UST Labor Relations- Golden Notes 2011

UST GOLDEN NOTES 2011

G.LABOR RELATIONS LAW

4.

1.RIGHT TO SELF ORGANIZATION 5. a.Who may unionize for purposes of  of collective collective bargaining 6. Q: What is the extent of  the right to self ‐ organization? A: It includes the right: 1.

2.

To form,  join and assist labor organizations for the purpose of  collective bargaining (CB) through representatives of  their own choosing; and To engage in lawful and concerted activities for the purpose of CB of  CB or for their mutual aid and protection. (Art. 246)

7. 8.

9.

Q: Who are the persons/Ee’s eligible to  join a labor organization (LO) for purposes of CB? of  CB? A: The entities covered are all persons employed in: 1. Commercial industrial, and agricultural enterprises; and 2. In religious, charitable, medical or educational institutions whether operating for profit or not. (Art. 243) Q: Who are the persons/Ee’s eligible to  join a labor organization for mutual aid and protection? A: The following enjoy the right to self ‐organization for mutual aid and protection:

Members of  the AFP including the police officers, policemen, firemen, and  jail guards. (Sec. 4, E.O. 180) Confidential Employees. (Metrolab Industries Inc. v. Confesor, G.R. No. 108855, Feb. 28, 1996) Employees of  cooperatives who are its members. (Benguet  Elec. Coop. v. Ferrer ‐ Calleja, G.R. No. 79025, Dec. 29, 1989); 1989); However they may form worker’s association. (NEECO Ee’s  Assoc. v. NLRC, G.R. No. 16066, Jan. 16066, Jan. 24, 2000) Non‐Ee’s. Ee’s. (Rosario Bros. v. Ople, G.R. No. L‐5390, July  5390, July 31, 31, 1984) Gov’t Ee’s, including GOCC’s with original charters. (Arizala v. CA, G.R. Nos. 43633‐ 34, Sep. 14, 1990) Aliens without a valid working permit or aliens with working permits but are nationals of  a country which do not allow Filipinos to exercise their right of  self ‐ organization and to  join or assist labor organizations. (Art. 269 of  LC; D.O. No. 9 [1997], Rule II, Sec. 2) b.Bargaining Unit

Q: What is a bargaining unit? A: It is a group of Ee’s of  Ee’s of a of  a given Er, comprised of all of  all or less than all of  the entire body of  the Ee’s which the collective interest of all of  all the Ee’s consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of  the parties under the collective bargaining provisions of  the law. Q: What is an appropriate bargaining unit?

1. 2. 3. 4. 5. 6.

Ambulant workers Intermittent workers Itinerant workers Self ‐employed people Rural workers Those without and definite Er’s. 243)

A:

(Art.

1. 2. 3. 4. 5.

Q: Who are the persons/Ee’s not granted the right to self ‐organization:

A group of employees of employees (Ees) Of a Of  a given employer Comprised of  all or less than all of  the entire body of Ees of  Ees Which the collective interest of all of  all the Ees consistent with equity to the Er Indicate to be best suited to serve the reciprocal rights and duties of  the parties under the collective bargaining provisions of the of  the law.

A: 1. 2.

3.

High level or Managerial Government Ee’s. (Sec. 3, E.O. 180) Ee’s of  International organizations with immunities. (ICMC  v. Calleja, G.R. No. 85750, Sep. 28, 1990) Managerial Employees. (Art. 212 of LC) of  LC)

(1)Test to determine the constituency of  of an an appropriate bargaining unit Q: What are the factors considered in determining the appropriateness of a of  a bargaining unit? A: 1.

128

Will of the of  the Ees. (Globe Doctrine)

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

Q: What are the factors considered in determining the substantial mutual interest doctrine?

A: No. While the existence of a of  a bargaining history is a factor that may be reckoned with in determining the appropriate bargaining unit, the same is not decisive or conclusive. Other factors must be considered. The test of  grouping is community or mutuality of  interests. This is so because the basic test of  an asserted bargaining unit’s acceptability is whether or not it is fundamentally the combination which will best assure to all Ees the exercise of their of  their CB rights. (Democratic Labor   Ass’n v. Cebu Stevedoring Company, Inc., G.R. No. L‐10321, Feb. 28, 1958)

A:

Q: What is “one‐union, one‐company” policy?

2.

3. 4.

Affinity and unity of the of  the Ees interest, such as substantial similarity of  work and duties, or similarity of  compensation and working conditions. (Substantial Mutual Interest Rule) Prior collective bargaining history Similarity of  employment status. (SMC  v. Laguesma, G.R. No. 100485, Sep. 21, 1994)

1.

Similarity in the scale and manner of  determining earnings 2. Similarity in employment benefits, hours of  work, and other terms and conditions of employment of  employment 3. Similarity in the kinds of work of  work performed 4. Similarity in the qualifications, skills and training of Ees of  Ees 5. Frequency of  contract or interchange among the Ees 6. Geographical proximity 7. Continuity and integration of  production processes 8. Common supervision and determination of labor of  labor‐relations policy 9. History of CB of  CB 10. Desires of the of  the affected Ees or 11. Extent of union of  union organization

Q: A registered labor union in UP, ONAPUP, filed a petition for certification election (PCE) among the non‐academic Ees. The university did not oppose, however, another labor union, the All UP Workers Union assents that it represents both academic and non‐academic personnel and seeks to unite all workers in 1 union. Do Ees performing academic functions need to comprise a bargaining unit distinct from that of the of  the non‐academic Ees? A: Yes. The mutuality of  interest test should be taken into consideration. There are two classes of  rank and file Ees in the university that is, those who perform academic functions such as the professors and instructors, and those whose function are non‐ academic who are the  janitors, messengers, clerks etc. Thus, not much reflection is needed to perceive that the mutuality of  interest which  justifies the formation of  a single bargaining unit is lacking between the two classes of  Ees. (U.P. v. Ferrer ‐ Calleja, G.R. No.96189, July  No.96189, July 14, 14, 1992) Q: Is the bargaining history a decisive factor in the determination of  appropriateness of  bargaining unit?

A: GR: It is the proliferation of unions of  unions in an Er unit. Such is discouraged as a matter of  policy unless there are compelling reasons which would deny a certain class of  Ees to the right to self ‐ organization for purposes of  collective bargaining (CB). XPNs: 1. Supervisory Ees who are allowed to form their own unions apart from the rank‐ and‐file Ees and 2. The policy should yield to the right of  Ees to form union for purposes not contrary to law, self ‐organization and to enter into CB negotiations. Note: Two companies cannot be treated into a single bargaining unit even if their if their businesses are related. Subsidiaries or corporations formed out of  former divisions of  a mother company following a re‐ organization may constitute a separate bargaining unit.

Q: Union filed a PCE among the rank and file Ees of  three security agencies including the Veterans Security. The latter opposed alleging that the three security agencies have separate and distinct corporate personalities. May a single PCE filed by a labor union in the three corporations instead of  filing 3 separate petitions? A: Yes. The following are indications that the 3 agencies do not exist and operate separately and distinctly from each other with different corporate direction and goals: 1) Veterans Security failed to rebut the fact that they are managed through the Utilities Management Corp with all their Ees drawing their salaries and wages from the said entity; 2) that the agencies have common and interlocking incorporators and officers; 3) that they have a single mutual benefit system and followed a single system of  compulsory retirement. 4) they could easily transfer security guards of  one agency

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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LABOR RELATIONS LAW

Q: What are the factors considered in determining the substantial mutual interest doctrine?

A: No. While the existence of a of  a bargaining history is a factor that may be reckoned with in determining the appropriate bargaining unit, the same is not decisive or conclusive. Other factors must be considered. The test of  grouping is community or mutuality of  interests. This is so because the basic test of  an asserted bargaining unit’s acceptability is whether or not it is fundamentally the combination which will best assure to all Ees the exercise of their of  their CB rights. (Democratic Labor   Ass’n v. Cebu Stevedoring Company, Inc., G.R. No. L‐10321, Feb. 28, 1958)

A:

Q: What is “one‐union, one‐company” policy?

2.

3. 4.

Affinity and unity of the of  the Ees interest, such as substantial similarity of  work and duties, or similarity of  compensation and working conditions. (Substantial Mutual Interest Rule) Prior collective bargaining history Similarity of  employment status. (SMC  v. Laguesma, G.R. No. 100485, Sep. 21, 1994)

1.

Similarity in the scale and manner of  determining earnings 2. Similarity in employment benefits, hours of  work, and other terms and conditions of employment of  employment 3. Similarity in the kinds of work of  work performed 4. Similarity in the qualifications, skills and training of Ees of  Ees 5. Frequency of  contract or interchange among the Ees 6. Geographical proximity 7. Continuity and integration of  production processes 8. Common supervision and determination of labor of  labor‐relations policy 9. History of CB of  CB 10. Desires of the of  the affected Ees or 11. Extent of union of  union organization

Q: A registered labor union in UP, ONAPUP, filed a petition for certification election (PCE) among the non‐academic Ees. The university did not oppose, however, another labor union, the All UP Workers Union assents that it represents both academic and non‐academic personnel and seeks to unite all workers in 1 union. Do Ees performing academic functions need to comprise a bargaining unit distinct from that of the of  the non‐academic Ees? A: Yes. The mutuality of  interest test should be taken into consideration. There are two classes of  rank and file Ees in the university that is, those who perform academic functions such as the professors and instructors, and those whose function are non‐ academic who are the  janitors, messengers, clerks etc. Thus, not much reflection is needed to perceive that the mutuality of  interest which  justifies the formation of  a single bargaining unit is lacking between the two classes of  Ees. (U.P. v. Ferrer ‐ Calleja, G.R. No.96189, July  No.96189, July 14, 14, 1992) Q: Is the bargaining history a decisive factor in the determination of  appropriateness of  bargaining unit?

A: GR: It is the proliferation of unions of  unions in an Er unit. Such is discouraged as a matter of  policy unless there are compelling reasons which would deny a certain class of  Ees to the right to self ‐ organization for purposes of  collective bargaining (CB). XPNs: 1. Supervisory Ees who are allowed to form their own unions apart from the rank‐ and‐file Ees and 2. The policy should yield to the right of  Ees to form union for purposes not contrary to law, self ‐organization and to enter into CB negotiations. Note: Two companies cannot be treated into a single bargaining unit even if their if their businesses are related. Subsidiaries or corporations formed out of  former divisions of  a mother company following a re‐ organization may constitute a separate bargaining unit.

Q: Union filed a PCE among the rank and file Ees of  three security agencies including the Veterans Security. The latter opposed alleging that the three security agencies have separate and distinct corporate personalities. May a single PCE filed by a labor union in the three corporations instead of  filing 3 separate petitions? A: Yes. The following are indications that the 3 agencies do not exist and operate separately and distinctly from each other with different corporate direction and goals: 1) Veterans Security failed to rebut the fact that they are managed through the Utilities Management Corp with all their Ees drawing their salaries and wages from the said entity; 2) that the agencies have common and interlocking incorporators and officers; 3) that they have a single mutual benefit system and followed a single system of  compulsory retirement. 4) they could easily transfer security guards of  one agency

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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to another and back again by simply filling‐up a common pro‐forma slip; 5) they always hold  joint yearly ceremonies such as the PGA Annual Awards Ceremony; and 6) they continue to be represented by one counsel. Hence, the veil of  corporate fiction of  the 3 agencies should be lifted for the purpose of  allowing the Ees of  the 3 agencies to form single union. As a single bargaining unit, the Ees need not file 3 separate PCE. (Philippine Scout  Veterans Security  and  Investigation  Agency  v. SLE, G.R. No. 92357, July  92357, July 21, 21, 1993)

through the Labor Relations Division shall, within 10 days from receipt of the of  the notice, record the fact of VR of  VR in its roster of  legitimate labor unions and notify the labor union concerned.

Q: What are the three (3) conditions to voluntary recognition (VR)? A: VR requires 3 concurrent conditions: 1.

VR is possible only  in an unorganized  establishment .

2.

Only one Only one union must ask  must  ask  for recognition  for  recognition.. If  there 2 or more unions asking to be recognized, the Er cannot recognize any of  them; the rivalry must be resolved through an election.

3.

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. If  no objection is raised, the recognition will proceed, the DOLE will be informed and CBA recognition will commence. If  objection is raised, the recognition is barred and a certification election or consent election will have to take place.

(2)Voluntary Recognition Q: What are the 3 methods of  determining the bargaining representative? A: 1. 2. 3.

Voluntary recognition Certification election with or without run‐ off  Consent election

Q: What is voluntary recognition (VR)? A: The process by which a legitimate labor union is recognized by the employer (Er) as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office. (Sec. 1 [bbb], Rule I, Book V, Book V, IRR) Q: What are the requirements for VR? A: The notice of  VR shall be accompanied by the original copy and 2 duplicate copies of the of  the following req’ts: 1.

Joint statement under oath of VR of  VR

2.

Certificate of  posting of  joint of   joint statement for 15 consecutive days in at least 2 conspicuous places in the establishment of the of  the bargaining unit

3.

Certificate of posting of  posting

4.

Approximate number of  Ees in the bargaining unit and the names of  those who supported the recognition

5.

Statement that the labor union is the only LLO operating within the bargaining unit.

Note: Where the notice of  voluntary recognition is sufficient in form, number and substance and where there is no registered labor union operating within the bargaining unit concerned, the Regional Office,

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Note: In an organized establishment, voluntary recognition is not possible. A petition to hold a CE has to be filed within the freedom period which means the th last 60 days of  the 5 year of  the expiring CBA. The petition may be filed by any Legitimate Labor Organization (LLO), but the petition must have written support of  at least 25% of  the Ees in the bargaining unit.

Q: Where and when to file the petition for VR? A: Within 30 days from such recognition, Er shall submit a notice of  VR with the Regional Office which issued the recognized labor union’s certificate of  registration or certificate of  creation of a of  a chartered local. Q: What are the effects of  recording of  fact of  voluntary recognition (VR)? A: 1.

2.

The recognized labor union shall enjoy the rights, privileges and obligations of an of  an existing bargaining agent of  all the employees (Ees) in the bargaining unit. It shall also bar the filing of  a petition for certification election by any labor

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

organization for a period of  1 year from the date of entry of VR. (3)Certification Election Q: What is certification election (CE)?

Note: Some of  the Ees may not want to have a union; hence, “no union” is one of  the choices named in the ballot. If  “no union” wins, the company or the bargaining unit remains un‐unionized for at least 12 months, the period is known as 12‐month bar . After that period, a petition for a CE may be filed again.

A: It is the process of  determining through secret ballot the sole and exclusive representative of  the Ees in an appropriate bargaining unit, for purposes of CB or negotiation. (Sec. 1 [h], Rule I, Book V, IRR)

Q: Distinguish the requisites for a petition for certification election between an organized and an unorganized establishment.

Note: The process is called CE because it serves as the official, reliable and democratic basis for the BLR to determine and certify the union that shall be the exclusive bargaining representative of  the Ees for the purpose of bargaining with the Er.

Art.257. UNORGANIZED Bargaining agent  Present None Petition filed  Has to be a verified No need to be verified petition Freedom Period  No petition for CE except  Not applicable. No within 60 days before the freedom period. Petition expiration of the CBA. can be filed anytime. (See Art. 253 & 253‐ A) Substantial  support  rule Must be duly supported No substantial support by 25% of all the rule. members of the appropriate bargaining Why? Intention of law is unit (ABU). to bring in the union, to implement policy behind Percentage base: all Art. 211(a). members of an ABU.

Q: What is the nature of certification election? A: A certification election is not a litigation but merely an investigation of  a non‐adversarial fact‐ finding character in which BLR plays a part of  a disinterested investigator seeking merely to ascertain the desire of  the employees as to the matter of  their representation. (Airline Pilots  Ass’n of  the Philippines v. CIR, G.R. No. L‐33705,  April  15, 1977) Q: What is the purpose of a certification election? A: It is a means of determining the worker’s choice of: 1.

2.

Whether they want a union to represent them for collective bargaining or if  they want no union to represent them at all. And if  they choose to have a union to represent them, they will choose which among the contending unions will be the sole and exclusive bargaining representative of  the employees in the appropriate bargaining unit.

Q: What are the issues involved in a certification proceeding? A: Certification proceedings directly involve two issues: 1. 2.

Proper composition and constituency of  the bargaining unit; and The veracity of  majority membership claims of  the competing unions so as to identity the one union that will serve as the bargaining representative of  the entire bargaining unit.

A: Art.256. ORGANIZED

Note: The approval of  the PCE in an unorganized bargaining unit is NEVER appealable, the reason being that the law wants the ununionized to be unionized.

Q: Should the consent signatures of  at least 25% of  the Ees in the bargaining unit be submitted simultaneously with the filing of  the petition for certification election (PCE)? A: No, the administrative rule requiring the simultaneous submission of  the 25% consent signatures upon the filing of  PCE should not be strictly applied to frustrate the determination of the legitimate representative of  the workers. Accordingly, the Court held that the mere filing of a PCE within the freedom period is sufficient basis for the issuance of  an order for the holding of  a CE, subject to the submission of  the consent signatures within a reasonable period from such filing. (Port  Workers Union of  the Phils. v. Laguesma, G.R. Nos. 94929‐30, Mar. 18, 1992) Q: Who may file a petition for certification election (PCE)? A: 1.

Any legitimate labor organization (LLO)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2.

3. 4.

A national union or federation which has already issued a charter certificate to its local chapter participating in the CE A local chapter which has been issued a charter certificate An Er only when requested to bargain collectively in a bargaining unit where no registered CBA exists. (Sec. 1, Rule VIII, Book V, IRR as amended by D.O. 40‐F ‐03)

Note: A national union or federation filing a petition in behalf  of  its local/chapter shall not be required to disclose the names of  the local/chapter’s officers and members, but shall attach to the petition the charter certificate it issued to its local/chapter. (Sec. 1, Rule VIII, Book V, IRR as amended by D.O. 40‐F ‐03)

Q: May an employee intervene in the petition for certification election (PCE)? A: Yes, for the purpose of  protecting his individual right. (Sec. 1, Rule VIII, Book  V, IRR as amended  by  D.O. 40‐03) Q: Where is PCE filed? A: It shall be filed with the Regional Office which issued the petitioning union's certificate of  registration/certificate of  creation of  chartered local. (Implementing Rules, as amended by  D.O. 40‐ 03) Q: Who shall hear and resolve the PCE? A: The Mediator‐Arbiter. Q: When to file PCE? A: The proper time to file the PCE depends on whether the Certified Bargaining Unit has a CBA or not: 1.

2.

If  it  has no CBA, the petition may be filed anytime outside the 12‐month bar (certification year). If it has CBA, it can be filed only within the th last 60 days of the 5 year of the CBA.

by‐laws Right to vote is enjoyed only by union members

Winners of union election become officers and representatives of the union only

All Ees whether union or non‐union members who belong to the appropriate bargaining unit can vote The winner in a CE is an entity, a union, which becomes the representative of the whole bargaining unit that includes even the members of the defeated unions.

Note: Both in CE and union election, the prescribed procedures should be followed.

Q: Can a "no‐union" win in a certification Election (CE)? A: Yes. Because the objective in a CE is to ascertain the majority representation of  the bargaining representative, if  the Ee’s desire to be represented at all by anyone. Hence, no union is one of  the choices in a CE. (2006 Bar Question) Alternative Answer: No. A no union cannot win in a CE. The purpose of a CE is to select an excusive bargaining agent and a no union vote would precisely mean that the voter is not choosing any of  the contending unions. If the no‐union votes constitute a majority of  the valid votes cast, this fact will all the more mean that no union won in CE. A one‐year bar will consequently stop the holding of  another CE to allow the Er to enjoy industrial peace for at least one year. Q: In what instance may a PCE be filed outside the freedom period of  a current CBA? A: As a general rule, in an establishment where there is a CBA in force and effect, a PCE may be filed only during the freedom period of  such CBA. But to have that effect, the CBA should have been filed and registered with the DOLE. (Art. 231, 253‐ A and 256, LC). (1997 Bar Question)

Note: At the expiration of  the freedom period, the Er shall continue to recognize the majority status of  the incumbent bargaining agent where no PCE is filed.

Thus, a CBA that has not been filed and registered with the DOLE cannot be a bar to a CE and such election can be held outside the freedom period of  such CBA.

Q: Distinguish union election from certification election.

Alternative Answer:

A: UNION ELECTION Held pursuant to the union’s constitution and

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CERTIFICATION ELECTION The process is ordered and supervised by DOLE

A PCE may be filed outside the freedom period of  a current CBA if  such CBA is a new CBA that has been prematurely entered into, meaning, it was entered into before the expiry date of  the old CBA. The filing of  the PCE shall be within the

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

freedom period of the old CBA which is outside the freedom period of  the new CBA that had been prematurely entered into. Q: Are probationary employees (Ees) entitled to vote in a CE? Why? A: Yes, in a CE, all rank‐and‐file Ees in the appropriate bargaining unit (ABU) are entitled to vote. This principle is clearly stated in Art. 255 of  the LC which states that the "labor organization designated or selected by the majority of the Ees in such unit shall be the exclusive representative of  the Ees in such unit for the purpose of  collective bargaining (CB)." CB covers all aspects of  the employment relation and the resultant CBA negotiated by the certified union binds all Ees in the bargaining unit. Hence, all rank‐ and‐file Ees, probationary or permanent, have a substantial interest in the selection of  the bargaining representative. The LC makes no distinction as to their employment status as basis for eligibility to vote in the petition for CE. The law refers to "all" the Ees in the bargaining unit. All they need to be eligible to vote is to belong to the "bargaining unit" (Airtime Specialists, Inc. v. Ferrer ‐Calleja, G.R. No. 80612‐16, Dec. 29, 1989). (1999 Bar Question)

A: Yes, it is now well‐settled that Ees who have been improperly laid off  but who have at present an unabandoned right to or expectation of  re‐ employment, are eligible to vote in CE’s. 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 ULP was filed, the Ee’s concerned could still qualify to vote in the elections. (Phil. Fruits & Vegetables Industries v. Torres, G.R. No. 92391, July 3, 1992) Q: Is direct certification (DC) still allowed? A: No. Even in a case where a union has filed a petition for CE, the mere fact that there was no opposition does not warrant a DC. More so in a case when the required proof is not presented in an appropriate proceeding and the basis of  the DC is the union’s self ‐serving assertion that it enjoys the support of  the majority of  the Ees, without subjecting such assertion to the test of  competing claims. (Samahang Manggagawa sa Permex  v. Secretary, G.R. No. 107792, Mar. 2, 1998) Q: What are the grounds for denying the PCE? A: 1.

Q: What is direct certification? A: It is the process whereby the Med‐Arbiter directly certifies a labor organization of  an appropriate bargaining unit (ABU) of  a company after a showing that such petition is supported by at least a majority of the Ees in the bargaining unit.

2.

3.

Q: Does the failure of  SAMAFIL (an independent union) to prove its affiliation with NAFLU‐KMU federation affect its right to file a PCE as an independent union? A: No, as a LLO, it has the right to file a PCE on its own beyond question. Its failure to prove its affiliation with the NAFLU‐KMU cannot affect its right to file said PCE as an independent union. At the most, its failure will result in an ineffective affiliation with NAFLU‐KMU. Despite affiliation, the local union remains the basic unit free to serve the common interest of  all its members and pursue its own interests independently of  the federation. (Samahan ng mga Manggagawa sa Filsystems v. SLE, G.R. No. 128067, June 5, 1998) Q: May illegally dismissed Ees of  the company participate in the certification election (CE)?

4.

5.

6.

The petitioning union or federation is not listed in the DOLE’s registry of  legitimate labor unions or that its registration certificate legal personality has been revoked or cancelled with finality Failure of  a local chapter or national union/federation to submit a duly issued charter certificate upon filing of  the petition The 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; (contract bar rule) The petition was filed within 1 year from entry of  voluntary recognition or within the same period from a valid certification, consent or run‐off  election and no appeal on the results of the certification, consent or run‐off  election is pending; (12‐month bar; certification year bar rule) A duly certified union has commenced and sustained negotiations with the Er in accordance with Art. 250 of  the LC within the 1‐year period. (negotiation bar rule) 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. (deadlock bar rule)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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7.

8.

9.

In case of  an organized establishment, failure to submit the 25% support req’t for the filing of the PCE. Non‐appearance of  the petitioner for 2 consecutive scheduled conferences before the med‐arbiter despite due notice, and Absence of Er‐Ee relationship between all the members of the petitioning union and the owner of  the establishment where the proposed bargaining unit is sought to be represented. (Sec.14[a], Rule VIII, Book  V, IRR, as amended by D.O. 40‐F ‐03)

Q: What is a prohibited ground for the denial/suspension of  the petition for certification election? A: The inclusion as union members of  Ees outside the bargaining unit. Said Ees are automatically deemed removed from the list of  membership of  said unions. Q: Does the filing of  a petition to cancel the petitioner’s registration cause the suspension or dismissal of the petition for certification election? A: No. To serve as a ground for dismissal of  a PCE, the legal personality of  the petitioner should have been revoked or cancelled “with finality”. Q: UNIDAD, a labor organization claiming to represent the majority of  the rank and file workers of  BAGSAK Toyo Manufacturing Corp. (BMTC), filed a petition for CE during the freedom period obtaining in said corp. Despite the opposition thereto by SIGAW Federation on the ground that UNIDAD was not possessed with all the attributes of  a duly registered union, the Med‐Arbiter issued an order calling for a CE on July 25, 2001. This order was promulgated and served on the parties on July 12, 2001. On July 14, 2001, UNIDAD submitted and served the required documents for its registration as an independent union, which documents were approved by the DOLE on July 15, 2001. During the elections, UNIDAD won over SIGAW. SIGAW questioned UNIDAD's victory on the ground that UNIDAD was not a duly registered union when it filed the petition for a CE. Shall SIGAW’s case prosper or not? Why? A: No, SIGAW's case will not prosper. The application of  technicalities of  procedural req’ts in CE disputes will serve no lawful objective or purpose. It is a statutory policy that no obstacles should be placed on the holding of a CE, (Samahang

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ng Manggagawa sa Pacific Plastic vs. Laguesma, G.R. No. 111245,  Jan. 31, 1997) and that the law is indisputably partial to the holding of a CE. (Western  Agusan vs. Trajano G.R. No. 65833, May 6, 1991) At any rate, UNIDAD completed all the req’ts for union registration on July 14, 2001, and legitimate union status was accorded on July 15, 2000, or at least 10 days before the scheduled date for holding the CE. (2001 Bar Question) Q: What is meant by “contract‐bar rule”? A: Contract‐bar rule means that while a valid and registered CBA is subsisting, the BLR is not allowed to hold an election contesting the majority status of  the incumbent union except  during the 60‐day period immediately prior to its expiration, which period is called the freedom period. Note: In the absence of  such timely notice or filing of  petition, the contract executed during the automatic renewal period is a bar to CE. There shall be no amendment, alteration, or termination of  any of  the provisions of the CBA except  to give notice of  one party’s intention to amend, alter and terminate the provisions within the freedom period.

Q: What are the requirements in order to invoke the contract bar rule? A: The existing CBA must: 1. 2. 3. 4. 5. 6. 7.

Be in writing and signed by all contracting parties Contain the terms and conditions of  employment Cover employees in an appropriate bargaining unit Be for a reasonable period or duration Be ratified Be registered with the BLR; and The violation of  the contract bar rule or the existence of  a duly registered CBA must be specially pleaded as a defense.

Q: What is the effect of  an invalid or unregistered CBA? A: There is no bar and therefore a certification election may be held. Note: Registration of  CBA only puts into effect the contract‐bar rule but the CBA itself is valid and binding even if unregistered.

Q: What are the exceptions to the contract bar rule?

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

A: 1. 2. 3.

The CBA is unregistered The CBA is inadequate and incomplete The CBA was hastily entered into (Doctrine of  premature  premature extension) 4. Withdrawal of  affiliation from the contracting union brought about by schism or mass disaffiliation 5. Contract where the identity of  the representative is in doubt. (ALU v. Ferrer  Calleja, G.R. No. 85085, Nov. 6, 1989) 6. CBA entered into between the Er and the union during the pendency of  a petition for CE (Vassar  Industries Ees Union v. Estrella, G.R. No. L‐46562, Mar. 31, 1978) 7. CBA conducted between the Er and the union is not bar to a certification election filed by another union and said CBA can be renegotiated at the option of  the new bargaining agent. (ATU v. Hon. Noriel, G.R. No. L‐48367, Jan. 48367, Jan. 16, 1979) 8. A CBA registered with falsified supporting documents 9. CBA was concluded in violation of  an order enjoining the parties from entering into a CBA until the issue of  representation is resolved 10. Petition is filed during the 60‐day freedom period. Note: Basic to the contract bar rule is the proposition that the delay of the of  the right to select representatives can be justified be  justified only where stability is deemed paramount. Excepted from the contract bar rule are certain types of  contracts which do not foster industrial stability, such as contracts where the identity of  the representative is in doubt. Any stability derived from such contracts must be subordinated to the Ees’ freedom of  choice because it does not establish the type of  industrial peace contemplated by law. (Firestone Tire & Rubber  Company  Ee’s Union v. Estrella, G.R. No. L‐45513‐14, Jan. 14,  Jan. 6, 1978)

Q: Can the BLR certify a union as the exclusive bargaining representative after showing proof  of  majority representation thru union membership cards without conducting an election? A: No. The LC (In  Arts. 256, 257  and  258) provides only for a CE as the mode for determining the exclusive collective bargaining representative if  there is a question of  representation in an appropriate bargaining unit. (1998 Bar Question) Q: When does deadlock arise? A: It arises when there is an impasse, which presupposes reasonable effort at good faith

bargaining which, despite noble intentions, did not conclude in an agreement between the parties. Q: What is deadlock bar rule? A: A petition for certification election (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 of  a valid strike or lockout. Q: What are the indications of  a genuine deadlock? A: 1. 2.

The submission of  the deadlock to a third party conciliator or arbitrator; and The deadlock is the subject of  a valid notice strike or lockout.

Q: Capitol Medical Center Ees’ Association‐Alliance of  Filipino Workers (CMCEA‐AFW) emerged as the certified representative of  the rank‐and‐file Ees at Capitol Medical Center (CMC). Due to CMC’s refusal to bargain collectively, CMCEA‐AFW filed a notice of strike of  strike and later on staged the strike after complying with the other legal req’ts. The SLE assumed  jurisdiction over the case and issued an order certifying the same to the NLRC for compulsory arbitration. During all of  these events Capitol Medical Center Alliance of  Concerned employees (Ees)‐Unified Filipino Service Workers filed a petition for CE among the regular rank‐and‐ file Ees of CMC. of  CMC. The petition for CE was dismissed and the CMC was directed to negotiate with CMCEA‐AFW. Was the dismissal of the of  the PCE proper? A: Yes, if  the law proscribes the conduct of  a CE when there is a bargaining deadlock submitted to conciliation or arbitration, with more reason should it not be conducted if, despite attempts to bring an Er to the negotiation table by the certified bargaining agent, there was "no reasonable effort in good faith" on the Er to bargain collectively. The circumstances in this case should be considered as similar in nature to a "bargaining deadlock" when no CE could be held. This is also to make sure that no floodgates will be opened for the circumvention of  the law by unscrupulous Ers to prevent any certified bargaining agent from negotiating a CBA. Sec. 3, (Rule VIII), Book V of  the IRR should be interpreted liberally so as to include a circumstance where a CBA could not be concluded due to the failure of  one party to willingly perform its duty to bargain collectively. (Capitol  Medical  Center  Alliance Center  Alliance of  Concerned  Ees v. Laguesma, G.R. No. 118915, Feb. 4, 1997)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Should the certification election proceedings be suspended in view of  the pending case for cancellation of  the union’s certificate of  registration? A: No, the pendency of  a cancellation case is not a ground for the dismissal or suspension of  a representation proceeding considering that a registered labor organization (LO) continues to be a legitimate one entitled to all the rights appurtenant thereto until a final valid order is issued cancelling such registration. Once a LO attains the status of  a LLO it begins to possess all of  the rights and privileges granted by law to such organizations. As such rights and privileges ultimately affect areas which are constitutionally protected, the activities in which LO, associations and unions are engaged directly affect the public interest and should be zealously protected. (Progressive Dev’t  Corp. v. SLE, G.R. No. 115077, April  115077, April 18, 18, 1997) Q: What is negotiation bar rule? A: A PCE cannot be entertained if, before the filing of  the PCE, the duly recognized or certified union has commenced negotiations with the Er in accordance with Art. 250 of the of  the LC. Q: What is certification year rule? A: 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 of  voluntary recognition. (4)Run‐off  off Election Election Q: What is a run‐off election? off  election? A: An election conducted when: 1.

2.

3.

4.

5.

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An election which provides for 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 if  sustained can materially alter the results, provided  results, provided  The total number of  votes for all the contending unions is at least 50% of  the number of votes of  votes cast. (Sec. 1, Rule X, Rule  X, Book  V, IRR) Not one of  the choices obtained the majority of  the valid votes cast (50%+ 1 second majority); The two choices which garnered the highest votes will be voted and the one which garners the highest number of 

votes will be declared the winner provided they get the majority votes of  the total votes cast. Q: Who are the choices in a run‐off election? off  election? nd

A: The unions receiving the highest and 2 highest number of  the votes cast. (Sec.2, Rule  X, Book  V, IRR) Note: “No Union” shall not be a choice in the run‐off  election

(5)Re‐run Election Q: When does Re‐run Election take place? A:

1. If one If  one choice receives a plurality of the of  the vote and the remaining choices results in a tie; or 2. If all If  all choices received the same number of votes. of  votes.

Note: In both instances, the no union is also a choice.

(5)Consent Election Q: What is a consent election? A: An election voluntarily agreed upon by the parties, with or without the intervention by DOLE. (Sec.1 [h], Rule I, Book V, Book V, IRR) Note: To afford an individual employee ‐voter an informed choice where a local/chapter is the petitioning union, the local/chapter shall secure its certificate of  creation at  least  5 working days before the date of the of  the consent election. (Sec.1, Rule VIII, Book  V, IRR as amended by  amended by DO DO 40‐F ‐03) 03)

Q: What are the requisites before a labor union can be declared a winner (double majority rule)? A: 1. 2.

Majority of  the eligible voters cast their votes. Majority of the of  the valid votes cast is for such union.

Q: How to determine the double majority rule? A: 1. 2.

In determining the eligible votes cast (first  majority) include spoiled ballots In determining valid votes (second  majority), eliminate spoiled ballots but included the challenged votes.

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

Q: A certification election was conducted among the rank‐and‐file Ees of  Holiday Inn Manila Pavilion Hotel. In view of  the significant number of  segregated votes, contending unions, National Union of Workers of  Workers in Hotels, Restaurants and Allied Industries—Manila Pavilion Hotel Chapter (NUWHRAIN‐MPHC) and Holiday Inn Manila Pavilion Hotel Labor Union (HIMPHLU), referred the case back to the Med‐Arbiter to decide which among those votes would be opened and tallied. 11 votes were initially segregated because they were cast by dismissed Ees, albeit the legality of  their dismissal was still pending before the CA. 6 other votes were segregated because the Ees who cast them were already occupying supervisory positions at the time of  the election. Still 5 other votes were segregated on the ground that they were cast by probationary Ees and, pursuant to the existing CBA, such Ees cannot vote. NUHWHRAIN‐MPHC further avers that HIMPHLU, which garnered 169 votes, should not be immediately certified as the bargaining unit, as the opening of  the 17 segregated ballots would push the number of  valid votes cast to 338, hence, the 169 votes which HIMPHLU garnered would be 1 vote short of  the majority which would then become 170. Was HIMPHLU able to obtain the required majority for it to be certified as the exclusive bargaining agent? A: No, it is well‐settled that under the “double majority rule” for there to be a valid certification election, majority of  the bargaining unit must have voted and the winning union must have garnered majority of the of  the valid votes cast. Following the ruling that all the probationary Ees votes should be deemed valid votes while that of  the supervisory Ees should be excluded, it follows that the number of  valid votes cast would increase. Under Art. 256 of  the LC, the union obtaining the majority of the of  the valid votes cast by the eligible voters shall be certified as the sole exclusive bargaining agent of  all the workers in the appropriate bargaining unit. This majority is 50% + 1, in this case at least 170. HIMPHLU obtained 169, clearly it was not able to obtain a majority vote. (NUWHRAIN ‐ MPHC v. MPHC  v. SLE, G.R. No. 181531, July  181531, July 31, 31, 2009) Q: Distinguish certification election, consent election, direct certification, and run‐off  and re‐ run elections. A: Participation of  Med‐Arbiter Certification Election

Purpose

To determine the sole and exclusive bargaining agent of all of  all the Ees in an appropriate bargaining unit for the purpose of  collective bargaining.

Requires petition for CE filed by a union or Er. A Med‐Arbiter grants the petition and an election officer is designated by regional director to supervise the election.

Note: Med‐Arbiter may determine if there if  there is Er‐Ee relationship and if the if  the voters are eligible. Consent Election Consent Election

To determine the issue of  majority representation of all of  all the workers in the appropriate CB unit mainly for the purpose of  determining the Held by agreement of the of  the administrator of the of  the CBA unions with or without when the contracting the participation of the of  the union suffered massive Med‐Arbiter. disaffiliation and not for not  for the purpose of  determining the bargaining agent for purpose of CB. of  CB. Direct Certification Direct Certification Med‐Arbiter directly A LO is directly certified certifies that a labor as an appropriate union is the exclusive CB bargaining unit of a of  a representative of the of  the Ees company upon showing of an of  an appropriate that petition is supported bargaining unit without by at least a majority of  holding a CE, but merely the Ees in the bargaining on the basis of evidence of evidence unit. of in of  in support of the of  the union’s claim that is the Note: Direct certification is choice of the of  the majority of  no longer allowed. the Ees. Run‐Off Election Off  Election Takes place between the unions who received the two highest number of  votes in a CE with 3 or more choices, where not one of the of  the unions obtained the majority of  the valid votes cast, provided the total union votes is at least 50% of  the votes cast. Re‐run Election Takes place in 2 instances: 1. If one If  one choice receives a plurality of  the vote and the remaining choices results in a tie; or 2. If  all choices received the same number of 

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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processed by the Labor Relations Division at the RO.

votes. In both instances, the no union is also a choice.

2.

Note: Petition for cancellation of  registration is not a bar to a PCE. No  prejudicial  question shall be entertained in a petition for certification election. (D.O. 40‐03)

(7)Affiliation and Disaffiliation of the Local Union from the Mother Union Q: How is a local chapter created? A: A duly registered federation or national union may directly create a local/ chapter by issuing a charter certificate indicating the establishment of  a local/chapter. 1.

2.

3.

The chapter shall acquire legal personality only for purposes of  filing a petition for certification election from the date it was issued a charter certificate The chapter shall be entitled to all other rights and privileges of  a legitimate labor organization (LLO) only  upon the submission of  the following documents in addition to its charter certificate: a. Names of  the chapter’s officers, their addresses, and the principal office of the chapter b. Chapter’s constitution and by‐laws c. Where the chapter’s constitution and by‐laws are the same as that of  the federation or the national union, this fact shall be indicated accordingly The genuineness and due execution of  the supporting requirements shall be: a. Certified under oath by the secretary or treasurer of the local/chapter, and b. Attested to by its president (Sec.2[e], Rule III, Book  V, IRR, as amended  by  D.O. 40‐F ‐03)

Note: Under the LC and the rules, the power granted to LOs to directly create a chapter or local through chartering is given to a federation or national union only, not to a trade union center. (SMCEU v. San Miguel  Packaging Products Ees Union, G.R. No. 171153, Sep. 12, 2007)

Q: Where is the application for registration filed? A: 1.

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Independent  labor  unions, chartered  locals or  worker’s associations – It is filed with the Regional Office (RO). where the applicant principally operates. It shall be

Federations, national  unions or  worker’s association operating in more than one region – It is filed with the BLR of  the RO, but shall be processed by the BLR.

Q: What is the duty of  the BLR after a LO had filed the necessary papers and documents for registration? A: It becomes mandatory for the BLR to check if the req’ts under Art. 234 of  the LC have been sedulously complied with. If  its application for registration is vitiated by falsification and serious irregularities, especially those appearing on the face of  the application and the supporting documents, a LO should be denied recognition as a LLO. (Progressive Dev’t Corp.‐Pizza Hut v. Laguesma, G.R. No. 115077, April 18, 1997) Q: Within what period should the BLR act on the applications submitted before it? A: It shall act on all applications for registration within 10m days from receipt either by: 1.

2.

Approving the application and issuing the certificate of  registration/acknowledging the notice/report; or Denying the application/notice for failure of  the applicant to comply with the requirements for registration/notice (D.O. 40‐03, Rule IV, Sec.4, series of 2003)

Note: All requisite documents shall be: 1. Certified under oath by the secretary or treasurer of  the organization, as the case may be and 2. Attested to it by its President.

Q: May the BLR review the issuance of a certificate of registration? A: No. The BLR has the duty to review the application for registration not  the issuance of  a certificate of registration. Q: Why is a lesser requirement imposed for a chartered local? A: The intent of  the law in imposing lesser req’ts in the case of  branch or local of  a registered federation or national union is to encourage the affiliation of  a local union in order to increase the local union’s bargaining power respecting terms and conditions of  labor. (Progressive Dev’t  Corp v. SLE, G.R. No. 96425, Feb. 4, 1992)

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

Q: What are the requirements before a federation can be issued a certificate of registration?

3.

A: The application for registration of  federations and national unions shall be accompanied by the following documents:

4.

5. 1.

A statement indicating the name of  the applicant labor union, its principal address, the name of its officers and their respective addresses;

2.

The minutes of  the organizational meeting(s) and the list of  Ees who participated in the said meeting(s);

The total number of members comprising the labor union and the names of  members who approved the affiliation; The certificate of  affiliation issued by the federation in favor of  the independently registered labor union; and Written notice to the employer concerned if  the affiliating union is the incumbent bargaining agent. (D.O. 40‐03, Rule, III, Sec. 7, series of 2003)

Q: What is the effect of affiliation?

3.

The annual financial reports if  the applicant union has been in existence for 1 or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application;

4.

The applicant union's constitution and by‐ laws, minutes of  its adoption or ratification, and the list of  the members who participated in it. The list of  ratifying members shall be dispensed with where the constitution and by‐laws was ratified or adopted during the organizational meeting(s). In such a case, the factual circumstances of  the ratification shall be recorded in the minutes of  the organizational meeting(s);

5.

6.

The resolution of  affiliation of  at least 10 LLOs, whether independent unions or chartered locals, each of  which must be a duly certified or recognized bargaining agent in the establishment where it seeks to operate; and The name and addresses of  the companies where the affiliates operate and the list of  all the members in each company involved. (D.O. 40‐03, Rule, III, Sec. 2‐B, series of 2003)

Q: What are the requirements for affiliation? A: The report of  affiliation of  independently registered labor unions with a federation or national union shall be accompanied by the following documents: 1. Resolution of  the labor union's board of  directors approving the affiliation; 2. Minutes of  the general membership meeting approving the affiliation;

A: The labor union that affiliates with a federation is subject to the laws of the parent body under whose authority the local union functions. The constitution, by‐laws and rules of  the mother federation, together with the charter it issues to the local union, constitutes an enforceable contract between them and between the members of  the subordinate union inter se. Thus, pursuant to the constitution and by‐laws, the federation has the right to investigate and expel members of  the local union. (Villar  v. Inciong, G.R. No. L‐50283‐84,  April  20, 1983) Q: May a local union disaffiliate from the federation? A: GR: A labor union may disaffiliate from the mother union to form an independent union only during the 60‐day freedom period immediately preceding the expiration of  the CBA. XPN: Even before the onset of  the freedom period, disaffiliation may still be carried out, but such disaffiliation must be effected by the majority of  the union members in the bargaining unit. Note: This happens when there is a substantial shift 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 determine the union which shall administer the CBA may be conducted. (ANGLO‐KMU v. Samahan ng Manggagawang Nagkakaisa sa Manila Bay  Spinning Mills at  J.P. Coats, G.R. No.118562, July 5, 1996)

Q: What is the limitation to disaffiliation? A: Disaffiliation should be in accordance with the rules and procedures stated in the constitution and by‐laws of  the federation. A local union may disaffiliate with its mother federation provided that there is no enforceable provision in the federation’s

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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constitution preventing disaffiliation of  a local union. (Tropical  Hut  Ees Union v. Tropical  Hut, G.R. Nos. L‐43495‐99, Jan. 20, 1990) Note: A prohibition to disaffiliate in the Federation’s constitution and by‐laws is valid because it is intended for its own protection.

Q: What is the effect of cancellation of registration of a federation or a national union? A: GR: It shall operate to divest its locals/chapters of their status as LLO. XPN: Locals/chapters retain status as LLO if  they arecovered by a duly registered CBA. Note Locals or chapters who retained status as LLO shall be allowed to register as independent unions. If  they fail to register, they shall lose their legitimate status upon the expiration of the CBA.

Q: PSEA is a local union in Skylander company which is affiliated with PAFLU. PSEA won the certification election among the rank and file Ees of the Skylander company but its rival union PSEA‐ WATU protested the results. Pending the resolution of  such controversy, PSEA disaffiliated with PAFLU and hence affiliated with NCW which was supported by its members. May a local union disaffiliate with its mother federation pending the settlement of  the status as the sole and exclusive bargaining agent? A: Yes. The pendency of  an election protest does not bar the valid disaffiliation of  the local union which was supported by the majority of  its members. The right of  a local union to disaffiliate with the federation in the absence of  any stipulation in the constitution and by‐laws of  the federation prohibiting disaffiliation is well settled. Local unions remain as the basic unit of  association, free to serve their own interest subject to the restraints imposed by the constitution and by‐laws of national federation and are free to renounce such affiliation upon the terms and conditions laid down in the agreement which brought such affiliation to existence. In the case at bar, no prohibition existed under the constitution and by‐laws of  the federation. Hence, the union may freely disaffiliate with the federation. (Philippine Skylanders v. NLRC, G.R. No. 127374, Jan. 31, 2002)

CHARTERED LOCAL UNION Independently Unregistered Registered How to affiliate?  By application of with the federation for the By signing contract of  issuance of a charter affiliation certificate to be submitted to the BLR Effect of Disaffiliation to the union (local) Would cease to be LLO Would not affect its being and would no longer a LLO and therefore it have the legal personality would continue to have and the rights and legal personality and to privileges granted by law posses all rights and to LLO, unless the local privileges of LLO. chapter is covered by its duly registered CBA. Effect of Disaffiliation to the CBA The CBA would continue An existing CBA would to be valid. The local continue to be valid as chapter will not lose its the LO can continue personality, unless it administering then CBA. registers a new. Entitlement to union dues after Disaffiliation Union dues may no LO entitled to the union longer be collected as dues and not the there would no longer be federation from which any labor union that is the LO disaffiliated. allowed to collect such union dues from the Ees.

Q: What is the form of the decision of the denial of  application for registration? A: It shall be: 1. In writing 2. Stating in clear terms the reason for the decision 3. Applicant union must be furnished a copy of said decision. Q: Is the denial of registration appealable? A: Yes. 1. 2.

3.

Q: Distinguish between an independently registered and unregistered chartered local union. 4.

Decisions of  the Regional Office shall be appealable to the BLR and CA. The BLR’s decisions on cases appealed from Regional Director are  final  and not  appealable to the SLE. Decisions of  the BLR denying the registration of  a LO (federation or national union) is appealable to the SLE within 10 days from receipt of  the decision, on grounds of: a. Grave abuse of discretion; or b. Gross incompetence. Decision of SLE appealable to CA.

A:

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LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

Q: How is appeal taken with regard to denial or cancellation of registration?

a.

A:

b.

DENIAL OR CANCELLATION OF REGISTRATION By Regional  office By BLR Transmit records within 24 hours from receipt of the Memo of Appeal BLR will decide on the SLE decides on the matter matter within 20 days within 20 days from from receipt of the receipt of records records Appeal to CA via Rule 65 Note: Appeal is by memo of  appeal within 10 days from receipt of notice.

Q: Who cancels the certificate of registration? A: The certificate of  registration of  any LLO, whether national or local, may be cancelled by the BLR, after due hearing, only on the grounds specified in Art. 239. (as amended by R.A. 9481) Q: What is the effect of  a petition for cancellation or of union registration? A: It shall not suspend the proceedings for certification election (CE) nor shall it prevent the filing of CE. In case of  cancellation, nothing herein shall restrict the right of  the union to seek  just and equitable remedies in the appropriate courts. Q: Where is a petition for cancellation of  registration or application for voluntary dissolution filed?

2.

Failure to comply with any of  the req’ts under Art. 234, 237 and 238 of  the LC. Violation of  any provision under Art. 239, LC.

For   federations, national  or  industry  unions, trade union centers  – Only members of  the labor organization (LO) concerned may file if  the grounds are actions involving violations of  Art. 241, subject to the 30% rule.

Q: What is the effect of cancellation of registration if  the cancellation is made in the course of  the proceedings? A: 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 party without need of  substitution of  parties, subject however to the understanding that whatever decision may be rendered will be binding only upon those members of  the union who have not signified their desire to withdraw from the case before its trial and decision on the merits. Note: Rationale: Principle of  agency  is applied  – the Ees are the principals, and the LO is merely an agent of  the former, consequently, the cancellation of  the union’s registration would not deprive the consenting member ‐Ees of their right to continue the case as they are considered as the principals.

Q: What are the grounds for cancellation of  union registration? A:

A: 1.

2.

For  legitimate independent  labor  unions, local/chapter  and  worker’s association –  It shall be filed with the Regional Office which issued its certificate of  registration or creation. For  federations, national  or  industry  and  trade union centers –  It shall be filed with the BLR. (Sec. 1, Rule  XIV, Book  V, IRR as amended by D.O. 40‐F ‐03)

1.

Misrepresentation, false statement or fraud in connection with the: a. Adoption or application of  the constitution and by‐laws or amendments thereto b. Minutes of ratification and c. List of members who took part in the ratification; d. Election of officers e. Minutes of  the election of  officers and f. List of voters (Art. 239 as amended)

2.

Voluntary dissolution by the members. (as amended by R.A. 9481)

Q: Who may file a petition for cancellation of  registration? A: 1.

For  legitimate individual  labor  union, chartered local and worker’s association – Any party‐in‐interest may file a petition for cancellation of  registration if  the ground is:

Note: A pronouncement as to the legality of the strike is not within the meaning of Art. 239 of the LC.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What are the prohibited grounds for cancellation of union registration? A: 1. The inclusion as union member of Ees who are outside the bargaining unit shall not be a ground to cancel the union registration. The ineligible Ees are automatically deemd removed from the list of  membership of  the union as.(Art. 245‐ A as amended by RA 9481) 2. The affiliation of  the rank‐and‐file and supervisory unions operating within the same establishment to the same federation or national union shall not be a ground to cancel registration of  either union. (Sec. 6, Rule  XIV, Book  V, as inserted by D.O. 40‐F ‐03) Q: How is voluntary cancellation of  registration made? A: Registration may be organization itself  provided : 1.

2.

cancelled

by

the

At least ⅔ of  its general membership votes to dissolve the organization, in a meeting duly called for that purpose; and An application to cancel registration is thereafter submitted by the board of  the organization, attested by its president.

Q: What are the “reportorial requirements” required to be submitted by a legitimate labor organization (LLO) ? A: The following documents are required to be submitted to BLR by the LLO concerned: 1.

2.

3. 4.

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Within 30 days from adoption or ratification of  the constitution and by laws (CBL) or amendments thereto: a. CBL or amendments thereto b. Minutes of ratification c. List of members who took part in the ratification of  the constitution and by‐laws; Within 30 days from date of  election or appointment: a. List of elected and appointed officers and agents entrusted with the handing of union funds b. Minutes of election of officers c. List of voters Annual financial report within 30 days after the close of every fiscal year List of  members at least once a year or whenever required by the Bureau. (Sec. 1,

Rule V, Book  V, IRR, as amended  by  D.O. 40‐F ‐03) 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, as inserted by R.A. 9481).

Q: What is the successor‐ in‐interest doctrine? A: GR: It is when an Er with an existing CBA is succeeded by another Er, the successor‐in‐ interest who is the buyer in good faith has no liability to the Ees in continuing employment and the bargaining agreement because these contracts are in personam. XPNs: 1. When the successor‐in‐interest expressly assumes an obligation; 2. The sale is a device to circumvent the obligation; or 3. The sale or transfer is made in bad faith. (a)Substitutionary Doctrine Q: What is the substitutionary doctrine? A: It is where there occurs a shift in the Ees union allegiance after the execution of  a collective bargaining (CB) contract with the Er, the Ees can change their agent (labor union) but the CB contract which is still subsisting continues to bind the Ees up to its expiration date. They may however, bargain for the shortening of  said expiration date. Note: The Er cannot revoke the validly executed CB contract with their Er by the simple expedient of  changing their bargaining agent. The new agent must respect the contract. (Benguet  Consolidated  Inc. v. BCI Ees and Worker’s Union‐PAFLU, G.R. No. L‐24711, April  30, 1968) It cannot be invoked to support the contention that a newly certified CB agent automatically assumes all the personal undertakings of the former agent‐like the “no strike clause” in the CBA executed by the latter.

(8)Union Dues and Special Assessments (a) Union Dues Q: What are union dues? A: These are regular monthly contributions paid by the members to the union in exchange for the

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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benefits given to them by the CBA and to finance the activities of the union in representing the union. Q: What is check‐off?

Q: What are the requisites for a valid levy of  special assessment or extraordinary fees? A:

A: It is a method of deducting from an Ee’s pay at a prescribed period, the amounts due the union for fees, fines and assessments.

1.

Deductions for union service fees are authorized by law and do not require individual check‐off  authorizations.

2.

Q: What is the nature and purpose of check‐off? A: Union dues are the lifeblood of the union. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings.(Art. 277[a]) Q: What are the requisites of a valid check‐off? A: GR: No special assessments, atty’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee (Ee) without individual written authorization duly signed by the Ee. The authorization should specifically state the: 1. Amount 2. Purpose & 3. Beneficiary of the deduction. XPNs: 1. For mandatory activities under the LC 2. For agency fees 3. When non‐members of  the union avail of  the benefits of the CBA: a. Non‐members may be assessed union dues equivalent to that paid by union members; b. Only by board resolution approved by majority of  the members in general meeting called for the purpose.

3.

Authorization by a written resolution of  the majority of all members at the general membership meeting duly called for that purpose; Secretary’s record of  the minutes of  the meeting, which must include the: a. List of members present b. Votes cast c. Purpose of the special assessments d. Recipient of such assessments; Individual written authorization to check‐ off  duly signed by the Ee concerned  – to levy such assessments.

Q: What is the effect of  failure to strictly comply the requirements set by law? A: It shall invalidate the questioned special assessments. Substantial compliance of  the requirements is not enough in view of the fact that the special assessment will diminish the compensation of union members. (Palacol v. Ferrer ‐ Calleja, G.R. No. 85333, Feb. 26, 1990) Q: Who has jurisdiction over check‐off disputes? A: Being an intra‐union dispute, the Regional Director of  DOLE has  jurisdiction over check off  disputes. Q: Distinguish check‐off from special assessments. A: Check‐off

Special Assessment How approved  (Union Dues) By obtaining the individual By written resolution written authorization duly approved by majority of  signed by the Ee which all the members at the must specify: meeting called for that 1. Amount purpose. 2. Purpose 3. Beneficiary Exception to such requirement 

(b) Special Assessments Q: What are special assessments or extraordinary fees? A: These are assessments for any purpose or object other than those expressly provided by the labor organization’s constitution and by‐laws.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Union Dues

(Agency  fees) Not necessary when: 1. For mandatory activities under the LC 2. For agency fees 3. When non‐members of  the union avail of the benefits of the CBA: a. Said non‐members may be assessed union dues equivalent to that paid by union members; b. Only by Board resolution approved by majority of the members in general meeting called for the purpose

Is deducted from members for the payment of union dues

No exception; written resolution is mandatory in all instances.

May not be deducted from the salaries of the union members without the written consent of  the workers affected.

May be deducted from the salary of the Ees without their written consent.

2.RIGHT TO COLLECTIVE BARGAINING Q: What is collective bargaining (CB)? A: 1.

It is the process of  negotiation by an organization or group of  workmen, in behalf of  its members, with the employer (Er), concerning wages, hours of  work, and other terms and conditions of  employment and 

2.

The settlement of disputes by negotiation between an Er and the representative of  his employees (Ee)

3.

It is the obligation 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 executing a contract incorporating such agreements if  requested by either party but such does not compel any party to agree to a proposal or to make any concession. (Art. 252, LC)

Q: Are Ees who are members of  another union considered free riders? A: No. When the union bids to become the bargaining agent, it voluntarily assumes the responsibility of representing all the Ees. (9)Agency Fees Q: What is an agency fee? A: It is an amount equivalent to union dues, which a non‐union member pays to the union because he benefits from the CBA negotiated by the union. Note: Agency fee cannot be imposed on Ees already in the service and are members of  another union. If  a closed shop agreement cannot be applied to them, neither may an agency fee, as a lesser form of  union security, be imposed to them. Payment by non‐union members of agency fees does not amount to an unjust enrichment basically the purpose of  such dues is to avoid discrimination between union and non‐union members. Q: What are the requisites for assessment of  Agency fees (Art. 248 [e], LC)? A:

1. 2. 3.

Agency Fee Is deducted from non‐ members of the bargaining agent (union) for the enjoyment of the benefits under the CBA.

The employee is part of the bargaining unit He is not a member of the union He partook of the benefits of the CBA

Note: GR: No court or administrative agency or official shall have the power to set or fix wages, rates of  pay, hours of work, or other terms and conditions of employment XPNs: As otherwise provided under the LC: 1.

Note: The individual authorization required under Art. 242, par. O of  the LC shall not apply to the non‐ members of  the recognized collective bargaining agent.

2. 3.

Q: Distinguish union dues from agency fees.

National Wages and Productivity Commission and RTWPB as to wage fixing. (Art. 99 and 122, LC) NCMB and NLRC as to wage distortion. (Art. 124, LC) SLE and President of  the Philippines as to certification and assumption of  powers over labor disputes. (Art. 236[g], LC)

A:

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Q: What is the purpose behind this rule? A: It is to encourage a truly democratic method of  regulating the relations between the employers and employees by means of  agreements freely entered into through CB. Q: Who are the parties to a CB? A: 1. 2.

Employer Employees, represented by the exclusive bargaining agent

Q: What are the  jurisdictional preconditions in collective bargaining? A: 1.

2. 3.

Possession of  the status of  majority representation of  the employees representative in accordance with any of  the means of  selection or designation provided for the Labor Code Proof of majority representation A demand to bargain under Art. 250 (a) of  the LC. (Kiok  Loy  v. NLRC, G.R. No. L‐ 54334, Jan.22, 1986)

Note: The certification of  the CBA by the BLR is not required to make such contract valid. Once it is duly entered into and signed by the parties, a CBA becomes effective as between the parties whether or not it has been certified by the BLR. (Liberty  Flour  Mills Ee’s  Association v. Liberty  Flour  Mills, G.R. Nos. 58768‐70, Dec. 29, 1989)

Q: What is a zipper clause? A: It is a stipulation in a CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiation when the CBA is already in effect. A CBA is not an ordinary contract but one impressed with public interest, only provisions embodied in the CBA should be so interpreted and complied with. Where a proposal raised by a contracting party does not find print in the CBA, it is not a part thereof  and the proponent has no claim whatsoever to its implementation. (SMTFM‐UWP v. NLRC   , G.R. No. 113856, Sept. 7, 1998)

Q: When shall bargaining commence? A: It commences within 12 months after the determination and certification of  the Ees exclusive bargaining representative. (certification year)

a.Duty to Bargain Collectively Q: What is the procedure in CB? Q: When does the duty of  the employer (Er) to bargain collectively arise?

A: When a party desires to negotiate an agreement:

A: Only after the union requests the Er to bargain. If  there is no demand, the Er cannot be in default.

1. 2.

Note: Where a majority representative has been designated, it is an ULP for the Er, as a refusal to collectively bargain, to deal and negotiate with the minority representative to the exclusion of  the majority representative.

3.

4.

Where there is a legitimate representation issue, there is no duty to bargain collectively on the part of  the Er (Lakas ng mga Manggagawang Makabayan v. Marcelo Enterprises, G.R. No. L‐38258, Nov. 19, 1982)

5.

Q: What is a collective bargaining agreement (CBA)? A: It is a contract executed upon request of  either the Er or the exclusive bargaining representative of  the Ees incorporating the agreement reached after negotiations with respect to wages, hours of  work, terms and conditions of  employment, including proposals for adjusting any grievance or questions under the agreement.

It shall serve a written notice upon the other party with a statement of proposals Reply by the other party shall be made within 10 days with counter proposals In case of  differences, either party may request for a conference which must be held within 10 calendar days from receipt of request If  not settled, NCMB may intervene and encourage the parties to submit the dispute to a voluntary arbitrator If  not resolved, the parties may resort to any other lawful means (either  to settle the dispute or  submit  it  to a voluntary  arbitrator).

Note: During the conciliation proceeding in the NCMB, the parties are prohibited from doing any act which may disrupt or impede the early settlement of  disputes. (Art.250[d], LC)

Q: What are the stages in CB? A:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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1.

2. 3. 4. 5.

6. 7.

8.

Preliminary   process: Sending a written notice for negotiation which must be clear and unequivocal Negotiation process. Execution  process: The signing of  the agreement Publication for at least 5 days before ratification Ratification by the majority of  all the workers in the bargaining unit represented in the negotiation (not necessary in case of arbitral award) Registration process.  Administration  process: The CBA shall be  jointly administered by the management and the bargaining agent for a period of 5 years. Interpretation and Application process.

Q: Does a petition for cancellation of  a union’s certificate of  registration involve a prejudicial question that should first be settled before parties could be required to collectively bargain? A: No. A pending cancellation proceeding is not a bar to set mechanics for collective bargaining (CB). If  a certification election may still be held even if  a petition for cancellation of  a union’s registration is pending, more so that the CB process may proceed. The majority status of  the union is not affected by the cancellation proceedings. (Capitol  Medical  Center v. Trajano, G.R. No. 155690, June 30, 2005) Q: What is the duty to bargain collectively when there is no CBA? A: It is the performance of a mutual obligation: 1. 2.

3.

4.

To meet and convene promptly and expeditiously in good faith (GF) For the purpose of  negotiating an agreement with respect to wages, hours of  work and all other terms and conditions of employment Including proposals for adjusting any grievances or questions arising under such agreement; and To execute a contract incorporating such agreements if  requested by either party. (Art. 252)

Q: What are the limitations to the duty to bargain collectively? A: 1.

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Such duty does not compel any party to agree to a proposal or to make any concession.

2.

Parties cannot stipulate terms and conditions of  employment which are below the minimum req’ts prescribed by law.

Q: May either party bargain to an impasse? A: It depends: 1.

Where the subject of  a dispute is a mandatory  bargaining subject, either party may bargain to an impasse as long as he bargains in GF.

2.

Where the subject is non‐mandatory , a party may not insist in bargaining to the point of  impasse. His instance may be construed as evasion of duty to bargain.

Q: What is the test of bargaining in bad faith? A: There is no perfect test of  good faith (GF) in bargaining. The GF or BF is an inference to be drawn from the facts and is largely a matter for the NLRC’s expertise. The charge of BF should be raised while the bargaining is in progress. Note: With the execution of the CBA, BF can no longer be imputed upon any of  the parties thereto. All provisions in the CBA are supposed to have been  jointly and voluntarily incorporated therein by the parties. This is not a case where private respondent exhibited an indifferent attitude towards CB because the negotiations were not the unilateral activity of  petitioner union. The CBA is good enough that private respondent exerted “reasonable effort of  GF bargaining.” (Samahang Manggagawa sa Top Form Manufacturing‐United  Workers of  the Phils v. NLRC, G.R. No. 113856, Sept. 7, 1998)

Q: Does an Er’s steadfast insistence to exclude a particular substantive provision in the negotiations for a CBA constitute refusal to bargain or bargaining in BF? A: No. This is no different from a bargaining representative’s perseverance to include one that they deem of  absolute necessity. Indeed, an adamant insistence on a bargaining position to the point where the negotiations reach an impasse does not establish bad faith. Obviously, the purpose of CB is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of  good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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agreement. While the law makes it an obligation for the Er and the Ees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of  the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of  agreement. (Union of  Filipro Ees v. Nestle Phils., G.R. Nos. 158930‐31, Mar. 3, 2008) Q: What is a deadlock? A: It is synonymous with impasse or a standstill which presupposes reasonable effort at GF bargaining but despite noble intentions does not conclude an agreement between the parties. Q: In case of  deadlock in the renegotiation of  the CBA, what are the actions that may be taken by the parties?

of  the existing agreement during the 60‐ day period and/or until a new agreement is reached by the parties. (Art. 253, LC) Q: What is the automatic renewal clause of CBAs? A: Although a CBA has expired, it continues to have legal effects as between the parties until a new CBA has been entered into (Pier  &  Arrastre Stevedoring Services, Inc. v. Confessor, G.R. No. 110854, February  13, 1995). This is so because the law makes it a duty of  the parties to keep the status quo and to continue in full effect the terms and conditions of  the existing agreement until a new agreement is reached by the parties. (Art. 253, LC). (2008 Bar Question) Q: What may be done during the 60‐day freedom period? A: 1.

A: The parties may: 1.

2. 3.

Call upon the NCMB to intervene for the purpose of  conducting conciliation or preventive mediation; Refer the matter for voluntary arbitration or compulsory arbitration; Declare a strike or lockout upon compliance with the legal req’ts (This remedy is a remedy of last resort).

2.

3.

A labor union may disaffiliate from the mother union to form a local or independent union only during the 60‐day freedom period immediately preceding the expiration of the CBA. Either party can serve a written notice to terminate or modify agreement at least 60‐days prior to its expiration period. A petition for certification election may be filed.

Q: When to file CBA? Q: May economic exigencies  justify refusal to bargain? A: No. An employer is not guilty of  refusal to bargain by adamantly rejecting the union’s economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for refusing to bargain collectively.

A: Within 30 days from execution of CBA. Q: What are the requirements for registration? A: The application for CBA registration shall be accompanied by the original and 2 duplicate copies of the following req’ts: 1. 2.

Q: What is the duty to bargain collectively when there is a CBA? 3.

A: 1.

2.

3.

When there is a CBA the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. Either party can serve a written notice to terminate or modify the agreement at least 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

CBA A statement that the CBA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 days before its ratification Statement that the CBA was ratified by the majority of  the Ees in the bargaining unit.

Note: The following documents must be certified under oath by the representative of  the Er and the labor union. No other document shall be required in the registration of the CBA.

Q: What is a single enterprise bargaining?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: It involves negotiation between one certified labor union and one Er. Any voluntarily recognized or certified labor union may demand negotiations with its Er for terms and conditions of  work covering Ee’s in the bargaining unit concerned. Q: What is a multi‐Er bargaining scheme? A: It involves negotiation between and among several certified labor unions and Ers. Q: What is the duration of a CBA? A: 1.

2.

With respect to the representation aspect  (refers to the identity and majority status of  the union that negotiated the CBA as the exclusive bargaining representative): 5 years With respect to all other  provisions (refers to the rest of  the CBA, economic as well as non‐economic provisions other than representational provisions): 3 years after the execution of the CBA

Q: What are the economic provisions of a CBA? A: 1. 2. 3. 4.

Wages Family planning Effectivity of the agreement Other terms and conditions employment

of 

Q: What are the non‐economic provisions of  a CBA? A: 1. 2. 3. 4. 5.

Coverage of the bargaining unit Union security clauses Management prerogatives and/or rights/responsibilities of employees Grievance machinery and voluntary arbitration No strike – no lock out provision

Q: What is the effectivity and retroactivity date of  other economic provisions of the CBA? A: 1.

If  the CBA is the very first for the bargaining unit, the parties have to decide the CBA effectivity date.

2.

Those made within 6 months after date of  expiry of  the CBA are subject to automatic retroaction to the day immediately following the date of expiry.

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3.

Those not made within 6 months, the parties may agree to the date of  retroaction.

Note: This rule applies only if  there is an existing agreement. If  there is no existing agreement, there is no retroactive effect because the date agreed upon shall be the start of the period of agreement. Art. 253‐A on retroactivity does not apply if  the provisions were imposed by the SLE by virtue of  arbitration. It applies only if  the agreement was voluntarily made by the parties.

Q: May the economic provisions of an existing CBA be extended beyond the 3 year period as prescribed by law in the absence of  a new agreement? A: Yes. Under the principle of hold over , until a new CBA has been executed by and between the parties, they are duty bound to keep the status quo and must continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception or qualification as to which of  the economic provisions of  the existing agreement are to retain force and effect. Therefore, it must be encompassing all the terms and condition in the said agreement. (New  Pacific Timber v. NLRC, G.R. No. 124224, Mar. 17, 2000) Q: Mindanao Terminal Company and respondent union has an existing CBA which was about to expire. Thus, negotiations were held regarding certain provisions of  the CBA which resulted in a deadlock. Thus the union filed a notice of  strike. During the conference called by the NCMB the company and the union were able to agree on all of  the provisions of  the CBA except for one. However, the last unresolved provision was subsequently settled but no CBA was signed. Hence, in the records of  the Mediation Arbiter, all issues were settled before the lapse of  the 6 month period after the expiration of  the old CBA. Does the signing of  the CBA determine the date it was entered into within the 6 month period? A: No. The signing of  the CBA does not determine whether the agreement was entered into within the 6 month period from the date of  expiration of  the old CBA. In the present case, there was already a meeting of  the minds between the company and the union prior to the end of  the 6 month period after the expiration of  the old CBA. Hence, such meeting of  the mind is sufficient to conclude that an agreement has been reached within the 6 month period as provided under Art. 253‐A of  the LC.

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(Mindanao Terminal  and  Brokerage Services Inc., v. Confessor, G.R. No. 111809, May 5, 1997) Q: When is the effectivity of  a CBA arbitral award concluded beyond 6 months from the expiration of  the old CBA? A: The CBA arbitral awards granted 6 months from the expiration of  the last CBA shall retroact to such time agreed upon by both the Er and the union. Absent such agreement as to retroactivity, the st award shall retroact to the 1 day after the 6 month period following the expiration of  the last day of  the CBA should there be one. In the absence of  a CBA, the SLE’s determination of  the date of  retroactivity as part of  his discretionary powers over arbitral award shall control. (Manila Electric Company  v. Quisumbing, G.R. No. 127598, Feb. 22 and  Aug. 1, 2000) Q: PAL was suffering from a worsened financial condition resulting to a retrenchment which downsized its labor force by more than 1/3 thereby affecting numerous union members. Hence, the union went on strike. The PAL offered that shares of  stock be transferred to its Ees but the union refused. Thus, PAL claimed it has no alternative left but to close. Hence, the union PALEA offered that the CBA be suspended for 10 years and to waive some of  the economic benefits in the CBA provided they remain the certified bargaining agent. PAL agreed and resumed operations. Is the agreement to suspend the CBA for 10 years abdicated the worker’s right to bargain? A: No. The primary purpose of  a CBA is to stabilize labor‐management relations in order to create a climate of a sound and stable industrial peace. The assailed agreement was the result of  the voluntary CB negotiations undertaken in the light of  severe financial situation faced by PAL. Q: Is the agreement in conflict with Art. 253‐A of  the LC? A: No. There is no conflict between the agreement and Art. 253‐A of  the LC for the latter has a 2‐fold purpose namely: a) to promote industrial stability and predictability and b) to assign specific time tables wherein negotiations become a matter of  right and requirement. In so far as the first purpose, the agreement satisfies the first purpose. As regard the second purpose, nothing in Art. 253‐A prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same.

Q: Does the agreement violate the 5 year representation limit as provided under Art. 253‐A of the LC? A: No. For under the said article, the representation limit of  the exclusive bargaining agent applies only when there is an existing CBA in full force and effect. In this case, the parties agreed to suspend the CBA and put in abeyance the limit on representation. (Rivera v. Espiritu, G.R. No. 135547,  Jan. 23, 2002) b.Mandatory provisions of the CBA Q: What are the mandatory provisions of the CBA? A: 1. 2. 3. 4. 5. 6. 7.

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

Note: In addition, the BLR requires the CBA should include a clear statement of the terms of the CBA. Er’s duty to bargain is limited to mandatory bargaining subjects; as to other matters, he is free to bargain or not.

Q: How are cases arising from the Interpretation or implementation of  CBAs handled and disposed? A: They are disposed through the grievance machinery and if  not resolved by the grievance machinery, through voluntary arbitration. (1995 Bar Question) Q: What is grievance? A: It is any question by either the employer or the union regarding the interpretation or implementation of  any provision of  the CBA or interpretation or enforcement of  company personnel policies. (Sec.1 [u], Rule I, Book V, IRR) Q: What provisions must the parties include in a CBA? A: 1. 2.

Provisions that will ensure the mutual observance of its terms and conditions. A machinery for adjustment and resolution of grievances arising from the: a. Interpretation/implementation of  the CBA and

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b.

Interpretation/ enforcement of  company personnel policies. ( Art. 260, par. 1). 2. (1)Grievance Procedure

Q: What is grievance machinery? A: It refers to the mechanism for the adjustment and resolution of  grievances arising from the interpretation or enforcement of  company personnel policies. It is part of  the continuing process of collective bargaining (CB). Note: It is a must provision in any CBA and no collective agreement can be registered in the absence of such procedure.

Q: How is grievance machinery established? A: 1. 2.

Agreement by the parties A grievance committee  – composed of  at least 2 representatives each from the members of  the bargaining unit and the employer, unless otherwise agreed upon by the parties – shall be created within 10 days from the signing of CBA

Note: Although Art. 260 of  the Labor Code mentions “parties to a CBA”, it does not mean that a grievance machinery cannot be set up in a CBA‐less enterprise. In any workplace where grievance can arise, a grievance machinery can be established.

Q: What is grievance procedure? A: It refers to the internal rules of  procedure established by the parties in their CBA which usually consists of  successive steps starting at the level of  the complainant and his immediate supervisor and ending, when necessary, at the level of  the top union and company officials and with voluntary arbitration as the terminal step. Q: What will happen to grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of  their submission? A: They shall automatically be referred to voluntary arbitration prescribed in the CBA. ( Art. 260,  par.2, Labor Code) Either party may serve notice upon the other of  its decision to submit the issue to voluntary arbitration (VA): 1. If  the party upon whom such notice is served fails/refuses to respond within 7

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days from receipt, VA/panel designated in the CBA shall commence arbitration proceedings If  the CBA does not designate or if  the parties failed to name the VA/panel, the regional branch of  NCMB appoints VA/panel (2)Voluntary Arbitration

Q: What is voluntary arbitration? A: It refers to the mode of  settling labor management disputes by which the parties select a competent, trained and impartial third person who shall decide on the merits of  the case and whose decision is final and executory. (Sec.1 [d], Rule II, NCMB Revised Procedural Guidelines in the Conduct  of Voluntary  Arbitration Proceedings, Oct. 15, 2004) Q: What is the difference between compulsory and voluntary arbitration? A: 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 rd through arbitration by a 3 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. 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. Ideally, arbitration awards are supposed to be complied with by both parties without delay, such that once an award has been rendered by an arbitrator, nothing is left to be done by both parties but to comply with the same. After all, they are presumed to have freely chosen arbitration as the mode of  settlement for that particular dispute. Pursuant thereto, they have chosen a mutually acceptable arbitrator who shall hear and decide their case. Above all, they have mutually agreed to be bound by said arbitrator's decision. (Luzon Dev’t  Bank  v.  Ass’n of Luzon Dev’t Bank Ees, G.R. No. 120319, Oct. 6, 1995) Q: What is the basis for voluntary arbitration and its rationale? A: The State shall promote the principle of  shared responsibility between workers and employers and

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the preferential use of  voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace (Sec. 3, Art. XIII, 1987 Constitution). (3)No Strike‐No Lockout Clause Q: When does the No Strike‐No Lockout clause in the CBA apply? A: The “no strike‐no lockout” clause in the CBA applies only to economic strikes. It does not apply to ULP strikes. Hence, if the strike is founded on an unfair labor practice of  the employer, a strike declared by the union cannot be considered a violation of  the no strike clause. (Master Iron Labor  Union v. NLRC, G.R. No. 92009, Feb. 17, 1993)

A: 1. 2. 3.

4. 5. 6.

Failure to meet and convene Evading the mandatory subjects of  bargaining. Bad faith in bargaining (boulwarism), including failure to execute the CBA if  requested Gross violation of the CBA Surface Bargaining Blue sky bargaining

Note: Violations of  CBA, except those which are gross in character, shall no longer be treated as ULP but a grievance under CBA. (Art. 261, LC, Silva v. NLRC, G.R. No. 110226, June 19 1997)

Q: When is there refusal to bargain? (4)Labor Management Council Q: What is the role of  the Department of  Labor and Employment in the creation of  Labor Management Councils? A: The Department shall promote the formation of  labor‐management councils in organized and unorganized establishments to enable the workers to participate in policy and decision‐making processes in the establishment, insofar as said processes will directly affect their rights, benefits and welfare, except those which are covered by collective bargaining agreements or are traditional areas of bargaining. The Department shall promote other labor‐ management cooperation schemes and, upon its own initiative or upon the request of  both parties, may assist in the formulation and development of  programs and projects on productivity, occupational safety and health, improvement of  quality of  work life, product quality improvement, and other similar schemes. (Sec. 1, Rule XXI, Book V, IRR) Q: How is the representative in the Management Council Selected? A: In organized establishments, the workers’ representatives to the council shall be nominated by the exclusive bargaining representative. In establishments where no legitimate labor organization exists, the workers representative shall be elected directly by the employees at large. (Sec. 2, Rule XXI, Book V, IRR) c.ULP in Collective Bargaining Q: What are the forms of ULP in bargaining?

A: A union violates its duty to bargain collectively by entering negotiations with a fixed purpose of  not reaching an agreement or signing a contract. Q: What is featherbedding/ make work activities? A: It refers to the practice of the union or its agents in causing or attempting to cause an employer (Er) to pay or deliver or agree to pay or deliver money or other things of  value, in the nature of  an exaction, for services which are not performed or not to be performed, as when a union demands that the Er 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.

Q: What is the sweetheart doctrine? A: It is when a LO asks for or accepts negotiations or atty’s fees from employers as part of the settlement of any issue in CB or any other dispute. Note: The resulting CBA is considered as a “sweetheart  contract” –  a CBA that does not substantially improve the employees wages and benefits and whose benefits are far below than those provided by law.

Q: What is blue‐sky bargaining? A: It is defined as making exaggerated or unreasonable proposals. Note: Whether or not the union is engaged in blue‐sky bargaining is determined by the evidence presented by the union as to its economic demands. Thus, if  the union requires exaggerated or unreasonable economic demands, then it is guilty of  ULP. (Standard  Chartered  Bank  v. Confessor, G.R. No. 114974, June 16, 2004)

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Q: When does boulwarism occur?

1.

A: It occurs when employer (Er) directly bargains with the employee (Ee) disregarding the union; the aim was to deal with the labor union through Ees rather than with the Ees thru the union. Er submits its proposals and adopts a take‐it‐or‐leave‐it stand.

2.

d.Unfair Labor Practice (1)ULP of Employers Q: What are the ULP that may be committed by Ers? A: 1. 2. 3. 4. 5. 6. 7. 8. 9.

Interference Yellow dog condition Contracting out Company unionism Discrimination for or against union membership Discrimination because of testimony Violation of duty to bargain Paid negotiation Gross violation of CBA (a)Interference

Q: What is meant by interference? A: The act of Er to interfere with, restrain or coerce Ees in the exercise of their right to self organization. Q: What is the test of interference? A: Whether the Er has engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the Ees right to self ‐organization. Note: Direct evidence that an Ee was in fact intended or coerced by the statements of threats of the Er is not necessary if there is a reasonable interference that the anti‐union conduct of  the Er does have an adverse effect on self ‐organization and CB. (The Insular  Life  Assurance‐NATU v. The Insular  Life Co. Ltd, G.R. No.L‐ 25291, Jan. 30, 1971)

Q: What is the totality of conduct doctrine? A: It states that the culpability of  Er’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. Under this doctrine, expressions of  opinion by an Er, though innocent in themselves, frequently were held to be ULP because of:

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3.

The circumstances under which they were uttered The history of  the particular Er’s labor relations or anti‐union bias Their connection with an established collateral plan of coercion or interference. (The Insular  Life  Assurance‐NATU v. The Insular  Life Co. Ltd, G.R. No.L‐25291,  Jan. 30, 1971)

Q: Phil. Marine Officers Guild (PMOG) is a union representing some of  Philsteam’s officers and Cebu Seamen’s Association (CSA) is another union representing some of  Philsteam’s officers. PMOG sent a letter to Philsteam requesting for CB but the company asked the former to first prove it represents the majority. Simultaneously, Philsteam interrogated its captains, deck officers and engineers while CSA likewise sent its demands to Philsteam. The company recognized CSA as representing the majority and entered into a CBA. Hence PMOG declared a strike. PMOG was subjected to vilification and Philsteam’s pier superintendent participated in the solicitation of  membership for CSA. Is the company guilty of  ULP? A: Yes. Although the company is free to make interrogations as to its Ees’ union, the same should be for a legitimate purpose and must not interfere with the exercise of self ‐organization otherwise it is considered as ULP. Moreover, Philsteam’s supervisory Ees’ statement that PMOG is a “money‐ making” union, which is made to appear to be said in behalf  of  the union and the participation of  the company’s pier superintendent in soliciting membership for the competing union, is ULP for interfering with the exercise of  the right to self ‐ organization. (Philsteam and  Navigation v. Philippine Marine Officers Guild, G.R. Nos. L‐20667  and L‐20669, Oct. 29, 1965) Q: What is a lockout? A: It means any temporary refusal of  an Er to furnish work as a result of  an industrial or labor dispute. ( Art.212[p]) Q: When does lockout or closure amount to ULP? A: A lockout, actual or threatened, as a means of  dissuading the Ees from exercising their rights is clearly an ULP. However, to hold an Er guilty, the evidence must establish that the purpose was to interfere with the Ees exercise of their rights. Q: What are interference?

other

examples

of  acts

of 

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A: 1. 2.

3.

Outright and unconcealed intimidation In order that interrogation would not be deemed coercive: a. The Er must communicate to the Ee the purpose of questioning b. Assure him that no reprisal would take place c. Obtain Ee participation voluntarily d. Must be free from Er hostility to union organization e. Must not be coercive in nature Intimidating expressions of opinion by Er

Q: What are the 3 usual provisions under a yellow dog contract? A: 1. 2. 3.

A representation by the Ee that he is not a member of a labor union. A promise by the Ee not to  join a labor union. A promise by the Ee that upon  joining a labor union, he will quit his employment. (c)Contracting Out

Q: What is “contracting out” as a form of ULP? Note: An Er who interfered with the right to self ‐ organization before a union is registered can be held guilty of  ULP. (Samahan ng mga Manggagawa sa Bandolino ‐LMLC  v. NLRC, G.R. No. 125195,  July  17, 1997) It is the prerogative of  the company to promote, transfer or even demote its Ees to other positions when the interests of  the company reasonably demand it. Unless there are circumstances which directly point to interference by the company with the Ees right to self ‐organization, the transfer of  an Ee should be considered as within the bounds allowed by law. (Rubberworld  Phils. v. NLRC, G.R. No. 75704,  July  19, 1989)

(b)Yellow Dog Q: What is a yellow dog condition? A: It is to require as a condition of employment that a person or an Ee shall not join a labor organization or shall withdraw from one to which he belongs. Q: What is a yellow dog contract? A: It is a promise exacted from workers as condition of  employment that they are not to belong to or attempt to foster a union during their period of  employment. Q: Is yellow dog contract valid? A: No. It is null and void because: 1. It is contrary to public policy for it is tantamount to involuntary servitude. 2. It is entered into without consideration for Ees in waiving their right to self ‐ organization. 3. Ees are coerced to sign contracts disadvantageous to their family. Note: This is one of  the cases of  ULP that may be committed in the absence of an Er‐Ee relationship.

A: It is to contract out services or functions being performed by union members when such will interfere with, restrain or coerce Ees in the exercise of their rights to self ‐organization. Q: Does it mean that an Er cannot contract out work? A: GR: Contracting out services is not ULP per se. XPNs: It is ULP only when the ff. exists: 1. The services contracted out are being performed by union members; and 2. Such contracting out interferes with, restrains, or coerce Ees in the exercise of  their right to self ‐organization. Note: When the contracting out is being done for business reasons such as decline in business, inadequacy of equipment or to reduce cost, then it is a valid exercise of management prerogative.

Q: Company "A" contracts out its clerical and  janitorial services. In the negotiations of  its CBA, the union insisted that the company may no longer engage in contracting out these types of  services, which services the union claims to be necessary in the company's business, without prior consultation. Is the union's stand valid or not? For what reason(s)? A: The union's stand is not valid. It is part of  management prerogative to contract out any work, task, job or project except that it is an ULP to contract out services or functions performed by union members when such will interfere with, restrain or coerce Ees in the exercise of  their rights to self ‐organization. (Art. 248[c] of  the LC). (2001 Bar Question) Q: What is a run‐away shop?

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A: It is an industrial plant moved by its owners from one location to another to escape labor regulations or State laws or to discriminate against Ees at the old plant because of their union activities.

or other support to it or its organizers or supporters. Q: Why is company unionism/captive unionism a form of ULP?

Q: Is resorting to run‐away shop ULP? A: Yes. Where a plant removal is for business reasons but the relocation is hastened by anti‐union motivation, the early removal is ULP. It is immaterial that the relocation is accompanied by a transfer of  title to a new employer (Er) who is an alter ego of the original Er.

A: It is considered ULP because the officers will be beholden to the Ers and they will not look after the interest of whom they represent. (e)Discrimination for or against union membership Q: What is meant by discrimination as a form of  ULP?

(d)Company Unionism Q: What is a company union? A: Any labor organization whose formation, function or administration has been assisted by any act defined as ULP. (Art. 212[i]) Q: What are the forms of company unionism? A: 1.

2.

Initiation of the company union idea by: a. Outright formation by Er or his representatives b. Ee formation on outright demand or influence by Er and c. Managerially motivated formation by Ees Financial support to the union by : a. Er defrays union expenses b. Pays atty’s fees to the attorney who drafted the Constitution or by‐laws of the union.

3.

Er  encouragement  assistance ‐ Immediately granting of  exclusive recognition as bargaining agent without determining whether the union represents the majority of the employees

4.

Supervisory  assistance‐ Soliciting membership, permitting union activities during work time or coercing Ees to  join the union by threats of  dismissal or demotion

Q: What is meant by the act of  company‐ domination of union? A: This is to initiate, dominate, assist or otherwise interfere with the formation or administration of  any labor organization including giving of  financial

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A: It is 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. Q: When is a discharge of an Ee discriminatory? A: For the test of  determining whether or not a discharge is discriminatory, it is necessary that the underlying reason for the discharge be established. The fact that a lawful cause for discharge is available is not a defense where the Ee is actually discharged because of  his union activities. If  the discharge is actually motivated by lawful reason, the fact that the Ee is engaged in union activities at the time will lie against the Er and prevent him from the exercise of  business  judgment to discharge an Ee for cause. (Phil. Metal  Foundries Inc. v. CIR, G.R. Nos. L‐34948‐49, May 15, 1979) Q: Jobo has 3 hotels, the Taal Vista Lodge, Manila Hotel and the Pines Hotel. Among the 3, Pines Hotel had more Ees and the only one with a labor organization (LO). When the bonus was distributed among the 3 hotels, Pines Hotel Ees received the least amount compared to the Ees of Manila Hotel and Taal Vista Lodge. Did the company commit ULP? A: Yes. The sharing of the bonuses is discriminatory and such constitute ULP. The Pines Hotel Ees would be receiving fewer bonuses compared to the Ees of  Taal Vista Lodge and Manila Hotel where neither has a LO nor does the complainant union has a member. Taking into account that Pines Hotel is realizing profit compared to that of Taal Vista. Same analogy applies in the salary increase. (Manila Hotel  Co. v. Pines Hotel  Ees’  Ass’n, G.R. No.L‐30139, Sep. 28, 1972) Q: When can there be a valid discrimination?

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A: The employer is not guilty of  ULP if  it merely complies in good faith with the request of  the certified union for the dismissal of  employees expelled from the union pursuant to the union security clause in the CBA. (Soriano v.  Atienza, G.R. No. L‐68619, Mar. 16, 1989) Q: A profit sharing scheme was introduced by the company for its managers and supervisors who are not members of the union, hence do not enjoy the benefits of the CBA. The respondent union wanted to participate with the scheme but was denied by the company due to the CBA. Subsequently the company distributed the profit sharing to the manager, supervisors and other non‐union member Ees. As a result the union filed a notice of  strike alleging ULP. Is the non‐extension of  the profit sharing scheme to union members discriminatory and an ULP? A: No. There can be no discrimination when the Ees are not similarly situated. The situation of union members is different and distinct from non‐union members because only union members enjoy the benefit under the CBA. The profit sharing scheme was extended to those who do not enjoy the benefits of  the CBA. Hence, there is no discrimination and ULP is not committed. (Wise and  Co., Inc. v. NLRC, G.R. No. L‐87672, Oct. 13, 1989) Q: Is dismissal of  an Ee pursuant to a union security clause a form of ULP? A: No. Union security clauses in the CBA, if  freely and voluntarily entered into, are valid and binding. Thus, the dismissal of  an Ee by the company pursuant to a labor union’s demand in accordance with a union security agreement does not  constitute ULP. (Malayang Samahan ng mga Manggagawa sa M. Greenfield  v. Ramos, G.R. No. 113907, Feb. 28, 2000) A union member who is employed under an agreement between the union and his Er is bound by the provisions thereof  since it is a  joint and several contract of  the members of  the union entered into by the union as their agent. (Manalang v. Artex Dev’t, G.R. No. L‐20432, Oct. 30, 1967)

Notwithstanding the fact that the dismissal was at the instance of the federation and that it undertook to hold the company free from any liability resulting from such dismissal, the company may still be held liable if  it was remiss in its duty to accord the would‐be dismissed Ees their right to be heard on the matter. Q: Mabeza and her co‐Ees were asked by the company to sign an affidavit attesting to the latter’s compliance with pertinent labor laws. Mabeza signed the affidavit but refused to swear to its veracity before the City prosecutor. Mabeza then filed a LOA which was denied by management. After sometime, she attempted to return to work but the company informed her not to report for work and continue with her unofficial leave. Did the company commit ULP? A: Yes. The act of  compelling an Ee to sign an instrument indicating the Er’s compliance with Labor laws which the company might have violated together with the act of  terminating or coercing those Ees to cooperate is an act of  ULP. This is analogous with Art. 248 (f) of  the LC which provides: “to dismiss, discharge or  otherwise  prejudice or  discriminate against  an Ee  for  having given or  being about  to give testimony  under  this Code”. For in not giving a positive testimony in favor of  the Er, Mabeza reserved not only her right to dispute the claim but also to work for better terms and condition. (Mabeza v. NLRC, G.R No. 118506, April 18, 1997) (f)Violation of Duty to Bargain Q: What is violation of  the duty to bargain as a kind of ULP? A: This is the act of  violating the duty to bargain collectively as prescribed in the LC. Q: What are the forms of ULP in bargaining? A: 1. 2. 3.

Q: Is notice and hearing required in case an Ee is dismissed pursuant to a union security clause? A: Yes. Although a union security clause in a CBA may be validly enforced and dismissal pursuant to thereto may likewise be valid, this does not erode the fundamental requirement of  due process. The reason behind the enforcement of  union security clauses which is the sanctity and inviolability of  contracts cannot erode one’s right to due process.

4.

Failure or refusal to meet and convene Evading the mandatory subject of  bargaining Bad faith (BF) bargaining, including failure to execute the CBA if requested Gross violation of the CBA

Note: A company’s refusal to make counter‐proposal, if  considered in relation to the entire bargaining process, may indicate BF and this is especially true where the union’s request for a counter proposal is left unanswered. (Kiok  Loy  v. NLRC, G.R. No. L‐54334,  Jan. 22, 1986)

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Q: What are the examples of ULP in bargaining?

being a majority union. (1997 Bar Question)

A:

Q: What is surface bargaining? 1. 2. 3. 4. 5.

Delaying negotiations by discussing unrelated matters Refusal to accept request to bargain Rejecting a union’s offer to prove its majority claim Shutdown to avoid bargaining Engaging in surface bargaining

Q: Balmar Farms Ees Association (BFEA) is affiliated with Associated Labor Union (ALU). ALU won in the certification election held in the company. Thus, ALU sent its proposal for a CBA, but the company refused to act on it alleging that BEA is the sole and exclusive bargaining representative and that BFEA through its president had sent a letter informing the company of  its disaffiliation with ALU. Is the company guilty of  ULP for refusing to bargain collectively? A: Yes. ALU is the certified exclusive bargaining representative after winning the certification election. The company merely relied on the letter of  disaffiliation by BFEA’s president without proof  and consequently refusing to bargain collectively constitutes ULP. Such refusal by the company to bargain collectively with the certified exclusive bargaining representative is a violation of its duty to collectively bargain which constitutes ULP. (Balmar  Farms v. NLRC, G.R. No.73504, Oct. 15, 1991) Q: The Kilusang Kabisig, a newly‐formed labor union claiming to represent a majority of  the workers in the Microchip Corp., proceeded to present a list of  demands to the management for purposes of  collective bargaining (CB). The Microchips Corp., a multinational corp.engaged in the production of  computer chips for export, declined to talk with the union leaders, alleging that they had not as yet presented any proof  of  majority status. The Kilusang Kabisig then charged Microchip Corp. with ULP, and declared a "wildcat" strike wherein means of  ingress and egress were blocked and remote and isolated acts of  destruction and violence were committed. Was the company guilty of  an ULP when it refused to negotiate with the Kilusang Kabisig? A: No. It is not an ULP not to bargain with a union which has not presented any proof  of  its majority status. The LC imposes on an Er the duty to bargain collectively only with a legitimate labor organization designated or selected by the majority of  the Ees in an appropriate CB unit. It is not a ULP for an Er to ask a union requesting to bargain collectively that such union first show proof  of  its

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A: It is the act of  going through the motions of  negotiating without any legal intent to reach an agreement. It involves the question of  whether or not the Ers conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. (Standard  Chartered  Bank  v. Confessor, G.R. No. 114974, June 16, 2004) Note: Occurs when the Er constantly changes its position over the agreement.

(g)Paid Negotiation Q: What is meant by paid negotiation as a form of  ULP? A: It is the act of the employer to pay negotiation or atty’s fees to the union or its officers or agents as part of  the settlement of  any issue in collective bargaining or any other dispute. (h)Gross Violation of CBA Q: When is the violation of  CBA considered as ULP? A: Only when the violation is gross – There must be a flagrant and/or malicious refusal to comply with the economic provision of the CBA. Note: All the ULP acts must have a relation to the Ees exercise of  their right to self ‐organization. Anti‐union or anti‐organization motive must be proved because it is a definitional element of ULP. If  violation is not gross, it is not ULP but a grievance under CBA. The “grossly  violate” phrase is an amendment by R.A. 6715.

Q: A complaint for ULP was filed by a prosecutor of  the CIR against Alhambra company, upon the charges of  the union that 15 of  its members employed as drivers and helpers are discriminated for being deprived of  the benefits under the CBA with no  justifiable reason other than union membership. Is the company guilty of ULP? A: Yes. The refusal to extend the benefits and privileges under the CBA to Ees constitutes ULP. Failure on the part of  the company to live up in good faith to the terms of  the CBA is a serious violation of  the duty to collectively bargain which again amounts to ULP. The 15 drivers and helpers are found to be Ees of  the company, hence, the benefit and privileges under the CBA should be

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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extended to them. (Alhambra Industries v. CIR, G.R. No. L‐25984, Oct. 30, 1970) Q: What are the reliefs available in ULP cases? 5. A: The following reliefs may be availed of: 1. Cease and desist order 2. Affirmative order 3. Court may order the employer to bargain. CBA may be imposed. 4. Strike by union members Note: ULP cases are not subject to compromise in view of  the public interest involve. The relation between capital and labor is not merely contractual. They are impressed with public interest that labor contracts must yield to common good.

Q: Is the commission of  an ULP by an employer subject to criminal prosecution? A: Yes, because ULPs are not only violations of  the civil rights of  both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment. (Art. 247  LC; See also B.P. Blg. 386 as amended  by  R.A. 6715). However, the criminal aspect can only be filed when the decision of  the labor tribunals, finding the existence of  ULP, shall have become final and executory. (2005 Bar Question) (2)ULP of Labor Organizations Q: What are the ULP of LOs? A: It shall be ULP for a LO, its officers, agents or representatives: 1.

2.

3.

4.

To restrain or coerce Ees in the exercise of  their rights to self ‐organization. However, a LO 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 Er to discriminate against an Ee, including discrimination against an Ee with respect to whom membership in such organization has been denied or to terminate an Ee on any ground other than the usual terms and conditions under which membership or continuation of  membership is made available to other members To violate the duty, or refuse to bargain collectively with the Er, provided it is the representative of the Ees To cause or attempt to cause an Er to pay or deliver or agree to pay or deliver any money or other things of  value, in the

6.

nature of  an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations To ask for or accept negotiations or atty’s fees from Ers as part of  the settlement of  any issue in collective bargaining (CB) or any other dispute or To violate a CBA.

Q: Is interference by a LO an ULP? A: No, because interference by a LO in the exercise of  the right to organize is itself  a function of  self ‐ organizing. Q: What are examples of  interference which does not amount to ULP? A: 1. 2. 3.

Union campaigns for membership even among members of another union Filing by a union of  a petition to dislodge an incumbent bargaining union A bargaining union, through a union security clause, requires an incoming employee to join the union.

Q: May a union coerce Ees to join a strike? A: No. A union violates the law when, to restrain or coerce non‐strikers from working during the strike, it: 1. 2. 3. 4. 5. 6.

7.

8. 9.

Assaults or threatens to assault them Threatens them with the loss of their jobs Blocks their ingress to or egress from the plant Damages non‐strikers’ automobiles or forces them off the highway Physically preventing them from working Sabotages the Er’s property in their presence, thereby creating an atmosphere of fear or violence Demonstrates loudly in front of  a non‐ strikers’ residence with signs and shouts accusing the non‐striker of “scabbing” Holding the non striker up to ridicule Seeking public condemnation of  the non‐ striker

Q: What is a case of  union induced discrimination by labor organization (LO)? A: This pertains to the arbitrary use of  union security clause. A union member may not be expelled from the union, and consequently from his  job, for personal

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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and impetuous reasons or for causes foreign to the closed shop agreement. (Manila Mandarin Ees Union v. NLRC, G.R. No. 76989, Sep. 29, 1987) Labor unions are not entitled to arbitrarily exclude qualified applicants for membership and a closed‐ shop applicants provision will not  justify the employer in discharging, or a union in insisting upon the discharge of an employee whom the union thus refuses to admit to membership without any reasonable ground thereof. (Salunga v. CIR, G.R. No. L‐22456, Sep. 27, 1967) Q: When is there refusal to bargain? A: A union violates its duty to bargain collectively by entering negotiations with a fixed purpose of  not reaching an agreement or signing a contract. 3.RIGHT TO PEACEFUL CONCERTED ACTIVITIES Q: What is the constitutional basis of  strikes, lockouts and other concerted activities? A: The State shall guarantee the rights of  all workers to self ‐organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law (Sec. 3, Art. XIII, 1987 Constitution). Note: The law does not look with favor upon strikes and lockouts because of  their disturbing and pernicious effects upon the social order and the public interests; to prevent or avert them and to implement Sec. 6, Art. XIV of the Constitution, the law has created several agencies, namely: the BLR, the DOLE, the Labor Management Advisory Board, and the CIR. (Luzon Marine Dev’t  Union v. Roldan, G.R. No. L‐2660, May  30, 1950)

Q: What is a concerted action? A: It is an activity undertaken by 2 or more employees, by one on behalf of the others. Q: Are all concerted actions strikes? A: Not all concerted activities are strikes. They may only be protest actions  – they do not necessarily cause work stoppage by the protesters. A strike in contrast is always a group action accompanied by work stoppage. Q: The Ees wrote and published a letter to the bank president, demanding his resignation on the grounds of  immorality, nepotism, favoritism and discrimination in the appointment and promotion of  bank Ees. The bank dismissed the 8 Ees on the alleged libelous letter. Were the Ees engaged in a concerted activity?

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A: Yes, assuming that they acted in their individual capacities when they wrote the letter, they were nonetheless protected, for they were engaged in a concerted activity, in their right of  self ‐organization that includes concerted activity for mutual aid and protection. Any interference made by the company will constitute as ULP. The joining in protests or demands, even by a small group of  Ees, if  in furtherance of  their interests as such is a concerted activity protected by the Industrial Peace Act. It is not necessary that union activity be involved or that collective bargaining be contemplated. (Republic Savings Bank  v. CIR, G.R. No. L‐20303, Oct. 31, 1967) Q: What is a strike? A: It means any temporary stoppage of work by the concerted action of  employees as a result of  an industrial or labor dispute. (Sec.1 [uu], Rule I, Book  V, IRR) It shall comprise not only concerted work stoppages, but also slowdowns, mass leaves, sitdowns, attempt to damage, destroy or sabotage plant equipment and facilities, and similar activities. (Samahang Manggagawa sa Sulpicion Lines v. Sulpicio Lines, Inc., G.R. No. 140992, Mar. 25, 2004) Q: What is the purpose of a strike? A: A strike is a coercive measure resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less, paralyzed. (Phil. Can Co. v. CIR, G.R. No. L‐3021, July 13, 1950) Q: What is a lockout? A: It means any temporary refusal of  an employer to furnish work as a result of  an industrial or labor dispute. ( Art. 212 [p]) Q: What is picketing? A: It is the act of marching to and fro the employers premises which is usually accompanied by the display of  placard and other signs, making known the facts involved in a labor dispute. The right to picket as a means of  communicating the facts of  a labor dispute is a phase of  the freedom of speech guaranteed by the Constitution. If  peacefully carried out, it can not be curtailed

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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even in the absence of Er‐Ee relationship. (PAFLU v. Cloribel, G.R. No. L‐25878, Mar. 28, 1969) Q: Is the right to picket an absolute right? A: No, while peaceful picketing is entitled to protection as an exercise of  free speech, the courts are not without power to confine or localize the sphere of  communication or the demonstration to the parties to the labor dispute, including those with related interests, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of  the dispute. (Liwayway  Pub., Inc. v. Permanent  Concrete Workers Union, G.R. No. L‐ 25003, Oct. 23, 1981) The right to peaceful picketing shall be exercised by the workers with due respect for the rights of  others. No person engaged in picketing shall commit any act of  violence, coercion or intimidation. Stationary picket, the use of  means like placing of  objects to constitute permanent blockade or to effectively close points of  entry or exit in company premises are prohibited by law. Q: Who is a strike‐breaker? A: Any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of  work or in the exercise of  the right of  self ‐organization or collective bargaining. ( Art. 212 [r]) Q: What is a strike area? A: It means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of  the Er struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of  entrance to and exit from said establishment. (Sec. 1 [vv], Rule I, Book V, IRR) Q: What is an internal union dispute? A: It includes all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by laws of a union, including any violation of  the rights and conditions of  union membership provided for in this LC. (Art. 212 [q]) Q: What is a boycott? A: It is an attempt, by arousing a fear of  loss, to coerce others, against their will to withhold from one denominated “unfriendly to labor” their beneficial business intercourse.

Q: What is a slowdown? A: It is a method by which one’s employees, without seeking a complete stoppage of  work, retard production and distribution in an effort to compel compliance by the employer with the labor demands made upon him. Q: Does an “overtime boycott” or “work slowdown” by the employees constitute a strike and hence a violation of  the CBA’s “No strike, no lockout” clause? A: Yes, the concept of  a slowdown is a "strike on the installment plan." It is a willful reduction in the rate of work by concerted action of workers for the purpose of  restricting the output of  the employer (Er), in relation to a labor dispute; as an activity by which workers, without a complete stoppage of  work, retard production or their performance of  duties and functions to compel management to grant their demands. Such a slowdown is generally condemned as inherently illicit and unjustifiable, because while the employees (Ees) "continue to work and remain at their positions and accept the wages paid to them," they at the same time "select what part of  their allotted tasks they care to perform of  their own volition or refuse openly or secretly, to the Er's damage, to do other work;" in other words, they "work on their own terms." (Interphil  Laboratories Ees Union‐FFW  v. Interphil  Laboratories, Inc., G.R. No. 142824, Dec. 19, 2001) Q: What are the characteristics of a strike? A: 1. Existence of an Er‐Ee relationship 2. Existence of a labor dispute 3. Employment relation is deemed to continue although in a state of belligerent suspension 4. Temporary work stoppage 5. Work stoppage is done through concerted action 6. The striking group is a legitimate labor organization; in case of  a bargaining deadlock, it must be the employees’ sole bargaining representative Q: PAL dismissed strike leader Capt. Gaston as a result of  which the Union resolved to undertake the grounding of  all PAL planes and the filing of  applications for “protest retirement” of  members who had completed 5 years of  continuous service, and “protest resignation” for those who had rendered less than 5 years of  service in the company. PAL acknowledged receipt of  said letters and among the pilots whose “protest

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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resignation or retirement” was accepted by PAL were Enriquez and Ecarma. Before their readmission, PAL required Enriquez and Ecarma to accept 2 conditions, namely: that they sign conformity to PAL’s letter of  acceptance of  their retirement and or resignation and that they submit an application for employment as new employees (Ees) without protest or reservation. As a result of this their seniority rights were lost. Are the pilots entitled to the restoration of  their seniority rights? A: No, an Ee has no inherent right to seniority. He has only such rights as may be based on a contract, statute, or an administrative regulation relative thereto. Seniority rights which are acquired by an Ee through long‐time employment are contractual and not constitutional. The discharge of  an Ee thereby terminating such rights would not violate the Constitution. When the pilots tendered their respective retirement or resignation and PAL immediately accepted them, both parties mutually terminated the contractual employment relationship between them thereby curtailing whatever seniority rights and privileges the pilots had earned through the years. Q: Does the action of  the Ees of PAL fall under the ambit of concerted actions protected by law? A: No, the pilot’s mass action was not a strike because Ees who go on strike do not quit their employment. Ordinarily, the relationship of  Er and Ee continues until one of  the parties acts to sever the relationship or they mutually act to accomplish that purpose. As they did not assume the status of  strikers, their “protest retirement/resignation” was not a concerted activity which was protected by law. (Enrique v.  Zamora, G.R. No. L‐51382, Dec. 29, 1986) Q: What is a labor dispute? A: Any controversy or matter concerning terms or conditions or representation of  persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relation of  Ers and Ees. (Gold  City  Integrated  Port  Services, Inc. v. NLRC, G.R. No. 103560, July 6, 1995) Q: When is a person or entity considered as participating or interested in a labor dispute?

1. 2.

3. 4.

If relief is sought against him or it, and  He or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or  Has a direct or indirect interest therein, or  Is a member, officer, or agent of  any association composed in whole or in part of  employees or employers engaged in such industry, trade, craft, or occupation.

Q: Liwayway Publication Inc. is a second sub lessee of  a part of  the premises of  the Permanent Concrete Products, Inc. It has a bodega for its newsprint in the sublet property which it uses for its printing and publishing business. The daily supply of  newsprint needed to feed its printing plant is taken from its bodega. The Ees of  the Permanent Concrete Products Inc. declared a strike against their company. The union members picketed, stopped and prohibited Liwayway’s trucks from entering the compound to load newsprint from its bodega. Does the lower court have  jurisdiction to issue a writ of  preliminary injunction considering that there was a labor dispute between Permanent Concrete Products, Inc. and the union? A: Yes, Liwayway Publication Inc. is not in anyway related to the striking union except for the fact that it is the sub‐ lessee of  a bodega in the company’s compound. The business of  Liwayway is exclusively the publication of  magazines which has absolutely no relation or connection whatsoever with the cause of  the strike of  the union against their company, much less with the terms, conditions or demands of  rd the strikers. Liwayway is merely a 3 person or an innocent by‐stander. (Liwayway  Pub., Inc. v. Permanent  Concrete Workers Union, G.R. No. L‐ 25003, Oct. 23, 1981) Q: Because of  financial problems, the company decided to temporarily shutdown its operations at the dyeing and finishing division. It notified the DOLE of  the shutdown. Raymund Tomaroy with 16 members of  the union staged a picket in front of the company’s compound, carrying placards. He th demanded a resumption of  work and 13 month pay. The company filed a petition to declare the strike illegal. The union argues that they did not stage a strike, for considering that the dyeing and finishing division of  the company was shut down, it could not have caused a work stoppage. Was the action of the union a strike?

A:

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A: Yes, the concerted efforts of the members of the union and its supporters caused a temporary work stoppage. The allegation that there can be no work stoppage because the operation in the division had been shut down is of  no consequence. It bears stressing that the other divisions were fully operational. (Bukluran ng Manggagawa sa Clothman Knitting Corp. v. CA, G.R. No. 158158,  Jan.17, 2005)

existence of the union is threatened. It must still observe the mandatory 7‐day strike ban period before it can stage a valid strike

Q: What are the different forms of strike? A: 1.

a.Forms of Concerted Activities Q: What are the types of strike?

2.

A: 1.

2.

Economic strike  – used to secure the economic demands such as higher wages and better working conditions for the workers ULP strike  – protest against ULP of  management

3.

Q: Distinguish between an economic strike and an ULP strike. 4. A: ECONOMIC STRIKE

ULP STRIKE  As to nature Involuntary  strike; the LO is Voluntary  strike forced to go on strike because because the Ee will of the ULP committed against declare a strike to them by the Er. It is an act of  compel self ‐defense since the Ee’s are management to being pushed to the wall and grant its demands their only remedy is to stage a strike Who will initiate The CB agent of  the appropriate Either the CB agent or the LLO in bargaining unit can behalf of its members declare an economic strike  As to the cooling ‐off  period  30 days from notice of strike before the 15 days from the filing of the intended date of  notice of strike actual strike subject to the 7‐ day strike ban  As to the exception to the cooling ‐off  period  No exception – The cooling‐off period may be mandatory dispensed with, and the union may take immediate action in Note: notice of  case of dismissal from strike and strike employment of their officers vote may be duly elected in accordance with dispensed with; the union’s constitution and by‐ they may strike laws, which may constitute immediately union busting where the

5.

6.

7.

Legal  Strike‐one called for a valid purpose and conducted through means allowed by law. Illegal  Strike‐one staged for a purpose not recognized by law, or if for a valid purpose, conducted through means not sanctioned by law. Economic Strike‐ one staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant (Consolidated  Labor   Association of  the Phil. vs. Marsman, G.R. No. L‐ 17038, July 31, 1964) ULP Strike‐one called to protest against the employer’s acts of  unfair practice enumerated in Article 248 of  the Labor Code, as amended, including gross violation of  the collective bargaining agreement (CBA) and union busting. Slow  Down Strike‐one staged without the workers quitting their work but by merely slackening or by reducing their normal work output. Wild ‐Cat  Strike‐one declared and staged without filing the required notice of  strike and without the majority approval of  the recognized bargaining agent. Sit  Down Strike‐one where the workers stop working but do not leave their place of work. b.Who may declare a strike or lockout

Q: Who may declare a strike or lockout? A: 1.

2.

Any certified or duly recognized bargaining representative may declare a strike in cases of  bargaining deadlock and unfair labor practice. Likewise, the employer may declare a lockout in the same cases. In the absence of  a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on the ground of  unfair labor practice. (Section 2, Rule  XIII Book  V,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Omnibus Rules Implementing The Labor  Code, as amended).

In case of  dismissal from employment of  union officers which may constitute union busting, the time requirement for the filing of  the Notice of  Strike shall be dispensed with but the strike vote requirement, being mandatory in character, shall “in every case” be complied with.

c.Requisites for a valid strike/ lockout Q: What are the requisites of a lawful strike / lockout? A: The requirements for a valid strike or lockout are as follows: 1.

It must be based on a valid and factual ground;

2.

A strike or lockout NOTICE shall be filed with the National Conciliation and Mediation Board (NCMB) at least 15 days before the intended date of  the strike or lockout if  the issues raised are unfair labor practices, or at least 30 days before the intended date thereof  if  the issue involves bargaining deadlock.

3.

4.

In cases of dismissal from employment of  union officers duly elected in accordance with the union constitution and by‐laws, which may constitute UNION BUSTING where the existence of  the union is threatened, the 15‐day cooling‐off  period shall not apply and the union may take action immediately after the strike vote is conducted and the result thereof  submitted to the Department of  Labor and Employment. A strike must be approved by a majority vote of  the members of  the Union and a lockout must be approved by a majority vote of  the members of  the Board of  Directors of  the Corporation or Association or of  the partners in a partnership, obtained by secret ballot in a meeting called for that purpose.

5.

A strike or lockout VOTE shall be reported to the NCMB‐DOLE Regional Branch at least 7 days before the intended strike or lockout subject to the cooling‐off period.

6.

In the event the result of  the strike/lockout ballot is filed within the cooling‐off  period, the 7‐day requirement shall be counted from the day following the expiration of  the cooling‐off  period. (NSFW  vs. Ovejera, G.R. No. 59743, May 31, 1982)

162

7.

The dispute must not be the subject of an assumption of   jurisdiction by the President or the Secretary of  Labor and Employment, a certification for compulsory arbitration, or submission to compulsory or voluntary arbitration nor a subject of  a pending case involving the same grounds for the strike or lockout.

Q: What are the valid grounds for declaring a strike or lockout? A: The law recognizes 2 grounds for the valid exercise of the right to strike or lockout, namely: 1. 2.

Collective Bargaining Deadlock (CBD)‐ economic; Unfair Labor Practice (ULP)‐political

Note: It is possible to change an economic strike into a ULP strike. (Consolidated  Labor   Ass’n of  the Phils. v. Marsman and Co., G.R. No. L‐17038, July 31, 1964) Violations of  CBA must be gross to be considered as ULP.

Q: What is conversion doctrine? A: It is when a strike starts as economic and later, as it progresses, it becomes a ULP, or vice versa. Q: Can a strike be converted into a lockout? A: No, a strike cannot be converted into a pure and simple lockout by the mere expedient of  filing before the trial court a notice of  offer to return to work during the pendency of  the labor dispute between the union and the employer. (Rizal  Cement  Workers Union v. CIR, G.R. No. L‐18442, Nov. 30, 1962). Q: Give examples of  strike and explain their legality. A: 1.

Sit ‐down strike  – Characterized by a temporary work stoppage of workers who seize or occupy property of  the Er or refuse to vacate the premises of the Er.

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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Illegal  – Amounts to a criminal act because of  the Ee’s trespass on the premises of the Er

Illegal  – It is a political rally 7.

2.

Wildcat  strike  – A work stoppage that violates the labor contract and is not authorized by the union. Illegal   –Because it fails to comply with certain req’ts of  the law, to wit: notice of  strike, vote and report on strike vote

3.

Slowdown – Strike on an installment plan; an activity by which workers, without complete stoppage of  work, retard production or their performance of duties and functions to compel management to grant their demands Illegal  –  Ees work on their own terms; while the Ees continue to work and remain in their positions and accept wages paid to them, they at the same time select what part on their allotted tasks they care to perform on their own volition or refuse openly or secretly

4.

Sympathetic strike  – Work stoppages of  workers of  one company to make common cause with other strikers or other companies without demands or grievances of their own against the Er

6.

Illegal ‐ failure to comply with notice requirements and etc. Q: Two unions,  joined a welga ng bayan. The unions, led by their officers, staged a work stoppage which lasted for several days, prompting FILFLEX and BIFLEX Corporations to file a petition to declare the work stoppage illegal for failure to comply with procedural req’ts. Whether the Ees committed an illegal work stoppage? A: Yes. Ees, who have no labor dispute with their Er but who, on a day they are scheduled to work, refuse to work and instead  join a welga ng bayan commit an illegal work stoppage. There being no showing that the two unions notified the corporations of  their intention, or that they were allowed by the corporations, to  join the welga ng bayan, their work stoppage is beyond legal protection.(BIFLEX  Phils. Inc. Labor  Union (NAFLU) vs. FILFLEX Industrial and Manufacturing Corp., G.R. No. 155679, Dec. 19, 2006) Q: What are the tests in determining the legality of  strike?

Secondary  strike  – Work stoppages of  workers of  one company to exert pressure on their Er so that the latter will in turn bring pressure upon the Er of  another company with whom another union has a labor dispute

A: The following must concur: 1. Purpose test  –  the strike must be due to either bargaining deadlock and/or the ULP 2. Compliance with the procedural and substantive req’ts of  the law. (See requisites of a valid strike) 3. Means employed  test  –  It states that a strike may be legal at its inception but eventually be declared illegal if  the strike is accompanied by violence which is widespread, pervasive and adopted as a matter of  policy and not mere violence which is sporadic which normally occur in a strike area.

Illegal  –  There is no labor dispute involved.

Q: What are the instances when a strike or lockout cannot be declared?

Note: A strike can validly take place only in the presence of  and in relation to a labor dispute between Er and Ee.

A: Non‐strikable issues: 1. CBA violations not gross in character 2. Grounds involving inter/intra‐union disputes 3. When there is no notice of  strike or lockout or without the strike or lockout vote

Illegal  –  There is no labor dispute between the workers who are  joining the strikers and the latter’s Er 5.

Quickie strikes‐ brief  and unannounced temporary work stoppage

Welga ng bayan (Cause Oriented  Strikes)  – A political strike and therefore there is neither a bargaining deadlock nor any ULP

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4. 5.

6.

After assumption of   jurisdiction by the SLE After certification or submission of  dispute to compulsory or voluntary arbitration or during the pendency of  cases involving the same grounds for strike or lockout Labor standards cases such as wage orders. (Guidelines governing Labor  Relations [Oct. 19, 1987] issued  by  Sec. Drilon. See also Art. 261, LC)

its own initiative or upon request of  any party. 4.

Furnish the regional branch of  the NCMB with a notice to conduct  a strike vote, at least 24‐hours before the meeting for such purpose (Sec. 10, Rule  XXII of  the Omnibus Rules of the NLRC).

5.

7 ‐Day  strike ban –  a 7‐day waiting period before the date of  the purported strike (within which the union intending to conduct  a strike must  at  least  submit  a report  to DOLE  as to the result  of  the strike vote)

Q: What are the procedural and substantive requisites before a strike may be declared?

Note: To give DOLE an opportunity to verify whether the projected strike really carries the imprimatur of  the majority of  the union members in addition to the cooling ‐off  period before the actual strike. (Lapanday  Workers’  Union, et.al. v. NLRC, G.R. Nos. 95494‐97, Sep. 7, 1995)

A: 1.

Notice of  strike –  filed with the NCMB taking into consideration the cooling‐off  period Note: The failure of  the union to serve the company a copy of  the notice of  strike is a clear violation of Section 3, Rule XXII, Book V of  the Rules Implementing the LC. The Constitutional precepts of  due process mandate that the other party be notified of  the adverse action of  the opposing party. (Filipino Pipe and  Foundry  Corp. v. NLRC, G.R. No. 115180, Nov.r 16, 1999)

2.

30/15 day  Cooling‐off   period  before the intended  date of  actual  strike –  notice of  strike is filed with the NCMB taking into consideration the cooling‐off  period, at least: a. b.

3.

164

30 days before the intended strike for bargaining deadlocks; 15 days before the intended strike for ULP

Strike vote a. The decision to declare a strike must be approved by a majority of  the total union membership in the bargaining unit concerned. b. It must be obtained by secret ballot through meetings or referenda called for the purpose. c. Its purpose is to ensure that the intended strike is a majority decision. The report on the strike vote must be submitted to DOLE at least 7 days before the intended strike subject to the cooling‐off period. d. The regional branch may supervise the conduct of the secret balloting at

Q: What is a cooling‐off period? A: It is the period of  time given the NCMB to mediate and conciliate the parties. It is the span of  time allotted by law for parties to settle their disputes in a peaceful manner before staging a strike or lockout. Note: Cooling ‐off  and waiting period may be done simultaneously.

Q: What is the effect of  non‐compliance with the requisites of a strike? A: The strike may be declared illegal. Q: What is the purpose of  giving notice of  the conduct of  a strike vote to the NCMB at least 24 hours before the meeting for the said purpose? A: 1. 2.

3.

Inform the NCMB of  the intent of  the union to conduct a strike vote; Give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of  the strike vote to prevent any acts of  violence and or irregularities; Ample time to prepare for the deployment of  the requisite personnel. (Capitol  Medical  Center  v. NLRC, G.R. No. 147080, April 26, 2005)

Q: Is a no strike/lockout clause legal?

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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A: Yes, but it is applicable only to economic strikes, not ULP strikes. As a provision in the CBA, it is a valid stipulation although the clause may be invoked by an employer (Er) only when the strike is economic in nature or one which is conducted to force wage or other concessions from the Er that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on ULP. (Panay  Electric Co. v. NLRC, G.R. No. 102672, Oct. 4, 1995; Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, G.R. No. 113907, Feb. 28, 2000) Q: What is a preventive mediation case? A: It involves labor disputes which are the subject of  a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of  the NCMB. (Sec. 1 [mm], Rule I, Book V, IRR) Note: The regional branch may treat the notice as preventive mediation case upon agreement of  the parties.

Q: What are the contents of the notice of strike or lockout? A: 1. 2. 3. 4. 5. 6. 7.

8.

Name and addresses of Er Union involved Nature of  the industry to which the Er belongs Number of union members Workers in the bargaining unit Other relevant date In case of  bargaining deadlocks: unresolved issues, written proposals of  the union, counter‐proposals of  the Er and proof  of  request for conference to settle differences In case of  ULP: The acts complained of, and the efforts taken to resolve the dispute

Note: NCMB shall inform the concerned party in case notice does not conform with the req’ts.

Q: What action will the board take on the notice of  strike of strike or lockout? A: 1.

Upon receipt of  notice, the regional branch of  the Board shall exert all efforts at mediation and conciliation to enable the parties to settle the dispute amicably. It shall also encourage the parties to submit the dispute to voluntary arbitration.

2.

3.

4.

The regional branch of  the NCMB may, upon agreement of  the parties, treat a notice as a preventive mediation case. During the proceedings, the parties shall not do any act which may disrupt or impede the early settlement of  the dispute. They are obliged, as part of  their duty to bargain collectively in good faith and to participate fully and promptly in conciliation meetings called by the regional branch of the NCMB. A notice, upon agreement of  the parties, may be referred to alternative modes of  dispute resolution, including voluntary arbitration.

Q: Was the strike held by the union legal based on the fact that the notice of  strike only contained general allegations of ULP? A: No. Rule XIII Sec. 4 Book V of  the Implementing Rules of the LC provides: In cases of ULP, the notice of  strike shall as far as practicable, state the acts complained of and the efforts to resolve the dispute amicably. (Tiu v. NLRC, G.R. No. 123276,  Aug. 18, 1997) Q: NFSW, the bargaining agent of  Central Azucarera de la Carlota (CAC) rank and file employees, filed a notice of  strike based on non‐ th payment of  the 13 month pay and 6 days thereafter they held the strike. A day after the commencement of  the strike, a report of  the strike‐vote was filed by NFSW with MOLE. CAC filed a petition to declare the strike illegal due to non‐compliance with the 15‐day cooling of  period and the strike was held before the lapse of  7 days from the submission to the MOLE of  the result of  the strike vote. Was the strike held by NFSW legal? A: No. The cooling‐off period in Art. 264(c) and the 7‐day strike ban after the strike‐vote report prescribed in Art. 264 (f) were meant to be mandatory. The law provides that “the labor union may strike” should the dispute “remain unsettled until the lapse of the requisite number of days from the filing of the notice”, this clearly implies that the union may not strike before the lapse of  the cooling‐off  period. The cooling‐off  period is for the Ministry of  Labor and Employment to exert all efforts at mediation and conciliation to effect a voluntary settlement. The mandatory character of  the 7‐day strike ban is manifest in the provision that “in every case” the union shall furnish the MOLE with the results of the voting “at least 7 days before the intended strike.” This period is to give time to verify that a strike vote

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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was actually held. (NFSW  v. Ovejera, G.R. No. L‐ 59743, May 31, 1982)

Q: What are the exceptions to the “no backwages rule” of strikers?

Q: Fil Transit Ees Union filed a notice of strike with the BLR because of  alleged ULP of  the company. Because of  failure to reach an agreement the union went on strike. Several employees (Ees) were dismissed because of  the strike. The union filed another notice of  strike alleging ULP, massive dismissal of  officers and members, coercion of Ees and violation of  workers rights to self ‐ organization. The Ministry of  Labor and Employment, after assuming  jurisdiction over the dispute, ordered all striking Ees including those who were dismissed to return to work. The company however countered that no strike vote had been obtained before the strike was called and the result of  the strike vote was not reported to Ministry of  Labor and Employment. Was the strike held by the union illegal for failure to hold a strike vote?

A:

A: Yes, there is no evidence to show that a strike vote had in fact been taken before a strike was called. Even if  there was a strike vote held, the strike called by the union was illegal because of  non‐observance by the union of  the mandatory 7‐ day strike ban counted from the date the strike vote should have been reported to the DOLE. (First  City  Interlink  Transportation Co., Inc. v. Confessor, G.R. No. 106316, May 5, 1997)

1. 2. 3.

4.

d.Assumption of Jurisdiction by the Secretary of  Labor or Certification of the Labor dispute to the NLRC for compulsory arbitration Q: Discuss the assumption of  jurisdiction by the Secretary of  Labor and Employment (SLE) on strikes/lockouts. A: 1.

Q: The company conceived and decided to retrench its Ees and selected about 40 Ees to be dismissed because of the lack of work. Because of  this about 200 Ees during break‐time boarded buses and went to the Ministry of  Labor but they were advised to return to work. Upon returning to the company’s premises, the Ees were only allowed to stay in the canteen and were not given work because according to the company the machines were undergoing repairs. Are the Ees entitled to reinstatement and backwages? A: The Ees are entitled to reinstatement but not to backwages. Both parties being in  pari  delicto, having conducted an illegal strike and lockout respectively, there must be a restoration of  the status quo ante and must bring the parties back to their respective positions prior to the illegal strike and lockout which shall be done by reinstating the remaining Ees. However, it is the general rule that strikers are not entitled to backwages. The principle of  “no work, no pay” is applicable in view of  the finding of  the illegality of  the strike. (Philippine Inter ‐Fashion, Inc v. NLRC, G.R. No. L‐59847, Oct. 18, 1982)

166

When the Ees were illegally locked thus compelling them to stage a strike When the Er is guilty of  the grossest form of ULP When the Er committed discrimination in the rehiring of strikers refusing to readmit those against whom there were pending criminal cases while admitting nonstrikers who were also criminally charged in court; When the workers who staged a voluntary ULP strike offered to return to work unconditionally but the Er refused to reinstate them. (Manila Diamond Hotel  vs. Manila Diamond Hotel Ees’ Union, G.R. No. 158075, June 30, 2006)

Discretionary  a. If  in his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an industry  indispensable to the national interest. b. He may certify the same to the NLRC for compulsory arbitration c. Effect  – Automatically enjoins the intended or impending strike/lockout but if  one has already taken place, all striking or locked out Ees shall  immediately return to work and the Er shall immediately resume operations and re‐admit all workers under the same terms and conditions prevailing before the strike or lockout (Trans‐  Asia Shipping Lines, Inc.‐Unlicensed  Crews Ee’s Union v. CA, G.R. No. 145428, July 7, 2004) Note: A motion for reconsideration does not suspend the effects as the assumption order is immediately executory.

2.

Mandatory (within 24 hours) a. In labor disputes adversely affecting the continued operation of  hospitals, clinics or medical institutions.

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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b. c.

May assume jurisdiction or certify it to the NLRC for compulsory arbitration Duty of striking union or locking out Er to provide and maintain an effective skeletal workforce of  medical and other health personnel, where movement and service shall be unhampered and unrestricted as are necessary to insure the proper and adequate protection of  the life and health of  its patients most especially emergency cases for the duration of  the strike or lockout ( Art. 263 [g])

Q: What does the phrase “under the same terms and conditions” contemplate? A: GR: It contemplates only actual reinstatement. This is in keeping with the rationale that any work stoppage or slowdown in that particular industry can be inimical to the national economy. XPN: Payroll reinstatement in lieu of  actual reinstatement but there must be showing of  special circumstances rendering actual reinstatement impracticable, or otherwise not conducive to attaining the purpose of the law in providing for assumption of  jurisdiction by the SLE in a labor dispute that affects the national interest. (Manila Diamond  Hotel  Ees Union v. SLE, G.R. No. 140518, Dec. 16, 2004) Q: What are issues that the SLE may resolve when he assumes jurisdiction over a labor dispute?

A: No, the mere issuance of  an assumption order automatically carries with it a return‐to‐work order although not expressly stated therein. (TSEU‐FFW v. CA, G.R. Nos. 143013‐14, Dec.18, 2000) Q: What is the extent of  the powers of  the President during strikes/lockouts? A: 1.

2.

May determine the industries, which are in his opinion indispensable to national interest May intervene at any time and assume  jurisdiction over any such labor dispute in order to settle or terminate the same. ( Art. 263[g])

Note: The decision of  the President/SLE is final and executory after receipt thereof by the parties.

Q: May a return to work order be validly issued pending determination of  the legality of  the strike? A: Yes. Where the return to work order is issued pending the determination of  the legality of  the strike, it is not correct to say that it may be enforced only if  the strike is legal and may be disregarded if  illegal. Precisely, the purpose of  the return to work order is to maintain the status quo while the determination is being made. (Sarmiento v. Tuico, G.R. Nos. 75271‐73, June 27, 1988) e.Nature of Assumption Order or Certification Order Q: What is the nature of  the power of  SLE under Art. 263(g)?

A: 1.

2.

Issues submitted to the SLE for resolution and such issues involved in the labor dispute itself. (St. Scholastica’s College v. Torres, G.R. No. 100158, June 2, 1992) SLE may subsume pending labor cases before LAs which are involved in the dispute and decide even issues falling under the exclusive and original  jurisdiction of  LAs such as the declaration of  legality or illegality of  strike (Int’l. Pharmaceuticals v. SLE, G.R. Nos. 92981‐ 83, Jan. 9, 1992)

Note: Power of  SLE is plenary and discretionary. (St. Luke’s Medical  Center  v. Torres, G.R. No. 99395,  June 29, 1993)

Q: Is it necessary for the SLE to issue a return‐to‐ work order in an assumption order?

A: The assumption of  jurisdiction is in the nature of  a police power measure. This is done for the promotion of  the common good considering that a prolonged strike or lockout can be inimical to the national economy. The SLE acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to impede the worker’s right to strike but to obtain a speedy settlement of the dispute. (Philtread Workers Union v. Confesor, G.R. No. 117169, Mar. 12, 1997) Art. 263(g) does not interfere with the workers right to strike but merely regulates it, when in the exercise of  such right national interest will be affected. The LC vests upon the SLE the discretion to determine what industries are indispensable to national interest. Q: What is the nature of  assumption and certification orders of the Secretary of Labor?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: The underlying principle embodied in Art. 264 (g) on the settlement of  labor disputes is that assumption and certification orders are executor in character and are strictly complied with by the parties even during the pendency of  any petition questioning their validity. This extraordinary authority given to the Secretary of Labor is aimed at arriving at a peaceful and speedy solution to labor disputes, without jeopardizing national interests. Q: A notice of  strike was filed by the PSBA Ees Union‐FFW, alleging union busting, coercion of Ees and harassment on the part of  PSBA. The conciliation being ineffective, the strike pushed through. A complaint for ULP and for a declaration of  illegality of  the strike with a prayer for preliminary injunction was filed by PSBA against the union. While the cases were pending, a complaint was filed in the RTC of  Manila by some PSBA students against PSBA and the union, seeking to enjoin the union and its members from picketing and from barricading themselves in front of  the schools main gate. A TRO was then issued by the RTC, which the union opposed on the ground that the case involves a labor dispute over which the RTC had no  jurisdiction. The Acting SLE later on assumed  jurisdiction over the labor dispute and ordered the striking Ee’s to return to work. Was the SLE correct in ordering the striking Ees to return to work? A: Yes. In the opinion of  the Acting SLE, the labor dispute adversely affected the national interest, affecting as it did 9,000 students. He is authorized by law to assume  jurisdiction over the labor dispute, after finding that it adversely affected the national interest. This power is expressly granted by Art. 263 (g) of the LC, as amended by B.P. Blg. 227. Q: Does the RTC have  jurisdiction to decide on the case filed by the PSBA students? A: No, the RTC was without  jurisdiction over the subject matter of  the case filed by some PSBA students, involving as it does a labor dispute over which the labor agencies had exclusive  jurisdiction. That the regular courts have no  jurisdiction over labor disputes and to issue injunctions against strikes is well‐settled. (PSBA v. Noriel, G.R. No. 80648, Aug. 15, 1988)

meetings were conducted but to no avail so the union staged a strike while the company terminated 383 union members from service pursuant to its redundancy program. Pursuant to Art. 263(g) of  the LC the SLE certified the labor dispute for compulsory arbitration. Accordingly the SLE enjoined the strike staged by the union and all striking workers were directed to return to work within 24 hours except for those who were terminated due to redundancy. Was the SLE correct in excepting from the return‐ to‐work order those who were terminated due to redundancy? A: No, Art. 263(g) is clear and unequivocal in stating that all striking or lock‐out Ees shall immediately return to work and the Er shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. Records of  the case would show that the strike occurred one day before the members of  the union were dismissed due to alleged redundancy. Thus the abovementioned article directs that the Er must readmit all workers under the same terms and conditions prevailing before the strike. (PLDT  v. Manggagawa ng Komunikasyon sa Pilipinas, G.R. No. 162783, July 14, 2005) f.Effect of defiance of Assumption or Certification Order Q: What is the effect of  defiance to the return to work order? A: It shall be considered an illegal act committed in the course of  the strike or lockout and shall authorize the SLE or the NLRC, as the case may be, to enforce the same under   pain or  loss of  employment  status or entitlement to full employment benefits from the locking‐out Er or backwages, damages and/or other positive and/or affirmative reliefs, even to criminal prosecution against the liable parties. (Sec. 6, Rule IX, of  the New  Rules of  Procedure of  the NLRC; St. Scholastica’s College v. Torres, G.R. No. 100158,  June 2, 1992) g.Illegal Strike Q: When is a strike illegal? A:

Q: Members of  the union learned that a redundancy program would be implemented by the company. Thereupon it filed a Notice of strike on the grounds of  ULP. A number of  conciliation

168

1.

2.

Contrary to specific prohibition of  law, such as strike by employees (Ees) performing governmental functions; Violates a specific req’t of law;

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3.

4.

5. 6.

Declared for an unlawful purpose, such as inducing the employer (Er) to commit ULP against non‐union Ees; Employs unlawful means in the pursuit of  its objective, such as widespread terrorism of non‐strikers; Declared in violation of  an existing injunction; Contrary to an existing agreement, such as a no strike clause or conclusive arbitration clause

Q: What is the rule on reinstatement of  striking workers? A: Striking employees are entitled to reinstatement, regardless of  whether or not the strike was the consequence of  the employers ULP because while out on strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor; the declaration of  a strike is not a renunciation of employment relation. Q: Who are not entitled to reinstatement?

Q: What is “good faith (GF) strike” doctrine? A: A: A strike may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief  in GF, although subsequently such allegations of  ULP are found out as not true. (Bacus v. Ople, GR No. L‐ 56856, Oct. 23, 1984, People’s Industrial  and  Commercial Ees and  Organization (FFW) v. People’s Industrial  and  Commercial  Corp., G.R. No.37687, Mar. 15, 1982) Q: What is the effect of  the GF of  strikers on the legality of strike? A: GR: A strike grounded on ULP is illegal if no such acts actually exist. XPN: Even if  no ULP acts are committed by the Er, if the Ees believe in GF that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to such belief  may be legal. Where the union believed that the Er committed ULP and the circumstances warranted such belief  in GF, the resulting strike may be considered legal although, subsequently, such allegations of  ULP were found to be groundless. (NUWHRAIN‐Interim  Junta v. NLRC, G.R. No. 125561, Mar. 6, 1998)

1. 2.

Note: Those union members who have joined an illegal strike but have not committed any illegal act shall be reinstated but without back wages. The responsibility for the illegal acts committed during the strike must be on an individual and not on a collective basis. (First  City  Interlink Transportation Co., Inc. v. Confesor, G.R. No. 106316, May 5, 1997)

Q: Are strikers entitled to their backwages or strike duration pay? A: GR: No, even if such strike was legal. XPN: 1. Where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer – workers are entitled to back wages from the date their offer was made 2. When there is a return‐to‐work order and the Ees are discriminated against other Ees, workers are entitled to back wages from the date of discrimination 3. In case of a ULP strike, in the discretion of  the authority deciding the case

(1)Liability of Officers of the Union and Ordinary Workers Q: Should separation pay and backwages be awarded to the participants of an illegal strike? A: No backwages will be awarded to union members as a penalty for their participation in the illegal strike. As for the union officers, for knowingly participating in an illegal strike, the law mandates that a union officer may be terminated from employment and they are not entitled to any relief. (Gold City Integrated Port Services, Inc. v. NLRC, G.R. No. 86000, Sep. 21, 1990 )

Union officers who knowingly participate in the illegal strike Any striker or union who knowingly participates in the commission of  illegal acts during the strike

Q: What is the rule in strikes in hospitals? A: 1.

2.

It shall be the duty of  the striking employees or locking‐out employer to provide and maintain an effective skeletal workforce of  medical and health personnel for the duration of the strike or lockout. SLE may immediately assume  jurisdiction within 24 hours from knowledge of  the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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occurrence of  such strike or lockout certify it to the NLRC for compulsory arbitration. Q: More or less 1400 Ees of  the company staged a mass walk‐out, allegedly without anybody leading them as it was a simultaneous, immediate and unanimous group action and decision, to protest the non‐payment of  their salaries and wages. The Minister of  Labor and Employment who found the strike to be illegal granted the clearance to terminate the employment of  those who were instigators in the illegal strike. Was the decision of  the Minister of  Employment in granting the clearance correct? A: No, a mere finding of  the illegality of  a strike should not be automatically followed by wholesale dismissal of  the strikers from their employment. While it is true that administrative agencies exercising quasi‐ judicial functions are free from the rigidities of procedure, it is equally well‐settled that avoidance of  technicalities of  law or procedure in ascertaining objectively the facts in each case should not, however, cause denial of  due process. (Bacus v. Ople, G.R. No. L‐56856, Oct. 23, 1984) Q: 2 days after the union struck, the SLE ordered the striking workers to return to work within 24 hours. But the striking union failed to return to work and instead they continued their pickets. As a result, violence erupted in the picket lines. The service bus ferrying non‐striking workers was stoned causing injuries to its passengers. Threats, defamation, illegal detention, and physical injuries also occurred. The company was directed to accept back all striking workers, except the union officers, shop stewards, and those with pending criminal charges. Was the SLE correct in not including the union officers, shop stewards and those with pending criminal charges in the return‐ to‐work order? A: No, to exclude union officers, shop stewards and those with pending criminal charges in the directive to the company to accept back the striking workers without first determining whether they knowingly committed illegal acts would be tantamount to dismissal without due process of  law. (Telefunken Semiconductors Ees Union‐FFW  v. SLE, G.R. No. 122743 & 127215, Dec. 12, 1997) (2)Waiver of Illegality of Strike Q: When is there a waiver of  the illegality of  a strike by the employer?

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A: When an employer accedes to the peaceful settlement brokered by the NLRC by agreeing to accept all employees who had not yet returned to work, it waives the issue of  the illegality of  the strike. (Reformist  Union v. NLRC, G.R. No. 120482,Jan. 27, 1997)  j.Injunctions Q: What is an injunction? A: It is an order or a writ that commands a person to do or not to do a particular act. It may be a positive (mandatory) or a negative (prohibitory) command. (1)Requisites for Labor Injunctions Q: May the court or quasi‐ judicial entity issue any injunction during strikes/lockouts? A: GR: No court or entity shall enjoin any picketing, strike or lockout, or any labor dispute. XPN: 1. When prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party. (Art. 218[e]) 2. On the ground of national interest 3. The SLE or the NLRC may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same ( Art. 263[g]) (2)Innocent Bystander Rule Q: What must an “innocent by‐stander” satisfy before a court may enjoin a labor strike? A: The innocent by stander must show: 1. 2.

Compliance with the grounds specified in Rule 58 of the Rules of Court, and That it is entirely different from, without any connection whatsoever to, either party to the dispute and, therefore, its interests are totally foreign to the context thereof. (MSF  Tire & Rubber  v. CA, G.R. 128632, Aug. 5, 1999)

Q: May the RTC take cognizance of  the complaint where the same is but an incident of  a labor dispute? rd

A: No, where the subject matter of  the 3 party claim is but an incident of  the labor case, it is a matter beyond the  jurisdiction of  the RTC, such

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

LABOR RELATIONS LAW

courts have no  jurisdiction to act on labor cases or various incidents arising therefrom, including the execution of decisions, awards or orders. rd

A party, by filing its 3 party claim with the deputy sheriff, it submitted itself  to the  jurisdiction of  the NLRC acting through the LA. The broad powers granted to the LA and to the NLRC by Art. 217, 218 and 224 of the LC can only be interpreted as vesting in them  jurisdiction over incidents arising from, in connection with or relating to labor disputes, as the controversy under consideration, to the exclusion of  the regular courts. The RTC, being a co‐equal body of the NLRC, has no  jurisdiction to issue any restraining order or injunction to enjoin the execution of any decision of  the latter. (Deltaventures v. Cabato, G.R. No. 118216, Mar. 9, 2000) Q: The employer filed with the RTC a complaint for damages with preliminary mandatory injunction against the union, the main purpose of which is to dispense the picketing of  the members of  the union. The union filed a motion to dismiss on the ground of  lack of  jurisdiction. The RTC denied the motion to dismiss and enjoined the picketing, it said that mere allegations of  Er‐Ee relationship does not automatically deprive the court of  its  jurisdiction and even the subsequent filing of  charges of  ULP, as an afterthought, does not deprive it of  its  jurisdiction. Was the issuance by the RTC of the injunction proper? A: No, the concerted action taken by the members of  the union in picketing the premises of  the department store, no matter how illegal, cannot be regarded as acts not arising from a labor dispute over which the RTCs may exercise  jurisdiction. (Samahang Manggagawa ng Liberty  Commercial  v. Pimentel, G.R. No. L‐78621, Dec. 2, 1987)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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H. PROCEDURE AND JURISDICTION

8.

Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to RA 6727 9. Enforcement of  compromise agreements when there is non‐compliance by any of  the parties pursuant to Art. 227 of  the Labor Code (LC), as amended; and 10. Other cases as may be provided by law

1.LABOR ARBITER a.Jurisdiction Q: What is the distinction between the  jurisdiction of  the labor arbiter (LA) and the National Labor Relations Commission (NLRC)? A: 1. 2.

3.

The NLRC has exclusive appellate  jurisdiction on all cases decided by the LA. The NLRC does not have original  jurisdiction on the cases over which the LA have original and exclusive jurisdiction. The NLRC cannot have appellate  jurisdiction if  a claim does not fall within the exclusive original  jurisdiction of  the LA.

Q: What is the nature of   jurisdiction of  labor arbiters (LAs)? A: It is original and exclusive. LAs have no appellate  jurisdiction. Q: What are the cases falling under the jurisdiction of labor arbiters (LAs)? A: Exclusive and original  jurisdiction to hear and decide the following cases involving all workers: 1. 2. 3.

4.

5.

6.

7.

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ULP cases Termination disputes If  accompanied with a claim for reinstatement, those that workers file involving wages, rates of  pay, hours of  work and other terms and conditions of  employment Claims for actual, moral, exemplary and other forms of  damages arising from Er‐ Ee relations Cases arising from any violation of  Art. 264, including questions involving the legality of strikes and lockouts; Except  claims for Employment Compensation, Social Security, Philhealth and maternity benefits, all other claims arising from Er‐Ee relations, including those of  persons in domestic or household service, involving an amount exceeding P5000 regardless of  whether accompanied with a claim for reinstatement Monetary claims of  overseas contract workers arising from Er‐Ee relations under the Migrant Worker’s Act of  1995 as amended by RA 10022

Note: Although the provision speaks of  exclusive and original  jurisdiction of  LAs, the cases enumerated may instead be submitted to a voluntary arbitrator by agreement of the parties under Art. 262 of the LC. The law prefers voluntary over compulsory arbitration.

Q: What is the nature of the cases which the labor arbiter (LA) may resolve? A: The cases that an LA can hear and decide are employment related. Where no Er‐Ee relationship exists between the parties and no issue is involved which may be resolved by reference to the LC, other labor statutes, or any collective bargaining agreement, it is the RTC that has  jurisdiction. (Lapanday  Agricultural  Dev’t. Corp v. CA, G.R. No. 112139, Jan.31, 2000) The LA has  jurisdiction over controversies involving Ers and Ees only if  there is a “reasonable causal connection” between the claim asserted and the Er‐ Ee relations. Absent such link, the complaint is cognizable by the regular court. (Eviota v. CA, G.R. No. 152121, July 29, 2003) Q: Do labor arbiters exercise  jurisdiction with the NLRC?

concurrent

A: Yes, with respect to contempt cases. Q: What are the cases referred to grievance machinery and voluntary arbitration? A: Disputes arising from the: 1. 2.

Interpretation or implementation of  the CBA Interpretation or enforcement of  company personnel policies

Q: What is the extent of  the  jurisdiction of  the labor arbiter (LA) if  there are unresolved matters arising from the interpretation of the CBA? A: GR: LAs have no  jurisdiction over unresolved or unsettled grievances arising from the interpretation or implementation of  the CBA and those arising from the interpretation or enforcement of company personnel policies.

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

PROCEDURE AND JURISDICTION

XPN: Actual termination disputes Note: Where the dispute is  just in the interpretation, implementation or enforcement stage of  the termination, it may be referred to the grievance machinery set up by the CBA or by voluntary arbitration. Where there was already actual termination, i .e., violation of  rights, it is already cognizable by the LA. (Maneja v. NLRC, G.R. No. 124013, June 5, 1998)

Q: Does the use of  the word “may” in the provisions of  the Grievance Procedure allow the alternative of submitting the case before the labor arbiter (LA)? A: Yes. The use of  the word “may” shows the intention of  the parties to reserve the right to submit the illegal termination dispute to the  jurisdiction of  the LA, rather than to a voluntary arbitrator. Petitioner validly exercised his option to submit his case to a LA when he filed his complaint before the proper government agency. In other words, the CA is correct in holding that voluntary abitration is mandatory in character if  there is a specific agreement between the parties to that effect. It must be stressed however that, in the case at bar, the use of  the word “may” shows the intention of  the parties to reserve the right of  recourse to LAs. (Vivero v. CA, G.R. No. 138938, Oct.24, 2000) Q: What are the cases which do not fall under the  jurisdiction of the labor arbiters (LA)? A: LAs have no jurisdiction over the ff: 1. 2. 3.

4.

5.

6.

Foreign governments (JUSMAG‐Phils. v. NLRC, G.R. No. 108813, Dec. 15, 1994) Int’l agencies (Lasco v. NLRC, G.R. Nos. 109095‐109107, Feb. 23, 1995) Intra‐corporate disputes which fall under P.D. 902‐A and now falls under the  jurisdiction of the regular courts pursuant to the new Securities Regulation Code (Nacpil  v. IBC, G.R. No. 144767, Mar. 21, 2002) Executing money claims against government (Dept  of  Agriculture v. NLRC, G.R. No. 104269, Nov. 11, 1993) Cases involving GOCCs with original charters which are governed by civil service law, rules or regulations (Art. IX ‐B, Sec.2, No.1, 1987 Constitution) Local water district (Tanjay  Water  District  v. Gabaton,  April  17, 1989) except where NLRC  jurisdiction is invoked (Zamboanga

City  Water  District  v. Buat, G.R. No. 104389, May 27, 1994) 7. The aggregate money claim does not exceed P5000 and without claim for reinstatement (Rajah Humabon Hotel, Inc. v. Trajano, G.R. Nos. 100222‐23, Sep.14, 1993) 8. Claim of  employee (Ee) for cash prize under the Innovation Program of  the company, although arising from Er‐Ee relationship, is one requiring application of  general civil law on contracts which is within the  jurisdiction of  the regular courts (SMC v. NLRC, G.R. No. 80774, May  31, 1988) 9. Cause of  action based on quasi‐delict or tort which has no reasonable connection with any of  the claims enumerated in Art.217 of  the LC (Ocheda v. CA, G.R. No. 85517, Oct. 16, 1992) 10. Complaint arising from violation of  training agreement (Singapore  Airlines v. Pano, G.R. No. L‐47739, June 22, 1983) Q: FASAP, the sole and exclusive bargaining representative of  the flight attendants, flight stewards and pursers of  PAL, and respondent PAL entered into a CBA incorporating the terms and conditions of  their agreement for the years ‘01‐ ‘05. Sec. 144, Part A of  the CBA provides that compulsory retirement shall be 55 for females and 60 for males. They filed an action with the RTC claiming that the CBA provision is discriminatory and hence unconstitutional. The RTC issued a TRO. The appellate court ruled that the RTC has no  jurisdiction over the case at bar. Whether RTC has  jurisdiction over the petitioners' action challenging the legality of  the provisions on the compulsory retirement age contained in the CBA? A: Yes. The subject of  litigation is incapable of  pecuniary estimation, exclusively cognizable by the RTC, pursuant to Sec. 19 (1) of  BP Blg. 129, as amended. Being an ordinary civil action, the same is beyond the jurisdiction of labor tribunals. Not every controversy or money claim by an employee (Ee) against the employer (Er) or vice‐ versa is within the exclusive  jurisdiction of  the LA. Actions between Ees and Er where the Er‐Ee relationship is merely incidental and the cause of  action precedes from a different source of  obligation is within the exclusive  jurisdiction of  the regular court. Here, the Er‐Ee relationship between the parties is merely incidental and the cause of  action ultimately arose from different sources of  obligation, i.e., the Constitution and CEDAW. (Halaguena vs. PAL Incorporated, G.R. No. 172013, Oct. 2, 2009)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: Q: Who has the exclusive appellate  jurisdiction over all cases decided by Labor Arbiters?

1.

The appeal is perfected: a. Filed  within the reglementary  period  provided in Sec. 1 of this Rules b. Verified  by the appellant himself  in accordance with Sec. 4, Rule 7 of the Rules of Court, as amended c. In the form of  a memorandum of  appeal which shall state the grounds relied upon and the arguments in support thereof, the relief  prayed for, and with a statement of the date the appellant received the appealed decision, resolution or order d. In 3 legibly typewritten or printed copies e.  Accompanied by (i) proof of payment of  the required appeal fee; (ii) posting of  a cash or surety bond as provided in Sec. 6 of  this Rule; (iii) a certificate of  non‐forum shopping; and (iv) proof  of  service upon the other parties.

2.

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

A: The NLRC. Q: What is the effect of perfection of an appeal on execution? A: The perfection of  an appeal shall stay the execution of  the decision of  the Labor Arbiter on appeal, except execution for reinstatement pending appeal. Note: The provision of  Art. 223 is clear that an award by the LA for reinstatement shall be immediately executor even pending appeal and the posting of  a bond by the employer shall not stay the execution for reinstatement. (Pioneer Texturizing Corp. v. NLRC, G.R. No. 118651, Oct. 16, 1997)

b.Effect of self ‐executing order of reinstatement on backwages Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiter’s (LA’s) order of  reinstatement pending appeal and the NLRC decision overturning that of  the LA? A: Yes. Par. 3 of  Art. 223 of  the Labor Code provides that the decision of  the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediately be excutory, pending appeal. Even if  the order of  reinstatement of  the LA is reversed on appeal, it is obligatory on the part of  the employer (Er) to reinstate and pay the wages of  the dismissed Ee during the period of  appeal until reversal by the higher court. On the other hand, if  the Ee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the Ee is not required to reimburse whatever salary he received for he is entitled to such, more so if  he actually rendered services during the period. (Pfizer  v. Velasco, G.R. No. 177467, March 9, 2011) Unless there is a restraining order, it is ministerial upon the LA to implement the order of  reinstatement and it is mandatory on the Er to comply therewith. (Garcia v. PAL, G.R. No. 164856,  Jan. 20, 2009) c.Requirements to perfect appeal to NLRC Q: How is an appeal from LA to NLRC perfected?

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Q: Is the posting of  an appeal bond required for the perfection of  an appeal from a Labor Arbiter’s (LA’s) decision involving monetary award? A: Yes. In case the decision of the LA or the Regional Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of  a bond. (Sec.6, Rule VI, NLRC  2005 Rules of Procedure) Q: What are the forms of the appeal bond? A: It shall either be in the form of  cash deposit or surety bond equivalent in amount to the monetary award, exclusive of  damages and attorney's fees. (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure) Q: Who may issue a surety bond? A: It shall be issued by a reputable bonding company duly accredited by the Commission or the SC, and shall be accompanied by original or certified true copies of: 1.

A  joint declaration under oath by the Er, his counsel, and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case.

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

PROCEDURE AND JURISDICTION

2. 3.

4. 5. 6. 7. 8.

An indemnity agreement between the Er‐ appellant and bonding company; Proof  of  security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security; A certificate of  authority from the Insurance Commission; Certificate of registration from the SEC; Certificate of  authority to transact surety business from the Office of the President; Certificate of  accreditation and authority from the SC; and A notarized board resolution or secretary's certificate from the bonding company showing its authorized signatories and their specimen signatures. (Sec. 6, Rule VI, NLRC  2005 Rules of  Procedure)

Note: The appellant shall furnish the appellee with a certified true copy of  the said surety bond with all the above‐mentioned supporting documents.

Q: What is the period within which a cash or surety bond shall be valid and effective? A: From the date of  deposit or posting, until the case is finally decided, resolved or terminated, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of  the surety bond, and shall be binding on the appellants and the bonding company. (Sec. 6, Rule VI, NLRC  2005 Rules of Procedure) Q: What is the effect if  the bond is verified by the NLRC to be irregular or not genuine? A: The Commission shall cause the immediate dismissal of  the appeal, and censure or cite in contempt the responsible parties and their counsels, or subject them to reasonable fine or penalty. (Sec.6, Rule VI, NLRC  2005 Rules of  Procedure) Note: The appellee shall verify the regularity and genuineness of  the bond and immediately report any irregularity to the NLRC.

Q: May the bond be reduced?

Note: The mere filing of  a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of  the period to perfect an appeal (Sec. 6, Rule VI, NLRC  2005 Rules of  Procedure).

Q: Company "A", within the reglementary period, appealed the decision of  a Labor Arbiter directing the reinstatement of  an Ee and awarding backwages. However, A's cash bond was filed beyond the ten day period. Should the NLRC entertain the appeal? Why? A: No, the NLRC should not entertain the appeal, as the same was not perfected for failure to file a bond. In  ABA vs. NLRC, G.R. No.122627,  July  18, 1999, the SC ruled: "An appeal bond is necessary...the appeal may be perfected only upon the posting of  cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the  judgment appealed from." (2001 Bar Question) Q: Is a motion for reconsideration (MR) of  the NLRC decision required before certiorari  may be availed of? A: Yes. A MR is required to enable NLRC to correct its mistakes. If  no MR is filed, NLRC’s decision becomes final and executory. Q: What is the remedy in case of denial of the MR? A: If  the motion is denied, the aggrieved party may file a petition for certiorari  not later than 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the 60 day period shall be counted from notice of  the denial of  said motion. No extension of  time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. (Sec. 4, Rule 65, Rules of Court.) Q: What is the effect if no service of summons was made? A: In the absence of  service of  summons or a valid waiver thereof, the hearings and  judgment rendered by the labor arbiter is null and void.

A: GR: No.

Q: What is compulsory arbitration?

XPN: On meritorious grounds, and only upon the posting of  a bond in a reasonable amount in relation to the monetary award.

A: The process of  settlement of  labor disputes by a government agency which has the authority to investigate and make an award binding on all the parties.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Can the Labor Arbiter (LA) conduct compulsory arbitration? A: Yes. Under the Labor Code, it is the LA who is clothed with the authority to conduct compulsory arbitration on cases involving termination disputes [Art.217, P.D. 442, as amended]. (PAL v. NLRC, G.R. No. 55159, Dec. 22, 1989) Q: What are the rules on venue of filing cases?

2.NATIONAL LABOR RELATIONS COMMISSION (NLRC) Q: What is the NLRC? A: It is an administrative body with quasi‐ judicial functions and the principal government agency that hears and decides labor‐management disputes; it is attached to the DOLE solely for program and policy coordination only.

A: 1.

All cases which the Labor Arbiters (LAs) have authority to decide may be filed in the Regional Arbitration Branch (RAB) having  jurisdiction over the workplace of  the complainant /petitioner.

Q: How are the powers and functions of  the NLRC allocated? A: 1.

Note: Workplace is understood to be the place or locality where the employee (Ee) is regularly assigned when the cause of  action arose. It shall include the place where the Ee is supposed to report back after a temporary detail, assignment or travel. In case of  field Ees, as well as ambulant or itinerant workers, their workplace is where they are” a. Regularly assigned b. Supposed to regularly receive their salaries and wages c. Receive their work instructions from d. Reporting the results of  their assignment to their employers (Er)

2.

Where 2 or more RABs have  jurisdiction over the workplace, the first to acquire  jurisdiction shall exclude others.

3.

Improper venue when not objected to before filing of  position papers shall be deemed waived.

4.

Venue may be changed by written agreement of  the parties or when the NLRC or the LA so orders, upon motion by the proper party in meritorious cases.

5.

For Overseas Contract Workers where the complainant resides or where the principal office of  the respondent Er is located, at the option of the complainant. Note: The Rules of  Procedure on Venue is merely permissive, allowing a different venue when the interest of  substantial  justice demands a different one. (Dayag v. Canizares, GR. No. 124193, Mar. 6, 1998)

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2.

En Banc a. Promulgating rules and regulations and governing the hearings and disposition of  cases before any of  its divisions and regional branches. b. Formulating policies affecting its administration and operations. c. On temporary or emergency basis, to allow cases within the  jurisdiction of  any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense. Division (8 Divisions with 3 members) a. Adjudicatory; b. All other powers, functions and duties; c. Exclusive appellate  jurisdiction over cases within their respective territorial jurisdiction.

Q: Does an individual adjudicatory power?

Commissioner

have

A: No. The law lodges the adjudicatory power on each of  the eight divisions, not on the individual commissioners nor on the whole commission. The “division” is a legal entity, not the person who sits in it. Hence, an individual commissioner has no adjudicatory power, although of  course, he can concur or dissent in deciding a case. a.Jurisdictions Q: What are the two kinds of  jurisdiction of  the NLRC? A: 1.

Exclusive Original  Jurisdiction a. Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to national

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

PROCEDURE AND JURISDICTION

2.

interest, certified to it by the Secretary of  Labor or the President for compulsory arbitration b. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of  any or all prohibited or unlawful acts or to require the performance of  a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party c. Injunction in strikes or lockouts under Art. 264 of the Labor Code (LC) d. Contempt cases Exclusive Appellate Jurisdiction a. All cases decided by the Labor Arbiters under Art. 217(b) of  the LC and Sec. 10 of  R.A.8042 (Migrant Worker’s Act); and b. Cases decided by the Regional Offices of  DOLE in the exercise of  its adjudicatory function under Art.129 of  the LC over monetary claims of  workers amounting to not more than P5000 and not accompanied by claim for reinstatement.

valid judgment. Note: Whenever the required membership in a division is not complete and the concurrence of  the Commissioners to arrive at  judgment or resolution cannot be obtained, the Chairman shall designate such number of  additional Commissioners from the other divisions as may be necessary.

2.

It shall be mandatory for the division to meet for purposes of consultation. Note: The conclusion of  a division on any case submitted to it for decision should be reached in consultation before the case is assigned to a member for the writing of  the opinion.

3.

A certification that a consultation has been conducted, signed by the presiding commissioner of  the division, shall be issued (copy attached to the record of case and served upon the parties).

Q: What are the qualifications of the Chairman and the Commissioners? A:

Q: What is the composition of the NLRC?

1. 2.

A: 1. 2.

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

Note: There is no need for the Commission on Appointments to confirm the positions in the NLRC. Such requirement has no constitutional basis. (Calderon v. Carale, GR. No. 91636, April 23, 1992)

Q: How does the NLRC adjudicate cases? A: 1.

The NLRC adjudicates cases by division. A concurrence of  2 votes is needed for a

3. 4.

Member of the Philippine Bar Engaged in the practice of  law in the Philippines for at least 15 years At least 5 years experience or exposure in handling labor management relations Preferably a resident of  the region where he is to hold office

Q: What are the qualifications of  an Executive Labor Arbiter? A: 1. 2. 3.

Member of the Philippine Bar Engaged in the practice of  law in the Philippines for at least 10 years At least 5 years experience or exposure in handling labor management relations

Q: What is the term of  office of  the Chairman, Commissioners and Labor Arbiters (LAs)? A: They shall hold office during good behavior until they reach the age of  65 unless removed for causes as provided by law or become incapacitated to discharge the function of his office. Provided, however, that the President of  the Philippines may extend the services of  the Commissioners and LAs up to the maximum age of  70 years upon the recommendation of  the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Commission en banc. Q: Some disgruntled members of  Bantay Labor Union filed with the Regional Office of  the DOLE a written complaint against their union officers for mismanagement of  union funds. The Regional Director (RD) did not rule in the complainants' favor. Not satisfied, the complainants elevated the RD’s decision to the NLRC. The union officers moved to dismiss on the ground of lack of  jurisdiction. Are the union officers correct? Why? A: Yes, the union officers are correct in claiming that the NLRC has no  jurisdiction over the appealed ruling of  the RD. in Barles v. Bitonio, G.R. No. 120220, June 16, 1999, the SC ruled: “Appellate authority over decisions of  the RD involving examination of union accounts is expressly conferred on the Bureau of  Labor Relations (BLR) under the Rule of  Procedure on Mediation‐ Arbitration.” Sec. 4.  Jurisdiction of  the BLR — (b) The BLR shall exercise appellate  jurisdiction over all cases originating from the RD involving complaints for examination of union books of accounts. The language of  the law is categorical. Any additional explanation on the matter is superfluous." (2001 Bar Question) Q: Company "A" and Union "B" could not resolve their negotiations for a new CBA. After conciliation proceedings b e f o r e t h e NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against striker‐members of  B for their illegal acts. The SLE assumed  jurisdiction, referred the strike to the NLRC and issued a return‐to‐work order. The NLRC directed the parties to submit their respective position papers and documentary evidence. At the initial hearing before the NLRC, the parties agreed to submit the case for resolution after the submission of  the position papers and evidence. Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of  the CBA and ordered the dismissal of  certain strikers for having knowingly committed illegal acts during the strike. The dismissed employees elevated their dismissal to the CA claiming that they were deprived of  their right to due process and that the affidavits submitted by A were self ‐ serving and of  no probative value. Should the appeal prosper? State the reason(s) for your answer clearly.

178

A: The appeal should not prosper. The SC, in many cases, has ruled that decisions made by the NLRC may be based on position papers. In the question, it is stated that the parties agreed to submit the case for resolution after the submission of  position papers and evidence. Given this fact, the striker‐ members of B cannot now complain that they were denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adverse decision on the merits, it is too late for the loser to question the  jurisdiction or power of  the court. A party cannot adopt a posture of  double dealing. (Marquez vs. Secretary  of  Labor, G.R. No. 80685, March 16, 1989). (2001 Bar Question) Q: Is barangay  conciliation available in labor cases? A: No. Labor cases are not subject to barangay  Conciliation since ordinary rules of  procedure are merely suppletory in character vis‐à‐vis labor disputes which are primarily governed by labor laws. (Montoya v. Escayo, G.R. No. 82211‐12, Mar. 21, 1989) Q: What are the powers of the NLRC? A: 1.

2.

3.

4. 5. 6.

Rule making  power   – promulgation of  rules and regulations: Governing disposition of  cases a. before any of  its division/regional offices. b. Pertaining to its internal functions c. As may be necessary to carry out the purposes of the Labor Code. Power to issue compulsory processes (administer oaths, summon parties, issue subpoenas) Power to investigate matters and hear disputes within its  jurisdiction (adjudicatory power  – original and appellate jurisdiction over cases) Contempt power Ocular Inspection Power to issue injunctions and restraining orders

b.Effect of NLRC reversal of Labor Arbiter’s order of  reinstatement Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiter’s (LA’s) order of  reinstatement pending appeal and the NLRC decision overturning that of  the LA?

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

PROCEDURE AND JURISDICTION

A: Yes. Par. 3 of  Art. 223 of  the Labor Code provides that the decision of  the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediately be excutory, pending appeal.

appeal or petition for certiorari. (Ginete v. Sunrise Manning Agency, G.R. No. 142023, June 21, 2001)

Even if  the order of  reinstatement of  the LA is reversed on appeal, it is obligatory on the part of  the employer (Er) to reinstate and pay the wages of  the dismissed Ee during the period of  appeal until reversal by the higher court. On the other hand, if  the Ee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the Ee is not required to reimburse whatever salary he received for he is entitled to such, more so if  he actually rendered services during the period. (Pfizer  v. Velasco, G.R. No. 177467, March 9, 2011)

A: Orders which may require, forbid, or stop the doing of an act. The power of the NLRC to enjoin or restrain the commission of  any or all prohibited or unlawful acts under Art. 218 of Labor Code can only be exercised in a labor disputes.

Q: What is an injunction or a temporary restraining order (TRO)?

Note: A restraining order is generally regarded as an order to maintain the subject of  controversy in status quo until the hearing of an application for a temporary injunction. (BF  Homes v. Reyes, G.R. No. L‐30690 November 19, 1982)

Q: Who may issue a TRO? c.Requirements to perfect appeal to Court of  Appeals

A: 1. 2. 3.

Q: Is  judicial review of  the NLRC’s decision available? A: Yes, through petitions for certiorari  (Rule 65) which should be initially filed with the CA in strict observance of  the doctrine on the hierarchy of  courts as the appropriate forum for the relief  desired. The CA is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of  its component divisions. (St. Martin Funeral Home v. NLRC, G.R. No. 130866, Sep. 16, 1998) Q: Within what period should the petition for certiorari be filed with the Court of Appeals?

Note: Art. 218 of  the Labor Code limits the grant of  injunctive power to the “NLRC”. The LA is excluded  statutorily . Hence, no NLRC Rules can grant him that power.

Q: What is the procedure for the issuance of  restraining order/injunction? A: 1. 2.

A: Under Section 4, Rule 65 (as amended by A.M. No. 00‐2‐03‐SC) of  the Rules of  Civil Procedure, the petition must be filed within sixty (60) days from notice of  the  judgment or from notice of  the resolution denying the petitioner’s motion for reconsideration. This amendment is effective September 1, 2000, but being curative may be given retroactive application. (Narzoles v. NLRC, G.R. No. 141959, Sep. 29, 2000) 3. The period within which a petition for certiorari against a decision of  the NLRC may be filed should be computed from the date counsel of  record of  the party receives a copy of  the decision or resolution, and not from the date the party himself  receives a copy thereof. Article 224 of  the Labor Code, which requires that copies of  final decisions, orders or awards be furnished not only the party’s counsel of  record but also the party himself applies to the execution thereof  and not to the filing of  an

President (Art.263[g]) Secretary of Labor (Art. 263[g]) NLRC (Art.218)

4.

Filing of a verified petition Hearing after due and personal notice has been served in such manner as the Commission shall direct to: a. All known persons against whom relief is sought b. Also the Chief  Executive or other public officials of  the province or city within which the unlawful acts have been threatened or commercial charged with the duty to protect the complainant’s property. Reception at the hearing of  the testimonies of  the witnesses with opportunity for cross‐examination, in support of  the allegations of  the complaint made under oath as well as testimony in opposition thereto. Finding of  fact of  the Commission to the effect that: a. Prohibited or unlawful acts have been threatened and will be committed, or have been and will be continued unless restrained, but no

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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5.

injunction or TRO shall be issued on account of  any threat, prohibited or unlawful act, except against the persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof. b. The substantial and irreparable injury to the complainant’s property. Note: Irreparable Injury ‐an injury which cannot be adequately compensated in damages due to the nature of the injury itself or the nature of  the right or property injured or when there exist no pecuniary standard for the measurement of  damages. c. That as to each item of  relief  to be granted, greater injury will be inflicted upon the complainant by the denial of  the relief  than will be inflicted upon the defendants by the granting of the relief. d. That complainant has no adequate remedy at law Note: Adequate remedy  – one that affords relief  with reference to the matter in controversy and which is appropriate to the particular circumstances of  the case if  the remedy is specifically provided by law. (PAL v. NLRC, GR. No. 120567, Mar. 20, 1998) e. That public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection. Posting of a bond.

3.BUREAU OF LABOR RELATIONS (BLR)‐MED ARBITERS a.Jurisdiction Q: What is covered by the BLR’s  jurisdiction and functions? A: The BLR no longer handles “all labor management disputes”; rather its functions and  jurisdiction are largely confined to: 1. Union matters 2. Collective bargaining registry and 3. Labor education. Note: Jurisdiction over labor management problems or disputes is also exercised by other offices: 1. DOLE Regional Offices 2. Office of the Secretary of Labor 3. NLRC

180

4. 5. 6. 7. 8. 9.

POEA OWWA SSS‐ECC RTWPB NWPC Regular courts disputes.

over

intra‐corporate

Q: Who is a mediator‐arbiter? A: An officer in the Regional Office or Bureau authorized to hear, conciliate and decide representation cases or assist in the disposition of  intra or inter‐union disputes. Q: What kinds  jurisdiction?

of  cases

fall

within

BLR’s

A: The BLR has original and exclusive  jurisdiction over: 1. 2. 3.

Inter‐union disputes Intra‐union disputes Other related labor relations disputes

Q: What is the coverage of  inter/intra‐union disputes? A: They shall include: 1.

Conduct or nullification of  election of  union and workers’ association officers 2. Audit/accounts examination of  union or workers’ association funds 3. Deregistration of  collective bargaining agreements (CBAs) 4. Validity/invalidity of  union affiliation or disaffiliation 5. Validity/invalidity of  acceptance/ non‐ acceptance for union membership 6. Validity/invalidity of voluntary recognition 7. Opposition to application for union or CBA registration 8. Violations of  or disagreements over any provision of  the constitution and by‐laws of union or workers’ association 9. Disagreements over chartering or registration of  labor organizations or the registration of CBAs; 10. Violations of  the rights and conditions of  membership in a union or workers’ association; 11. Violations of the rights of legitimate labor organizations (LLO), except interpretation of CBAs; 12. Validity/invalidity of  impeachment/ expulsion/suspension or any disciplinary action meted against any officer and member, including those arising from

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

PROCEDURE AND JURISDICTION

non‐compliance with the reportorial requirements under Rule V; 13. Such other disputes or conflicts involving the rights to self ‐organization, union membership and CB – a. Between and among LLO and b. Between and among members of  a union or workers’ association. (Sec.1, Rule  XI, Book  V, IRR as amended  by  D.O. 40‐F ‐03) Q: What is covered by the phrase “other related labor relations disputes”? A: 1.

2.

3.

Any conflict between: a. A labor union and the employer (Er); or b. A labor union and a group that is not a labor organization (LO); or c. A labor union and an individual who is not a member of such union Cancellation of  registration of  unions and worker’s associations filed by individual/s other than its members, or group that is not a LO. A petition for Interpleader involving labor relations. (Sec. 2, Rule  XI, Book  V, IRR as amended by D.O. 40‐F ‐03)

Q: Who may file a complaint or petition involving intra/inter‐union disputes? A: A legitimate labor organization or its members. (Sec. 5, Rule XI, D.O. 40‐03) Q: What if  the membership?

issue

involves

the

entire

A: The complaint must be signed by at least 30% of  the entire membership of the union.

5.

6. 7. 8.

Lack of  jurisdiction of the investigating body; action for the administrative agency is patently illegal, arbitrary and oppressive; Issue is purely a question of law; Where the administrative agency had already prejudged the case; and Where the administrative agency was practically given the opportunity to act on the case but it did not.

Q: May a decision in an inter/intra‐union dispute be appealed from? A: Yes. Q: Within what period may an appeal to a decision of  the med‐arbiter or regional director in an inter/intra‐union dispute be filed? A: The decision may be appealed by any of  the parties within 10 days from receipt thereof. (Sec. 16, Rule XI, D.O. 40‐03) Q: To whom is the decision appealable? A: The decision is appealable to the: 1. Bureau of  Labor  Relations (BLR): if  the case originated from the Med‐Arbiter or Regional Director; 2. SLE: if the case originated from the BLR. Q: What is the extent of  the Bureau of  Labor Relations (BLRs) authority? A: 1.

It may hold a referendum election among the members of  a union for the purpose of determining whether or not they desire to be affiliated with a federation.

2.

But the BLR has no authority to:

Q: What if the issue involves a member only?

a.

A: Only the affected member may file the complaint. (Sec. 5, Rule XI, D.O. 40‐03)

b.

Note: GR: Redress must first be sought within the union itself  in accordance with its constitution and by‐ laws XPNs: 1. Futility of intra‐union remedies; 2. Improper expulsion procedure; 3. Undue delay in appeal as to constitute substantial injustice; 4. The action is for damages;

Order a referendum among union members to decide whether to expel or suspend union officers. Forward a case to the Trade Union Congress of  the Philippines for arbitration and decision.

Q: Is Katarungang Pambarangay  applicable to labor disputes? A: No. Art. 226 of  the LC grants original and exclusive  jurisdiction over the conciliation and mediation of disputes grievances or problems in the regional offices of the DOLE. It is the Bureau and its divisions (now the NCMB) and not the Barangay  Lupong Tagapamayapa which are vested by law with original and exclusive authority to conduct

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conciliation and mediation proceedings on labor controversies before endorsement to the appropriate labor arbiter for adjudication.

3.

Note: Conciliation‐Mediation is now done by the NCMB, not Bureau Labor Relations.

4.

Q: What are the administrative functions of  the Bureau Labor Relations (BLR)? A: 1. 2. 3. 4.

Regulation of the labor unions Keeping the registry of labor unions Maintenance of a file of the CBA Maintenance of a file of all settlements or final decisions of  the SC, CA, NLRC and other agencies on labor disputes

Q: What are the effects of  filing or pendency of  inter/intra‐union dispute and other labor relations disputes?

4.NATIONAL CONCILIATION AND MEDIAITON BOARD (NCMB) Q: What are the alternative modes of  settlement of labor dispute under Art. 211 of the Labor Code? A: 1. 2. 3.

A: 1.

2.

The rights relationships and obligations of  the party‐litigants against each other and other parties‐in‐interest prior to the institution of  the petition shall continue to remain during the pendency of  the petition and until the date of  the decision rendered therein. Thereafter, the rights, relationships and obligations of the party‐ litigants against each other and other parties‐in‐interest shall be governed by the decision ordered. The filing or pendency of  any inter/intra union disputes is not a prejudicial question to any petition for certification election, hence it shall not be a ground for the dismissal of  a petition for certification of  election or suspension of  the proceedings for the certification of  election. (Sec. 3, Rule XI, DO 40‐03)

Q: State the rules on appeal in intra/inter‐union disputes. A: 1.

2.

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Formal Requirements a. Under oath b. Consist of a memorandum of appeal. c. Based on either of  the following grounds: i. Grave abuse of discretion ii. Gross violation of the rules iii. With supporting arguments and evidence Period  ‐ within 10 days from receipt of  decision.

To whom appealable a. BLR  – if  the case originated from the Med‐Arbiter/Regional Director. b. SLE  – if  the case originated from the BLR. Where Filed  ‐ Regional Office or to the BLR, where the complaint originated (records are transmitted to the BLR or Sec. within 24 hours from the receipt of  the memorandum of  appeal). (Rule  XI, D.O. 40‐03)

Voluntary Arbitration Conciliation Mediation a.Conciliation vs. Mediation

Q: What is Conciliaton and Mediation? A: CONCILIATION Is conceived of  as a mild form of  intervention by a neutral third party The conciliator‐ Mediator, relying on his persuasive expertise, who takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keep things calm and forward‐looking in a tense situation It is the process where a disinterested 3rd party meets with management and labor, at their request or otherwise, during a labor dispute or in

MEDIATION Is a mild intervention by a neutral third party The conciliator ‐ mediator, whereby he starts advising the parties or offering solutions or alternatives to the problems with the end in view of  assisting them towards voluntarily reaching their own mutually acceptable settlement of  the dispute

It is when a 3rd party studies each side of  the dispute then makes proposals for the disputants to consider. The mediator cannot make an award nor

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

PROCEDURE AND JURISDICTION

collective bargaining conferences, and by cooling tempers, aids in reaching an agreement

of  the problem, a request may be filed in the form of  consultation, notice of  preventive mediation or notice of strike/lockout.

render a decision

Q: Where can a request for Conciliation and Mediation be filed?

Conciliation ‐ is conceived of  as a mild form of  intervention by a neutral third party, the Conciliator‐Mediator, relying on his persuasive expertise, who takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keep things calm and forward‐looking in a tense situation. rd

It is the process where a disinterested 3 party meets with management and labor, at their request or otherwise, during a labor dispute or in collective bargaining conferences, and by cooling tempers, aids in reaching an agreement. Mediation ‐ is a mild intervention by a neutral third party, the Conciliator‐Mediator, whereby he starts advising the parties or offering solutions or alternatives to the problems with the end in view of  assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute. rd

It is when a 3 party studies each side of  the dispute then makes proposals for the disputants to consider. The mediator cannot make an award nor render a decision. Q: What is the Legal Basis of Conciliation and Mediation? A: Article 13, Section 3, of  our New Constitution provides: “The State shall  promote  xxx  the  preferential  use of  voluntary  modes of  setting disputes including conciliation and  shall  ensure mutual  compliance by  the  parties thereof  in order  to  foster industrial  peace.”  Note: A similar provision is echoed in the Declaration of  Policy under Article 211 (a) of  the Labor Code, as amended.

Q: Who can avail of  Conciliation and Mediation Services of the NCMB? A: Any party to a labor dispute, either the union or management, may seek the assistance of  NCMB or any of  its Regional Branches by means of  formal request for conciliation and preventive mediation. Depending on the nature

A: An informal or formal request for conciliation and mediation service can be filed at the NCMB Central Office or any of  its Regional Branches. There are at present fourteen (14) regional offices of  the NCMB which are strategically located all over the country for the convenient use of prospective clients. b.Preventive Mediation Q: What is Preventive Mediation Cases? A: Refer to the potential labor disputes which are the subject of  a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of  the NCMB to avoid the occurrence of actual labor disputes. Q: What are the valid issues for a notice of  strike / lockout or preventive mediation case? A: A notice of  strike or lockout maybe filed on ground of  unfair labor practice acts, gross violation of  the CBA, or deadlock in collective bargaining. A complaint on any of  the above ground must be specified in the NCMB Form or the proper form used in the filing of complaint. In case of  preventive mediation, any issue may be brought before the NCMB Central Office or its regional offices for conciliation and possible settlement through a letter. This method is more preferable than a notice of  strike/lockout because of  the non‐adversarial atmosphere that pervades during the conciliation conferences. Q: What advantage can be derived from conciliation and mediation services? A: Conciliation and mediation is non‐ litigious/non‐adversarial, less expensive, and expeditious. Under this informal set‐up, the parties find it more expedient to fully ventilate their respective positions without running around with legal technicalities and, in the course thereof, afford them a wider latitude of  possible approaches to the problem. Q: Are the parties bound by the agreement entered into by them?

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A: Certainly, the parties are bound to honor any agreement entered into by them. It must be pointed out that such an agreement came into existence as a result of painstaking efforts among the union, management, and the Conciliator‐ Mediator. Therefore, it is only logical to assume that the Conciliator assigned to the case has to follow up and monitor the implementation of the agreement. Q: Is conciliation and mediation service still possible during actual strike or lockout? A: Definitely, it is possible to subject an actual strike or actual lockout to continuing conciliation and mediation services. In fact, it is at this critical stage that such conciliation and mediation services by fully given a chance to work out possible solution to the labor dispute. With the ability of  the Conciliator‐Mediator to put the parties at ease and place them at a cooperative mood, the final solutions of  all the issues involved may yet be effected and settled. Q: When the dispute has already been assumed or certified to the NLRC, is it also possible to remand the same to conciliation and mediation services? A: Yes, the parties are not precluded from availing the services of  an NCMB Conciliator‐ Mediator as the duty to bargain collectively subsists until the final resolution of  all issues involved in the dispute. Conciliation is so pervasive in application that, prior to a compulsory arbitration award, the parties are encouraged to continue to exhaust all possible avenues of  mutually resolving their dispute, especially through conciliation and mediation services. Q: What benefit can the parties have in appearing during conciliation conferences? A: Generally speaking, any party appearing during scheduled conciliation conferences has the advantage of  presenting its position on the labor controversy. The issue raised in the complaint can be better ventilated with the presence of  the concerned parties. Moreover, the parties can observe a norm of  conduct usually followed in like forum.

A: It is the submission of  a dispute to an impartial person for determination on the basis of  evidence and arguments of the parties. The arbiter’s decision or award is enforceable upon the disputants. It may be voluntary (by agreement) or compulsory (required by statutory provision). (Luzon Dev’t Bank  v.  Ass’n of  Luzon Dev’t  Bank  Employees, G.R. No. 120319, Oct. 6, 1995) Q: Can the court fix resort to voluntary arbitration (VA)? A: Resort to VA dispute, should not be fixed by the court but by the parties relying on their strengths and resources. Q: Who are the parties to labor relations cases? A: 1. 2. 3.

Note: Employer and Ees are active parties while the public and the State are passive parties. (Poquiz, 2006,  p.3)

Q: What is the concept of tripartism? A: It is the representation of 3 sectors. These are: 1. The public or the government 2. The employers 3. The workers  – in policy‐making bodies of the gov’t. Q: Can workers insist that they be represented in the policy making in the company? A: No. Such kind of  representation in the policy‐ making bodies of  private enterprises is not ordained, not even by the Constitution. What is provided for is workers participation in policy and decision‐making process directly affecting their rights, benefits, and welfare. 5.DOLE REGIONAL DIRECTORS a.Small Money Claims Q: What is the rule on the recovery of  simple money claims? A: 1.

c.Artbitration Q: What is arbitration?

184

Employees organization Management The public

2.

The aggregate money claim of  each employee (Ee) or househelper (HH) does not exceed P5,000. The claim is presented by an Ee or person employed in the domestic or household service or HH.

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PROCEDURE AND JURISDICTION

3. 4.

The claim arises from Er‐Ee relationship. The claimant does not seek reinstatement.

Note: In the absence of  any of  the ff. requisites, it is the labor arbiter (LA) who shall have the  jurisdiction over the claims arising from Er‐Ee relations, except  claims for Ees compensation, SSS, Philhealth, and maternity benefits, pursuant to Art.217 of  the Labor Code. The proceedings before the Regional Office shall be summary and non‐litigious in nature.

Q: What is the adjudicatory power of  the Regional Director (RD)?

and other labor laws

Enforcement of labor legislation in general

Limited to monetary claims

Proceeding is an offshoot of  routine inspections

Initiated by sworn complaints filed by any interested party

A: The RD or any of  his duly authorized hearing officer is empowered through summary proceeding and after due notice, to hear and decide cases involving recovery of  wages and other monetary claims and benefits, including legal interests. Q: An airline which flies both the international and domestic routes requested the SLE to approve the policy that all female flight attendants upon reaching age 40 with at least 15 years of  service shall be compulsorily retired; however, flight attendants who have reached age 40 but have not worked for 15 years will be allowed to continue working in order to qualify for retirement benefits, but in no case will the extension exceed 4 years. Does the SLE have the authority to approve the policy? A: Yes. Art.132 (d) of  the Labor Code provides that the SLE shall establish standards that will ensure the safety and health of  women employees including the authority to determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of  flight attendants and the like. (1998 Bar Question) Q: What is the difference between the power of  Secretary of  Labor and Employment (SLE), Regional Director (RD) and Labor Arbiter (LA)?

Jurisdictional req’ts: 1) Complaint arises from Er‐Ee relationship

No  jurisdictional req’ts

Appealable to SLE (In case compliance order is issued by Regional Office)

LA decides case within 30 calendar days after submission of  the case by the parties for decision 1) All other claims arising from Er‐Ee relations 2) Including those of  persons in domestic or household service

2) Claimant is an Ee or person employed in domestic or household service or a HH 3) Complaint does NOT include a claim for reinstatement

3) Involving an amount exceeding P5,000

4) Aggregate money claim of  EACH claimant does not exceed P5,000

4) Whether or not accompanied with a claim for reinstatement

Appealable to NLRC

Appealable to NLRC

6.DOLE SECRETARY

A: Art. 128 VP and EP of  SLE Inspection of  establishments and issuance of orders to compel compliance with labor standards, wage orders

All other claims arising from Er‐ Ee relations

a.Visitorial and Enforcement Powers Art. 129 RD

Art. 217(a)(6) LA

Adjudication of  Ees claims for wages and benefits

LA exercises original and exclusive  jurisdiction

Q: What are the 3 kinds of powers of the Secretary of Labor and Employment (SLE)? A: 1. 2. 3.

Visitorial powers Enforcement powers Appellate or power to review

Q: What constitute visitorial power?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A:

4. 1.

2. 3.

Access to employer’s records and premises at any time of  the day or night, whenever work is being undertaken To copy from said records Question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of  the Labor Code and of  any labor law, wage order, or rules and regulation issued pursuant thereto.

5.

Q: Give 4 instances where the visitorial power of  the SLE may be exercised under the Labor Code.

Require Ers to keep and maintain such employment records as may be necessary in aid to the visitorial and enforcement powers Conduct hearings within 24 hours to determine whether: a. An order for stoppage of  work or suspension of  operations shall be lifted or not; and b. Er shall pay employees concerned their salaries in case the violation is attributable to his fault. (As amended  by  RA 7730; Guico v. Secretary, G.R. No. 131750, Nov.16, 1998)

Q: What are the violations under Art. 128? A: Power to: A: 1.

2.

3. 4.

Inspect books of  accounts and records of  any person or entity engaged in recruitment and placement, require it to submit reports regularly on prescribed forms and act in violations of  any provisions of  the LC on recruitment and placement. (Art. 37) Have access to employer’s records and premises to determine violations of  any provisions of  the LC on recruitment and placement. (Art. 128) Conduct industrial safety inspections of  establishments. (Art. 165) Inquire into the financial activities of  legitimate labor organizations (LLO) and examine their books of accounts upon the filing of  the complaint under oath and duly supported by the written consent of  at least 20% of  the total membership of  the LO concerned.

1.

2.

Obstruct, impede, delay or otherwise render ineffective the orders of the SLE or his authorized representatives Any government employee found guilty of, or abuse of  authority, shall be subject to administrative investigation and summary dismissal from service.

Q: What are the limitations to other courts? A: In relation to enforcement orders issued under Art. 128, no inferior court or entity shall: 1. 2.

Issue temporary or permanent injunction or restraining order or Assume jurisdiction over any case

Q: What are the instances when enforcement power may not be used? A:

Q: What is enforcement power?

1.

A: It is the power of the SLE to:

2.

1. 2.

3.

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Issue compliance orders Issue writs of  execution for the enforcement of  their orders, except in cases where the employer (Er) contests the findings of  the labor officer and raise issues supported by documentary proof  which were not considered in the course of inspection Order stoppage of  work or suspension of  operation when non‐compliance with the law or implementing rules and regulations poses grave and imminent danger to health and safety of  workers in the workplace

3.

Case does not arise from the exercise of  visitorial power When Er‐Ee relationship ceased to exist at the time of the inspection If  employer contests the finding of  the Labor Regulation Officer and such contestable issue is not verifiable in the normal course of inspection

b.Power to Suspend Effects of Termination‐Art. 277 (b), LC Q: Does the DOLE Secretary have the power to suspend the effects of termination? A: Yes, under Article 277 (b) of the Labor Code, the Secretary of  Labor may suspend the effects of  the termination pending resolution of the dispute in the event of  a prima facie finding by the appropriate

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

PROCEDURE AND JURISDICTION

official of  the Department of  Labor and Employment before whom such dispute is pending that the termination may cause serious labor dispute or is in implementation of a mass layoff.

7.VOLUNTARY ARBITRATORS

Q: Who will designate the voluntary arbitrator (VA)/panel in case the parties fail to select one? A: It is the NCMB that shall designate the VA/panel based on the selection procedure provided by the CBA. (Manila Central  Line Free Workers Union v. Manila Central  Line Corp., G.R. No. 109383,  June 15, 1998)

a.Submission Agreement Q: How is arbitration initiated? A: 1. 2.

Submission agreement   – Where the parties define the disputes to be resolved Demand  notice –  Invoking collective agreement arbitration clause

Q: Who is a voluntary arbitrator (VA)?

Q: May Labor Arbiters (LA) be designated as voluntary arbitrators (VA)? A: Yes. There is nothing in the law that prohibits LAs from also acting as VAs as long as the parties agree to have him hear and decide their dispute. (Manila Central  Line Free Workers Union v. Manila Central  Line Corp., G.R. No. 109383,  June 15, 1998) Q: What falls under the  jurisdiction of  Voluntary Arbitrators (VA)?

A: 1. 2. 3.

4.

Any person accredited by the NCMB as such Any person named or designated in the CBA by the parties to act as their VA One chosen with or without the assistance of  the NCMB, pursuant to a selection procedure agreed upon in the CBA Any official that may be authorized by the SLE to act as VA upon the written request and agreement of  the parties to a labor dispute. ( Art. 212 [n])

Q: What are the powers of a voluntary arbitrator?

A: Generally, the arbitrator is expected to decide only those questions expressly delineated by the submission agreement. Nevertheless, the arbitrator can assume that he has the necessary power to make a final settlement since arbitration is the final resort for the adjudication of  the disputes. (Ludo and  Luym Corp. v. Saornido, G.R. No. 140960, Jan. 20, 2003) Q: What cases are within the jurisdiction of VA? A: Original and exclusive jurisdiction over: 1.

All unresolved grievances arising from the: a. Implementation or interpretation of  the CBA b. Interpretation or enforcement of  company personnel policies

2.

Wage distortion issues arising from the application of  any wage orders in organized establishments

3.

Those arising from interpretation and implementation of  productivity incentive programs under R.A. 6971

4.

Violations of CBA provisions which are not gross in character are no longer treated as ULP and shall be resolved as grievances under the CBA

A: 1. 2. 3.

Hold hearings Receive evidence Take whatever action necessary to resolve the dispute including efforts to effect a voluntary settlement between parties. ( Art. 262‐ A)

Q: How is a voluntary arbitrator (VA)/panel chosen? A: 1.

2.

The parties in a CBA shall designate in advance a VA/panel, preferably from the listing of  qualified VAs duly accredited by the NCMB, or Include in the agreement a procedure for the selection of  such VA or panel of  VAs, preferably from the listing of  qualified VAs duly accredited by the NCMB. ( Art.260, par.3)

Note: Gross violation of CBA provisions shall mean flagrant and/or malicious refusal to comply with the economic provisions of  such agreement.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Any other labor disputes upon agreement by the parties including ULP and bargaining deadlock. (Art. 262)

A: GR: Decisions of VA are final and executory after 10 calendar days from receipt of  the copy of  the award or decision by the parties. (Art. 262‐ A)

Q: May the NLRC and DOLE entertain disputes/grievances/matters under the exclusive and original  jurisdiction of  the voluntary arbitrator?

XPNs: 1. Appeal to the CA via Rule 43 of  the Rules of  Court within 15 days from the date of  receipt of  VA’s decision. (Luzon Dev’t  Bank  v.  Ass’n of  Luzon Dev’t  Bank  Ee’s, G.R. No. 120319, Oct. 6, 1995) 2. If  decision of  CA is adverse to a party, appeal to the SC via Rule 45 on pure questions of law.

5.

A: No. They must immediately dispose and refer the same to the grievance machinery or voluntary arbitration provided in the CBA The parties may choose to submit the dispute to voluntary arbitration proceedings before or at the stage of compulsory arbitration proceedings. Q: What is the effect of  the award of  voluntary arbitrator (VA)? A: The decision or award of the VA acting within the scope of  its authority shall determine the rights of  the parties and their decisions shall have the same legal effects as  judgment of  the courts. Such matters on fact and law are conclusive. Q: Are both the employer and the bargaining representative of  the employees required to go through the grievance machinery in case a grievance arises? A: Yes, because it is but logical,  just and equitable that whoever is aggrieved should initiate settlement of  grievance through the grievance machinery. To impose compulsory procedure on employers alone would be oppressive of capital. Q: Who has  jurisdiction over actual termination disputes and complaints for illegal dismissal filed by workers pursuant to the union security clause? A: The Labor Arbiter and not the grievance machinery. Q: What is the nature of  the power of  a voluntary arbitrator? A: Arbitrators by the nature of  their functions, act in a quasi‐ judicial capacity (BP 129, as amended  by  R.A. 9702); where a question of  law is involved or there is abuse of discretion, courts will not hesitate to pass upon review of their acts. b.Rule 43, Rules of Court Q: Are decisions of  voluntary arbitrators (VAs) appealable?

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Note: A VA by the nature of her functions acts in quasi‐  judicial capacity. There is no reason why the VA’s decisions involving interpretation of  law should be beyond the SC’s review. Administrative officials are presumed to act in accordance with law and yet the SC will not hesitate to pass upon their work where a question of  law is involved or where a showing of  abuse of  authority or discretion in their official acts is properly raised in petitions for certiorari . (Continental  Marble Corporation v. NLRC, G.R. No. L‐43825, May  9, 1988)

Q: PSSLU had an existing CBA with Sanyo Phils., Inc. which contains a union security clause which provides that: “all members of  the union covered by this agreement must retain their membership in good standing in the union as condition of  his / her continued employment with the company.” On account of  anti‐union activities, disloyalty and for  joining another union, PSSLU expelled 12 employees (Ees) from the Union. As a result, PSSLU recommended the dismissal of  said Ees pursuant to the union security clause. Sanyo approved the recommendation and considered the said Ees dismissed. Thereafter, the dismissed Ees filed with the Arbitration Branch of  the NLRC a complaint for illegal dismissal. Does the voluntary arbitrator  jurisdiction over the case?

(VA)

have

A: No, the VA has no  jurisdiction over the case. Although the dismissal of  the Ees concerned was made pursuant to the union security clause provided in the CBA, there was no dispute whatsoever between PSSLU and Sanyo as regards the interpretation or implementation of  the said union security clause. Both PSSLU and Sanyo are united and have come to an agreement regarding the dismissal of  the Ees concerned. Thus there is no grievance between the union and management which could be brought to the grievance machinery. The dispute is between PSSLU and Sanyo, on the one hand, and the dismissed union members, on the other hand. The dispute therefore, does not

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM

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involve the interpretation or implementation of  a CBA. (Sanyo Philippines Workers Union‐PSSLU v. Canizares, G.R. No. 101619, July 8, 1992) Q: X was employed as telephone operator of  Manila Midtown Hotel. She was dismissed from her employment for committing the following violations of  offenses subject to disciplinary actions, namely: falsifying official documents and culpable carelessness‐negligence or failure to follow specific instructions or established procedures. X then filed a complaint for illegal dismissal with the Arbitration branch of  the NLRC. The Hotel challenged the  jurisdiction of  the Labor Arbitrator (LA) on the ground that the case falls within the  jurisdictional ambit of  the grievance procedure and voluntary arbitration under the CBA. Does the LA have jurisdiction over the case? A: Yes, the LA has  jurisdiction. The dismissal of  X does not call for the interpretation or enforcement of  company personnel policies but is a termination dispute which comes under the  jurisdiction of  the LA. The dismissal of  X is not an unresolved grievance. Neither does it pertain to interpretation of company personnel policy. (Maneja v. NLRC, G.R. No. 124013, June 5, 1998)

Darby’s counsel considered that issue as having dual aspects and intended in his own mind to submit only one of  those aspects to the VA, if  he did, however, he failed to reflect his thinking and intent in the arbitration agreement. (Sime Darby  Phils. v. Magsalin, G.R. No. 90426, Dec. 15, 1989) Q: Apalisok, production chief  for RPN Station, was dismissed due to her alleged hostile, arrogant, disrespectful, and defiant behavior towards the Station Manager. She informed RPN that she is waiving her right to resolve her case through the grievance machinery as provided in the CBA. The voluntary arbitrator (VA) resolved the case in the employees (Ees) favor. On appeal, the CA ruled in favor of RPN because it considered the waiver of  petitioner to file her complaint before the grievance machinery as a relinquishment of  her right to avail herself  of  the aid of the VA. The CA said that the waiver had the effect of  resolving an otherwise unresolved grievance, thus the decision of  the VA should be set aside for lack of  jurisdiction. Is the ruling of the CA correct? A: No. Art. 262 of  the Labor Code provides that upon agreement of the parties, the VA can hear and decide all other labor disputes.

Q: Sime Darby Salaried Employees (Ees) Association ‐ALU (SDSEA‐ALU) wrote petitioner Sime Darby Pilipinas (SDP) demanding the implementation of  a performance bonus provision identical to the one contained in their own CBA with SDP. Subsequently, SDP called both respondent SDEA and SDEA‐ALU to a meeting wherein the former explained that it was unable to grant the performance bonus. In a conciliation meeting, both parties agreed to submit their dispute to voluntary arbitration. Their agreement to arbitrate stated, among other things, that they were "submitting the issue of  performance bonus to voluntary arbitration."

Contrary to the finding of  the CA, voluntary arbitration as a mode of  settling the dispute was not forced upon respondents. Both parties indeed agreed to submit the issue of  validity of  the dismissal of  petitioner to the  jurisdiction of  the VA by the Submission Agreement duly signed by their respective counsels. The VA had  jurisdiction over the parties’ controversy.

Does the voluntary arbitrator (VA) have the power to pass upon not only the question of  whether to grant the performance bonus or not but also to determine the amount thereof?

8.COURT OF APPEALS

A: Yes, in their agreement to arbitrate, the parties submitted to the VA “the issue of  performance bonus.” The language of the agreement to arbitrate may be seen to be quite cryptic. There is no indication at all that the parties to the arbitration agreement regarded “the issue of  performance bonus” as a two‐tiered issue, only one tier of which was being submitted to arbitration. Possibly, Sime

The Ees waiver of  her option to submit her case to grievance machinery did not amount to relinquishing her right to avail herself  of  voluntary arbitration. (Apalisok v. RPN, G.R. No. 138094, May  29, 2003)

Q: Is  judicial review of  the NLRC’s decision available? A: Yes, through petitions for certiorari  (Rule 65) which should be initially filed with the CA in strict observance of  the doctrine on the hierarchy of  courts as the appropriate forum for the relief  desired. The CA is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of  its component divisions.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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(St. Martin Funeral Home v. NLRC, G.R. No. 130866, Sep. 16, 1998)

resolution appealed from. (Sea Power  Shipping Enterprises, Inc. v. CA, G.R. No. 138270,  June 28, 2001)

Note: Rule 65, Section 1, Rules of Court Note: Rule 45, Section 1, Rules of Court: Petition for Certiorari‐‐When any tribunal, board or officer exercising judicial or quasi‐ judicial functions has acted without or in excess of  its or his  jurisdiction, or with grave abuse of  discretion amounting to lack or excess of  jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of  law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that  judgment be rendered annulling or modifying the proceedings of  such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of  the  judgment, order or resolution subject thereof, copies of  all pleadings and documents relevant and pertinent thereto, and a sworn certification of  non‐forum shopping as provided in the third paragraph of section 3, Rule 46.

Q: Within what period should the petition for certiorari  be filed with the Court of Appeals? A: Under Section 4, Rule 65 (as amended by A.M. No. 00‐2‐03‐SC) of  the Rules of  Civil Procedure, the petition must be filed within sixty (60) days from notice of  the  judgment or from notice of  the resolution denying the petitioner’s motion for reconsideration. This amendment is effective September 1, 2000, but being curative may be given retroactive application. (Narzoles v. NLRC, G.R. No. 141959, Sep. 29, 2000) The period within which a petition for certiorari against a decision of  the NLRC may be filed should be computed from the date counsel of  record of  the party receives a copy of  the decision or resolution, and not from the date the party himself  receives a copy thereof. Article 224 of  the Labor Code, which requires that copies of  final decisions, orders or awards be furnished not only the party’s counsel of  record but also the party himself applies to the execution thereof  and not to the filing of  an appeal or petition for certiorari. (Ginete v. Sunrise Manning Agency, G.R. No. 142023, June 21, 2001)

Filing of  petition with Supreme Court.—A party desiring to appeal  by  certiorari  from a  judgment, final order or  resolution of  the Court  of   Appeals, the Sandiganbayan, the Court of  Tax  Appeals, the Regional  Trial  Court  or  other  courts, whenever  authorized  by  law, may  file with the Supreme Court  a verified  petition  for  review  on certiorari. The  petition may  include an application  for  a writ  of  preliminary  injunction or other  provisional  remedies and shall  raise only  questions of  law, which must  be distinctly  set   forth. The  petitioner  may  seek  the same  provisional  remedies by verified motion  filed in the same action or   proceeding at any time during its pendency.

Q: Give the policy of the Supreme Court regarding appeals in labor cases. A: The Supreme Court is very strict regarding appeals filed outside the reglementary period for filing the same. To extend the period of the appeal is to delay the case, a circumstance which could give the employer the chance to wear out the efforts and meager resources of  the worker that the latter is constrained to give up for less than what is due him. (Firestone Tire and  Rubber  Co. of  the Philippines v. FirestoneTire and  Rubber  Co. Employees Union, G.R. No. 75363, Aug. 4, 1992) 10.PRESCRIPTION OF ACTIONS Q: Give the rules as regards the prescriptive period provided for in the Labor Code (LC). A: SUBJECT Offenses penalized under the LC ULP

Money Claims

9.SUPREME COURT Q: How does a party appeal from a  judgment, or final order or resolution, of the Court of Appeals?

All money claims accruing prior to the effectivity of the LC

A: A party desiring to appeal may file with the Supreme Court a verified petition for review on certiorari under Rule 45 within fifteen (15) days from notice of  the  judgment, final order or

Workmen’s Compensation claims accruing prior to the

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PRESCRIPTIVE PERIOD 3 years One (1) year from accrual of such ULP; otherwise forever barred (Art. 290) 3 years from the time the cause of action accrued; otherwise forever barred Within one (1) year from the date of  effectivity, in accordance with IRR; otherwise, they shall forever be barred Dec. 31, 1974 shall be filed not later than Mar. 31, 1975 before the

LABOR LAW TEAM: ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM