART.217 WH ER EIN TH E LA BO R AR BI TE R HA S JURISDICTION?

YES. Compulsory arbitration is a system whereby the parties to a dispute are compelled by the government to forego their right to strike and are compelled to accept the resolution of their dispute through arbitration by a third party. The essence of arbitration remains since a resolution of a dispute is arrived at by resort to a disinterested third party whose decision is final and binding on the parties, but in compulsory arbitration, such a third party is normally appointed by the government. In Philippine context, the “judge” in voluntary arbitration is called arbitrator, while that in compulsory is labor arbiter. The  jurisdiction of a VA is stated in Articles 261 and 262 while that of an LA is in Article 217.

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--------------------------------------------------STRIKES AND LOCKOUTS --------------------------------------------------1. Validity of strikes a. ALPAP vs. CIR – mass resignation  b. Phil. Blooming Mills Case – strike without labor dispute 2. Kinds of strike a. as to dispute - unfair labor practice strike - economic strike

 b. as to the manner of execution - walk-out - sit-down - becomes illegal only when ingress or egress of compound is blocked - slow-down - mass leave - wildcat – illegal c. as to the employer to whom it is directed - primary - secondary connection by employment; illegal – no labor dispute - sympathy no con nec tio n at all ; considered illegal - general - particular 3. Legal grounds for declaring a strike a. collective bargaining deadlock  b. unfair labor practice act of the employer 4. Who can declare a strike? Rule: Duly recognized collective bargaining representative legitimate labor organization only if it is an ULP strike. 5. Requisites for validity of strikes a. notice of strike  b. strike vote c. strike vote report d. + plus lawful purpose and means

a. when the supposed strikers did not strike but were  practically locked out  b. where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer without justifiable reason. 11. Illegality of strikes a. violation of specific prohibition by law - correct wage distortion - do not bargain collectively - org. without bargaining rights - inter-union/intra-union disputes

 b. specific requirement of law c. unlawful purpose - induce to commit ULP to non-union - committed by minority to strike d. unlawful means employed e. violation of existing injunction – strike after return to work order/assumption order f. violation of existing agreement - conclusive bargaining agreements - in violation of non-strike policy – only in economic strike but not in ULP strike 12. Liable for damages in strike In order to hold the union and the strikers liable for damages, the best evidence obtainable must be presented. Actual or compensatory damages cannot be presumed, but must be duly proved with reasonable degree of certainty. The must be competent proof that damages have been suffered and the actual amount thereof. In the absence of competent proof of actual damage the employer is entitled to nominal damages  – which as the law says, is adjudicated in order that the defendant may be vindicated and recognized, and not for the  purpose of indemnifying the plaintiff for any loss suffered. Local union and not the mother federation is liable for damages resulting from an illegal strike. The reason is  because the local union is the principal and the mother federation is a mere agent of the local union.

8. Strike vote report The union should report to the regional branch of the  National Conciliation and Mediation Board the results of the voting at least seven (7) days before the intended strike.

13. Can a strike be enjoined? Gen. Rule: No; right granted by the constitution Exceptions: a. If declared against an industry indispensable to national interest, in which case, the Secretary of Labor and Employment may assume jurisdiction or certify the dispute for compulsory arbitration. Such assumption or certification has the effect of automatically enjoining the strike.  b. If staged by employees who are not accorded the right to strike, like managerial employees or employees government-owned or controlled corporation with original charters. c. If staged because of an intra-union or inter-union dispute.

9. Report to work order - immediately executory; non-appealable

 Note: even if the illegal strike is not enjoined, the illegal acts can be considered enjoined

10. No work, no pay principle; exceptions

14. Strike breaker

6. Notice of strike - 30 days - 15 days -

collective bargaining dispute ULP – exception: union busting

7. Strike vote Majority of TOTAL UNION MEMBERSHIP

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A strike breaker is a person who obstructs, impedes, or interferes with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy affecting wages, hours or conditions of work or in the exercise of the right to self-organization or collective  bargaining. 15. Prohibition against escorting replacement What is prohibited is the escorting of individuals in entering or leaving the strike area to replace the striking employees. What the law prohibits is the escorting of replacements WITHIN the strike area. STRIKE AREA refers to the establishment, warehouses, depots, plants or offices, sites or premises used as runaway shops and the immediate vicinity actually used by the picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. 16. Picketing Gen. Rule: Allowed. Freedom of speech Exceptions (3): Persons or employees engaged in  picketing are forbidden from: a. committing any act of violence, coercion, or intimidation;  b. obstructing the free ingress to and egress from the employer’s premises; and c. obstructing public thoroughfares 17. Limitations to a lockout A lockout cannot be declared: a. without first having bargained collectively;  b. without first having filed the notice of lockout; c. without the necessary lockout vote first having  been obtained and reported to the department of labor and employment; d. after the secretary of labor and employment assumes jurisdiction or certifies the dispute to compulsory or voluntary arbitration; or e. during the pendency of cases involving the same grounds for the lockout 18. National interest disputes  Note: It is not necessary that there must be an ACTUAL STRIKE; intended strike can be, before the Secretary may assume or certify. a. legal effect – automatically enjoins  b. viol ation of retu rn to work orde r – ALL STRIKERS Illegal strike/committed violation in illegal strike – UNION OFFICERS or MEMBERS.

--------------------------------------------------cont. STRIKES AND LOCKOUTS --------------------------------------------------1. What is a strike? Strike is any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. 2. Limitations to strike. A strike cannot be declared: a. without first having bargained collectively;

 b. without first having filed the notice of strike; c. without the necessary strike vote first having been obtained and reported to the department of labor and employment; d. after the secretary of labor and employment assumes jurisdiction or certifies the dispute to compulsory or voluntary arbitration; or e. during the pendency of cases involving the same grounds for the strike 3. Who are qualified to vote in a strike? The decision to declare a strike must be approved by the majority of the TOTAL UNION MEMBERSHIP in the  bargaining unit concerned, through secret ballot in a meeting or referendum called for the purpose. 4. Is mass-leave considered a strike? Mass resignation? Mass-leave is considered as a strike if they constitute temporary stoppages arising from labor disputes. Mass resignation is not a strike because it is not temporary in nature. 5. Distinguish secondary strike and sympathy strike. Secondary strike – this is directed against the employer connected by product or employment with alleged unfair labor conditions or practices. Sympathy strike – This is a strike stages to make common cause with other strikers in other establishments of companies without the existence of any dispute between the striking employees and their employer. In a sympathy strike, there need not be a connection of product or employment. The connection of products or employment with the primary labor dispute is the distinguishing factor between a secondary strike and a sympathy strike. 6. Legal grounds for strike. a. collective bargaining deadlock  b. unfair labor practice act of the employer 7. Who can conduct a strike? How does one become a duly recognized collective bargaining representative? Under the rules, only a certified or duly recognized collective bargaining representative can declare a strike, be it an economic strike or an unfair labor strike. In the absence of a certified or duly recognized collective bargaining representative, a strike can be declared by a legitimate labor organization in the establishment, but only on the ground of unfair labor practices. Therefore, employees of establishments where there is no union cannot strike. Voluntary Recognition OR Certification Election. 8. Can a strike be conducted in an unorganized establishment?  No 9. What are the legal requirements of a strike? a. notice of strike  b. strike vote c. strike vote report 10. Duration of filing of Notice of Strike? The notice of strike should be filed with the Regional Branch of the National Conciliation and Mediation Board, and SERVED to the company, at least;

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a. thirty (30) days before the intended date of strike – if the ground for strike is based on collective bargaining deadlock; or  b. fifteen (15) days before the intended date of strike  – if the ground for strike is based on unfair labor practice The purpose of the notice of strike is to provide an opportunity for mediation and conciliation. 11. What is cooling-off period? Duration? The cooling-off period is the span of time allotted by law for the parties to settle their disputes in a peaceful manner  before declaring a strike. The duration of the cooling-off  period are as follows: a. thirty (30) days from the filing of the notice of strike – if the ground for strike is based on collective  bargaining deadlock; or  b. fifteen (15) days from the filing of the notice of strike – if the ground for strike is based on unfair labor  practice.

Observance of the cooling-off period is mandatory. 12. Can one declare a strike during cooling-off period? - During UNION BUSTING 13. Requirements of strike vote The decision to declare a strike must be approved by the majority of the TOTAL UNION MEMBERSHIP in the  bargaining unit concerned, through secret ballot in a meeting or referendum called for the purpose. 14. Can injunction be issued against a strike? Exceptions? Gen. Rule: No; right granted by the constitution Exceptions: a. If declared against an industry indispensable to national interest, in which case, the Secretary of Labor and Employment may assume jurisdiction or certify the dispute for compulsory arbitration. Such assumption or certification has the effect of automatically enjoining the strike.  b. If staged by employees who are not accorded the right to strike, like managerial employees or employees government-owned or controlled corporation with original charters. c. If staged because of an intra-union or inter-union dispute.

 Note: even if the illegal strike is not enjoined, the illegal acts can be considered enjoined 15. At what point of time can union declare a strike? After all the requisites have been complied with. 16. Suppose the strike ceased, can the employees be reinstated? Yes, there was no termination of employment which is permanent. 16.1 How about if it is an illegal strike? The present rule is that an illegal strike does not automatically warrant the wholesale dismissal of strikers. Only the following strikers can be penalized with loss of employment status:

a. Union officers who knowingly participate in an illegal strike; and  b. Union officers or members who knowingly  participate in the commission of illegal acts during a strike 17. Can the strikers be entitled to backwages? Gen. Rule: The strikers are not entitled to backwages on the principle that “a fair day’s wage” accrues only for a “fair day’s labor” Exception: The following are entitled to backwages a. involuntary strikers illegally locked-out  b. voluntary strikers in ULP strike who offered to return to work unconditionally 18. Requisites of valid strike. a. notice of strike  b. strike vote c. strike vote report 19 Who may issue injunction? a. industry indispensable to national interest secretary of labor  b. those who are not accorded to strike – NLRC c. inter-union/inter-union disputes – NLRC 20. Effects of the issuance of return-to-work order/ assumption order? a. automatically enjoins the intended or impending strike or lockout as specified in the assumption or certification order;  b. if one has already taken place at the time of assumption or certification, all striking or locked-out employees shall immediately return to work; and c. the employer shall immediately resume operations and re-admit all workers under the same terms and conditions  prevailing before the strike or lockout. 21. Can union members in the strike be arrested? Exceptions? Gen. Rule: A police officer cannot arrest or detain a union member for union activities without previous consultations with the secretary of labor. Except on grounds of: 1. national security 2. public peace 3. commission of a crime

An arrest can be lawfully made in the following cases; a. any person who obstructs the free and lawful ingress and egress from the employer’s premises or who obstructs public thoroughfares.  b. any person who shall have in his possession deadly weapons in violation of BP Blg 6 and firearms and explosives. 22. Procedure of filing criminal cases Before filing a criminal case relating to or arising out of a labor dispute, clearance must first be obtained from the Department of Labor and Employment or the Office of the President. An injunction order issued in a labor case is considered as compliance with the clearance requirement. 23. Procedure of removing blockades Obstructions in public properties, such as streets, sidewalks, alleys, may be summarily removed by the local

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governments, through their respective law enforcement authorities without consulting with the DOLE, because these obstructions are considered as nuisance per se. Obstructions in  points of egress and ingress of private properties during a labor dispute may be removed only in accordance with proper orders issued by the office of the secretary of labor and Employment or by the NLRC or its arbitration branches. They cannot be summarily demolished by law enforcement authorities. 24. Lockout? Lockout vs. Shutdown Lockout is the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. Lockout is different from shutdown in the sense that in a lockout the plant continues to operate, whereas in a shutdown, the plant ceases to operate. A shutdown is the willful act of the employer himself following a complete lockout as contrasted to the compulsory stoppage of operations as a result of a strike and walkout. It can be truly said that all shutdowns are lockouts but not all lockouts constitute shutdowns. 25. Requisites of valid lockout To constitute a lockout, the refusal to furnish work must be: a. temporary  b. the result of a labor dispute 26. When can an employer declare a lockout? There are only two (2) grounds for declaring a lockout, namely: a. collective bargaining deadlock; and  b. unfair labor practice 27. Cooling-off period for lockout? The cooling-off period is the span of time allotted by law for the parties to settle their disputes in a peaceful manner  before declaring a lockout. The duration of the cooling-off  period are as follows: a. thirty (30) days from the filing of the notice of lockout – if the ground for lockout is based on collective  bargaining deadlock; or  b. fifteen (15) days from the filing of the notice of lockout – if the ground for lockout is based on unfair labor  practice. 28. Sanction for illegal lockout? An employer found guilty of illegal lockout may be held liable for backwages.

a. suppose the employees were terminated upon the duration of illegal lockout, what are his remedies? Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. For violation of Article 264 (a) of the LC, the remedy is to file with the Arbitration Branch of the NLRC a petition to declare the strike or lockout illegal. For violation of Articles 264 (b), (c), (d) and (e) of the LC, the remedy if to file a petition for injunction with the  NLRC. In addition, criminal action may be filed for any violation of Article 264 of the LC, the penalties of which are set forth in Article 272 of the same code.

II. TERMINATION OF EMPLOYMENT (Arts. 278-287) 1. Security of tenure. Definition Art. 282 – just causes Art, 283 – authorized causes Security of Tenure – the constitutional right granted the employee, that the employer shall not terminate the services of an employee except for just cause or when authorized by law. It extends to regular (permanent) as well as non-regular (temporary) employment. 2. Who are entitled to security of tenure?  Note: security of tenure if not a guarantee of  perpetual employment a. regular employees  b. non-regular employees – qualified in that it cannot  be terminated without just cause prior to the completion of the  project, season or term of employment. 3. What is the remedy for violation of security of tenure? Art. 277-B 4. What are the reliefs for unjust dismissal of migrant workers? of locally employed workers? a. reinstatement Art. 279  b. backwages c. damages – bad faith, arbitrary d. attorney’s fees e. separation pay 5. What is reinstatement? Concept of reinstatement Reinstatement in its generally accepted sense refers to a restoration to a state from which one has been removed or separated. It is the return to the position from which he was removed. Under the concept of reinstatement, an employer cannot be ordered to reinstate an employee to a position which he never occupied. For example, if an employee at the time of his dismissal was occupying a lower position, he cannot be ordered reinstated to a higher position. Similarly, if the dismissed employee at the time of his dismissal was occupying a temporary position, he cannot be ordered reinstated to a permanent position. 6. What is reinstatement WITHOUT LOSS OF SENIORITY RIGHTS? The phrase “without loss of seniority rights” means that upon reinstatement, the employee is to be treated in matters involving rank, position and continuity of employment as though he has not been absent from work. 7. Who is entitled to reinstatement?  Note: In reinstatement, there must be illegal dismissal 8. Exceptional cases where dismissal is illegal but reinstatement is impossible a. transfer of ownership  b. employer suffers from business reverses c. position occupied was abolished d. closure of business e. physical or mental incapacity f. retirement age of the employee

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g. conviction of criminal case - Sampaguita Garments vs. NLRC h. prescription - 4 years from date of dismissal i. strained relations  j. laches k. complaint merely prays for separation pay 9. What is backwages? Unpaid wages? Distinction Backwages refer to the compensation which an employee would have earned had he not been unjustly dismissed. Unpaid wages refers to compensation for services already rendered but withheld by the employer. 10. Exceptional cases that warrant limited or no backwages at all  Note: full backwages – illegal dismissal under the law; those provided by the labor code *Art. 286 renumbered to Art. 290 EO 10151 -Limited backwages – the penalty of dismissal is not commensurate to the offense committed. -No backwages when -employer acted in good faith -cessation of employment brought about neither by dismissal or abandonment -cessation of employment due to employee’s refusal 11. Circumstances that forestall running of backwages a. death  b. mentally incapacitated/ physical incapacity c. attainment of retirement age d. closure of business -temporary -permanent e. imprisoned (confinement in prison) f. re-employment of the dismissed employee 12. What is separation pay? Concept and purpose? Separation pay is sort of an aid given to an employee upon his separation from service so that he may have something on which to fall back when he loses his means of livelihood. It is an amount designated to provide him with the wherewithal during the period that he is looking for employment. The purpose of separation pay is to alleviate the difficulties that confront a dismissed employee thrown into the streets to face the harsh necessities of life. This gives the employee a leeway to tide him and his family over in the meantime that he goes job-hunting. To one who is accustomed to a certain type of job in one company, adjustment to other  job opportunities become a problem. Advanced age too, may reduce him to a low priority in the labor market. Thus, the necessity to cushion the adverse effects of sudden separation from service. 13. When is separation pay proper?  Normally, separation pay is a relief granted only to employees who are terminated by reason of: a. redundancy;  b. installation of labor-saving devices; c. retrenchment;

d. closure of establishment not due to serious  business losses; e. disease; or f. lay-off/suspension of operations for more than six (6) months. 14. Is the employee entitled to separation pay even if dismissed for a just and valid cause? PLDT vs. NLRC p.506 The general rule is that the separation from work of an employee for a just cause does not entitle him to separation  pay. Neverthel ess, exc eption ally and as an equ itable concession, the Supreme Court has held that separation pay may be awarded as a measure of social justice even if the dismissal is found to be valid and justified, but only in those instances where the employee was validly dismissed for a cause other than serious misconduct or offenses reflecting on his moral character.

15. Damages as relief for illegal dismissal?  Note: Specifically moral or exemplary, NOT ALL illegal dismissal cases warrant award of damages. It must be duly pleaded and proven *Based on Civil Code for damages 16. Can corporate officers be liable personally or solidarily with the corporation? Exceptions? 17. Managerial prerogatives; What are the managerial prerogatives? a. hiring  b. promote c. transfer d. reduce personnel for economic reasons e. change working hours, reduce, abolish a department or section f. reorganize and abolish positions g. spin-off h. close down its business i. discipline employees  NOTE: Managerial prerogatives cannot be interfered  by NLRC or labor arbiter, except on certain cases CONTINUATION 1. What are the classification of employees according to rank? a. managerial  b. supervisory c. rank and file 2. What is regular employment? Exceptions An employment is deemed regular where the employee has been engaged to perform activities that are usually necessary of desirable in the usual business or trade of the employer. Depends on nature of work. a. project  b. seasonal c. fixed term 3. What is non-regular employment?

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Employment other than a regular one. Only for a limited period or duration such as project, seasonal, or contractual. 4. What is project employment?  Note: Duration of undertaking a. activity done on a daily basis but only for a specific duration of time until completion  b. not commonly or habitually performed 5. What is seasonal employment? A job that is limited to the duration of a particular season. 6. What is fixed-term employment?  Note: Agreement of parties One which by free choice of the parties have assigned a specific date of termination.

a. serious misconduct or willful disobedience of the lawful orders, in connection with his work a.1. requisites of serious misconduct/willful disobedience  b. gross AND habitual neglect of duty  b.1. distinguish neglect (purely objective fact) from negligence 9subjective state of mind)  b.2. damage is not essential in neglect c. fraud -committed against employer -committed with employee’s work d. willful breach of trust -willful -related to performance of employee functions d.1 person holing a position of TRUST and CONFIDENCE

7. What is casual employment?  Note: Rendered at least 1 year, becomes casual regular employee Casual employment is a job wherein the activities  performed by the employee are not usually necessary or desirable in the usual business or trade of the employer.

-managerial - holding properties of the company e. commission of a crime-person only -employer -immediate members of family -authorized representative f. analogous causes

8. What is probationary employment? Probationary employment is a situation where the employee upon his engagement is made to undergo a trial  period during which the employer determines his fitness to qualify for regular employment based on reasonable standards made known to him at the time of engagement.

 Note: offenses must have an element similar to those found in just causes. It must be VOLUNTARY and WILLFUL ACT  Not e: enume rat ed in the book, oth er analogous causes *definition of union security clause

a. duration of probationary employment a.1. ordinary employees Generally, the probationary period of employment of ordinary employees is limited to six months. The exceptions are 1. when the parties to an employment contract or collective bargaining agreement agree on a longer  period; 2. when a longer probationary period is established by company policy; 3. when a longer period is required by the nature of work.

12. Breach of union security agreement; limitations A union security agreement is binding even if the employees are not aware of such agreement. Neither their ignorance nor dissatisfaction with the terms and conditions would justify their breach thereof or the formation by them of a union of their own.

a.2. academic 1. elementary or secondary – 3 consecutive school years of satisfactory service; 2. tertiary and grad school – 6 consecutive semesters of satisfactory service; 3. tertiary on trimester – 9 consecutive trimesters of satisfactory service. 9. Requisites on extension of probationary employment  Note: Notice of extension must be on or before the expiration of probationary period. 10. Grounds for termination of probationary employment a. just and authorized causes  b. failure to qualify as regular employee made known  by employer 11. Just causes (Art. 282)

13. Participation in an ILLEGAL STRIKE -union officers -commission of ILLEGAL ACTS during a strike – union officers or members -defiance of a return to work order –ALL STRIKERS, regardless of participation/commission 14. Sexual Harassment  Note: It must be on the power being exercised by a superior officer over his subordinates. 15. Procedural requirements of disciplinary proceedings

15.1. concept of due process Standard of due process: a. twin notice rule -pre-notice -post-notice  b. hearing or conference 15.2. preventive suspension - 30 days non-extendible 15.3. burden of proof - rests upon the employer 15.4. degree of proof

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- substantial evidence 16. Contra-distinguish RELIEF and REMEDY in an ILLEGAL/UNJUSTLY dismissed employee -Remedy – only to file a complaint - Relief – reinstatement; backwages; damages; separation pay *determine MIGRANT workers from LOCALLY employed workers 17. What is voluntary resignation? Elements? It is the act of an employee who finds himself in a situation in which he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, thus he has no other choice but to disassociate himself from his employment. Elements: a. must be unconditional;  b. with the intent to operate as such; and c. there must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment.  Note: The employee must serve a written notice on the employer at least one month in advance. Once accepted, cannot be withdrawn without the consent of the employer. 18. What is constructive dismissal?  No te : In vo lu nt ar y re si gn at io n is sa me wi th constructive dismissal. Defined as quitting because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving demotion in rank and a diminution in pay. 19. Is an employee entitled to separation pay in voluntary resignation? Exceptions. An employee who voluntary resigns from his employment is not entitled to separation pay, except when it is stipulated in the employment contract, collective bargaining agreement, or if sanctioned by established employer practice or policy. There is no provision in the LC which grants separation pay to voluntarily resigning employees. 20. What is abandonment of employment? Is Constructive resignation the same as abandonment of employment? -Initiative comes from the EMPLOYEE Abandonment of employment is the deliberate, unjustified refusal of an employee to resume his work. It is a voluntary act of the employee AKIN TO VOLUNTARY RESIGNATION, the only difference is that in abandonment of employment the employee quits his employment without notice. When an employee abandons his employment, there is constructive resignation. 21. Difference between constructive resignation and absence without official leave.  Note: Most important factor if the intent to return/or not return Abandonment of employment should be distinguished from absence without leave. In abandonment of employment there is no intention to return to work; whereas in absence without leave, there is intention to return to work. 22. What is Art. 286? What are the two situations contemplated in Art. 286?

ART. 286 – When Employment Not Deemed Terminated – The bona fide suspension of the operation of a  business or undertaking for a period not exceeding 6 months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. a. floating status  b. military of civic duty 23. State the law on retirement. Distinguish retirement from resignation and dismissal. Art. 287 applies to all employees in the private sector, regardless of their position designation, status, and irrespective of the method by which their wages are paid, except those specifically exempted. - retirement – age and length of service - resignation – personal circumstances - dismissal – due to just or authorized causes 24. Schemes of retirement. a. compulsory and contributory in nature;  b. one set up by an agreement between the employer and the employees in CBA or other agreement between them (other applicable employment contract) c. one that is voluntarily given by the employer, expressly as in an announced company policy or impliedly as in failure to contest the employee’s claim for retirement  benefits. 25. Who are covered by the retirement provisions in the labor code? Exceptions. Art. 287 applies to all employees in the private sector, regardless of their position designation, status, and irrespective of the method by which their wages are paid, except those specifically exempted. Exceptions: 1. Employees of national government, and its  political subdivisions, including GOCC’s if they are covered  by Civil Service Laws. 2. Employees or retail, service and agricultural establishments or operations regularly employing not more than 10 employees. 26. When can an employee retire or when it is deemed retired?  Note: should distinguish CBA, contracts, LC Age 60-less than 65 – Optional but the employee must have served at least 5 years. Age 65 - Compulsory 27. What is optional retirement? Retirement prior to reaching the compulsory age as stipulated in a contract, CBA, or LC at option of the employee or the employer depending on whether there is an existing retirement plan or not. 28. What are two kinds of retirement in the labor code?  Note: distinguish the employees as well as on retirement plan, CBA, contracts a. Optional

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b. Compulsory 29. Who can exercise to retire?  Note: DISTINGUISH  Note: the option to retire is not always based on age, it may also be based on length of service. a. If there is no retirement plan or contract – employee only.  b. If there is a retirement plan or contract – either the employee or employer. 30. Criminal actions in labor code prescribes in 3 years 31. ULP cases prescribes in 1 year from accrual of such unfair labor practice 32. Illegal recruitment for local employment prescribes in 3 years. 33. Illegal recruitment for migrant workers and OFW prescribes in the following: a. simple – 5 years  b. involving economic sabotage – 20 years 34. Money claims prescribe in 3 years from the accrual of the cause of action  Note: covers all money claims in the labor code 35. Action for reinstatement prescribes in 4 years CONTINUATION 1. What is the law on security of tenure? Security of Tenure is the constitutional right granted the employee that the employer shall not terminate the services of an employee except for just cause or when authorized by law. It extends to regular (permanent) as well as non-regular (temporary) employment. 2. What are the just causes? a. serious misconduct or willful disobedience of the lawful orders, in connection with his work a.1. requisites of serious misconduct/willful disobedience  b. gross AND habitual neglect of duty  b.1. distinguish neglect (purely objective fact) from negligence 9subjective state of mind)  b.2. damage is not essential in neglect c. fraud -committed against employer -committed with employee’s work d. willful breach of trust -willful -related to performance of employee functions d.1 person holing a position of TRUST and CONFIDENCE -managerial - holding properties of the company e. commission of a crime-person only -employer -immediate members of family -authorized representative f. analogous causes

 Note: offenses must have an element similar to those found in just causes. It must be VOLUNTARY and WILLFUL ACT  Not e: enume rat ed in the book, oth er analogous causes *definition of union security clause 3. In what instance is an employee entitled to damages (moral damages)? Generally when the employee is dismissed (whether for just cause or not) without following due process. 4. What is the relief in dismissal for just causes?  No relief because it is just cause but he can file a complaint as remedy 5. Procedural requirements of due process in the proceedings. a. For termination based on just causes under Art. 282, procedural due process means compliance with the: 1. A written notice 9first notice) served on the employee specifying the ground for termination, and giving to said employee reasonable opportunity to explain his side. 2. A hearing or conference (or at least an opportunity to be heard) during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him. 3. A written notice of termination (second notice) served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.  b. For termination based on authorized cause under Arts 283 and 284, compliance with procedural due process which means service of a written notice to the employee AND the appropriate Regional Office of the DLOE at least 30 days  before the effectivity the ground or grounds for termination. c. For termination based on completion of contract or  phase thereof – No prior notice is required. d. For termination of probationary employment based on failure to meet the standards of employment-written notice must be served to the employee concerned within a reasonable time from the effective date of termination. 6. What is the effect of dismissal if there is no due process? (without due process) a. If with just cause, dismissal will be upheld but employer will be liable for damages.  b. If without just cause, dismissal is deemed illegal. 7. Aside from the just causes in the code, are there other valid causes of dismissal? (6) a. Violation of company rules and regulations;  b. Breach of union security arrangements; c. Participation in an illegal strike; d. Commission of illegal acts during a strike; e. Defiance of return-to-work order in a strike; and f. Sexual harassment. 8. What is sexual harassment? Elements. Sexual harassment is committed by an employer , employee, manager, supervisor, or agent of the employer who,

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having authority, influence or moral ascendancy over another, demands, requests or otherwise requires any sexual favor from another, regardless of whether the demand, request or requirement is accepted. In a work-related or employment environment, sexual harassment is committed: a. When sexual favor is made as a condition for hiring, re-employment, or continued employment of an employee; or  b. When sexual favor is made as a condition for granting favorable terms, conditions, promotions, compensation, or privileges; c. When refusal to grant the sexual favor results in limiting, segregating, or classifying the employee which in any way would discriminate, deprive, or diminish employment opportunities or otherwise adversely affect said employee; d. When sexual advances impair the employee’s rights or privileges under existing labor laws; or e. When the sexual advances result in an intimidating, hostile, or offensive environment for the employee. 9. What are authorized causes for dismissal?  Note: economic justifications a. Installation of labor saving devices;  b. Redundancy; c. Retrenchment to prevent losses; and d. Closing or cessation of operation of the establishment. 10. Termination on the ground of disease, requisites. a. That the continued employment of the sick employee is prohibited by law or is prejudicial to his health or to the health of his co-employees; and  b. That there is a certification from a competent  public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment.

11. Installation of labor-saving devices – 1 month for every year of service Redundancy – in excess of economic resource needed  – 1 month for every year of service Retrenchment – reduction of personnel due to actual losses or to prevent loss – ! month for every year of service Closure or cessation of business – ! month for every year of service -Art. 283 permanent -Art. 286 temporary -not due to serious business losses – with separation pay -due to serious business losses – no separation pay  Note: requirements/procedure/notice in closure of  business

III. PROCEDURE (Arts. 212-226) 1. Who is an employer? It includes any person acting in the interest of an employer, directly or indirectly. 

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Unregistered Association as an employer. The law does not require an employer to be registered before he may come within the purview of the Labor Code.

2. Who is an employee? It includes not only those who are usually and ordinarily considered employees, but also those who have ceased as employees as a consequence of (a) labor dispute or (b) unfair labor practice, if he has not obtained any other  substantially equivalent and regular employment. Note: Substantially equivalent and regular employment must  be determined on the nature of the job itself and the career that it can offer the employee. 3. Creation and Composition of NLRC Solely for program and policy coordination only.  Composed of a Chairman and 23 Members. (23+1)  24-man tripartite body composed of representatives  from the public sector, workers’ sector and employers’ sector. 8 Divisions, 3 members in each division each having  executive clerks and commission attorneys. Territorial divisions of NLRC are designed merely for  administrative efficiency. The Chairman may designate additional  Commissioners from other divisions as may be necessary to constitute a quorum. 4. Jurisdiction of NLRC (a) Original Jurisdiction 1. Cases certified to it by the Secretary of Labor and Employment pursuant to Article 263. 2. Injunction cases under Articles 218 (e) and 264. (b) Appellate Jurisdiction 1. Cases decided by the Regional Director under Article 129. 2. Cases decided by the Labor Arbiter. 5. Jurisdiction of Labor Arbiter (a) Original and Exclusive Jurisdiction 1. Unfair labor practice. 2. Termination disputes. 3. Claims for wages, rates of pay, hours of work and other terms and conditions of employment, if accompanied by a claim for reinstatement. 4. Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations. 5. Cases arising from any violation of Article 264, including questions involving the legality of strikes and lockouts. 6. Claims of employees or domestic helpers involving an amount exceeding P5,000 regardless of whether accompanied by a claim for reinstatement. 7. Money claims arising out of employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment, including actual, moral, exemplary and other forms of damages. 8. Wage distortion disputes in unorganized establishments. 9. Enforcement or annulment of compromise agreements.

Labor Organization as an employer, acting as an agent of the employer.

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10. All other claims arising from employer-employee relations, except claims for EC, SSS, medicare and maternity  benefits.  Note: (a) Voluntary Arbitrators are vested with authority to hear and decide ULP and all other labor disputes, upon agreement of the parties. (Art. 262) (b) Secretary of Labor and Employment is authorized to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to national interest. (Art. 263 [g]) 6. What is a termination dispute? It is a controversy over the validity of severance of employment. 7. Who has jurisdiction over termination disputes? It depends. General Rule: Labor Arbiter Exceptions: (a) Disputes involving termination of corporate officers. (RTC) (b) Disputes arising from interpretation or implementation of CBA. (Voluntary Arbitrator through grievance machinery) (c) Disputes arising from interpretation or enforcement of company personnel policies. (same of [b])

 Note: (1) Under (b) if accompanied with actual termination of employee, Labor Arbiter has jurisdiction. (2) Under (c) if company personnel policies are  punitive in character, Labor Arbiter has jurisdiction. 8. Who has jurisdiction over money claims of employees? It depends. If accompanied with reinstatement, Labor Arbiter has  jurisdiction regardless of the amount involved. If without reinstatement: a. claim exceeds P5,000 – LA  b. claim does not exceed P5,000 – Regional Director of DOLE 9. Who has jurisdiction for money claims of Migrant Workers? Under Sec. 10, RA 8042 - Migrant Workers Act of 1995, Labor Arbiter has jurisdiction. 10. Rules on filing money claims against an employer. (a) if money claims falls within Labor Code, CBA or any other labor laws and statutes – LA (b) if money claims falls within Civil Code – regular courts 11. Who has jurisdiction over money claims of corporate officers? The RTC has jurisdiction (before it was SEC),  provided it is a corporate controversy within the contemplation of the Corporation Code. To determine if it’s a corporate controversy, concurrent factors should be considered such as the status or relationship of the parties or the nature of the question that is the subject of the controversy. (Mainland Construction vs. Movilla)

12. Jurisdiction for claim of damages To be cognizable by the Labor Arbiter, it must have a  reasonable causal connection  with any of the claims  provided for in Art. 217. (a) arising from negligence of a co-worker – regular courts (falls under quasi-delicts) (b) breach of contract of employment – regular courts - In the case of Singapore Airlines vs. Pano, breached of training programs at the expense of airline is for liquidated damages for breach of contractual obligations hence within the purview of Civil Code. (c) arising from malicious prosecution - regular courts (d) arising from slanderous remarks of a corporate officer – regular courts 13. Jurisdiction for cases arising from violation of Art. 264 The Labor Arbiter has original and exclusive  jurisdiction. The jurisdictional grant has two aspects: (a) cases arising for violation of Art. 264 (b) over questions involving legality of strikes and lockouts 

However, since the jurisdictional grant over (a) raises certain debatable issue on the call for injunctive relief, Art. 218 (e) provides that the power to issue injunction falls within the jurisdiction of NLRC not with the Labor Arbiters.

14. Jurisdiction for all other claims arising from employer-employee relations The reasonable causal connection doctrine must be  employed. There must be connection between the claim asserted and the employer-employee relations. Labor Arbiters has original and exclusive jurisdiction. However, under Art. 128 in the exercise of visitorial  and enforcement powers of the Secretary of Labor, only the latter can exercise jurisdiction over cases therein, regardless of the amount involved. 15. Jurisdiction for Wage Distortion disputes It depends whether the company is organized or unorganized. (a) organized or with CBA – Voluntary Arbitrator (b) unorganized or without CBA – Labor Arbiter 16. What are the powers of NLRC? (a) Rule-making power (b) Investigative power (c) Contempt Power (d) Injunctive power (e) Ocular Inspection 

For the injunctive power, it is conditioned upon the existence of labor dispute . Without a labor dispute, the authority to issue injunction belongs to the regular courts.

17. What is a labor dispute? Any controversy concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, charging or arranging the terms and conditions of employment, regardless of whether

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the disputants stand in the proximate relation of employer and employee.

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18. What are the procedural requisites of Labor Injunction? (a) Verified petition alleging the acts, which if not restrained or performed forthwith, may cause grave or irreparable damage. (b) Personal notice served to all known persons against whom relief is sought. (c) Hearing. 19. What are the substantive requisites of Labor Injunction? (a) Prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained. (b) Substantial and irreparable injury to complainant’s property will follow. (c) Greater injury will be inflicted upon complainant  by a denial of relief than will be inflicted upon defendant by granting the relief. (d) No adequate remedy at law. (e) The public officers charged with the duty to  protect complainant’s property are unable or unwilling to furnish adequate protection. 

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Injury is considered irreparable if it is of such constant and frequent recurrence that no fair and reasonable redress can be had therefor in a court of law. Remedy is considered adequate if it affords relief with reference to the matter in controversy and which is appropriate to the particular circumstances of the case. Temporary restraining order is not synonymous with labor injunction. Labor injunction requisites for procedural and substantive aspects must be strictly complied with since it is disfavoured by law. Labor injunction cannot be issued ex parte  unlike in TRO with the proviso of compliance of the conditions set forth by law. TRO has a non-extendible lifetime of 20 days. Labor injunction from NLRC is NOT the proper remedy against employee dismissal. (PAL vs. NLRC)

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In case of violation of a compromise agreement, the remedies are: (a) enforcement or (b) rescission. In case of violation of compromise  judgment, the remedies are (a) motion for execution, in case of noncompliance; (b) action to annul or (c) petition for relief of judgment under Rule 38 of the ROC. The reduction of attorney’s fees in the compromise agreement does not bar to its approval. (Jesalva vs. Bautista)

23. What are the requirements for a valid quitclaim? (a) Voluntarily arrived by parties. (b) With the assistance of BLR or any representative of DOLE. (c) Consideration must be reasonable, without fraud or deceit and not contrary to public policy, morals or good customs. 24. Can non-lawyers appear before NLRC? Are they entitled to attorney’s fees?  Non-lawyers may appear before NLRC or any Labor Arbiter only if: (a) he represents himself as party to the case (b) he represents a legitimate labor organization which is a party to the case (c) he represents a member of a legitimate labor organization (d) he is a duly-accredited member of any legal aid office duly recognized by DOJ or IBP (e) he is the owner or president of a corporation which is a party to the case  Non-lawyers are not entitled to attorney’s fees  because entitlement to attorney’s fees presupposes the existence of attorney-client relationship. 25. What is the remedy from adverse decision of Labor Arbiter? What are the periods? The proper remedy from adverse decision of the Labor Arbiter is not a motion for reconsideration but appeal. (a) appeal from decisions or orders of Regional Director under Art. 129 – 5 calendar days from receipt (b) appeal from decisions or orders of the Labor Arbiter – 10 calendar days from receipt

20. Can a strike be enjoined by NLRC? General rule: No, even if it is illegal. Exceptions: (a) if declared against an industry indispensable to national interest – Secretary of Labor may assume jurisdiction or certify the dispute for compulsory arbitration (NLRC). (b) if staged by employees who are not accorded with the right to strike. (c) if declared under intra or inter-union disputes.

26. What are the grounds for appeal? (a) prima facie evidence of abuse of discretion on the  part of the Labor Arbiter or Regional Director (b) decision, order or award was secured through fraud or coercion, including graft and corruption (c) made purely on questions of law (d) serious errors in the findings of fact  are raised which if not corrected would cause grave or irreparable damage or injury to the appellant

21. Can a disciplinary proceeding be enjoined by NLRC?  No, the investigation and imposition of disciplinary action against erring employees is a function that solely and exclusively belongs to an employer.

27. What are the requisites for perfection of appeal? (a) memorandum of appeal (b) appeal fee (c) appeal bond (d) proof of service to the adverse party

22. Rules for Compromise Agreement It is conclusive, valid and binding between the parties  eventhough it is not yet approved by Labor Arbiter. It includes even when there is already a final   judgment. (Olaybar vs. NLRC)

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Mere notice of appeal without complying with the other requisites for perfection of appeal shall not stop the running of the period for perfecting an appeal.

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Memorandum of appeal should mandatorily  contain a certificate of non-forum shopping. Appeal bond is not  required if: (1) there is no monetary award; (2) it is the employee who appeals a  judgment; (3) appeal questions only the award of damages or atty’s fees; and (4) decision appealed from does not state the amount of the monetary award. Posting of bond does not stay the reinstatement order of LA.

28. What is the effect of reversal of reinstatement order on appeal? (a) if the reinstatement order was carried out – the employer can put an end to such reinstatement once the  judgment of NLRC becomes final and executory. (b) if the reinstatement order was not carried out – (1) non-reinstatement was brought about by the unjustified refusal  on the part of employer, latter bound to  pay the salaries of employee from notice of LA’s decision until its ultimate reversal by NLRC. (2) non-reinstatement was brought about by the unjustified refusal  of the employee  to report for work, employer is not duty-bound to pay any salary. (3) employee did not vigorously  pursue his reinstatement, employer not obliged to pay any salary because employee deemed to have forfeited his right to reinstatement through waiver or laches. (4) employer was not able to reinstate employee during pendency of appeal for reasons not attributable to his fault, employer cannot be obliged to pay any salary because reinstatement has become an impossibility. 29. What is the principal task of Bureau of Labor Relations? Aside from its policy-making functions, its principal task is now limited to handling inter-union and intra-union conflicts, registration and cancellation of registration of labor organizations, particularly those involving federation, national unions or industry unions. Intra-union dispute  is a controversy between and  among union members. Inter-union dispute  is a controversy between and  among legitimate labor unions.

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