Labor 22004

Labor law 2 ( Labor Relations )
Updated and enhanced with additional cases by ATTY. RENE CALLANTA

For the use of JJ JAMINOLA and other 2005 barristers
PART I INTRODUCTORY MATERIALS
Section 1. INTRODUCTION
1.1 STATUTORY SOURCE AND INTERPRETATION
Statutory provisions of the Labor Code are construed liberally in favor or EEs, unless otherwise intended by or patent from the language of the statute itself. (Caltex Filipino Managers and Supervisors Assistant vs. CIR)
1.2 DEFINITIONS
ER and EE Art. 212 : An ER Any person acting in the interest of the ER, directly or indirectly. The term shall not include any labor organization or any of its officers except when acting as an ER. EE Any person in the employ of an ER. The term shall not be limited to the EEs of a particular ER, unless this Code explicitly states. It shall include any individual whose work has ceased as a result or in connection with any current labor dispute or because of fair labor practice if he has not obtained any other substantially equivalent or regular employment. LABOR ORGANIZATION and LEGITIMATE LABOR ORGANIZATION 1. Art. 212 : Labor Organization Any union for association of EEs which exists for the purpose of collective bargaining or of dealing with Es concerning terms and conditions of employment. Legitimate Labor Organization Any labor organization duly registered with the DOLE that includes any branch or local. 2. A local chapter becomes a legitimate labor organization only upon submission of: A. Charter certificate within 30 days from its issuance by the laborfederation or national union. B. Constitution and by-laws, statement on set of officers, and books of accounts which are certified under oath by secretary or treasurer, and attended to by its president. (Phoenix Iron vs. Secretary of Labor and Employment) LABOR DISPUTE 1. Art. 212 : Any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of ER and EE. 2. What is the test to determine whether a labor controversy comes within the definition of labor dispute? It depends on whether it involves or concerns terms, conditions of employment or representation. (Azucena)
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1.3 LABOR RELATIONS POLICY

1. What is the policy of the state with respect to the trade unionism, collective bargaining and labor relations? It is the policy of the State to : A. Promote and emphasize the primacy of free Collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor and industrial disputes. B. Promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development. C. Promote the Enlightenment of workers concerning their rights and obligations as union members and as EEs. D. To provide an adequate administrative Machinery for the expeditious settlement of labor or industrial peace. E. To ensure a stable but dynamic and just Industrial peace. F. To ensure the participation of Workers in Decision and policy-making processes affecting their rights, duties and welfare. G. To encourage free trade Unionism and free collective bargaining. (Art. 263) Collective bargaining Negotiations towards a collective agreement designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. (Kiok Loy vs. NLRC) The Secretary of Labor shall have the power and duty to inquire into aspects of ER-EE relations concerning the promotion of harmony and understanding between the parties. (Art. 273) A line must be drawn between policies which are purely business-oriented and those which affect the rights of EEs. Workers and ERs shall, as far as practicable, be represented in decision and policymaking bodies of the government. The Secretary of Labor and Employment or his duly authorized representatives may call a tripartite conference of representatives of government, workers and EEs for the consideration and adoption of voluntary codes of principles designed to promote industrial peace or to align labor movement relations with established priorities in economic and social development. (Art. 275) (ME vs. CUPID)
Section 2. RIGHT TO SELF- ORGANIZATION

2.1 CONSTITUTIONAL BASIS OF RIGHT 1. Art. III, Sec. 8, Const . : The right of the people, including those employed in the public or private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
* IMPLICATION of phrase for purposes not contrary to law: -The right is subject to legislative discretion.
2. Art. XIII, Sec. 3, Const. : The State shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities including the right to strike in accordance with law. 2.2 COVERAGE (STATUTORY BASIS)

I. Art. 243 : Coverage and EEs right to self-organization 1. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions --- whether operating for profit or not, shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for purposes of collective bargaining. 2. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without definite ERs may form labor organizations for their mutual aid and protection. II. Art. 244 : Rights of EEs in the public service 1. EEs of government corporations established under the Corporation Code shall have the right to organize and bargain collectively with their respective ERs. 2. All other EEs in the civil service shall have the right to form associations for the purposes not contrary to law. The right does not apply to members of the AFP including police officers, policemen, firemen, and jail guards. High-level EEs doing policy making, managerial or confidential duties are not eligible to join the rank-and-file organization. Government EEs covered by EO #180 may organize, even unionize, can negotiate but NOT BARGAIN, on matters not fixed by law. Cannot strike. TAKE NOTE: -The labor code is silent as to the right to strike of employees of GOCCs established under the corporation code. But it expressly grants the right to collectively bargain and to organize. -- The labor code is silent as to right to strike and bargain collectively of employees in the civil service. Anyway, the civil service employees are not under the coverage of the Labor Code. III. Art. 245 : 1. Managerial EEs are not eligible to join, assist, or form any labor organization. Take note: labor organization is a term that is strictly defined it should be for the purpose of collective bargaining concerning terms and conditions or dealing with employment concerning terms and condition of employment. Take note the law did not say that they cannot form an association, what the law said is that they cannot form a labor organization 2. Supervisory EEs shall not be eligible for membership in a labor organization of the rank-and-file EEs but may join, assist or form separate labor organizations of their own. * Is Art. 245 a violation of the right to self-organization of managerial employees? No, they are not deprived of the right to organize. Just like any right, the right to SO is not an absolute right. It is subject to police power and certain limitation. And in any case, the mangers still have the right to organize and form associations for their mutual aid and protection. Remember that the right to join, form, assist organization and associations should be exercised for purposes not contrary to law. It is subject to legislative discretion.

National Union of Bank Employees v. Minister of Labor (110 SCRA 374) 1981 The SC quotes Bureau of Labor Relations Director Noriel: The rights of workers to elforganization finds general and specific guarantees. -Section 7 Article IV (1973) Constitution provides that the right to form associations or societies for purposes not contrary to law shall NOT BE ABRIDGED. This right is more pronounced in the case of labor. -Section 9, Article II (1973) specifically declares that the State shall assure the rights of workers to self-organization, collective bargaining, security of tenure and just and humane conditions of work. Such constitutional guarantees should not be lightly taken much less easily nullified. A healthy respect for the freedom of association demands that acts imputable to officers or members be not easily visited with capital punishments against the association itself. 2.3 EXTENT AND SCOPE OF RIGHT I. Art. 246 : Non-abridgement of right to self-organization It shall be unlawful for any person to : 1. Restrain 2. Coerce 3. Discriminate against or 4. Unduly interfere with EEs and the workers in their exercise of the right to self-organization Such right shall include the right: -to form, join or assist labor organizations -for the purpose of collective bargaining -through representatives of their own choosing and (take note: the phrase underlined is the policy behind certification of election) -to engage in lawful concerted activities -- for the same purpose or for their mutual aid and protection, -subject to the provisions of Art 264 of this Code. II. The right to self-organization includes the right not to form or join a union (Reyes vs. Trajano) However, by virtue of the operation or enforcement of a closed shop clause in a CBA, an EE may be compelled on pain of dismissal, to become a member of a labor union. (Alcantara) Reyes v. Trajano , 209 SCRA 484 (92) Guaranteed to all employees or workers is the "right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining." This is made plain by no less than three provisions of the Labor Code of the Philippines: Article 243 , Article 248 (a) , Article 249 (a). The right of self-organization include: a. the right to organize or affiliate with a labor union or b. determine which of two or more unions in an establishment to join, and c. to engage in concerted activities with co-workers for purposes of collective bargaining through representatives of their own choosing, or for their mutual aid and protection, i.e., the protection, promotion, or enhancement of their rights and interests. Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign from a labor organization, is subsumed in the right to join, affiliate with, or assist any union, and to maintain membership therein. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right.

It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. The fact that a person has opted to acquire membership in a labor union does not preclude his subsequently opting to renounce such membership. As early as 1974 this Court had occasion to expatiate on these self-evident propositions in Victoriano v. Elizalde Rope Workers' Union, et al., viz.: ". . . What the Constitution and Industrial Peace Act recognize and guarantee is the 'right' to form or join associations. Notwithstanding the different theories propounded by the different schools of jurisprudence regarding the nature and contents of a 'right,' it can be safely said that whatever theory one subscribes to,: a right comprehends at least two broad notions, namely: 1) first, liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by law; 2) second, power, whereby an employee may, as he pleases, join or refrain from joining an association.
It is therefore the employee who should decide for himself whether he should join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. It is clear, therefore, that the right to join a union includes the right to abstain from joining any union Central Negros Electric Cooperative vs Secretary of Labor , 201 SCRA 584 (1991) In addition, membership in the cooperative is on a voluntary basis. Hence, withdrawal therefrom cannot be restricted unnecessarily. The right to join an organization necessarily includes the equivalent right not to join the same. The right of the employees to self-organization is a compelling reason why their withdrawal from the cooperative must be allowed. As pointed out by CURE, the resignation of the memberemployees is an expression of their preference for union membership over that of membership in the cooperative. The avowed policy of the State to afford full protection to labor and to promote the primacy of free collective bargaining mandates that the employees' right to form and join unions for purposes of collective bargaining be accorded the highest consideration. National Federation of Labor v. Secretary of Labor , 287 SCRA 599 (1998) It is essential that the employees must be accorded an opportunity to FREELY and INTELLIGENTLY determine which labor organization shall act in their behalf. The complaint in this case was that a number of employees were not able to cast their votes because they were not properly notified of the date. They could not therefore have filed their protests within five (5). At all events, the Solicitor General States, that the protests were not filed within 5 days, is a mere technicality which should not be allowed to prevail over the workers welfare. It is essential that the employees must be accorded an opportunity to FREELY and INTELLIGENTLY determine which labor organization shall act in their behalf. The workers in this case were denied this opportunity. Not only were a substantial number of them disfranchised, there were, in addition, allegation of fraud and other irregularities which put in question the integrity of the election. Workers wrote letters and made complaints protesting the conduct of the election. The report of Med-arbiter Pura who investigated these allegations found the allegations of fraud and irregularities to be true. The workers right to self-organization as enshrined in both the Constitution and the Labor Code would be rendered nugatory if their right to choose their collective bargaining representative were denied. Indeed, the policy of the Labor Code favors the holding of a

certification as the most conclusive way of choosing the labor organization to represent workers in a collective bargaining unit. In case of doubt, the doubt should be resolved in favor of holding a certification of election. III. May an ER impose as condition for employment that the applicant shall not join a labor organization or shall withdraw from the one he belongs to? No. Such a condition partakes of the nature of a yellow dog contract and constitutes an unfair labor practice. It is interference with the individuals right to self-organization. (Alcantara) 2.4 WORKERS WITH RIGHT TO SELF-ORGANIZATION FOR PURPOSES OF
COLLECTIVE BARGAINING
All EEs 1. Art. 243 : All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for purposes of collective bargaining. 2. The Macho hair Saloon refused to bargain with the union of the barbershop composed of 8 barbers on the ground that the shop was a service establishment and the number of the barbers was less than 10. Is the contention tenable? No. The law does not fix the minimum number of EEs for the exercise of the right to self-organization and the right extends to all types of establishments. (Alcantara) 3. The faculty members of a non-profit school converted their club into a labor union. Is this allowed? Yes. Even EEs in non-profit or religious organizations are entitled to exercise this right. (Alcantara) FEU-DNRMF, Inc. v FEU-DNRMF Alliance of Fil Workers(152 SCRA 725) 1987 Under the Art. 244 provision, there is no doubt that rank and file employees of non-profit medical institutions (as herein petitioner) are now permitted to form, organize or join labor unions of their choice for purposes of collective bargaining. A. RELIGION The right of the members of the Iglesia ni Kristo sect not to join a labor union for being contrary to their religious beliefs does not bar the members of that sect from forming their own union. (Kapatiran vs. Calleja) GOVERNMENT CORPORATION EES Art. 244 : Rights of EEs in the public service EEs of government corporations under the Corporation Code shall have the right to organize and bargain collectively with their respective ERs.
SUPERVISORS 1. Art. 245 : Supervisory EEs shall not be eligible for membership in a labor organization of the rank-and-file EEs but may join, assist or form separate labor organizations of their own. [Supervisory EEs] Those, who, in the interest of the ER, effectively recommend such managerial actions if in the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. ( Art. 212) The criterion which determines whether a particular EE is within the definition of a statute is the character of the work performed rather than the title or nomenclature of position held. (NSRC vs. NLRC)

Professional/Technical EEs may join the existing rank and file union or form a union separate and distinct from the existing union organized by the rank and file EEs of the same company. 3. If the recommendation of the teacher area supervisor is subject to evaluation, review and final approval of the principal, is the teacher a supervisory EE? No. This is merely ineffective or clerical recommendation. (Laguna Colleges vs. CIR) 4. Supervisors were given the job of either to assist the foreman if the effective dispatch of manpower and equipment or execute and coordinate work plans emanating from his supervisors. Are these supervisors supervisory personnel? No. They only execute approved and established policies leaving little or no discretion at all whether to implement the said policies or not. (Southern Philippines Federation vs. Calleja) CONFIDENTIAL EMPLOYEES assist or act in confidential capacity to persons who formulate, determine and effectuate management policies in the field of labor relations are ineligible to join rank-and-file union Assist management Access labor management relations information (NOT trade secrets). If not may join. The confidential relation must exist between the EE and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations Fil-oil v. Fil-oil Supervisory & Confidential Employees Associaton (46 SCRA 512) 1972 ISSUE: WON supervisors form part of management and are not considered as employees entitled to bargain collectively? 1) As stated for the Court by the now Chief Justice in AG & P Co. of Manila, Inc. vs. C.I.R., 8 section 3 of the Industrial Peace Act "explicitly provides that 'employees' and this term includes supervisors 'shall have the right to self-organization, and to form, join or assist labor organizations of their own choosing for the purpose of collective bargaining through representations of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection' and that 'individuals employed as supervisors . . . may form separate organizations of their own'. 2) Indeed, it is well settled that IN RELATION TO HIS EMPLOYER,' a foreman or supervisor 'is an employee within the meaning of the Act' . . . For this reason, supervisors are entitled to engage in union activities and any discrimination against them by reason thereof constitutes an unfair labor practice." 3) This further serves to point up the validity and rationale of the Industrial Peace Act's provision, since the supervisors and confidential employees, even though they may exercise the prerogatives of management as regards the rank and file employees are indeed employees in relation to their employer, the company which is owned by the "stockholders and bondholders (capital)" in petitioner's own words, and should therefore be entitled under the law to bargain collectively with the top management with respect to their terms and conditions of employment. 4) The other principal ground of petitioner's appeal questioning the confidential employees' inclusion in the supervisors' bargaining unit is equally untenable. Respondent court correctly held that since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis-a-vis the rank and file employees, such identity of interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes of collective bargaining in turn as employees in relation to the company as their employer.

National Sugar Refineries Corp v NLRC (220 SCRA 452) 1993 It is the submission of petitioner that while the members of respondent union, as supervisors, may not be occupying managerial positions, they are clearly officers or members of the managerial staff because they meet all the conditions prescribed by law and, hence, they are not entitled to overtime, rest day and supervisory employees under Article 212 (m) should be made to apply only to the provisions on Labor Relations, while the right of said employees to the questioned benefits should be considered in the light of the meaning of a managerial employee and of the officers or members of the managerial staff, as contemplated under Article 82 of the Code and Section 2, Rule I Book III of the implementing rules. 1) 2) In other words, for purposes of forming and joining unions, certification elections, collective bargaining, and so forth, the union members are supervisory employees. In terms of working conditions and rest periods and entitlement to the questioned benefits, however, they are officers or members of the managerial staff, hence they are not entitled thereto.
Paper Industries Corporation of the Philippines v. Laguesma (330 SCRA 295) 2000 HELD: United Pepsi cola ruling was adopted here: Managerial employees are ranked as Top managers, Middle managers and First Line Managers. Top and Middle Managers have the authority to devise, implement and control strategic and operational policies while the task of First-Line Managers is simply to ensure that such policies are carried out by the rank-and-file employees of an organization. Under this distinction, managerial employees therefore fall in two (2) categories, namely, -the managers per se composed of Top and Middle Managers, and the -supervisors composed of First-Line Managers. Thus, the mere fact that an employee is designated manager does not ipso facto make him one. Designation should be reconciled with the actual job description of the employee, for it is the JOB DESCRIPTION that determines the nature of employment. In this case, a thorough dissection of the job description of the concerned supervisory employees and section heads indisputably show that they are NOT actually managerial employees BUT ONLY supervisory employees SINCE THEY DO NOT LAY DOWN COMPANY POLICIES. PICOPs contention that the subject section heads and managers exercise the authority to hire and fire is ambiguous and quiet misleading for the reason that any authority they exercise is NOT SUPREME but merely ADVISORY in character. Theirs is not a FINAL DETERMINATION of the company policies inasmuch as any action taken by them on matters relative to hiring, promotion, transfer, suspension and termination of employees is still subject to confirmation and approval by their respective superior. Thus, where such power, which is in effect RECOMMENDATORY in character, is SUBJECT TO EVALUATION, REVIEW, and FINAL ACTION by department heads and other higher executives of the company. The same, although present, is not effective and not an exercise of INDEPENDENT JUDGMENT as required by law. Samson v. NLRC (330 SCRA 460) 2000 FACTS: In this case, petitioner was being dismissed for uttering insults and offensive words, referring to or directed against Scheing-Plough Corporations Management Committee. HELD: Given the environmental circumstances of this case, the acts of petitioner clearly do not constitute serious misconduct as to justify dismissal. Neither is his dismissal justified o the ground of loss of confidence. As a ground for dismissal, the term trust and confidence is restricted to managerial employees. Petitioner is not a managerial employee. What is the test in considering whether one is a managerial employee or not?

Before one may be properly considered a managerial employee, all the following conditions must be met: 1. Primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; 2. They customarily and regularly direct the work of two or more employees therein; 3. They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight. * It is the nature of the employees function and not the nomenclature or title given to his job, which determines whether he has rank-and-file, supervisory or managerial status. position-holder a manager or a supervisor. But to make one a supervisor, the power to recommend must not be merely routinary or clerical in nature but requires the use of independent judgment. In other words, the recommendation is: 1discretionary or judgmental (not clerical) 2independent (not a dictation of someone else) 3effective(given particular weight in making management decision) If these qualities are lacking, or worse, if the power to recommend is absent, then the person is not really a supervisor but a rank-and-file EE and therefore belongs or should belong to a R & F organization. Similarly, a so-called manager, regardless of impressive title is not really a manager in the eyes of the law, if he does not possess managerial powers to make policy decisions or people decisions (to lay down and execute management policies and/ or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employee). If he can only recommend the exercise of any of these powers, he is a supervisor, hence, may join, assist or form a supervisors organization. Worse, if he cannot even recommend those acts, or his recommendation is not independent, he is not even a supervisor but a rank-and-file employee, regardless of position, title, perquisites, or seniority. A. RIGHT TO ORGANIZE and LIMITATION 1. A supervisory union cannot represent the professional/technical and confidential EEs whose positions are more of the rank and file than supervisory. The professional/technical EEs may join the existing rank and file union, or form a union separate and distinct from the existing union organized by the rank and file EEs. The intent of the law is to avoid a situation where supervisors would merge with the rank and file, or where the supervisors labor organization would represent conflicting interests. (Philippine Phosphate vs. Torres) 2. The union of supervisory personnel affiliated with a national federation. The local union of rank and file was also affiliated with the said national federation. Is this allowed? No. A local supervisors union should not be allowed to affiliate with a national federation of union of rank and file EEs. Supervisors should be given an occasion to bargain together with the rank and file against the interests of the ER regarding terms and conditions of employment. (Atlas Litographic vs. Laguesma) The powers of the position, not the title, make the

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This prohibition against affiliating with the same federation applies only when this 2 conditions are present: 1R & F EEs are directly under the authority of the supervisory EEs 2The national federation is actively involved in union activities in the company
ALIENS Art 269 Prohibition Against Aliens; exceptions All aliens, natural or juridical, as well as foreign organizations are strictly PROHIBITED from engaging directly or indirectly in all forms of activities
trade union
without prejudice to normal contacts between Philippine labor unions and recognized international labor centers; Provided, however, that aliens working in the country with VALID PERMITS issued the DOLE may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining ; Provided, further, that said aliens are nationals of a country which grants the same or similar rights to Filipino workers. Take note : Aliens, generally, have no right to self organize for purpose of collective bargaining unless 1. They have valid permits 2. Reciprocity: That said aliens are nationals of a country which grants the same or similar rights to Filipino workers SECURITY GUARDS Manila Electric vs Secretary of Labor , 197 SCRA 275 (1991) Executive Order 111, promulgated in 1986 has eliminated the disqualification of security guards from forming labor unions. They may now join a rank and file organization. The disqualification in article 245 with regards to supervisory employees does not include security guards. . The implementing rules which disqualify security guards from joining rank and file organization are null and void for being not germane to the object and purposes of EO 111. Rule-making power is always subordinate to the law from which it proceeds. 2.5 WORKERS WITH NO RIGHT OF SELF-ORGANIZATION A. MANAGERIAL AND CONFIDENTIAL EES 1. Art. 245 : Managerial EEs are not eligible to join, assist, or from any labor organization. [Managerial EEs Those whose primary duty consists of the management of the establishment of which they are employed or of a department or subdivision thereof, and to other officers and members of the managerial staff. (Art. 82)] Take note: As stated in National Sugar Refineries Corp v NLRC, The definition of a managerial employee in Labor relations (Art. 212) is NOT exactly the same as the definition under labor standards (Art. 82). Art. 82 is much broader in scope, while Art. 212 is much narrower in scope and much more strictly construed 2. The nature of the job determines whether the EEs fall under the definition of managerial. A managerial EE is one who is vested with powers of prerogatives to lay down and execute management policies and/or hire, transfer, suspend, lay-off, recall discharge, assign or discipline EEs or to effectively recommend such managerial actions. (SPFL vs. Calleja) The rationale for this is that the union is not assured the

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loyalty of managerial EEs in view of evident conflict of interests or that the union can become company-dominated with the presence of managerial EEs in the membership. (Golden Farms vs. Calleja) 3. Confidential EEs are also prohibited from forming unions. (Pier8 Arrastre vs. Confesor) Having access to confidential information, they may become a source of undue advantage. They may act as spies of either party to a CBA. These include accounting personnel, radio and telephone operators and confidential secretaries. (Golden Farms vs. Calleja) Criteria to determine who are Confidential Employees:-1) Assist or act in a confidential capacity, (this means that the confidential nature of his job is not only incidental) 2) To persons who formulate, determine, and effectuate management policies in the field of labor relations. * The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employeeThat is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. RATIONALE: The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the confidential employee rule. The broad rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. * Management should not be required to handle labor matters through employees who are represented by the union with which the company is required to deal and who in the performance of their duties may obtain advance information of the companys position with regard to contract negotiations, the disposition of grievances, or other labor relations matter. An important element of the confidential employee rule is: -the employees need to use labor relations information. Thus, in determining the confidentiality of certain employees, a key question frequently considered is the employees necessary access to confidential labor relations information. It is evident that whatever confidential data the questioned employees may handle will have to relate to their functions. From the foregoing functions, it can be gleaned that the confidential information said employees have access to concerns the employers internal business operations. BUT TAKE NOTE: An employee may not be excluded from appropriate bargaining unit merely because he has access to confidential information concerning employers internal business operations and which is NOT RELATED to the field of labor relations.
It must be borne in mind that Section 3 of Article XIII of the 1987 Constitution mandates the State to guarantee to all workers the right to self-organization. Hence, confidential employees who may be excluded from bargaining units must be STRICTLTY DEFINED so as not to needlessly deprive many employees of their right to bargain collectively through representatives of their choosing.

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Will the fact that the employer has access to information, automatically prohibit confidential employees from joining a labor organization? NO. Information has to be related to labor relations. If access is merely incidental, you cannot classify them as confidential employees. Thus a phone operator or driver cannot be classified as a confidential employee for the purpose of excluding them from joining a union. Take note that it is the policy of the law to encourage self-organization, thus the coverage of its application and scope must necessarily be broad. Thus if you have to limit it, the limitation must strictly be construed and well justified. 4. The major patrons duties include taking complete charge and command of the ship and performing the responsibilities of the ship captain; the minor patron also commands the vessel, plying the limits of island waterway, ports and estuaries. Are they eligible to join or form a union? No. The exercise of discretion and judgment in directing a ships course is managerial in nature. (Association of Marine Officers vs. Laguesma) PROHIBITION AND RATIONALE Metrolab Industries, Inc. v. Roldan-Confesor (254 SCRA 182) 1996 FACTS: Employees involved in the controversy include Executive Secretaries of the companys officers. Can they join the labor union? HELD: NO, they are confidential employees. Although Article 245 of the Labor Code limits the ineligibility to join, form and assist any labor organization to managerial employees, JURISPRUDENCE HAS EXTENDED this prohibition to confidential employees or those who by reason of their position or nature of work are required to assist or act in a FIDUCIARY manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records. The RATIONALE behind the exclusion of confidential employees from the bargaining unit of the rank and file employees and their qualification to join any labor organization was succinctly discussed in Philips Industrial Development v. NLRC (219 SCRA 229/ 1992): NLRC committed grave abuse of discretion in decreeing hat a PIDIs Service Engineers, Sales Force, Division Secretary, all Staff of General Management, Personnel and Industrial Relations Department, Secretaries of Audit, EDP and Financial systems are included within the rank and file bargaining unit. In the first place, all these employees, with the exception of the service engineers and the sales force personnel, are confidential employees. By the very nature of their functions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. As such, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them. The rationale for inhibition or prohibition against MANAGERIAL EMPLOYEES joining unions: The rationale for this inhibition has been stated to be, because is these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of EVIDENT CONFLICT OF INTERESTS. The Union can also become company-dominated with the presence of managerial employees in Union membership. This rationale holds true also for confidential employees who have access to confidential information (example: accounting personnel, radio and telegraph operators), since this confidential information may be a source of undue

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advantage. Said employees may act as a spy or spies of either party to a collective bargaining agreement. In the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representative, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. If confidential employees could unionize in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. Moreover, unionization of confidential employees for the purpose of collective bargaining would mean the extension of the law to persons or individuals who are supposed to act in the interest of the employers. It is not far fetched that in the course of collective bargaining, they might jeopardize that interest which they are duty-bound to protect. Finally, confidential employees cannot be classified as rank and file. As previously discussed, the nature of employment is quite distinct from the rank and file, thus warranting a separate category. Therefore it is not discrimination to exclude them from bargaining unit of rank and file. Manila Electric Co. v. Quisumbing (302 SCRA 173) 1999 The confidential employees do not share in the same community of interest that might otherwise make him eligible to join his rank and file co-worker, precisely because of a conflicting in those interests. Thus employees holding a confidential position are prohibited from joining the union of the rank and file employees. Pepsi-Cola Products Philippines, Inc. v. Secretary of Labor (312 SCRA 104) 1999 The confidential employees involved in this case are Credit & Collection Managers and Accounting Managers. DOCTRINE OF NECESSARY IMPLICATION: what is implied in a statute is as much a part thereof as that which is expressed. In applying the DOCTRINE OF NECESSARY IMPLICATION, the Court took into consideration the RATIONALE behind disqualification of managerial employees expressed in Bulletin Publishing Corporation v. Sanchez, thus In the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representative, and to see to it that its interest are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. If confidential employees could unionize in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. B. WORKER/MEMBER OF COOPERATIVE The right to forming or joining a labor organization for purposes of collective bargaining is not available to an EE of a cooperative who at the same time is a member and co-owner thereof. It is the fact of ownership of the cooperative and not the involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative with respect however, to EEs who are neither members or co-owners, they are entitled to the rights of self-organization for purposes of collective bargaining (Benguet Electric vs. Ferrer-Calleja). However, a member/owner has the right to withdraw as owner of the cooperative for purposes of joining the union (Central Negros Electric vs. Of DOLE). COOP MEMBERS

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An EE of a cooperative who is also a member and co-owner cannot invoke the right to collective bargaining, for certainly an owner cannot bargain with himself or his coowners. However, insofar as it involves cooperatives with EEs who are not members or coowners thereof, such EEs are entitled to exercise the rights of all workers to organization, collective bargaining negotiations and other rights as are enshrined in the Constitution and existing laws of the country. (San jose coop vs. MOLE , 1989) But even as regards the EEs who are members of the co-operative, their incapacity to bargain does not stop them from forming their organization which is not a union. Its purpose is not to collectively bargain but to extend aid and protection to its members. Purely EEs of the coop may join or organize Cooperative Rural Bank of Davao vs Ferrer-Calleja (165 SCRA 725) 1988 HELD: Under PD 175, a COOPERATIVE is an organization composed of small producers and of consumers who voluntarily join together to form business enterprises which they themselves, own, control and patronize. A cooperative is different from an ordinary business concern. Its owners or members are the ones who run and operate the business while the others are its employees. An employee of such a cooperative who is a member and co-owner cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners. However, insofar as it involves cooperatives with employees who are NOT members or coowners thereof, certainly such employees are entitled to exercise the rights of all workers to organization, collective bargaining negotiations, and others as are enshrined in the Constitution and existing laws of the country. C. NON-EES Art. 243 : Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without definite ERs may form labor organizations for their mutual aid and protection. However, they are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. RPB General Services Employees Union v. Laguesma (264 SCRA 637) 1996 HELD: If union members are not employees, no right to organize for the purpose of bargaining, not to be certified as bargaining agent can be recognized. Since the persons involved are not employees of the company, they are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. (Ruling based on Singer Sewing Machine Company v. Drilon; digest is provided below) Singer Sewing Machine Company vs Drilon (193 SCRA 270) 1993 HELD: SC found that there existed NO employer-employee relationship between the parties primarily because the element of the control test is not satisfied by the terms and conditions of the contracts. There is nothing in the agreement which implies control by the company not only over the end to be achieved but also over the means and methods in achieving the end. If union members are not employees, there exists no right to organize for purposes of bargaining nor to be certified as a bargaining agent. It is a fundamental and essential condition that the bargaining unit be composed of employees. Failing this, the union becomes illegal. 2.6 PARTY PROTECTED

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It is well-settled doctrine that the benefits of a CBA extend to the laborers and EEs in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organization. Mactan Workers Union vs Aboitiz , 45 SCRA 577 (1972) HELD: CBA constitutes the law between the parties. The benefits of the CBA extend to the employees in the collective bargaining unit. The labor union who won as sole bargaining agent of the employees does not act for its members alone. It represents all the employees in such a bargaining unit. The members of Mactan are therefore entitled to the bonuses. Furthermore, what is entitled to protection is labor, not the labor organization. The latter are merely instrumentalities through which their welfare may be promoted and fostered. 2.7 SANCTIONS FOR VIOLATION OF RIGHT Art. 246 : Non-abridgment of the right to self-organization It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join or assist labor organizations for the purposes of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Art. 265 of this Code. Art. 248 : Unfair labor practices of employers--It shall be unlawful for an employer to commit any of the following unfair labor practice: a. To interfere with, restrain or coerce employees in the exercise of their right to selforganization; b. To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; c. To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to selforganization; d. To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization including giving of financial or other support to it or its organizers or supporters; e. To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective agreement: -Provided, that the individual authorization required under Art. 242 paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; f. To dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;

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g. To violate the duty to bargain collectively as prescribed by this Code; h. To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or i. To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. Art. 249 : Unfair labor practices of labor organization --It shall be unfair labor practice for a labor organization, its officers, agents or representatives: a. to restrain or coerce employees in the exercise of their rights to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; b. to cause or attempt to cause and employer to discriminate against an employee, including -discrimination against an employee with respect to whom membership in such organization has been denied or -to terminate an employee on any ground other that the usual terms and conditions under which membership or continuation of membership is made available to other members; c. to violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; d. to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, I the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations e. to ask for or accept negotiations or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or f. to violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, -ONLY the officers, members of governing boards representatives or -agents or -members of labor organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. 1. Art. 288 : Penalty Fine of not less than P1,000.00 nor more than P10,000.00 Imprisonment of not less than 3 months nor more than 3 years, or Both, at the discretion of the court.
In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service. Any provision of the law to the contrary notwithstanding any criminal offense punished under this Code shall be under the concurrent jurisdiction of the Municipal or City Courts and the RTC. 2. Art. 289 : If the offense is committed by a corporation, trust, firm, partnership, association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity.

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Section 3. LABOR ORGANIZATION

3.1 POLICY Sec. 211 : It is a policy of the State to : 1. Promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development. 2. Foster the free and voluntary organization of a strong and united labor movement. From the commentaries : If labor unions are to serve and protect the interest of the workers, then the unions themselves must be sufficiently strong and stable to be able to fulfill effectively their assigned role in society. It is also incontrovertible that in such a regime of collective bargaining it is essential that the negotiations be conducted between parties of relatively equal strength. 3.2 LABOR ORGANIZATION - UNIONS Art. 211. Declaration of policy---It is the policy of the State: (g) To ensure the participation of workers in -decision and policy-making processes -affecting their rights, duties and welfare. DEFINITIONS A. LABOR ORGANIZATION Art. 212 : Any union or association of EEs which exist for the purpose of collective bargaining or of dealing with ERs concerning terms and conditions of employment. Labor Organization v. Workers Organization LABOR ORGANIZATION WORKERS ORGANIZATION Composition: Employees Composition: Employees Purpose: collective bargaining or of Purpose: organized for mutual aid and dealing with employers concerning terms protection of its members or for any other and conditions of employment. legitimate purpose other than collective bargaining Airline Pilots Association of the Philippines v. CIR RA 875 defines labor organization as any union or association which exists, in whole or in part, for the purpose of collective bargaining. There is no condition to the statutory concept of a labor organization as being limited to the employees. MIXED MEMBERSHIP Dunlop v. Sec. of Labor , 200 SCRA 120 (1998) A labor Organization composed of both rank and file and supervisory employees is no labor organization at all. It cannot possess the rights of a legitimate labor organization. Toyota v. Toyota : 268 SCRA 573 (1997) HELD: Clearly based on Art. 245 (Ineligibility of managerial employees to join any labor organization; right of supervisory employees), a labor organization composed of both rank-and-

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file and supervisory employees is no labor organization at all. It cannot, for any guise or purpose be a legitimate labor organization. RATIONALE of Codes exclusion of supervisors from unions of rank-and-file employees: is that such employees, while in the performance of supervisory functions, become the alter ego of management in the making and the implementing of key decisions at the submanagerial level. Certainly it would be difficult to find unity or mutuality of interests in a bargaining unit consisting of a mixture of rank-and-file and supervisory employees. TAKE NOTE: A legitimate labor organization is technically defined by the code in such a way that it has a designated purpose, which is to bargain collectively. Thus for it to bargain efficiently and effectively it must be an appropriate bargaining unit, meaning that it shares mutuality of interest among members of the unit. Thus if it is composed of supervisor and rank-and-file, who inherently do not share mutuality of interests, then it cannot serve the purpose of a legitimate labor organization, thus it is no LLO at all. B. LOCAL UNION Sec. 1, Rule I, Book V, IRRs : Any labor organization operating at the enterprise level. C. NATIONAL UNION FEDERATION Sec. 1, Rule I, IRRs : Any labor organization with at least 10 locals or chapters each of which must be duly recognized bargaining agent. D. LEGITIMATE LABOR ORGANIZATION Art. 212 : Any labor organization duly registered with the DOLE, and includes any branch or local thereof. D.1 DOLE REGISTRATION BASIS A labor organization acquires legitimacy only upon registration with the DOLE. (Progressive Development vs. Secretary of Labor and Employment) A SEC registration cannot suffice. (Cebu Seamens Association vs. Ferrer-Calleja) * A branch or local of a Legitimate Labor organization DOES NOT become a legitimate labor organization simply by affiliating itself . The rules require certain requirements to avoid fraud. E. COMPANY UNION Art. 212 : Any labor organization whose information, function or administration has been assisted by any act defined as ULP by this Code. * A company union is not really a union contemplated by law since it violates the provisions of Article 248. Dept. Order No. 9 Book 1, Sec. 1
(h) Labor organization -means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or for dealing with employers concerning terms and conditions of employment (i) Legitimate labor organization -means any labor organization defined under letter (h) which is duly registered w/ the Dept. The term includes a local/chapter directly chartered by a federation or national union w/c has been duly reported to the Dept. in accordance w/ Rule 6, sec. 2 of this Book

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(j) Workers Association -means any association of workers -organized for mutual aid and protection of its members or -for any other legitimate purpose other than collective bargaining *** This is a new concept. (k) Independent Union -means any labor organization -operating at the enterprise level -whose legal personality is derived through an independent action for registration prescribed under A.234 of this Code and R3, sec. 2 of these Rules. -An independent union may be affiliated w/ a federation, national or industry union, in which case it may also be referred to as an affiliate (l) Local union/chapter means any labor org. -operating at the enterprise level -whose legal personality is derived through the issuance of a charter by a duly registered federation or national union, -subject to the reporting requirements prescribed in R6, sec. 1 of these Rules. (m) National union/federation means any labor org. -with at least 10 locals/chapter or affiliates -- each of which must be a duly certified or recognized collective bargaining agent A FEDERATION: is union composed by INDEPENDENT UNIONS. An independent union is a labor organization with a legal personality which is derived through an independent action for registration. The provision requires that the 10 affiliates of the federation must be duly certified or recognized bargaining agents. This means that they must have been elected in a certification election, and they must be legitimate labor organizations by themselves. Why 10 affiliates? 10 is an arbitrary number. The purpose was so that it will not be easy to form a federation. The old policy of the law was 1 industry = 1 union. But now the new policy of the law is the formation of a Strong and United Labor Union. (n) Legitimate workers association -means any workers association defined under letter (j) which is duly registered w/ the Dept. (o) Industry union means -any group of legitimate labor organizations -operating within an identified industry, -organized for collective bargaining or for dealing with employers concerning terms and conditions of employment within an industry or -for participating in formulation of social employment policies, standards and programs in such industry which is duly registered with the Dept. in accordance w/ R3. sec. 2 of these rules. (p) Trade union center means -any group of registered national unions or federations organized for mutual aid and protection of its members for assisting such members in collective bargaining or for participating in formulation....
DOLE REGISTRATION AS BASIS Cebu Seamens Assoc., Inc v Ferrer-Calleja , 212 SCRA 50 (1992) The unions registration with the bureau and not the SEC makes it a legitimate labor organization, with the rights and privileges granted by the Labor Code including the release or custody of union dues. The Progressive Development case is a very important case. Below is an outline of the important parts of the case.

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Progressive Devt v Sec. of Labor205 SCRA 802 Art. 212 defines a legitimate labor organization as any labor organization duly registered with the DOLE and includes any branch or local thereof. I. Ordinarily, a labor organization acquires legitimacy ONLY upon registration with the BLR. The requirements for registration are in Article 234. a. The applicant labor organization shall acquire legal personality and shall be entitled to the rights and privileges granted by law to a legitimate labor organization UPON issuance of the certificate of registration based on the requirements in Article 234. i. ii. P50 registration fee The names of its officers their addresses, the principal address of the labor org, the minutes of the organizational meetings and the list of the workers who participated in such meetings The names of all its members comprising at least 20% of all the Ees of the bargaining unit it seeks to operate If the applicant union has been in existence for 1 or more years, copies of its annual financial reports; and Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification and the list of the members participating in it. b. Moreover, section 4 of Rule II, Book V of the Implementing Rules requires: (i) (ii) that the application should be signed by at least twenty percent (20%) of the employees in the appropriate bargaining unit and
iii. iv. v.
be accompanied by a sworn statement of the applicant union that there is no certified bargaining agent or, where there is an existing collective agreement duly submitted to the DOLE, that the application is filed during the last sixty (60) days of the agreement. RATIONALE: What is the purpose of the Law for requiring so many requirements? Registration is required to protect both labor and the public against abuses, fraud, or impostors who pose as organizers, although not truly accredited agents of the union they purport to represent. Are these registration requirements a curtailment of the freedom to associate? NO. These requirements are not restrictions on the freedom of assembly and of association. Rather they are merely conditions sine qua non for the acquisition of legal personality by a labor org and the possession of rights and privileges granted by law to a legit LO. The consti does not guarantee these rights and privileges, much less personality, which are mere statutory creationsfor the possession and exercise of which, registration is required. xxx Such requirement is valid exercise of police power because the activities in which Los are engaged in affect public interest which should be protected. II. BUT when an UNREGISTERED union becomes a branch, local or chapter of a federation, some of the aforementioned requirements for registration are no longer required. The provisions governing UNION AFFILIATION are found in Rule II, Section 3, Book V. Relevant

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portions are as follows: (Take note this part of the case is no longer seen in the amendments in the rules by DO. No. 9 which was promulgated on 1997, this case was decided in 1992) TAKE NOTE: Two types of union may become affiliated with a federation or a national union: 1) A local or chapter of a federation WHICH DID NOT undergo the rudiments of registration. 2) An independently registered union may also be an affiliate of a federation or national union. Implicit in the forgoing differentiation is the fact that a local or chapter need NOT BE independently registered. By force of law (Art. 212 h) such local or chapter becomes a legitimate labor organization upon compliance with the aforementioned provisions of Section 3 (Under DO. No. 9, its is now Rule IV Book V section 1 & section 3) What requirements imposed by Art. 234 for the registration of an independent union are OMITTED when it comes to registration of a local or chapter? i) The requirement that the application for registration must be signed by at least 20% of the employees in the appropriate bargaining unit; ii) The submission of officers addresses, principal address of the labor organization the minutes of the organizational meetings list of the workers who participated in such meetings The submission of the minutes of the adoption or ratification of the constitution and by laws and the list of the members who participated in it.
iii)
RATIONALE: Undoubtedly, the intent of the law is imposing lesser requirements in this case is to encourage the affiliation of a local union in order to increase the local unions bargaining powers respecting term and conditions of labor.
Although there are few requirements, the requirements in A 235 regarding certification under oath still has to be complied with. In the case at bar, the constitution and by-laws and list of officers submitted to the BLR, while attested to by the chapters president, were not certified under oath by the secretary. Does such defect (the consti and by-laws were not certified under oath) warrant the withholding of the status of legitimacy to the local or chapter? YES. It is a fatal defect. RATIONALE: The certification and attestation requirements are preventive measures against the commission of fraud.
The rationale for requiring that the submitted documents and papers be certified under oath by the secretary or treasurer, as the case may be, and attested to by the president is apparent. Upon the approval of the application for registration, the LO acquires legal personality and thereby becomes entitled to all the rights and privileges granted by the law to a legit L.O. The employer would naturally need assurance that it is dealing with a bonafide organization, one which has not submitted false statements and misrepresentation to the BLR. a. The inclusion of the certification and attestation requirements will in a marked degree allay these apprehensions of management. Because the issuance of

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a false statement and misrepresentation is a ground for cancellation of registration and is also a ground for criminal charges of perjury. b. The certification and attestation requirements are preventive measures against the commission of fraud. c. They likewise afford a measure of protection to unsuspecting employees who may be lured into joining unscrupulous or fly-by-night unions whose sole purpose is to control union funds or to use the union for dubious ends. Since there are lesser requirements for a local or a chapter, there is greater reason to exact compliance with the certification and attestation requirements. The policy of the law in conferring greater bargaining power upon labor unions must be balanced with the policy of providing preventive measures against the commission of fraud. MAIN QUESTION of the case: When does a branch, local or affiliate of a federation become a legitimate labor organization? A local or chapter therefore becomes a legitimate LO only upon submission of the following to the BLR: charter certificate within 30 days from its issuance by the national union; and constitution and By-laws, statement of the set of officers and books of accounts all of which must be certified under oath by the secretary or treasurer of such local chapter and attested by its president. Absent compliance with these mandatory requirements, the local or chapter does not become a legitimate labor organization. (Take note: This is not in the law, but only in the implementing rules, now under DO. No. 9, it is Book V, Rule VI sec. 1. The Professor asked what is the legal basis of these requirements, the answer is the implementing rules not the labor code.) In case at bar, the failure of the secretary of PDEU-Kilusan to certify the required documents under oath is fatal to its acquisition of a legitimate status. TAKE NOTE: Difference of an oath from an attestation is that in an oath, you are in effect saying that all that is contained therein is true and it makes you liable for perjury. While an attestation merely means that you have witnessed the fact of it. San Miguel Foods, Inc. V. Laguesma , 263 SCRA 68 (1997) It is important to determine whether or not a particular labor organization is legitimate since legitimate labor organizations have exclusive rights under the law which cannot be exercised by non-legitimate unions. ISSUE: Is a CHARTER CERTIFICATE defective if it NOT certified under oath and attested to by the organizations secretary and president? NO it is not defective. A charter certificate need NOT be certified under oath. What is required to be certified under oath by the secretary or treasurer and attested to by the locals president are: 1. the constitution and by-laws 2. Statement of the set of officers 3. The books of accounts The charter certificate issued by the mother union need not be certified under oath by the secretary or treasurer and attested to by the locals president. When does a labor organization acquire legitimacy?

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Ordinarily a labor organization attains the status of legitimacy only upon the issuance in its name of a Certificate of Registration by DOLE. Furusawa v. Secretary of Labor , 282 SCRA 635 (1997) The presentation of the Xerox copy of the certificate of registration to support its claim of being a duly registered labor organization instead of the submission of the original certificate is sufficient proof of its legitimacy, not a fatal defect. The issuance of the certificate of registration evidently shows that FEU-IND has complied with the requirements of Art. 234 of the Labor Code. Certification proceeding is non-adversarial, technical rules do not apply. When conflicting interests of labor and capital are to be weighed on the scales of social justice, the heavier influence of the latter should be balanced by sympathy and compassion which the law must accord the underprivileged worker. This is only in keeping with the constitutional mandate that the State shall afford full protection to labor. 3.3 UNION RATIONALE Guijarno v. CIR52 SCRA 307 (1973) The state has an obligation to afford protection to labor. xxx That is to carry out the purpose implicit in one of the five declared principles, namely the promotion of social justice to insure the well being and economic security of the people It is then the individual employee, as a separate, finite human being, with his problems and his needs, who must be attended to. He is the beneficiary of the concerns thus made manifest by the fundamental law. RATIONALE: Where does that leave a labor union? Correctly understood, it is nothing but the means of assuring that such fundamental objectives would be achieved. It is the instrumentality through which an individual laborer who is helpless as against a powerful employer may, through concerted effort and activity achieve the goal of economic well-being. Workers unorganized are weak, workers organized are strong. Unions are merely instrumentalities through which their welfare may be protected and fostered. That is the raison dtre of labor unions.It is the instrumentality by which the weak laborer up against the strong employer, may, by concerted effort, achieve economic well-being. Heirs of Cruz v CIR30 SCRA 917 The Constitution enjoins the State to afford protection to labor. Fair dealing is equally demanded of unions as well as of employers in their dealings with employees. RATIONALE: The union has been evolved as an organization of collective strength for the protection of labor against exactions of capital. The union is but an agent of the individual workers and it has the duty to inform the members of the labor matters entrusted to it. The employer may rely on the authority of the union to bring the union members especially in collective bargaining where the matters to be discussed are still to be observed but this case is an exception. What is sought here are backwages and other benefits already earned. Authority for the union to waive this must be express. In a compromise or settlement, the individual union members are the real judgment creditors and are the real parties in interest. When is a labor organization wholesome? A labor organization is wholesome if it serves its legitimate purpose of promoting the interests of labor without unnecessary labor disputes. That

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is why it is given personality and recognition in concluding CBAs. but if it is made use as a subterfuge, or as a means to subvert valid commitments, it defeats its own purpose, for it tends to undermine the harmonious relations between management and labor. (United Seamens Union vs. Davao Shipowners Association) 3.4 LABOR UNION AND GOVERNMENT REGULATION UNION REGISTRATION AND PROCEDURE REQUIREMENTS What are the requirements for registration of a labor organization? Art. 234 : Any applicant labor organization shall acquire legal personality and shall be entitled to rights and privileges of legitimate labor organizations upon issuance of a certificate of registration upon submission of the following requirements: A. Registration Fee (Php 50.00) B. Names of its officers, addresses, principal address of the organization, minutes of meetings and list of workers who participated in meetings. C. Names of all its members comprising at least 20% of all its EEs in the bargaining unit. (Not applicable if by chartering) D. Copies of annual financial reports if union has been in existence for more than 1 year. (If less than 1 year No more need to file financial statement) E. Copies of constitution and by-laws. Sec. 3, Rule II, Book V, IRRs : Sworn statement by applicant union that there is no certified bargaining agent in bargaining unit concerned. When there is an existing CBA duly submitted to the DOLE, a sworn statement that the application for registration was filed during the last 60 days of the agreement. The application and all accompanying documents shall be verified under oath by the secretary or the treasurer as the case may be, and attested to by the president. (Id.)
II. What are the additional requirements for federations or national unions? (Art. 237) A. Proof of affiliation of at least 10 local chapters. Each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates. B. Names and addresses of the companies where the locals or the chapters operate and list of all the members in each company involved. A union does not become legitimate by the mere fact of affiliation BUT by registration. It is registration with the BLR which made it a LLO with rights and privileges granted under the Labor Code. Union registration is a ministerial duty if all the requirements are present > Mandamus will lie III. What is the period for action on application? 30 days from filing (Art. 235) Book V Rule V Sec. 3 Action on Application The Regional Office or Bureau, as the case may be, shall act on the application for registration within thirty (30) days thereof, either by approving the application and issuing the certificate of registration, or denying the application for failure of the applicant to comply with the requirements for registration. Where the documents supporting the application are not complete or do not contain the requisite attestation requirements, the Regional Office or Bureau shall, within five days from

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receipt of application, notify the applicant in writing of the requirements needed to complete the application. Where the applicant fails to complete the requirements within thirty (30) days from receipt of notice, the application shall be denied without prejudice. TAKE NOTE: You cannot deny outright an application for registration when the only ground to deny is the incompleteness of the requirements. The applicant must be notified first and be given a chance to complete the requirements. It is only after thirty days after notice that such may be denied. Book V Rule III (as amended by DO. No. 9) : Sec. 1: Where to file application; The application for registration of any: 1) federation, national or industry union or trade union center: -shall be filed with the Bureau. 2) Independent Union -shall be filed with and be acted upon by the Regional Office where the applicants principal office is located. 3) Local Union: The charter certificate issued by the federation or national union in creating a local/chapter, together with the supporting documents: -shall be filed with the Regional Office or the Bureau within (30) days from the issuance of such charter certificate. Book V Rule VI Sec. 1 CHARTERING AND CREATION OF A LOCAL/CHAPTER: A duly registered federation or national union may DIRECTLY CREATE a local/chapter by submitting to the Regional Office or to the Bureau two (2) copies of the following: a. a charter certificate ISSUED BY labor federation or national union indicating the creation or establishment of a local or chapter; b. The names of the local/ chapters officers, their addresses, and principal office of the local/chapter; and c. The local/chapters constitution and by-laws; provided that where the local/chapters constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly. All the foregoing supporting requirements shall be certified under oath by the Secretary or Treasurer of the Local/chapter and attested to by its President. Sec. 3 ACQUISITION OF LEGAL PERSONALITY BY LOCAL/CHAPTER A local/chapter constituted in accordance with section 1 of this Rule shall acquire legal personality from the date of filing of the complete documents enumerated therein. Upon compliance with all the documentary requirements, the Regional Office or Bureau shall issue in favor of the local/chapter a certificate indicating that it is included in the roster of legitimate labor organizations. Sec. 4 AFFILIATION OF AN INDEPENDENT UNION An independent union shall be considered an affiliate of a federation or national or industry union upon filing by the later to the Regional Office or Bureau of: 1) two (2) copies each of verified resolution of affiliation, 2) ratified by a majority of the members of the former, 3) and a resolution of acceptance by the later. NOTES: * A LOCAL or CHAPTER becomes a LLO only upon submission of the following to the BLR:

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1. A CHARTER CERTIFICATE, within 30 days for its issuance 2. The constitution and by laws 3. A statement on the set of officers 4. Books of accounts all of which are certified under oath by the secretary or treasurer as the case may be, of such local chapter and attested to by its president. * DO # 9 (1997) - The submission of books of accounts is no longer required in registering a union if existence for less than a year. Pagpalain Hauling Inc. v. Trajano , 310 SCRA 364 (1999) The Labor Code DOES NOT require the submission of books of account in order for a labor organization to be registered as a legitimate labor organization. The requirement that books of account be submitted as a requisite for registration can be found only in Book V of the Omnibus Rules Implementing the Labor code, PRIOR to its amendment by DO No. 9 Series of 1997. Specifically, the old Section 3(e, Rule II, of Book V provided that the local or chapter of a labor federation or national union shall have and maintain a constitution and by-laws, set of officers and BOOKS OF ACCOUNTS. For reporting purposes, the procedure governing the reporting of independently registered union, federations or national unions shall be observed. Since Department Order No. 9 has done away with the submission of books of accounts as a requisite for registration, Pagpalains only recourse now is to have said order declared null and void. The controlling intention in requiring the submission of books of accounts is the protection of labor through the minimization of the risk of fraud and diversion in the handling of union funds. But this intention can still be realized through other provisions of the Labor Code. (Example Art. 241 b, g, h, I, j, l, m; Art. 274) Department Order No. 9 only dispenses with books of accounts as a requirement for registration of a local or chapter of a national union or federation. As provided by Article 241 h and 241 j, a labor organization must still maintain books of account, but it need not submit the same as a requirement for registration. CREATION AND REGISTRATION METHODS: * A union at the enterprise level may be created either by (a) independent registration or (b) chartering. Independent registration is obtained by the union organizers in an enterprise through their own action instead of through issuance of a charter by a federation, national or industry union. The union thus created has a legal personality of its own and is called an independent union. But it may affiliate with a federation, national or industry union, in which case it may also be called an affiliate. The application for registration of an independent union is filed with and will be acted upon by the DOLE regional office where the applicants principal office is located. Chartering takes place when a duly registered federation or national union issues a charter to a union in an enterprise and registers the charter with the Regional Office or the Bureau of Labor Relations. The union recipient of the charter is called a chapter or local. It has no legal personality of its own as long as it has not availed itself of independent registration. The charter certificate issued by a federation or national union, together with supporting documents evidencing the establishment of such local/chapter, is filed with the regional office or the Bureau of Labor Relations within thirty days after issuance of the charter certificate. INDEPENDENT UNION Independent from mother union. Its legitimacy was obtained on its own. Has its own registration. AFFILIATE who is not an independent union Does not have its own registration. Its legitimacy was obtained through its mother union.

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Regular requirement for registration Requirements for registration are in the law itself. May disaffiliate and remain legitimate.
Its requirements for registration are less Requirements for registration are not in the law, but in the implementing rules ISSUE: May an affiliate who is not an independent union retain its legitimacy if it disaffiliates from its mother union from where it derives its legal personality/legitimacy? Yes. Once a union attains its legitimacy in ANY means, it retains its legitimacy. Because the right to associate includes the right to disaffiliate.
C.B.U. No minimum or maximum number is required to constitute a bargaining unit. Regardless of their number, twenty percent of the employees in the bargaining unit should be members of the labor organization applying for independent registration. But the 20 percent is not required when a federation or national union creates, through chartering, a local chapter in an enterprise. A company may therefore be unionized even if less than 20 percent of the employees in the bargaining unit participate in the unionizing effort. Bargaining unit refers to the group of employees which the labor union will represent in dealing or bargaining with the employer. It is that cluster of jobs or positions that politically supports within the company the labor organization applying for registration. Bargaining unit is the people represented by the representative union which therefore is called the bargaining agent. Bargaining unit is explained further under Art. 255. * A union does not become legitimate by the mere fact of affiliation. BUT by registration. - It is the registration with the BLR which made it a LLO with rights and privileges granted under the LC. * Union registration is a ministerial duty if all the requirements are complied with. - Mandamus will lie. A. REQUIREMENT AND RATIONALE Registration is a condition sine qua non for the acquisition of legal personality by a labor organization. (Protection Technology vs. Secretary of Labor and Employment) However, it is not a limitation on the right of assembly or association which may be exercised with or without said registration. (PAFLU vs. Sec. of Labor) The statutory and regulatory provisions of defining the requirements of legitimate labor organizations are an exercise of the overriding police power of the State designed for the protection of workers against potential abuses by unions that recruit them. (Protection Technology vs. Sec. of Labor) or fly-by-night unions whose sole purpose is to control union for dubious ends. (Phoenix Iron vs. Sec. of Labor and Employment) Progressive Devt v Sec. of Labor , 205 SCRA 802 These requirements are not restrictions on the freedom of assembly and of association. Rather they are merely conditions sine qua non for the acquisition of legal personality by a labor org and the possession of rights and privileges granted by law to a legit LO. The consti does not guarantee these rights and privileges much less personality, which are mere statutory creationsfor the possession and exercise of which, registration is required to protect both labor and the public against abuses, fraud or impostors who pose as organizers, although not duly accredited agents of the union they purport to represent.

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ACTION OR DENIAL OF APPLICATION, AND REMEDY

1. Sec. 6, Rule II, Book V, IRRs : Any applicant union may appeal to the Bureau the denial of registration by the Regional Office, or to the secretary if the denial is by the Bureau, within 10 calendar days from receipt of such decision on grounds of : A. grave abuse of discretion ; and B. gross incompetence The appeal shall be filed in the Regional Office/Bureau which shall cause the transmittal of records to the Bureau/Secretary within 5 calendar days from receipt of the appeal. The Bureau/Secretary shall decide the appeal within 20 calendar days from receipt of the records of the case. 2. Can the Regional Office/Bureau exercise discretion in the registration of the applicant union? No. As long as the applicant union complies with all the legal requirements for registration, it becomes the Offices/Bureaus ministerial duty to do register the union. (Vassar vs. Estrella) * MANDAMUS lies to compel the registration of an LO
EFFECTS ON FREEDOM OF ASSOCIATION

While disaffiliation from a labor union is not open to legal objection, since it is implicit in the freedom of association ordained in the Constitution, a closed shop agreement is a valid form of union security and is not a restriction of the right of freedom of association guaranteed by the Constitution.
PAFLU v. Sec. Of Labor The requirement of registration does not curtail the freedoms of assembly and association. Said freedoms may still be exercised with or without registration. The latter is merely a condition sine qua non for the acquisition of legal personality by labor unions and the possessions of rights and privileges granted by law. The constitution does not guarantee these rights and privileges, much less legal personality, which are mere statutory creations.
RIGHTS OF LEGITIMATE LABOR ORGANIZATION

I. What are the rights of legitimate labor organization? (R E F O S A F) A. Act as Representative of its members in collective bargaining B. To be certified as the Exclusive representative of all the EEs in an appropriate collective bargaining unit for purposes of collective bargaining. C. To be furnished by the ER, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, a) Within 30 calendar days from the date of receipt of request after the union has been duly recognized by the ER or certified as the sole and exclusive bargaining representative of the EEs in the bargaining unit, or b) Within 60 calendar days before the expiration of the existing CBA,or c) During the collective bargaining negotiation. D. To own property for the use and benefits of the labor organization and its members. E. To sue and be sued in its registered name. F. To undertake all other Activities designed to benefit the organization and its members.

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G. Its income and properties which are directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only be a special law expressly repealing this provision. The right to represent EEs in collective bargaining is true only for the union of the majority members of the BU Must win certification or consent election A registered union has the requisite personality to sue on behalf of its members for their individual money claims
TIP ON HOW TO REMEMBER Art. 242 when you are asked to enumerate it: 1. LLO has right to participate in Collective bargaining: -As representative of its members (a) -to be certified as representatives of the employees in the appropriate bargaining unit (b) -To be furnished the annual audited financial statements, this will aid him in collective bargaining (c). Registration gives an LLO a juridical personality. Thus as a person, it may: -own property (d) -sue and be sued (e) -undertake all activities designed to benefit its members and not contrary to law (f) Special Tax exemption
2.
3.
II. Can the union effect a compromise of the money claims of workers? Money claims due to laborers cannot be the object of settlement or compromise effected by a union or counsel without the specific individual consent of each laborer concerned. (Kaisahan ng mga Manggagawa sa La Campana vs. Sarmiento) III. May a union waive a right of union members to reinstatement provided for in an NLRC decision? No, the waiver of reinstatement, must be regarded as a personal right which must be exercised personally by workers themselves. (Jag vs. NLRC) A. EFFECT OF NON-REGISTRATION Union, must comply with all the requirements of registration as a legitimate labor organization. (Protection Technology vs. Sec. of Labor & Employment). However, if the union has filed application for registration and has submitted all the legal requirements, the fact that it does not yet have the certificate of registration will not annul the designation of the labor union as sole bargaining agent by the virtue of a certification election since the defect is not fatal. (UE Automotive EEs vs. Noriel) Tropical Hut EEs Union-CGW v Tropical Hut Food Market1 , 81 SCRA 173 A local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. The locals are separate and distinct units primarily designed to secure and maintain an equality of bargaining power between the employer and their employee-members. A local union owes its creation and continued existence to the will of its members and not to the federation to which it belongs. When the local union withdrew from the old federation to join a new federation, it was merely exercising its primary right to labor organization for the effective enhancement and protection of common interests.

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In the absence of provisions in the constitution preventing disaffiliation of a local union, a local may sever its relationship with its parent. Non-compliance with the provision in the NATU Constitution requiring the service of three months notice of intention to withdraw did not produce the effect of nullifying the disaffiliation. Firstly, NATU was not even a legitimate labor organization. It was not registered with the Department of Labor and did not possess and acquire the legal personality to enforce its constitution and laws, much less the right and privilege under the Labor Code to organize and affiliate chapters or locals. Secondly, the act of non-compliance is premised on purely technical grounds which cannot rise above the fundamental right of self-organization. The disaffiliation did not violate the CBA provisions. The THEU-NATU, not NATU, was recognized as the exclusive bargaining agent in all matters concerning terms and conditions of employment. While the NATU was recognized as the sole bargaining agent in the check-off form, it was only acting as an agent of THEU. Finally, while CBA imposes dismissal on an Ee who joins another federation, that situation does not obtain in this case, since the entire THEU was withdrawing from the federation.
CANCELLATION OF THE UNION CERTIFICATE REGISTRATION

Art 238. The certificate of registration of any legitimate labor org whether national or local shall be -canceled by the bureau -if it has reason to believe after due hearing that the said labor org no longer meets one or more of the requirements herein prescribed. I. What are the grounds for its cancellation of union registration by the Bureau? 1. Misrepresentation, false statement or fraud by the union with respect to the required documents submitted to the Bureau. 2. Failure to submit the documents within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto. 3. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the elections and list of voters of failure to submit these documents within 30 days from election [or from the occurrence of any change in the list of officers of the labor organization (Art. 241)]. 4. Failure to submit annual financial report within 30 days after closing of fiscal year and misrepresentation of fraud in the preparation of the financial report. 5. Acting as labor contractor or cabo system. Art. 106 labor only contracting 6. Entering into CBAs which provide terms and conditions of employment below minimum standards. 7. Asking for or accepting attorneys fees or negotiation fees from ERs. 8. Other than for mandatory activities under this Code, Checking of special assessment or other fees without duly signed individual written authorization of members. 9. Failure to submit list of individual members once a year or when required (MACED MALL) Book V Rule I Sec. 1: (jj) Cancellation Proceedings refer to the process leading to the revocation of the legal personality of a labor organization or a workers association after due process. Cancellation of Registration under Book V of implementing rules:
Sec. 1 Venue:

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-Regional office having jurisdiction over the place where the respondents principally operates. Sec. 2 Who may file? -Any party in interest -Except in actions involving Article 241, in this case only members of the association (30% consent) Book V Rule VIII Sec. 5 Revocation of legal personality of local/chapter: A federation/ national union may revoke the charter issued to a local/ chapter or branch by serving on the latter a verified notice of revocation. Grounds: 1. disloyalty 2. other grounds as may be specified in the constitution and by-laws * In case revoked, the local will lose its legal personality if it fails to register as an independent union before the expiration of the CBA. (Sec. 6) Cancellation of registration means that the union is no longer a LLO Its juridical personality as well as its statutory rights and privileges are suspended, BUT the cancellation does not invalidate an otherwise valid CBA which the union has entered into. cancel a unions registration > It may affect strikers and officers only Any party in interest may commence a petition for cancellation of registration, except in actions involving violations of Art. 241 which can be commenced only by members of the respondent union. Having held an illegal strike is not a reason to
II. If a union declares an illegal strike, is this a good ground for cancellation of union registration? No. While Art .239 provides the phrase acting as a labor contractor or otherwise engaging in any activity prohibited by law, this phrase refers to an activity partaking the nature of a labor contractor. Thus, an illegal strike is not one of the grounds for cancellation of registration. (Itogon-Sayoc vs Sangilo-Itogin Workers Union) Rules on TRADE UNION REGISTRATION: Book V Rule III Sec. 2(III): The application for registration of an industry or trade union center shall be supported by the following: a) The list of its member organizations and their respective presidents and, in the case of an industry union, the industry where the union seeks to operate; b) The resolution of membership of each organization, approved by the Board of Directors of such union; c) The name and principal address of the applicant, the names of its officers and their addresses, the minutes of its organizational meeting/s, and the list of member organizations and their representatives who attended such meetings; and d) A copy of its constitution and by-laws and minutes of its ratification by a majority of the presidents of the member organizations, provided that where the ratification was done simultaneously with the organizational meeting, it shall be sufficient that the fact of ratification be included in the minutes of the organizational meeting. 3.5 INTERNATIONAL ACTIVITIES OF UNION PROHIBITION AND REGULATION I. What activities by aliens are prohibited? All aliens, whether natural or juridical are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts

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between Philippine labor unions and recognized international labor centers. The prohibition does not apply to the formation of labor organizations by aliens working in the country with valid working permits. (Art. 269) Trade Union Activities shall mean : organization formation and administration of labor organizations; negotiation and administration of CBAs; all forms of concerted union action; organizing, managing or assisting union action; any form of participation or involvement in representation proceedings, representation elections, union elections; and 6. other analogous activities. (Art. 270)] 1. 2. 3. 4. 5. II. What activities by aliens are regulated? No foreign individual, organization or entity may give any form of assistance, in cash or in kind directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Sec. of Labor This prohibition also applies to foreign donations or other forms of assistance, in cash or in kind, given directly or indirectly to any ER or ERs organization to support any activity or activities affecting trade unions. III. The strike declared by Union M has reached its 60th day. Taking pity on the hungry and sick strikers, B and G, French missionaries, distributed food and drinks to the strikers. Has any one committed any illegal act? Yes. B and G, distributing food and drinks to the strikers violated the prohibition against aliens from engaging directly or indirectly in all forms of trade union activities. The term trade union activities includes all forms of concerted union actions and analogous activities. (Alcantara) Art. 271. Applicability to farm tenants and rural workers - The provisions of this Title pertaining to foreign orgs and activities shall be deemed applicable likewise to all orgs of farm tenants, rural workers, and the like: Provided, That in appropriate cases the Sec of Agrarian Reform shall exercise the powers and responsibilities vested by this Title in the Sec of Labor. 3.6 UNION-MEMBER RELATIONS NATURE OF RELATIONSHIP The union may be considered but the agent of its members for the purpose of securing for them fair and just wages and good working conditions and is subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it. (Heirs of Cruz vs. CIR) RIGHTS OF UNION MEMBER (ART. 241) Summarize the basic rights of union members : 1. Political right Members right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. 2. Deliberative and decision-making right Members right to participate in deliberations on major policy questions and decide them by secret ballot. 3. Right over money matter Members right against excessive fees, right against unauthorized collection of contributions or unauthorized disbursements; the right to require adequate records of income and expenses and the right of access to financial

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records; the right to vote on proposed special assessments and be deducted a special assessment only with the members written authorization. 4. Right to information Members right to be informed about the organizations constitution and by-laws and the CBA and about labor laws. As EEs, the union members retain the right to directly present grievances to the ER at anytime
ISSUES
UNION CONSTITUTION: UST Faculty Union v. Bitonio , 318 SCRA 185 (1999) The point to be stressed is that the unions CBL is the fundamental law that governs the relationship between and among the members of the union. It is where the rights, duties and obligations, powers, functions and authority of the officers as well as the members are defined. It is the organic law that determines the validity of acts done by any officer or member of the union. Without respect for the CBL, a union as a democratic institution degenerates into nothing more than a group of individuals governed by mob rule. The importance of a unions constitution and by-laws cannot be overemphasized. They embody a covenant between a union and its members and constitute the fundamental law governing members rights and obligations. As such, the unions constitution and by-laws should be upheld, as long as they are not contrary to law, good morals, or public policy. A. ADMISION AND DISCIPLINE OF MEMBERS 1. Art. 249 : A labor organization shall have the right to prescribe its own rules and with respect to the acquisition or retention of membership. 2. Art. 277 : Any EE, whether employed for a definite period or not, shall, beginning on his 1st day of service, be considered an EE for purposes of membership in any labor union. A. 1. ADMISSION 1. Labor unions are not entitled to arbitrarily exclude qualified applicants for membership, and a closed-up provision would not justify the ER in discharging, or a union in insisting upon the discharge of it, an EE whom the union refuses to admit to membership, without any reasonable ground therefor. Thus, while generally the State may not compel the union to admit the individual as a member, this scenario is not an exception to that general rule. (Salunga vs. CIR) Important points in Salunga Case GENERAL RULE: Labor union is a PRIVATE and voluntary organization.
EXCEPTION: When union has access to employment, example: closed-shop agreement. This converts union into one with a public character and thus the government will have a right to inquire into the rules or business of the union. 2. The unions constitution and by-laws provides that no individual who previously belonged to another union may be admitted as member thereof. Is this provision valid? No. While a union is in general free to select its own members, it cannot impose arbitrary and discriminatory conditions for admission to membership. It is very clear that the provision discriminates against an individual for having exercised his right to self-organization. (Alcantara)

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3. The union constitution and by-laws provides that only EEs with 2 years service in the company are eligible for membership therein. Is the provision valid? No. The provision is an unreasonable restriction on the workers exercise of his right to self-organization. It would have those who have less than 2 years of service without representation in bargaining with the ER. (Alcantara) RIGHT TO DISCIPLINE Villar v Inciong , 121 SCRA 444 HELD: When a labor union affiliates with a mother union, it becomes bound by the laws and regulations of the parent organization. It becomes subject to the laws of the superior body under whose authority the local union functions. The constitution, by-laws and rules of the parent body, together with the charter it issues pursuant thereto to the subordinate union, constitute an enforceable contract between the parent body and the subordinate union. When members of a labor union sow the seeds of dissension and strife within the union. When they seek the disintegration and destruction of the very union to which they belong. They forfeit their rights to remain as members. PAFLU acted when, after proper investigation and finding of guilt, it decided to remove the oppositors from the list of members of the Amigo Employees Union-PAFLU. A. 2 DUE PROCESS RULES 1. An officer or a member of a labor union is entitled to due process before he can be expelled. The member of the labor union may be expelled only for a valid cause and by following the procedure outlined in the constitution and by-laws of the union. (Kapisanan ng mga Mangagawa vs. Bugay) 2. The union constitution and by-laws provides that a member may be expelled from the union upon a vote of 2/3 of all the members. Is the rule valid? No. The expulsion of a union member cannot be made to depend upon the whims and caprices of cp-members. It must be founded on some just and serious grounds. (Alcantara) 3. 5 regular EEs were dismissed allegedly pursuant to a union security clause. They had previously been expelled from the union for attempting to oust the union leadership, but they were not given an opportunity to explain their side. The company also did not conduct an investigation into the matter. Is the dismissal of the EEs lawful? No. The union should have given them an opportunity to explain their side before expelling them. And the company should have complied with procedural due process before dismissing them. (Ferrer vs. NLRC) B. ELECTION OF OFFICERS QUALIFICATION, TENURE AND COMPENSATION Give the rules of the Labor Code governing union officers : Art. 241 : The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of 5 years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing. No person who has been convicted of a crime involving moral turpitude shall be eligible for election or appointment as a union officer. [Moral turpitude Act of baseness, vileness or depravity in the private of social duties which a men owes to his fellowmen, or to society in general. (Tak vs. Republic) The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due their positions as specifically provided in the constitution and

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by-laws, or in a written resolution duly authorized by the majority of all the members at a general membership meeting duly called fort he purpose. Any irregularity in the approval of the resolution shall be a ground for impeachment or expulsion from the organization. (Art. 241) QUALIFICATON: Member in good standing Not convicted of crime of moral turpitude
MANNER OF ELECTION: Secret Ballot Direct election Interval of 5 years TENURE: Compensation: 5 years Generally none. But allowed if the constitution or by-laws allow it, or a written resolution by a majority of all the union members in a general membership meeting called for that purpose.
UST Faculty v. Bitonio A union election is held pursuant to the unions constitution and by-laws and the right to vote in it is enjoyed ONLY BY UNION MEMBERS. A union election should be distinguished from a certification election, which is the process of determining, through secret ballot, the sole and exclusive bargaining agent of the employees in the appropriate bargaining unit, for purpose of collective bargaining. Specifically, the purpose of a certification election is to ascertain whether or not a majority of the employees wish to be represented by a labor organization and, in the affirmative case, by which particular labor organization. In a certification election, ALL employees belonging to the appropriate bargaining unit can vote. Therefore, a union member who likewise belongs to the appropriate bargaining unit is entitled to vote in said election. HOWEVER, the reverse is not always true; an employee belonging to an appropriate unit but who is not a member of the union cannot vote in the union election, UNLESS otherwise authorized by the constitution and by-laws. B.1 VOTERS LIST Submission of the EEs names with the BLR as qualified members of the union not a condition sine qua non to enable said members to vote in the election of union officers. Question of eligibility to vote may be determined through the use of applicable payroll period and EEs status. (Tancinco vs. Ferrer-Calleja) B.2 DISQUALIFICATION OF CANDIDATES Disqualification of winning candidates will not automatically result in the assumption of office of those who garnered the second highest number of votes. (Manalad vs. Trajano) B.3 EXPULSION REMEDY Remedy against erring union officers is not referendum but union expulsion. However, reelection of union officers and non-election of complaining union members is convincing show of faith on union officers leadership. (KMP vs. Trajano) B.4 ELECTION INVALID 1. Free and honest elections are indispensable to the enjoyment of EEs and workers of their right to self-organization. This right will be diluted if the election is not fairly and

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honestly conducted. Thus, elections for union officers attended by grave irregularities are invalid. (Rodriguez vs. BLR) 2. Will failure to comply with the technical requirements or formalities in relation to the election of union officers invalidate the election? No, as long as it does not appear that such failure resulted in the deprivation of any substantial right or prerogative of anyone or caused the perpetration of fraud or other serious anomaly, or preclude the expression and ascertainment of the popular will in the choice of officers. (Timbungco vs. Castro) B.5 QUALIFICATION OF UNION OFFICERS Atty. R won a big case for the union at the University of the West. He became very popular with the union members that they elected him as union president. Is this allowed? No. Atty. R is not an EE of the University. He is disqualified from becoming an officer of any union therein. (Alcantara) C. MAJOR POLICY MATTER 1. Art. 241 : The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical. In which case the board of directors of the organization may make the decision in behalf of the general membership. 2. Z, a member of a union was surprised to know that the union had disaffiliated with the national federation. Has Z any ground to complain? Yes. As union member, he has the right to participate, by secret ballot, to determine any question of major policy affecting the entire membership. Disaffiliation is a major policy issue. (Alcantara) D. UNION FUNDS Give the rules of the Labor Code governing union funds : 1. The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions. 2. No officer, agent or member of a labor organization shall collect any fees, dues or other contributions in its behalf or make any disbursement of funds unless he is duly authorized by the constitution and by-laws. 3. Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or member making the collection and entered into the record of the organization. 4. The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by a majority of the members at a general meeting duly called for the purpose. 5. Every income or revenue of the organization shall be evidenced by a record showing its source or by a receipt from the person to whom payment is made. 6. Any action involving the funds of legitimate labor organization shall prescribe after 3 years from date of submission of the annual financial report to the DOLE or from date the same should have been submitted, whichever comes earlier. 7. The treasurer shall render a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account. The account shall be duly audited and verified by affidavit and a copy shall be rendered by the DOLE. The rendering of the account shall be made :

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a. At least once a year and within 30 days after the close of its fiscal year. b. At such other times as may be required by a resolution of the majority of the members of the organization. c. Upon vacating his office. 8. The books of accounts and other financial records shall be open to inspection by any officer or member thereof during office hours. 9. No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the membership meeting duly called for the purpose. a. The secretary shall record the minutes of the meeting which shall be attested by the president. 10. Other than for mandatory activities under this Code, no special assessments, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from the amount due to an EE without an individual written authorization duly signed by the EE. 11. The Sec. of Labor or his duly authorized representative is hereby empowered to inquire into the financial activities of the legitimate labor organization upon filing of a complaint under oath and duly supported by a written consent of at least 20% of the total membership to determine compliance with the law. a. Such inquiry shall not be conducted during the 60-day freedom period within the 30 days immediately preceding the date of election of the union officials. D.1 SOURCE- PAYMENT-ATTORNEYS FEES Art. 222: Appearances and fees---a) Non-lawyers may appear before he Commission or any Labor Arbiter only: 1. If they represent themselves; or 2. If they represent their organization or members thereof. b) No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting union; Provided, however, that attorneys fees may be charged against union funds in an amount to be agreed upon by the parties . Any contract, agreement or arrangement of any sort to the contrary shall be null and void. 1. Payment of attorneys fees is an obligation of the union and not of the EEs. Money of EEs are not to be used to pay attorneys fees of a lawyer. (Pacific Bank vs. Clave) 2. Atty. S was hired by a union to assist its president in negotiating a CBA. After the execution of the CBA, Atty. S sought to collect his attorneys fees out of the benefits due to the EEs by virtue of the agreement. Is this proper? No. Atty. Ss claims for attorneys fees should be satisfied out of the funds of the union. (ALU vs. NLRC) Attorneys fees may not be deducted or checked off from any amount due to an EE without his consent EXCEPT for mandatory activities under the code. Even negotiation fee in collective bargaining is an obligation of the union and not of a particular member
D.2 Source-Payment-Special Assessment 1. Written resolution of a majority of all members of the union at a general membership meeting, required for validity of levy of a special assessment. (Palacol vs. FerrerCalleja) 2. The law does not require that this authorization must be in individual form. (Id.)

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3. The Board of Directors of a union passed a resolution assessing every union member of P2.00 to be used in the purchase of a birthday gift for the courageous lawyer of the union. The union members refused to pay assessment. Is the refusal justified? Yes. The assessment was not authorized by a written resolution of a majority of all the members at a general membership meeting for the purpose. 4. At a general membership meeting, a majority of the members of the union voted for a written resolution assessing each member P5.00. A member who did not vote affirmatively and did not execute an individual written authorization refused to pay the same. Is his refusal justified? No. He is bound by the resolution. However, the absence of a written check-off authorization means that the assessment cannot be deducted by the ER from his wages or other amounts due him, but he is still obliged to pay the same. (Alcantara) An employee who collects a special assessment without being armed with the required general assembly resolution and the written authorization from each of the union members may be charged with making illegal deductions from the EEs salary.
Gabriel v. Sec. Of Labor , 328 SCRA 247 (2000) Art. 241 has three requisites for the validity of the special assessment for the unions incidental expenses: 1) authorization by -written resolution -of majority of ALL the members -at the general membership meeting called for that purpose 2) Secretarys record of the minutes of the meetings attested to by the president. 3) Individual written authorization for check-off duly signed by the employees concerned. E. MANDATORY ACTIVITY Art. 214 : Other than for the mandatory activities under the Code : no special assessment, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an EE without an individual written authorization duly signed by the EE. E.1 DEFINITION What is a mandatory activity? Judicial process of settling dispute laid down by law. Vengco v Trajano 173 SCRA 155 (1989) HELD: Attorneys fees may not be deducted or checked off from any amount due to an employee without his written consent except for mandatory activities under the Code. A mandatory activity has been defined as a judicial process of settling dispute laid down by the law. Amicable settlement entered into by the management and the union can not be considered as a mandatory activity. Union filed a claim for emergency cost of living allowance and other benefits however, case never reached its conclusion in view of the parties agreement. It is not also

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shown that Atty. Benjamin Sebastian was instrumental in forging the said agreement on behalf of the union members. Furthermore, Kapasiyahan did not confer upon Timbungco the power to deduct 10% of the P150,000.00 despite the alleged approval of the majority of the union workers. Law requires the individual written authorization of each employee concerned, to make the deduction of attorneys fees valid. Book III, Rule VIII, Section II of the Implementing Rules does not apply. This provision envisions a situation where there is a judicial or administrative proceedings for recovery of wages. Law allows a deduction for attorneys fees of 10% from the total amount due to a winning party. Fringe benefits received by the union members consist of back payments of their unpaid emergency cost of living allowances which are totally distinct from their wages. Allowances are benefits over and above the basic salaries of the employees. Such allowances are excluded from the concept of salaries or wages. Penalty of expulsion from the union presidency imposed upon Timbungco is justified. E.2 CBA NEGOTIATION 1. Placement of re-negotiation for a CBA under compulsory process does not make it a mandatory activity as to authorize check-off from EEs salary for attorneys fees without written, signed authorization. (Galvadores vs. Trajano) 2. May a union collect union service fee for its appearance in labor proceeding? Yes. This is in accordance with the liberalized scheme and theory of representation for labor. (RCPI vs. Sec. of Labor and Employment) F. UNION INFORMATION Art. 241 : It shall be the duty of any labor organization and its officers to inform its members on the : 1. Provisions of its constitution and by-laws. 2. CBA 3. Prevailing labor relations system and 4. All their rights and obligations under existing labor laws. For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminars and other labor education activities. (Responsibility of officers for dissemination of union information and for respect of the law is greater than that of the members. (NLU vs. Continental Cement) ENFORCEMENT AND REMEDIES PROCEDURE AND SANCTIONS 1. Art. 241 : Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officer from office, whichever is appropriate. At least 30% of all the members or any member or members especially concerned may report such violation to the Bureau. Only if the issue involves the entire membership of the union Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts. 2. When is the 30% requirement not needed? When such violation directly affects only 1 or 2 members, then only 1 or 2 members would be enough to report such violation and seek redress. (Kapisanan ng mga Manggagawa vs. Bugay) A. JURISDICTION EXHAUSTION INTERNAL REMEDIES I. In case of intra-union disputes, redress must first be sought within the organization itself in accordance with its constitution and by-laws. (Villar vs. Inciong) II. What are the exceptions to the exhaustion of internal remedies? 1. Futility of intra-union remedies.
2. 3. 4. 5. 6. 7. 8. 9.

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Improper expulsion procedure. Undue delay in appeal as to constitute substantial injustice. When action is for damages. Lack of jurisdiction of the investigating body. When action of administrative agency is patently illegal, arbitrary and oppressive. When issue involves is a pure question of law. Where administrative agency has already prejudged the case. Where the administrative, agency was practically given an opportunity to act on the case but did not. (Azucena)
3.7 UNION AFFILIATION : LOCAL AND PARENT UNION RELATIONS I. Sec. 3, Rule II, Book V, IRRs : An affiliate of a labor federation or national union may be a local or an independently registered union. RULES: 1. The labor federation or national union shall issue a charter certificate which shall be submitted to the Bureau within 30 days from issuance. 2. An independently registered union shall be considered an affiliate after submission to the Bureau of the contract or agreement of affiliation within 20 days after its execution. 3. All existing labor federations or national unions are required to submit a list of their affiliates, their addresses and including the names and addresses of their respective officials. 4. The local or chapter of a labor federation or national union shall maintain a constitution and by-laws, set of officers and books of accounts. 5. No person who is not an EE or worker of the company or establishment where an independently registered union, affiliate, local or chapter of a national federation or national union operates shall henceforth be elected or appointed as an officer of such union, affiliate, local or chapter. (Under DO .No. 9, 1997) Book V Rule VI Sec. 1 Chartering and creation of a local/chapter: A duly registered federation or national union may DIRECTLY CREATE a local/chapter by submitting to the Regional Office or to the Bureau two (2) copies of the following: d. a charter certificate ISSUED BY labor federation or national union indicating the creation or establishment of a local or chapter; e. The names of the local/ chapters officers, their addresses, and principal office of the local/chapter; and f. The local/chapters constitution and by-laws; provided that where the local/chapters constitution and by-laws is the same as that of the federation or national union, this fact shall be indicated accordingly.
All the foregoing supporting requirements shall be certified under oath by the Secretary or Treasurer of the Local/chapter and attested to by its President. Sec. 3 Acquisition of legal personality by local/chapter A local/chapter constituted in accordance with section 1 of this Rule shall acquire legal personality from the date of filing of the complete documents enumerated therein. Upon compliance with all the documentary requirements, the Regional Office or Bureau shall issue in favor of the local/chapter a certificate indicating that it is included in the roster of legitimate labor organizations.

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Sec. 4 Affiliation of an Independent Union An independent union shall be considered an affiliate of a federation or national or industry union upon filing by the later to the Regional Office or Bureau of: 1) two (2) copies each of verified resolution of affiliation, 2) ratified by a majority of the members of the former, 3) and a resolution of acceptance by the later. AFFILIATION; PURPOSE OF; NATURE OF RELATIONS A. NATURE OF RELATIONSHIP * The mother union is merely an agent of the local union. (NAFLU vs. Noriel) Sugbuanon Rural Bank v. Laguesma , 324 SCRA 425 (2000) Locals are separate and distinct units primarily designed to secure and maintain an equality of bargaining power between the employer and their employee-members in the economic struggle for the fruits of the joint productive effort of labor and capital. Association of the locals into the national union was in furtherance of the same end. These associations are consensual entities capable of entering into such legal relations with their members. The essential purpose was the affiliation of the local unions into a common enterprise to increase by collective action the common bargaining power in respect of the terms and conditions of labor. Yet the locals remained the basic units of association. A local union maintains its separate personality despite affiliation with a larger national federation. Tropical Hut v. Tropical Hut , 181 SCRA 173 (1990) The right of a local union to disaffiliate from its mother federaton is well-settled. A local union, being a SEPARATE and VOLUNTARY association, is free to serve the interest of all its mebers including the freedom to disaffiliate when circumstances warrant. The right is consistent with the constitutional guarantee of freedom of association. B. EFFECT LEGAL PERSONALITY Affiliation by a duly registered local union with a national union or federation does not make the local union lose its legal personality. Furthermore, notwithstanding affiliation, the local union remains the basic unit to serve the common interest of all its members. (Adamson vs. CIR) Contract of affiliation is an enforceable contract Affiliation by a duly registered union with a national union or federation does not cause the local union to lose its legal personality WON a union of supervisors affiliated with a federation with a local affiliated consisting of R & F EEs can be validly represented by the federation? The SC says that the federation may. In the CB, the federation acts merely as an agent, the local union of supervisors remains to be the principal. Thus, the fact that the federation is composed of both unions of supervisors and R&F EEs has no effect on the personality of the local union of supervisors, the local union does no lose its personality of independence by affiliation. If the supervisors does NOT supervise the R&F EEs.
Filipino Pipe and Foundry Corporation v. NLRC , 318 SCRA 68 The mother union, acting for and in behalf of its affiliate, had the status of an agent while the local remained the basic unit of the association, free to serve the common interest of all its members subject only to restraints imposed by the constitution and by the by-laws of the association.

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The same is true even if the local is not a legitimate labor organization. Alliance v. Samahan , 1996 A local labor union is a separate and distinct unit primarily designed to secure and maintain an equality of bargaining power and their employee-members. A local union does not owe its existence to the federation with which it is affiliated. It is a separate and distinct voluntary association owing its creation to the will of its members. The mere act of affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract of agency where the former acts in representation of the latter. SUPERVISOR- RANK AND FILE UNION AFFILIATION Rule-affiliation This case gives the rule: Atlas Lithographic v Laguesma (205 SCRA 12) 1992 HELD: The definition of managerial employees is limited to those having authority to hire and fire while those who only recommend effectively the hiring and firing or transfers of personnel would be considered as closer to rank and file employees. The exclusion, therefor, of middle level executives from the category of management employees brought about a third classification, supervisory employees, who are allowed to form their own union but are not allowed to join the rank and file union due to conflicts in interest. A local union of supervisory employees may be allowed to affiliate with a national federation of labor organizations of rank and file employees. What the law prohibits is that supervisory employees join a rank and file union. The national federation would be representing the respective interests of the 2 groups separately. These two cases give the reason behind the rule above: Adamson vs CIR , 127 SCRA 268 (1984) Individuals employed as supervisors shall not be eligible for membership in a labor organization of employees under their supervision but may form separate organizations of their own. The supervisory employees of an employer cannot join any labor organization of employees under their supervision but may validly form a separate organization of their own. It cant be construed that personalities of the 3 unions are so merged with the mother federation that for one difference or another they cannot pursue their own ways, independently of the federation. Adamson and Adamson Supervisory Union and the Adamson and Adamson, Inc., Salesmen Association (FFW), have their own respective constitutions and by-laws. They are separately and independently registered of each other. Both sent their separate proposals for collective bargaining agreements with their employer. There is nothing in Industrial Peace Act which provides that a duly registered local union affiliating with a national union loses its legal personality, or its independence. Locals are separate and distinct units primarily designed to secure and maintain an equality of bargaining power between the employer and their employee-members.

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Locals remain the basic units of association, free to serve their own and the common interest of all. Inclusion of FFW in the registration is merely to stress that they are its affiliates at the time of registrations. It does not mean that said local unions cannot stand on their own. De la Salle Med v. Laguesma , 294 SCRA 141 The affiliation of 2 local unions in a company with the same national federation is not by itself a negation of their independence since in relation to an employer, the local unions are considered as the principal, while the federation is deemed as the be merely an agent. LOCAL UNION DISAFFILIATION A. NATURE RIGHT DISAFFILIATION The right of a local union to disaffiliate from its mother union is consistent with the constitutional guarantee of freedom of association. (Volkschel Labor Union vs. BLR) A local union which has affiliated with a federation is free to sever such affiliation anytime and such disaffiliation cannot be considered disloyalty in the absence of specific provision in the constitution and by-laws prohibiting disaffiliation. In the absence of enforceable provisions in the federations constitution preventing disaffiliation of a local union, a local may sever its relationship with its parent. When a union which is not independently registered disaffiliates from the federation, it is not entitled to the rights and privileges granted to a LLO It cannot file a petition for certification election Neither can it bargain with the ER nor stage a strike The EEs check-off authorization, even is declared irrevocable, is good only as long as they remain members of the union. When a local union disaffiliates from a national union or federation, the latter ceases to be entitled to check-off dues. Once the fact of disaffiliation is demonstrated beyond doubt a certification election is the most expeditious way of determining which LO is the exclusive bargaining representative.
B. RULE LEGALITY ACT - DISAFFILIATION The validity of the legal union disaffiliation is to be determined on the basis of the provisions of the constitution and by-laws of the local union with respect to the process of disaffiliation. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills) C. MINORITY DISAFFILIATION Generally, a labor union may disaffiliate from the mother union only during the 60-day period immediately preceding the expiration of the CBA (Tanduay vs. NLRC). However, a mere minority cannot file a petition for a union disaffiliation, even within the prescribed 60-day period before the expiry of an existing CBA. (Villar vs. Inciong) Need to be effected by the majority of the members in the bargaining unit D. EFFECT OF DISAFFILIATION SUBSTITUTIONARY DOCTRINE What is the substitutionary doctrine? EEs cannot revoke the validly executed CBA with their ER by the simple expedient of changing their bargaining agent. (NAFLU vs. Noriel) Thus, the CBA continued to bind the members of the new or disaffiliated and independent union up to the CBAs expiration date. (Associated Workers Union vs. NLRC) However, the substitutionary doctrine is not applicable to the personal undertaking of the deposed union i.e. no-strike stipulation. (Benguet Consolidated vs. PAFLU)

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But may negotiate to shorten the period of validity
Section 4. THE APPROPRIATE BARGAINING UNIT

4.1 LAW AND DEFINITION Define the appropriate bargaining unit : Group of EEs of a given ER, comprised of all or less than all of the entire body of EEs, consistent with the equity to the ER, indicated to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. (SMC vs. Laguesma) Within one unit there may be one or more unions, but for bargaining with the ER only one union the majority of incumbent union should represent the whole bargaining unit. (Azucena) Dept Order No. 9 (s 1997), Rule 1, Sec. 1 (q) Bargaining Unit refers to a group of Employees -sharing mutual interests within a given ER unit, -comprised of all or less than all of the entire body of Employees in the ER unit or any specific occupational or geographical grouping within such ER unit. What is the function of an appropriate bargaining unit? 1. To act as a SOVEREIGN in relation to the CE and CBA 2. It is an ELECTION DISTRICT. It marks the boundaries of those who may participate in a certification election. 3. It is an Economic Unit. From the reading of article 255: its function is to select or designate a labor organization to represent them in collective bargaining. 4.2 DETERMINATION OF APPROPRIATE BARGAINING UNIT FACTORS UNIT DETERMINATION The fundamental factors in determining the appropriate collective bargaining unit are : [W A P E] 1. Will of the EEs. 2. Affinity and unity of the EEs interest, such as substantial similarity of work and duties, or similarity in compensation and working conditions. 3. Prior collective bargaining history. 4. Similarity of employment status, such as temporary, probationary and seasonal EEs. Among these factors, the Supreme Court has consistently ruled that the test of grouping is mutuality or commonality of interests. The EEs sought to be represented by the collective bargaining agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they perform. (SMC vs. Laguesma) In this respect, the basic test of an asserted bargaining units acceptability is whether or not it is fundamentally the combination which will best assure to all the EEs the exercise of their collective bargaining rights. (Belyca vs. Ferrer-Calleja) 1. In making judgments about community of interest in these different settings, the Bureau of Labor and Relation will look to such factors as : 1. Similarity in the scale and manner of determining earnings. 2. Similarity in employment benefits, hours of work, and other terms and conditions of employment. 3. Similarity in the kinds of work performed. 4. Similarity in the qualifications, skills and training of EEs. 5. Frequency of contact or interchange among the EEs. 6. Geographic proximity.

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7. Continuity or integration of production processes. 8. Common supervision and determination of labor-relations policy. 9. History of collective bargaining. 10. Extent of union organization. (Azucena) U.P. v. Ferrer-Calleja , 211 SCRA 451 (1992) HELD: A bargaining unit is a group of Employees, comprised of all or less than all of the entire body of Employees, which the collective interest of all the Employees, consistent w/ equity to the ER, indicate to be the best suited to serve the reciprocal rights & duties of the parties under the CB provisions of the law. In Democratic Labor Assoc v. Cebu Stevedoring Co ., there are factors w/c must be satisfied & considered in determining the PROPER UNIT. Rothenberg mentions: 1) will of the Employees, 2) affinity & unity of Employees interest, such as substantial similarity of works and duties or similarity of compensation & working conditions, 3) prior CB history and 4) employment status i.e. temporary, seasonal, & probationary Employees. The TEST of grouping is COMMUNITY or MUTUALITY of INTERESTS because the basic test of an asserted bargaining units ACCEPTABILITY is won it is fundamentally the combination w/c will best assure to all Employees the exercise of their CB rights. *** Take note: This is related to the policy of the law in ensuring the right to collective bargain. TAKE NOTE from the Professors Lecture: -The law is looking only for what is PROPER OR APPROPRIATE. The law is NOT looking for the best. RATIONALE OF THE COMMUNITY OR MUTUALITY OF INTEREST TEST: -Greater chance of success for the collective bargaining process. Illustration of Prof.: A group of rank and file of old employees can be separated from a rank and file of young employees, especially if the issue involved in the collective bargaining would be to choose between salary raise or a pension plan. The two groups do not have the same interest, thus it will be harder for them to bargain. ELEMENTS OF AN APPROPRIATE BARGAINING UNIT: 1. COMPOSITION -All or less than all of the entire body of employees 2. EQUITY --Of employees: A.k.a = Collective interest of employees consistent with the equity of the employer.
3. PURPOSE -to serve the reciprocal rights & duties of the parties under the CB provisions of the law. * The prime element in determining WON a given group of EEs constitutes a proper BU is whether it will without inequity to the ER best serve all EE in the exercise of their bargaining rights. Can you have a permanent bargaining unit? No. An appropriate bargaining unit depends on the factors that are influenced by the market place. The bargaining unit is designed to maintain the mutuality of interest among the employees in such unit. Thus a reason to dissolve, change or

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expand a certain bargaining unit is when THE INTEREST BETWEEN GROUPS HAS CHANGED OVER TIME. 2. A cigar manufacturing company has 7 departments, namely administrative, raw leaf, cigar, cigarette, engineering and garage, dispensary and sales. May the rank-and-file in the administrative, sales and dispensary be grouped separately from the rank-and-file of the other departments? Yes. They are engaged in work different from those performed in the other departments. Thus, they have a community of interest different from that of the other departments. (Alhambra vs. PAFLU) Golden Farm has 2 sets of EEs : monthly-paid clerical workers and daily-paid agricultural workers. May the monthly-paid EEs constitute a separate bargaining unit? Yes. The monthly-paid EEs have very little in common with the daily-paid EEs in terms of duties and obligations, working conditions, salary rates, and skills. (Golden Farms vs. Sec. of Labor) May the non-academic personnel of UP be joined with the academic personnel? No. The 2 groups do not have community or mutuality of interests. (UP vs. FerrerCalleja)
3.
4.
HISTORY San Miguel Corp. v. Laguesma , 236 SCRA 595 (1994) HELD: Prior collective bargaining history is not conclusive or determinative of what constitutes the appropriate bargaining unit. The test of grouping is mutuality or commonality of interest. The Employees sought to be represented by CB agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they perform. There is similarity of employment status for all sales personnel. They have the same duties, responsibilities, compensation and working conditions. SMA cant insist that each sales office should constitute one bargaining unit. There is meager number of sales personnel in each sales office. Even the whole bargaining unit sought to be represented only consists of 55 employees. It would not be for the best interest to fractionalize them further. It is not the convenience of the employer that constitutes the determinative factor in forming the bargaining unit. Geography Location Benguet Consolidated Inc. v. Bobok Lumberjack Assn. , 103 P 1150 (58) HELD: The court below is correct in concluding that the system of having one collective bargaining unit for each camp should be maintained and continued for the following reasons: Such system had operated satisfactorily. The prime element in determining whether a given group of employees constitute a proper bargaining unit is whether it will, without inequity to the employer, best serve all employees in the exercise of their bargaining rights. In the present case the separation between the camps and the different kinds of work in each all militate in favor of the present system of separate bargaining units since the problems and interest of the workers are peculiar in each camp or department. Take note: this case is also based on historical factors. Corporate Entities

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Indophil Textile Mills Workers Union v. Calica , 205 SCRA 697 (92) FACTS: The Indophil Textile Mills Workers Union and Indophil Textile executed a CBA which provided that the CBA shall apply to the companys extensions and expansions. Indophil Acrylic (WHICH IS ANOTHER COMPANY) was formed. Its workers unionized and another CBA was executed. Indophil Textile Mills Workers Union claimed that Acrylic should be considered an extension of Indophil textile and therefore the CBA executed by Indophil textile and the Union should cover Indophil Acrylic. ISSUE: WON the operation in INDOPHIL ACRYLIC is an extension or expansion of Indophil Textile Mills. HELD: Indophil ACRYLIC is NOT an extension of INDOPHIL TEXTILE. Thus the CBA of Indophil textile, cannot apply to Indophil Acrylic. 1. The existence of a bonafide business relationship between Acrylic and Indophil Textile is not a proof of being a single corporate entity because the services which are supposedly provided by Textile to Acrylic are AUXILIARY SERVICES or activities which are NOT ESSENTIAL in the actual production of Acrylic. The essential services are discharged exclusively by Acrylic personnel under the control and supervision of Acrylic managers and supervisors. 2. Diatagon Labor Federation v. Ople GR L- 44493-94 (1980) : two corporations cannot be treated as single bargaining units even if their businesses are related. It submits that the fact that there are as many bargaining units as there are companies in a conglomeration of companies is a positive proof that a corporation is endowed with a legal personality DISTINCTLY ITS OWN, independent and separate from other corporations. 3. Unlike Indophil Textile, Indophil Acrylic cannot manufacture textile while Indophil Textile Cannot buy or import yarn. Thus this shows that Indophil Acrylic is not an alter ego or an adjunct or business conduit of Indophil Textile because it has a separate legitimate purpose. 4. Under the doctrine of piercing the corporate veil, when valid grounds exist, the legal fiction that a corporation is an entity with a juridical personality separate and distinct from another may be disregarded. Doctrine applies when the fiction defeats public convenience, justifies wrong, protects fraud or defends crime. 5. The fact that the businesses are related, that some of the employees are the same persons working in the other company and the physical plants, offices and facilities are in the same compound arent sufficient to pierce the corporate veil of Acrylic. 6. In Umali vs CA, legal corporate entity is disregarded only if it is sought to hold the officers and stockholders directly liable for a corporate debt or obligation. The union in this case does not seek to impose a claim on the members of Acrylic. 7. Lastly it is grave abuse of discretion to treat 2 companies as a single bargaining unit when these 2 companies are indubitably distinct entities with separate juridical personalities. San Miguel Corp. Employees Union v. Confesor , 262 SCRA 81(1996) San Miguel Corporation was originally one company composed of four operating divisions namely: 1. beer, 2. packaging, 3. magnolia, 4. feeds and livestock. San Miguel Corporation employees for ALL DIVSIONS were represented by San Miguel Corp employees unionPTGWO. San Miguel underwent a restructuring. As a consequence of this Magnolia and Feeds & livestock Division were spun-off and became two separate and distinct corporations. ISSUE: WON the employees of the two new corporations (Magnolia Corp & San Miguel Foods) should still remain in the same bargaining unit and be included I the old bargaining unit of the old SMC? HELD: No. Employees in the Magnolia Corporation and San Miguel Foods may form a separate bargaining unit.

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1. The transformation of the companies was a management prerogative and business judgment which the courts cannot look into unless it is contrary to law, public policy or morals. Neither can we impute any bad faith on the part of SMC to justify the application of the doctrine of piercing the corporate veil. 2. Each of the companies are run by, supervised and controlled by different management terms including separate human resource/personnel managers. Each company enforces its own administrative and operational rules. Each entity maintains separate financial statements and are is audited separately from the other. 3. No mutuality of interest anymore between corporations: Considering the spin-offs, the companies would consequently have their respective and distinctive concerns in terms of the nature of work, wages, hours of work and other conditions of employment. Interests of employees in the different companies perforce differ. SMC is engaged in the business of beer manufacturing. Magnolia is involved in the manufacturing and processing of dairy products while SMFI is involved in the production of feeds and processing chicken. 4. The nature of their products and scales of business may require different skills which must necessarily be commensurate by different compensation packages. The different companies may have different volumes of work and different working conditions. For such reason, the employees of the different companies see the need to group themselves together and organized themselves into distinctive and different groups. Take note: The two cases cited the case of Diatagon Labor Federation Local 110 of the ULGWP v. OPLE (101 SCRA 534, 1980 ) & the Professor discussed the case in class, here are the relevant portions: The fact that their businesses are related and that the 236 employees of Georgia Pacific International Corporation were originally employees of Lianga Bay Logging Co. Inc. is not a justification for disregarding their separate personalities. Hence, the 236 employees, who are now attached to Georgia Pacific International Corporation, should not be allowed to vote in the certification election at the Lianga Bay Logging Corporation, Inc. They should vote at a separate certification election to determine the collective bargaining representative of the employees of Georgia Pacific International Corporation. Take note: The above three cases were distinguished by the Professor with the case of Phil Scouts Veterans. Management Phil. Scouts Veterans v. Torres , 224 S 682 (93) This case involved three companies (PSVSIA, GVM, & ASDA) and only one union (UFW). ISSUE: Whether or not a SINGLE petition for certification election or for recognition as the SOLE and EXCLUSIVE bargaining agent can validly or legally be filed by a labor union in three (3) corporations each of which has a separate and distinct legal personality instead of filing three (3) separate petitions? HELD: Yes. 1. The securities agencies concerned (PSVSIA, GVM, & ASDA) do not exist and operate separately and distinctly from each other with different corporate directions and goals. All the cross-linking of the three agencies command, control and communication systems indicate their unitary corporate personality. a. The security agencies are managed through the Utilities Management Corporation with all of their employees drawing their salaries and wages from said entity. b. Agencies have common and interlocking incorporators and officers.

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c. PSVSIA, GVM and ASDA employees have a single Mutual Benefit System and followed a single system of compulsory retirement. d. No explanation was given why the security guards of one agency could easily transfer from one agency to another and then back again by simply fillingup a common pro forma slip called "Request for Transfer". e. PSVSIA, GVM and ASDA always hold joint yearly ceremonies such as the "PGA Annual Awards Ceremony". f. In emergencies, all PSVSIA Detachment Commanders were instructed in a memorandum to get in touch with the officers not only of PSVSIA but also of GVM and ASDA. 2. Veil of corporate fiction should be lifted for the purpose of allowing the employees of the three agencies to form a single labor union. Employees need not file three separate petitions for certification election. All of these could be covered in a single petition. Test Dunlop Slazenger Inc. v. Secretary of Labor and Employment , 300 SCRA 120 (1998) A unit to be appropriate must affect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining. Belyca Corporation v. Ferrer-Calleja , 168 SCRA 184 (1988) Among the factors considered in Democratic Labor Association v. Cebu Stevedoring are: 1. will of employees (Globe Doctrine); 2. affinity and unity of employees interest, such as substantial similarity of work and duties or similarity of compensation and working conditions; 3. prior collective bargaining history; and 4. employment status, such as temporary, seasonal and probationary employees. Under the circumstances of that case, the Court stressed the importance of the fourth factor and sustained the trial courts conclusion that the two separate bargaining units should be formed in dealing with respondent company, one consisting of regular and permanent employees and another consisting of casual laborers or stevedores. Otherwise stated, temporary employees should be treated separately from permanent employees. But more importantly, this Court laid down the test of proper grouping, which is communality and mutuality of interest. Examples wherein the communality or mutuality of interest test was applied: 1) Alhambra Cigar and Cigarette Manufacturing v. Employees Association: Nature of work was at issue -- the Court stressed the importance of the second factor otherwise known as the substantial-mutual-interest-test. And found that the employees in the administrative, sales and dispensary departments perform work which has nothing to do with production and maintenance, unlike those in the raw leaf, cigar, cigarette packaging and engineering and garage departments and therefore have a community of interest which justifies the formation or existence as a separate appropriate collective bargaining unit. 2) PLASLU v. CIR: among the factors to be considered are: employment status, position and categories of work, unity of employees interest such as substantial similarity of work and duties. 3) LVN Pictures v. Phil Musicians Guild: there is a substantial difference between the work performed by musicians and that of other persons who participate in the production of a film which suffice to show that they constitute a proper bargaining unit. 4) Golden Farms Inc. v Secretary: Monthly paid office and technical rank-and-file employees enjoy the constitutional right to self-organization and collective bargaining. Community or mutuality of interest is the essential criterion. Basic test is whether or not it is

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fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. Monthly paid rank-and-file employees perform administrative or clerical work. Daily paid rank-and-file employees mainly work in the cultivation of bananas in the fields. They have very little in common in terms of duties and obligations, working conditions, salary rates, and skills. In the case at bar, it is beyond question that the employees of the livestock and agro division of Petitioner Corporation perform work entirely different from those performed by employees in the supermarts and cinema. The noted differences are: the hours of work, working conditions, rates of pay. San Miguel Corp. v. Laguesma , 236 SCRA 595 (1994) HELD: Prior collective bargaining history is not conclusive or determinative of what constitutes the appropriate bargaining unit. The test of grouping is mutuality or commonality of interest. The Employees sought to be represented by CB agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they perform. There is similarity of employment status for all sales personnel. They have the same duties, responsibilities, compensation and working conditions. UNIT SEVERANCE AND THE GLOBE DOCTRINE What is the Globe Doctrine? The relevancy of the wishes of the EEs concerning their inclusion or exclusion from a proposed bargaining unit is inherent in the basic right of selforganization. While the desire of EEs with respect to their inclusion in bargaining unit is not controlling it is a factor which would be taken into consideration in reaching a decision. FROM THE PROFESSORS LECTURE A brief explanation of the GLOBE DOCTRINE It is best explained in the context of a market place and the demand of employment on such market place. The GLOBE DOCTRINE usually applies to employees with rare skills or highly technical ones. Example given: Case of Pilots and Stewardess. If ,originally, pilots and stewardesses belong to ONE bargaining unit (unit A) for the purpose of collective bargaining, with the use of the GLOBE DOCTRINE a plebiscite can be held to determine if the pilot employees would want to form a separate bargaining unit (unit B). Illustration: Unit A (original bargaining unit) : 100 Pilots + 200 Stewardesses = 300 employees Unit B (proposed new unit): Pilots = 100 employees. Those in unit B (100 pilots) will vote in a plebiscite. Their choices will be (1) To vote for Unit A: this would mean that they do not wish to separate from the original bargaining unit. (2) To vote for Unit B: This would mean that they would want to form their OWN bargaining unit, composed of pilots only. (3) Neither: They do not want the choices If you have one BIG bargaining unit, most probably you are grouping together DIFFERENT SKILLED workers. Rationale of the Globe Doctrine: highly skilled workers have to separate to increase their market value. Under the Globe Doctrine, will of the employees is the determinative factor. SINGLE OR ER UNIT IS FAVORED

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1. It has been the policy of the Bureau to encourage the information of an ER unit unless circumstances otherwise require. The proliferation of unions in an ER unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of EEs the right to self-organization for purposes of collective bargaining. (Philtranco vs. BLR) 2. It is proposed in a certification election that the professors of L. College be grouped into 2 units : high school and college professor. The proposal is based on the fact that the rules governing the 2 are different, that the set up of the 2 departments are different and that the manner of their payment is different. This proposal is opposed on the following grounds : that the 2 departments are under the control of only 1 board of trustees; that they are housed in the same building; that there is but 1 cashier and registrar for the 2 departments; that there are teachers who are teaching in both departments; that the elementary department would be left without a bargaining representative; and that there are only 130 teachers involved in the proceedings. How many bargaining units should there be? The facts show community of interests of the teachers in the college and high school departments. Beside, the establishment of separate units would leave the elementary teachers without a bargaining representative. And considering that there are only 130 teachers, the division of the bargaining unit dissipate their strength for collective bargaining purposes. Finally, the ER would be contending with 2 different unions vying for each other for better benefits to gain more members. (Laguna College vs. CIR) TWO COMPANIES WITH RELATED BUSINESSES Two corporations cannot be treated as a single bargaining unit even if their business are related. (Diatogon vs. Ople) However, when if in reality, the companies constitute a single business entity i.e. 3 corporations acting as security agencies were under the same management and had interlocking incorporators and officers, the veil of corporate fiction may be lifted for the purpose of allowing the EEs to form a single union and be part of a single bargaining unit. (PSVSIA vs. Torres) SIZE OF UNIT AND EFFECT ON RIGHT TO SELF-ORGANIZATION Filoil Refinery Corp. v Filoil Supervisory and Confidential Employees Union , 46 Phil 512 (1972) ISSUE: The right of supervisors and confidential employees to organize a labor association and to bargain collectively with their employer. HELD: Since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis--vis the rank and file employees, such identity of interest has allowed their inclusion in the bargaining of supervisors for purposes of collective bargaining in turn as employees in relation to the company as their employer. This identity of interest logically calls for their inclusion in the same bargaining unit and at the same time fulfills the laws objective of insuring to them the full benefit of their right to selforganization and to collective bargaining, which could hardly be accomplished if the respondent associations membership were to be broken up into five separate ineffective tiny units. Creating fragmentary units would not serve the interest of industrial peace. The breaking up of bargaining units into tiny units will greatly impair their organizational value. Since the confidential employees are very few and are identified with the supervisors in their role as representatives of management vis-a-vis the rank and file employees, such identity of interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes of collective bargaining. Industrial court enjoys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representations by employees. Action in deciding upon an appropriate unit for collective bargaining purposes is discretionary. Its judgment is entitled to finality, unless its action is arbitrary or capricious.

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Supervisor Unit Dunlop Slazenger v. NLRC , 300 SCRA 120 (1998) Supervisors can be an appropriate bargaining unit. EFFECT OF PRIOR AGREEMENT General Rubber & Footwear Corp. v BLR , 115 SCRA 283 (1987) HELD: Monthly paid Employees are not managerial. The supervisory power of such Employees consists merely in recommending as to what managerial actions to take in disciplinary cases. They DO NOT FIT into the definition of managerial Employees laid down in Bulletin Publishing Corp v. Sanchez. Thus, they are NOT PROHIBITED from forming a union. It hasnt been shown that their responsibilities require the exercise of discretion and independent judgment or that they possess power and authority to lay down or exercise management policies. The proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to selforganization for purposes of collective bargaining. This case does not fall squarely within the exception. Monthlies who are rank-and-file have been historically excluded from the bargaining unit composed of daily-paid rank-and-filers. It is unusual to have to deal with 2 collective bargaining unions but there is no one to blame for creating the situation. General had sought to indiscriminately suppress the members right to self-organization. Exclusion of the members from the bargaining union of the rank-and-file or from forming their own union was agreed upon by corporation with the previous bargaining representatives. However, it can never bind subsequent federations and unions because it is a curtailment of the right to self-organization guaranteed by the labor laws. Monthly-paid rank-and-file employees should be allowed to join the union of the daily-paid-rank-and-file employees so that they can also avail of the CBA benefits or to form their own rank-and-file union, without prejudice to the certification election that has been ordered. DETERMINING AGENCY Art. 232 Prohibition on Certification Election [sec. 15 of RA 6715] The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties EXCEPT under Art. 253, 253-A and 256 of this Code (60 day freedom period) Filoil Refinery Corp. v Filoil Supervisory and Confidential Employees Union , 46 Phil 512 Industrial court enjoys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representations by employees, and that its action in deciding upon an appropriate unit for collective bargaining purpose is discretionary and that its judgment in this respect is entitled to almost complete finality, unless its action is arbitrary or capricious and that absent any grave abuse of discretion as to justify the Courts intervention. Action in deciding upon an appropriate unit for collective bargaining purposes is discretionary. Its judgment is entitled to finality, unless its action is arbitrary or capricious.

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Section 5. UNION REPRESENTATION : ESTABLISHING UNION MAJORITY STATUS

5.1 PRE-CONDITION ER-EE RELATIONSHIP The duty to bargain collectively exists only between the ER and its EEs. When there is no duty to bargain collectively, it is not proper to hold certification election in connection therewith. (PLUM vs. Compania vs. Maritima) Why is an employer-employee relationship a PRE-CONDITION before a petition for certification election can be entertained? An employer employee relationship is a pre-condition since without such relationship, there will be no duty to bargain on the part of either the employer or employee. Thus it will be senseless to go on with a certification election to choose their bargaining representative when there is no duty to collectively bargain anyway. (Allied Free Workers Union v. Cia Maritima, 19 SCRA 258, 1967) 5.2 METHODS OF ESTABLISHING MAJORITY STATUS CERTIFICATION ELECTION ; CONSENT ELECTION ; AND RUN-OFF ELECTION Define certification election, consent election, and run-off 1. Certification Election Process of determining through secret ballot, the sole and exclusive bargaining agent of the EEs in an appropriate bargaining unit, for purposes of collective bargaining. (Certification proceedings directly involve two issues): a. proper composition and constituency of the bargaining unit; and b. validity of majority representation claims of the asserted bargaining representative or of competitive bargaining representative. (Azucena) 2. Consent Election Election voluntarily agreed upon by the parties to determine the issue of majority representation of all the workers in the appropriate bargaining unit. 3. Run-Off Election between the labor unions receiving the 2 highest number of votes when a certification election which provides for 3 or more choices results in no choice receiving a majority of the valid votes cast. Exclude spoiled ballots where the total number of votes for all contending unions is at least 50% of the number of votes cast. Distinguish consent election from certification election : A consent election is an agreed one; its purpose being merely to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit. A certification election is aimed at determining the sole and exclusive bargaining agent of all the EEs in the appropriate bargaining unit for the purpose of collective bargaining. (Warren Workers Union vs. BLR) CERTIFICATION ELECTION Purpose: determine the SOLE & EXCLUSIVE bargaining agent of all the EEs in the appropriate bargaining unit (ABU) for the purpose of collective bargaining.
CONSENT ELECTION An agreed one Purpose: merely to determine the issue of majority representation of all the workers in the ABU Separate and distinct process; has nothing to do with the import and effect of a certification election Does not shorten the existing CBA Does not entitle participants to immediately renegotiate an existing CBA POLICY A. NO DIRECT CERTIFICATION Direct certification is no longer allowed as a method of selecting the bargaining agent. Where a union has a filed petition for certification election, the mere fact that no opposition is made does not warrant a direct certification. (CENECO vs. Sec. of Labor) Colgate Palmolive Philippines v. Ople , 163 SCRA 323, (1988) ISSUE: WON the secretary of labor can directly certify a union as the sole and exclusive bargaining agent? HELD: NO! He cannot directly certify. The main purpose of the procedure in Art. 257 - 260 is to aid in ascertaining the majority representation. The implementing rules pertinent to these provisions are all calculated to ensure that the certified bargaining rep is the TRUE CHOICE OF THE EMPLOYEES against all contender. The constitutional mandate that the State shall assure the rights of the workers to selforganization, collective bargaining, security of tenure and just and humane conditions of work, should be achieved under a system of law such as the aforementioned provisions of the pertinent statute. When an overzealous official by-passes the law on the pre-text of retaining a laudable objective, the intendment or purpose of the law will lose its meaning as the law itself is disregarded. When respondent minister (Sec. Of Labor) DIRECTLY certified the union, he in fact DISREGARDED THE PROCEDURE AND ITS LEGAL REQUIREMENT. There was therefore FAILURE TO DETERMINE with legal certainty whether the union indeed enjoyed majority representation. The holding of a certification election at the proper time IS NOT NECESSARILY A MERE FORMALITY. Even in a case where a union has filed a petition for certification elections, the mere fact that no opposition is made does NOT warrant a certification election. There can be NO VOLUNTARY RECOGNITION Samahang Manggagagwa sa Premex v. Secretary of Labor , 286 SCRA 693 (GR 107792) ISSUE: Can an employer voluntarily recognize a union as the bargaining representative of the employees? HELD: NO! It cannot. The employer (Permex) should not have given its voluntary recognition to the union when the latter asked for recognition as exclusive collective bargaining agent of the employees of the company.
The company did not have the power to declare the union as the exclusive representative of the workers for the purpose of collective bargaining. Certification election is the most effective and the most democratic way of determining which labor organization can truly represent the working force in the ABU of the company. B. EFFECT OF ONE UNION ONLY Certification election is the best and most appropriate means of ascertaining the will of the EEs as to their choice of an exclusive bargaining representative. That there are no competing unions involved should not alter that principle, the freedom of choice of the EEs being the primordial consideration besides the fact that the EEs can still choose between union and no union. (George and Peter Lines vs. ALU) C. ONE-UNION, ONE-COMPANY POLICY Give a brief description on the one-union, one-company policy : The proliferation of unions in an ER unit is discouraged as a matter of policy unless compelling reasons exist which deny a certain and distinct class of EEs the right to self-organization for purposes of collective bargaining. (Pagkakaisa ng mga Manggagawa sa triumph vs. Ferrer-Calleja) D. RATIONALE The holding of a certification election is based on a statutory policy that cannot be circumvented. The workers must be allowed to freely express their choice in a determination where everything is open to their sound judgment and the possibility of fraud and misrepresentation is eliminated. (Progressive development vs. Sec. of Labor) VENUE OF PETITION 1. Sec. 1, Rule V, Book V, IRRs : A petition for certification election may be filed with the Regional Office which has jurisdiction over the principal office of the ER. 2. Sec. 6, Rule V, Book V, IRRs : Upon receipt of the petition, the regional director shall assign the case to a Med-Arbiter to appropriate action. The Med-Arbiter shall have 20working days from submission of the case for resolution within which to dismiss or grant the petition. 3. In case the place of work of the EEs and the principal office of the ER are located within the territorial jurisdiction of different regional offices, may the workers file the application in their place of work? Yes. The word jurisdiction as used in the provision refers to venue, and venue touches more to the convenience of the parties rather substance of the case. Since the worker is more economically disadvantaged, the nearest government machinery to settle a labor dispute must be placed at his immediate disposal. (Cruzvale vs. Laguesma) PAST NON PARTICIPATION No law, administrative rule or precedent prescribes forfeiture of the right to vote by reason of neglect to exercise the right in the past certification election 5.3 CERTIFICATION ELECTION What is the PURPOSE of a certification election? It is a means of determining the workers choice of: 1) Whether the want a union to represent them for collective bargaining OR they want NO union to represent them at all. 2) And if they choose to have a union represent them, they will choose WHICH among the contending union will be the SOLE and EXCLUSIVE bargaining representative of the employees in the appropriate bargaining unit.
1st Level of Choice: 2nd Level of Choice:
Yes Union or No Union If Yes Union wins, WHICH union.
UST Faculty Union v. Bitonio 318 SCRA 185,(1999) Specifically, the purpose of a certification election is to ascertain whether or not a majority of the employees (1) wish to be represented by a labor organization and (2) by which particular labor organization. BACKGROUND POLICIES and CHARCTERISTICS behind a certification election: 1. It is NOT a Litigation, but a mere investigation of a non-adversary character No determination of rights violated or asserted. Determination of workers choice only. IMPLICATION: Technical rules and objections should not hamper the correct ascertainment of the labor union that has the support and confidence of the majority of the workers and is thus entitled to represent them in bargaining for the terms and conditions of their employment. (Port Workers Union v. DOLE) 2. it is most DEMOCRATIC and most efficacious/ effective way (Samahang manggagawa sa permex case) and it is a STATUTORY POLICY (Belyca Corp. v. Ferrer-Calleja) > There should be no obstacle in conducting the Certificate election. STATUTORY FRAME-WORK AND POLICY TAKE NOTE: Certification election implements the policy of right to self-organization and collective bargaining. The right of self-organization includes the right of the workers to have a bargaining representative OF THEIR OWN CHOOSING for the purpose of collective bargaining. Statutory Frame-work I. The different entry points to a certification election Art. 256: Organized Establishments Art. 257: Unorganized Establishments Art. 258: Employer-Initiated Certification Election Take note: II. The mechanics of the three entry-points are similar and the same.
The BARS to a CE: Prevents the happening of a CE. a. Contract bar rule (Art. 232) b. Deadlock-bar rule c. One year bar rule Take note: among all the bar rules, only the contract bar is actually in the labor code, the other two are in the implementing rules.
III.
Suspension of CE: Prejudicial question rule
UNION AS INITIATING PARTY

A. ORGANIZED ESTABLISHMENT It is an establishment with: a. An existing CBA; or b. Duly certified bargaining agent. 1. Under what conditions may the Med-Arbiter automatically order a certification election by secret ballot in an organized establishment? a. Petition questioning the majority status of the incumbent bargaining agent is filed before the DOLE within the 60-day freedom period.
b. Such petition is verified. c. The petition is supported by the written consent of at least 25% of all EEs in the bargaining unit : (Art. 256) The 25% subscription requirement is prescribed only in organized establishments, that is, those with existing bargaining agents. Does not apply to unorganized establishment
2. In case there are 3 or more unions contending in a certification election, what will happen if no union receives a majority of the valid votes cast? Provided that the total number of votes of all contending unions is at least 50% of the number of votes cast [that is, the contending unions got more votes than the vote for no union], a run-off election will be conducted between the 2 unions with the highest number of votes. (Alcantara) 3. A certification election was held between 3 contending unions, A, B and C. Of the 560 eligible voters, only 500 actually cast their votes. A got 220 votes, B got 242 votes and C got 30 votes, while the rest of the ballots were considered spoiled. How do you determine the majority vote in the certification election ? The majority vote in the certification election is 50% plus 1 of the valid votes cast. Spoiled ballots are excluded. (Id.) A.1 DEFINITION What is an organized establishment? It is a firm or company where the EE have selected an exclusive bargaining representative or where there is a CBA duly submitted to the DOLE. (Sec. 6, Rule V, Book V, IRRs) Take note: in relation to the one-year bar rule, a duly certified bargaining agent is allowed one-year to negotiate for the signing of a CBA, that is why no CE can be filed at this time. An organized establishment is best distinguished from an unorganized establishment by the presence of a bargaining representative. Since according to Art. 257, an unorganized establishment is an establishment without a bargaining representative. The distinctions are important because the requirements are different. ORGANIZED ESTABLISHMENT V. UNORGANIZED ESTABLISHMENT Art. 256: ORGANIZED Bargaining agent Petition filed Freedom Period Existing, has one Has to be a VERFIED petition Art. 257: UNORGANIZED None No need to be verified
No petition for Certification Not applicable. election EXCEPT within 60 days before the expiration No freedom period. Can file of the collective bargaining petition anytime. agreement (See Art. 253 & 253-A) Take note interpreted WITHIN. how the SC term
What is the rationale of freedom period in organized establishments, why is there none in unorganized establishments? It has something to do with industrial peace Substantial support rule Must be duly supported by 25% of ALL THE MEMBERS OF THE APPROPRIATE BARGAINING UNIT. Percentage base: all members of an appropriate bargaining unit. What is intent and purpose of law for requiring the substantial support rule? Law wants to know the intention of the employees. If they really want a CE, since they already have a bargaining agent. FREEDOM PERIOD 1. When may a petition for certification be filed in an organized establishment? A petition for certification election may be filed during the last 60 days (freedom period) of the CBA. Any petition filed before or after the 60-day freedom period shall be dismissed outright. (Sec. 3, Rule V, Book V, IRRs) 2. Is the freedom period affected by any amendment, extension or renewal of the CBA? No. The 60-day freedom period based on the original CBA, shall not be affected by any amendment, extension or renewal of the CBA for purposes of certification election. (Sec. 6, Rule V, Book V, IRRs) 3. May a new CBA executed by the incumbent exclusive bargaining representative and the company, and ratified during the 60-day freedom period be considered a bar to the certification election? No. The representation case shall not be adversely affected by a CBA registered before or during the last 60 days of a subsisting agreement or during the pendency of the representation case. (Sec. 4, Rule V, Book V, IRRs) A.3 FILING PARTY 1. Among the legal requirements before a petition for certification election may be ordered by the Med-Arbiter is that the petitioning union must be a legitimate labor organization in good standing. (Lopez Sugar vs. Sec. of Labor) 2. May a federation file such a petition in behalf of its chapter or local? The mother federation may file a petition for certification as agent of the local or chapter provided both the mother federation and the local or chapter is a legitimate labor organization. (Progressive Development vs. Sec. of Labor) If the legitimacy of the petitioner union is under question in a proceeding seeking to cancel its registration, such question must first be finally resolved before its petition for a CE may be granted. NO substantial support rule. WHY? Intention of law is to bring in the union, to implement policy behind Art. 211a.
Once the required percentage requirement has been reached, the EEs withdrawal from union membership taking place after the filing of the petition for CE will not affect it. A.4 SIGNATURE VERIFICATION It is the Director of Labor Relations, rather than a union that is required to determine whether there has been compliance with the requirement that at least 25% of all the EEs in the bargaining unit consented in writing to the holding of a certification election. (Todays Knitting vs. Noriel) Does a RIVAL union have authority to VERIFY the signatures in the substantial support requirement? No a rival union may not. Only the department of labor has authority to verify. There is no basis for the contention that a duty is cast on respondent director (secretary of labor) to allow a rival labor organization to verify the authenticity of such signatures. The duty to ascertain whether there was compliance was on the director of labor. (Todays Knitting Free Workers Union v. Noriel, 75 SCRA 450, 1977) A.5 SUBSTANTIAL SUPPORT 1. What percentage of the EEs should support the petition for certification election in an organized establishment? The required number is 25% of all the EEs in the bargaining unit. Is the substantial support rule a mandatory requirement? If you strictly follow the letter of the law it would seem to be mandatory. BUT the courts have interpreted Art. 256 to read in such a way that the secretary of labor has DISCRETION to order the holding of the certification election if it will achieve the policy of the law (Self-organization and collective bargaining). Western Agusan Workers Union v. Trajano ,196 SCRA 622, (1991) This one involves an ORGANIZED ESTABLISHMENT. The policy of the labor code is partial to the holding of a certificate election. Thus the DOLE in the exercise of his sound discretion may order CE even without the 30% (25%) requirement. When should the substantial support be shown or complied with? It need not be shown at the time of filing of the petition, may be shown within a reasonable time thereafter but should be before the election. 2. Is there a need for simultaneous submission of the signatures together with the petition for certification election? No. The mere filing of a petition for certification election within the freedom period is sufficient basis for the issuance of an order for holding of a certification election subject to the submission of the consent signatures within a reasonable period of time. (PWUP vs. Laguesma) 3. May a certification election be called by the Med-Arbiter although the 25% statutory requirement has not been complied with? Yes. Even conceding that the statutory requirement of 25% is not strictly complied with, the Med-Arbiter is still empowered to order that the certification election be held precisely for the purpose of ascertaining which of the contending labor organizations shall be the exclusive bargaining agent. The requirement then is relevant only when it becomes mandatory in conduct a certification election. (CMC vs. Laguesma) Once the statutory requirement is met, it is mandatory for the Med-Arbiter to conduct a certification election. (Belyca vs. Ferrer-Calleja) In all other instances, however, the discretion ought to be ordinarily exercised in favor of a petition for a certification election. (CMC vs. Laguesma)
4. The NFSW filed a petition for certification election. It was contended however by another union that more than 20% of the membership of NFSW disaffiliated and thus the union cannot meet the 25% support requirement. Should the petition be dismissed? If there is a reasonable doubt as to whom the EEs have chosen as their representative for the purpose of collective bargaining, the Bureau shall order a certification election by secret ballot. To hold otherwise would violate the liberal approach constantly followed in labor litigation. (VICMICO vs. Noriel) What is the effect on a petition of certification election of the withdrawal from union membership filed by that union? Once the required percentage requirement has been reached, the employees withdrawal from union membership taking place after the filing of the petition for certification election will not affect the petition. On the contrary the presumption arises that the withdrawal was not free but was procured through duress, coercion, or for a valuable consideration. Hence, the subsequent disaffiliation of the six (6) employees from the union will not be counted against or deducted from the previous number who had signed up for the CE. (Oriental Tin Can Labor Union v. Secretary of Labor and Employment 294 SCRA 640, 1998) A.6 MOTION FOR INTERVENTION SUPPORT A union that is merely filing a MOTION FOR INTERVENTION in a CE filed by another union need NOT present substantial support. The substantial support is only needed when filing for a petition for certification election. (PAFLU vs. Calleja, 169 SCRA 491)
B. UNORGANIZED ESTABLISHMENTS
Art. 257 : In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. FILING PERIOD When may a petition for certification be filed in an unorganized establishment? A petition for certification election may be filed at any time. (Sec. 3, Rule V, Book V, IRRs) ALU vs. CALLEJA In cases of organized bargaining agent, what is essential is whether the petition for certification election was filed within the 60-day freedom period. The mere filing of the same is sufficient basis for the holding of a certification election.
Who shall file the petition under Art. 257? A LEGITIMATE labor organization. It cannot be an unregistered labor organization. This is best read in relation to Art. 242 which enumerates the rights granted to a legitimate labor organization and one of those rights is the right to be chosen as the exclusive bargaining representative. This is one way the law encourages union registration. VENUE: Where to file? BLR region where union is. The one nearer to the employees.
ER AS INITIATING PARTY
Art. 258 : When requested to bargain collectively, an ER may petition the Bureau for an election. If there is no existing CBA in the unit, the Bureau shall, after hearing, order a certification election. The certification case shall be decided within 20 working days, and the certification election shall be conducted within the 20 working days from the decision.
A. ROLE ER ER has no role in certification election except when asked to bargain collectively under the Bystander Rule. (Philippine fruits and vegetable Industries vs. Torres) It was a wellsettled rule that ER has no standing to question a certification election since it is the sole concern of the workers. (PTTC vs. Laguesma) TAKE NOTE: Employer is a TOTAL STRANGER in the process of Certification Election. Employer has NO STANDING to file a MOTION TO DISMISS (Phil. Telephone Telegraph v. SOL) A companys interference in the CE creates a suspicion that it intends to establish a company union (Oriental Tin Can Labor Union v. Secretary of Labor). CONDUCTING AGENCY 1. Art. 226 : The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the DOLE shall have exclusive and original authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces whether agricultural or non-agricultural, except those arising from the implementation or interpretation of CBAs which shall be subject of grievance procedure and/or voluntary arbitration. 2. The practice of the Board referring certification cases to the TUCP, a private entity, is not sanctioned by the Labor Code. (PLUM vs. Noriel) NATURE OF PROCEEDING The certification election is the most democratic and expeditious method by which the laborers can freely determine the union that shall act as their representative in their dealings with the establishment where they are working. (PWUP vs. Laguesma) It is not litigation in a sense. It is a mere investigation of a non-adversary fact-finding character in which the BLR of the DOLE plays the part of a disinterested investigator seeking merely to ascertain the desires of the EEs as to the matter of their representative. (Airline Pilots Association vs. CIR) Certification proceedings are investigatory in nature since the object of the proceedings is not the decision of any alleged commission of wrong but is merely the determination of proper bargaining units and the ascertainment of the will and choice of the EEs in the selection in the selection of a bargaining representative. The determination of the proceedings doesnt entail the entry of remedial orders or redress of rights, but culminate solely in an official designation of bargaining units and an affirmation of the EEs expressed choice of bargaining agent. (Young Men Labor Union Stevedores v. CIR, 13 SCRA 285)
CERTIFICATION ELECTION PROCESS AND PROCEDURES Book V Rule XI: Certification Elections WHO may file? Sec. 1 Any legitimate labor organization Or any employer, when requested to bargain collectively and the status of the union is in doubt WHERE to file? Sec. 2 A petition for certification election shall be filed with the Med-Arbiter through the Regional Office which has jurisdiction over
a. the principal office of the employer or b. where the bargaining unit is principally situated. Where two or more petitions involving the same bargaining unit are filed in one Regional office, the same shall be AUTOMATICALLY consolidated. Where these petitions are filed in different Regional Offices, the Regional Office which FIRST ACQUIRES JURISDICTION over the case shall exclude the others, in which case the latter shall endorse the petition to the former for consolidation. WHEN to file? Sec. 3 a. In the absence of a collective bargaining agreement duly registered in accordance with Article 231 of the Code, a petition for certification election may be filed at any time. b. However, no certification election may be held within one year from the date of a valid certification, consent or run-off election or from the date of voluntary recognition in accordance with Rule X of these Rules; provided that, where an appeal has been filed on the order of the med-arbiter certifying the results of the elction, the running of the one year period shall be suspended until the descision on the appeal shall have become final and executory. c. Neither may a representation question be entertained if, before the filing of a petition for certification election, i. the duly recognized or certified union has commenced negotiations with the employer in accordance with Article 250 of the Code within one-year period referred to in the immediately preceding paragraph, ii. or a bargaining deadlock to an incumbent or certified bargaining agent is a party and has been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lock-out. d. If a collective bargaining agreement has been duly registered in accordance with Article 231 of the Code, a petition for certification election or a motion for intervention can only be entertained within sixty (60) days prior to the expiry date of such agreement. Sec. 1, Rule VI, Book V, IRRs : The Regional Division, shall cause the necessary posting of notices at least 5 working days before the actual date of election in 2 most conspicuous places in the company premises. A.1 Waiver The execution of an agreement to waive the mandatory 5 days posting election notices binds the parties thereto by the doctrine of estoppel. (JISSCOR vs. Torres) B. VOTING LIST AND VOTER based on the payrolls (3 mos) voting in a C E does not require union membership because CE elects a bargaining union; it does not elect union officers B.1 All EEs 1. Only EEs who are directly employed by the ER and working along the activities to which the ER is engaged and linked by ER-EE relationship are qualified to participate in the
certification election irrespective of the period of their employment. (Eastland Manufacturing vs. Noriel) Airtime Specialists, Inc. v Director of BLR (180 SCRA 749) 1990 In a certification election, all rank and file employees in the appropriate bargaining unit are entitled to vote. Collective bargaining covers all aspects of the employment relation and the resultant CBA binds all employees in the bargaining unit. All rank and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The code makes no distinction as to their employment status. The law refers to all the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the bargaining unit. 2. Are EEs prohibited by their religion to be members of a labor organization be allowed to vote in a certification election? Yes. The plainly discernible intendment of the law is to grant the right to vote to all bona fide EEs in the bargaining unit, whether they are members of a labor organization or not. (Reyes vs. Trajano) Benguet Electric Cooperative, Inc. v Calleja(180 SCRA 740) 1989 The employees of a cooperative may not join or form a labor organization for purposes of collective bargaining. As members of the cooperative, they are co-owners. An owner cannot bargain with himself or his co-owners. The fact the members-employees do not participate in the actual management of the cooperative does not make them eligible to form, assist or join a labor organization for the purposes of collective bargaining. It is the fact of ownership of the cooperative, not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative. Only 37 employees are not members of the cooperative and who are the only employees eligible to form or join a labor union. However, the minutes of the certification election show that a total of 83 employees were allowed to vote. The certification election is still null and void. It cannot be determined whether or not union was duly elected by the eligible voters of the bargaining unit since even employees who are ineligible to join a labor union within the cooperative because of their membership therein were allowed to vote in the certification election. B.2 DISMISSED EES EEs who have been improperly laid-off but who have a present, unabandoned right to the expectation of reemployment, are eligible to vote in certification elections. (Phil. Fruits and Vegetables Industries vs. Torres) R. Transport Corp. v Laguesma (227 SCRA 827) Company argues that the employment status of the members of CLOP who joined the strike must first be resolved before a certification election can be conducted. This is untenable. In Philippine Fruits v. Torres, employees who have been improperly laid off but who have a present, unabandoned right to or expectation of re-employment, are eligible to vote in certification elections. Employees who participated in the strike, legally remain as such, until either the motion to declare their employment status legally terminated or their complaint for illegal dismissal is resolved by the NLRC. B.3 PROBATIONARY EES Probationary EEs in the appropriate bargaining unit are entitled to vote. (Airtime Specialists vs. Director of Labor Relations) C. VOTING DAY 1. Sec. 2, Rule VI, Book V, IRRs : The election shall be set during the regular business day of the company unless otherwise agreed upon by the parties.
Valid election Majority of the workers of the ABU must cast their vote Does not make any distinction whether the ballot is valid or not 2. May a party to a certification election contend that the election was not held on a regular business day due to the occurrence of a strike that day? No. While it may have affected the actual performance of work, by some EEs, it did not necessarily make said date an irregular business day of the company. (Asian Design vs. Ferrer-Calleja) D. PROTEST 1. When should a protest be raised? (by the representation officer) a. On-the-spot during the conduct of the election. b. Before the close of proceedings with the representation officer. * Protests not so raised are deemed waived. Such protest shall be contained in the minutes if the proceedings. (Sec. 3, Rule VI, Book V, IRRs) * The protest should be formalized with the Med-Arbiter within 5 days after the close of the election proceedings, otherwise the protest shall be deemed dropped. (Sec. 4, Rule VI, Book V, IRRs) must be made of record in the minutes of the proceeding Phil. Fruits & Vegetables Ind. v. Torres Ruling: According to Sec. 3-4 Rule VI Bk V, the following are required so that a protest may prosper: (a) Protest must be filed with the representation officer and made of record in the minutes of the proceedings before the close of election proceedings. Protest not so raised are deemed waived; (b) Protest must be formalized before the Med-Arbiter within 5 days after the close of the election proceedings, which shall then be decided within 20 working days from the. The close of the election proceedings is the period from the closing of the polls to the counting and tabulation of the votes. Hercules Industries Inc. v Secretary , 214 SCRA 129 (1992) Notice of the certification election had been issued. Copies of said notice were given and posted in conspicuous places. Payroll was used as the basis of the voters' list. Only 15 out of the 98 voters signed their names showing that they actually voted. These were shown by the minutes of the pre-election conference. Neither the records of the case nor the minutes of the certification election show that Hercules protested the conduct of the certification election. Protests not so raised are deemed waived. Jisscor Independent Union v Torres , 221 SCRA 699 (1993) Grounds of a protest may be filed on the spot or in writing with the representation officer and shall be contained in the minutes of the proceedings. Protests not so raised are deemed waived. The minutes of the certification election show that JIU only protested against the use of emblem, visor, pin. Other protests not so raised are deemed waived. There is no merit in the argument that the non-posting of the notice of the certification election as prescribed misled and confused the workers regarding the mechanics of the election. JIU is estopped from raising that issue for it signed an agreement with JISSCOR to waive the mandatory 5 days posting of election notices. The doctrine of estoppel is based on grounds of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon. The results of the certification election belie the allegation that the workers were misinformed about the election out of 104 eligible voters, 99 were able to cast their votes and only 3 were spoiled ballots. Nothing in the records shows that the alleged wearing of sunvisors and pins, the posting of huge streamers, as well as the alleged escorting of voters by SMJ-ALU have unduly pressured, influenced, vitiated, or in any manner affected the choice of the workers.
E. APPEAL Art. 259 : Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Sec. of Labor and Employment on the ground that the rules and regulations established by the Sec. have been violated. Such appeal shall be decided within 15 calendar days. F. ANNULMENT United Employees Union of Gelmart Inv. v. Noriel , 67 S 267 (75) General allegation of duress is not sufficient to invalidate a certification election; it must be shown by competent and credible proof. Slightest doubt cannot be entertained that what possesses significance in a petition for certification is that through such a device the employees are given the opportunity to make known who shall have the right to represent them. What is equally important is that not only some but all of them should have the right to do so. Grievance spoken of is more fancied than real, the assertion of confusion and demoralization based on conjecture rather than reality. Nor need this Court pass upon the ground of protest based on the alleged participation by nuns and a priest who presumably aided the cause of GATCORD. Victoriano v. Elizalde left no doubt as to the privacy of religious freedom, to which contractual rights, even on labor matters, must yield. One's religious convictions may be the basis for a employee joining or refusing to join a labor union. Reference was made to the registration of GATCORD allegedly having been revoked. Pleadings do not touch upon the matter. Court is not in a position to rule on such a question. Confederation of Citizens Labor Union v. Noriel , 116 S 694 (82) Certification election is invalid because of certain irregularities. Workers on the night shift and some of those in the afternoon shift were not able to vote. Out of 1,010 voters only 692 voted and about 318 failed to vote. Secrecy of the ballot was not safeguarded. Election supervisors were remiss in their duties and were apparently "intimidated" by a union representative. Participating unions were overzealous in wooing the employees to vote in their favor by resorting to such tactics as giving free tricycle rides and T-shirts. Certification election gives the employees "true representation in their collective bargaining with an employer". ALU's written protest was based on the same founds invoked by CCLU in its protest. That fact alone should have alerted Noriel to disregard the technicality that CCLU's protest was not filed on time.
Timbungco v. Castro , 183 S 140 (90) Pajares was arguing that the elections where Timbungco won was invalid because there was no COMELEC and no tally sheet was prepared which set out the number of votes that each candidate got. However, it does not appear that the dispensing by the membership of the Kapisanan with certain technical requirements or formalities in relation to the election had resulted in the deprivation of any substantial right or prerogative of anyone, or caused the perpetration of a fraud or other serious anomaly, or precluded the expression and ascertainment of the popular will in the choice of officers. Objections to the elections have come too late, and they must be deemed in the premises to have forfeited their right to impugn. Protests against elections should be formalized before the med-arbiter within (5) days from the close of the election proceedings. Protest was presented only after the lapse of 2 years after it was held. No informal protest, oral or written, was ever presented against the election. There was tacit acceptance of the regularity of the elections and the results for during that period of 2 years, certain significant events took place without demur or objection of any sort. Timbungco officially made known to the BLR the Kapisanan's disaffiliation from the Federacion FOITAF and obtained a new certificate of registration for the union. He and the other officers of the Kapisanan negotiated with the AAATC management and succeeded in bringing about the execution of a new CBA. 5.4 CERTIFICATION OF DESIGNATED MAJORITY UNION
MAJORITY UNION Art. 255 Exclusive bargaining representation and workers participation in policy and decision-making [sec. 22 of RA 6715] -- The labor organization designated or selected by the majority of the EEs in an appropriate collective bargaining unit shall be the exclusive representative of the EEs in such unit for the purpose of collective bargaining. However, an individual EE or group of EEs shall have the right at any time to present grievances to their ER. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the SOLE may promulgate, to participate in policy and decision-making processes of the establishment where they are employed in so far as said processes will directly affect their RIGHTS, BENEFITS and WELFARE. For this purpose, workers and ERs may form LABOR MGT COUNCILs; Provided, that the representatives of the workers in such labor mgt councils shall be elected by at least the majority of all EEs in said establishment. Art. 256 Representation issue in organized establishments - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the DOLE within the 60 day period before the expiration of the CBA, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least 25% of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for 3 or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the 2 highest number of votes. Provided, that total number of votes for all contending unions is at least 50% of the number of votes cast. At the expiration of the freedom period, the ER shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election has been filed. Benguet Electric Cooperative, Inc. v Calleja , (180 SCRA 740) 1989 To have a valid certification election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. In this case, the election is invalid. Only 37 employees are not members of the cooperative and who are the only employees eligible to form or join a labor union. However, the minutes of the certification election show that a total of 83 employees were allowed to vote. The certification election is still null and void. It cannot be determined whether or not union was duly elected by the eligible voters of the bargaining unit since even employees who are ineligible to join a labor union within the cooperative because of their membership therein were allowed to vote in the certification election. 5.5 BARS TO CERTIFICATION ELECTION 1) 2) 3) Contract bar rule (Art. 253-A/ Art. 233) Deadlock Bar-Rule One-Year Bar rule PREVENTS a CE merely POSTPONES a CE
Bars to a certification election: Suspension Rule:
ONE YEAR BAR RULE (CERTIFICATION YEAR) A. GENERAL RULE Sec. 3, Rule V, Book V, IRRs : No certification election may be held within 1 year from the date of issuance of a final certification result.
The phrase final certification result means that there was an actual conduct of election. In case where there was no certification election conducted precisely because the first petition was dismissed, on the ground of a defective petition, the certification year bar does not apply. (R. Transport vs. Laguesma) * From time of valid certification election. Not from time of final resolution of appeal. B. EXCEPTIONS A petition for certification election may be entertained where unusual circumstances exist. A circumstance would be unusual or out of the ordinary if it affects the structure, functions or membership of the contracting union i.e. the number of EEs in the appropriate bargaining unit has more than doubled since the last certification election. (Azucena) DEADLOCK BAR RULE What is the deadlock bar rule? A petition for certification election can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration of which has become the subject of a valid notice of strike or lockout. (NASUCIP-TUCP vs. Trajano) DEADLOCK-BAR RULE (requisites) 1) Parties must have negotiated in good faith. 2) Deadlock must have been submitted to voluntary arbitration or a valid subject of a valid notice of strike or lock-out. A. NO DEADLOCK Bargaining deadlock presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties. (Divine World vs. Sec. of Labor) Dead Lock is defined as the counteraction of things producing entire stoppage: a state of inaction or of neutralization caused by the opposition of persons of factions (as in government or a voting body): stand still. There is a deadlock when there is a complete blocking or stoppage resulting from the action of equal and opposed forces as the deadlock of jury or legislature. The word is synonymous to impasse which, within the meaning of the American federal labor laws, presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude to an agreement between the parties. Disini: A precondition for the application of the rule is that the deadlock must be based on good faith bargaining. CONTRACT BAR RULE 1. What is the contract bar rule? The existence of a CBA duly filed and submitted to the DOLE, in compliance with the requirements and standards of the said office bars a certification election in the collective bargaining unit except within the 60 days prior to the expiration of the life of such contract. (Foamtex Labor Union vs. Director of Labor Relations) GENERAL RULE: EXCEPT: TAKE NOTE: The bureau shall NOT entertain any petition for certification election. (Freedom period)Art. 253, 253-A, 256: Within 60 days before expiration of the five year term of the CBA. The contract bar rule can be validly invoked only if the existing CBA contains substantially those materials that should be included in the CBA.
Buklod ng Saulog Transit v. Casalla , 99 Phil 16, 1956 The provisions of the law contemplates a situation:
1) NOT ONLY when there had been NO AGREEMENT entered into by and between employees or laborers and employer or management as to the terms and condition of employment. 2) BUT ALSO where there had been an agreement that leaves out many or the same matters on which the parties should have stipulated. In the present case, the collective bargaining agreement entered into by and between the petitioners and company does not touch in substantial terms, the rate of pay, wages, hours of employment and other conditions of employment of all the employees in the company but seeks to establish merely a grievance procedure for drivers, conductors, and inspectors who are members of the Buklod ng Saulog. The agreement being incomplete is no bar to a certification election. TAKE NOTE: CBA should be complete AT THE TIME OF FILING of petition for certification election, even if amended CBA is submitted wherein the terms and conditions are complete, it will not bar a petition for CE already filed. Contract need not be certified, only registered. 2. Give the statutory recognition of the contract bar rule : The Bureau shall not entertain any petition for certification election which may disturb the administration of duly registered existing CBAs affecting the parties. (Art. 232) What is the effect of an expired CBA on the contract bar rule? No petition for CE may be filed after the lapse of the 60 day freedom period. The old CBA is extended until a new one is filed. The purpose is to ensure stability in the relationship of the workers and the company by preventing frequent modifications of any CBA earlier entered into by them in good faith and for the stipulated original period. 3. The exclusive bargaining unit entered into a 5-year CBA with the company. Because of intra-union conflict the ratified CBA was only registered with the DOLE 3 months after it was ratified. A month later, another union filed a petition for certification election. The petitioning union contends that the contract was registered beyond the 30-day period prescribed by Art. 231. Is the petition barred by the contract bar rule? Yes. Non-compliance with the procedural requirements of Art. 231 should not adversely affect the substantive validity of the CBA. A CBA is more than a contract. It is highly impressed with public interest for it is an essential instrument to promote industrial peace. To set it aside on technical grounds is not conducive to the public good. (TUCP vs. Laguesma) 4. Company A signed a 3-year CBA with Union X, the duly authorized bargaining representative. The CBA was never formally ratified by the EEs, although they all accepted and enjoyed the benefits under the CBA. 18 months after the CBA was signed, Union Y filed a petition for certification election. Will the petition of Union Y prosper? No. While there was no express ratification by the EEs, the fact that they received the benefits is an implied ratification of the CBA. The non-submission of a copy of the CBA to the DOLE is a mere formal requirement which should not prevent the application of the contract bar rule. (Alcantara) The CBA has to be certified before it can serve as a bar to a petition for certification election. The contract bar rule shall not apply if the following conditions exist: 1) The agreement contains provisions lower than the standards fixed by law, or 2) The documents supporting its registration are falsified, fraudulent, or tainted with misrepresentation.
Associated Trade Unions v. Trajano Ruling: The contract bar rule simply provides tha a petition for certification election or a motion for intervention can only be entertained within 60
days PRIOR to the expiry date of an existing CBA. Otherwise put, the rule prohibits the filing of a petition for certification election during the existence of a CBA except within the freedom period as it is called, when the said CBA is about to expire. The purpose is to ensure stability in the relationship of the workers and the management by preventing frequent modifications of any CBA earlier entered into by them in good faith and for the stipulated original period. A. DEFECTIVE CBA The contract bar rule does not apply when the CBA which is the basis of the rule is defective. (ALU vs. Ferrer-Calleja) B. INCOMPLETE CONTRACT To be a bar to a certification election, the CBA must be adequate in that it comprises substantial terms and conditions of employment. (Buklod ng Saulog vs. Casalia) C. HASTILY CONCLUDED CBA 1. 8 months prior to the expiration of the CBA, the company and the union renewed the same for another 3 years. Can the renewed CBA be set up as a bar to the holding of the certification election? If the CBA is prematurely renewed, such is not a bar to the holding of a certification election. The ER and a friendly union can not by the mere expedient of prematurely renewing their CBA, effectively deprive the workers of their right to freely select their bargaining agent. (General Textiles Allied Workers Association vs. Director of Labor Relations) 2. ALU had a CBA with PASAR. Several days before the expiration of the CBA NAFLU filed a petition for certification election. During the pendency of the representation case, the Med-Arbiter enjoined PASAR from entering into a CBA with any union. However, ALU and PASAR concluded a CBA. Is the new CBA a bar to certification election? No. The CBA was hastily concluded, showing that the parties were in bad faith when they concluded the CBA. (ALU vs. Ferrer-Calleja) D. CBA THAT DOES NOT FOSTER STABILITY More than half of the members of a union resigned from it to form another union. It later filed a petition for certification election within the 60-day freedom period. Meanwhile the old union and the company entered into a new CBA. Is the contract bar rule applicable? No. It is doubtful if any contract that may have been entered into between ALU and the company will foster stability in the bargaining unit in view of the substantial number of EEs that have resigned from the old union and joined the new union. (Firestone vs. Estrella) E. EXCEPTION Deviation from the contract bar rule is justified only where the need for industrial stability is clearly shown to be the imperative. (PWUP vs. Laguesma) F. VALIDITY OF CBA SIGNED DURING REPRESENTATION DISPUTE When a CBA is entered into at the time when a petition for certification election had already been filed by a union and was then pending resolution, the said CBA cannot be deemed permanent, precluding the commencement of negotiations by another union with management. (ATU vs. Trajano) 5.6 SUSPENSION OF CERTIFICATION ELECTION PREJUDICIAL QUESTION RULE Should be read in relation to Art. 248d: ULP:
It shall be unlawful for an employer to commit any of the following unfair labor practice. (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters. 1. United CMC Textile Workers filed a complaint for unfair labor practice against CENTEX and PAFLU, alleging the CENTEX helped and cooperated in the organization of PAFLU. During the pendency of the case, PAFLU filed a petition for certification election. May the certification election be suspended pending the determination of the case? Yes. Pendency of a formal charge of company domination is a prejudicial question that, until decided, bars proceedings for certification election the reason being that the votes of the members of the dominated union would not be free. The rationale for the suspension of the election proceedings is that the certification election may lead to the selection of an ER-dominated or company union as the EEs bargaining representative, and when the court finds that the said union is ER-dominated in the ULP case, the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory. (United CMC Textile Workers vs. BLR , 128 SCRA 316) RATIONALE for suspension the reason being, in the words of Mr. Justice Montemayor, ìf there is a union dominated by the company, to which some of the workers belong, an election among workers and employees of the company would not reflect the true sentiment and wishes of the said workers and employees because the votes of the members of the dominated union would not be free.' (Manila Paper Mills Employees vs. Court of Industrial Relations, 104 Phil. "And we have held, through Mr. Justice J.B.L. Reyes, that such charge of company domination is a prejudicial question that until decided, shall suspend or bar proceedings for certification election. (Standard Cigarette Workers' Union vs. Court of Industrial Relations, 101 Phil. 126) "Indeed, if as a result of the Pelta's complaint in Case No. 255-ULP, the Workers Union should be ordered dissolved as a company dominated union, any election held in the meantime would be a waste of energy and money to all parties concerned." The rationale for the suspension of the election proceedings has been further amplified as follows: "What is settled law, dating from the case of Standard Cigarette Workers' Union v. Court of Industrial Relations (101 Phil. 126), decided in 1957, is that if it were a labor organization objecting to the participation in a certification election of a company-dominated union, as a result of which a complaint for an unfair labor practice case against the employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could take place. In the language of Justice J.B.L. Reyes as ponente: Às correctly pointed out by Judge Lanting in his dissenting opinion on the denial of petitioner's motion for reconsideration, a complaint for unfair labor practice may be considered a prejudicial question in a proceeding for certification election when it is charged therein that one or more labor unions participating in the election are being aided, or are controlled, by the company or employer. The reason is that the certification election may lead to the selection of an employer-dominated or company union as the employees' bargaining representative, and when the court finds that said union is employer-dominated in the unfair labor practice case, the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory.' There would be an impairment of the integrity of the collective bargaining process if a companydominated union were allowed to participate in a certification election. The timid, the timorous, and the faint-hearted in the ranks of labor could easily be tempted to cast their votes in favor of the choice of management. Should it emerge victorious, and it becomes the exclusive representative of labor at the conference table, there is a frustration of the statutory scheme. It takes two to bargain. There would be instead a unilateral imposition by the employer. There is need therefore to inquire as to whether a labor organization that aspires to be the exclusive bargaining representative is company-dominated before the certification election."
WHAT SUSPENDS: WHO MAY ASK FOR SUSPENSION:
Formal charge of ULP against the employer for establishing a company union. Only a union. CE cannot be suspended based on a pendency of a formal charge of ULP against a labor organization.
2. Who can file and maintain an opposition to the holding of the certification election based on a charge of company domination? Only the union who made the charge since it is the entity that stands to lose and suffer prejudice by the certification election. (Id.) What if there is a pending unfair labor practice charge by the ER against the union. Can this stay the certification election? No. (Barrera vs. CIR) 3. What kind of charge of company domination will not suspend the certification proceedings? A charge that is flimsy, made in bad faith or filed purposely to forestall the certification election. (Id.) The mere allegation of one of the contesting LU of company domination cannot suspend a CE. Only a formal charge can do that The filing of a formal charge is the basis of the prejudicial question of whether or not the said union is really company dominated
5.7 EFFECT OF PENDING PETITION FOR CANCELLATION OF TRADE UNION
REGISTRATION
An order to hold a certification election is proper despite the pendency for cancellation of the registration certificate of union which is a party to the representation dispute. The rationale for this is that all the time the respondent union filed its petition, it still had the legal personality to perform such act absent an order directing a cancellation. (Association of CA EEs vs. FerrerCalleja)
Section 6. COLLECTIVE BARGAINING : PROCESS, PROCEDURES AND ISSUES

The right to collectively bargain is Constitutionally guaranteed. Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organizations, COLLECTIVE BARGAINING AND NEGOTIATIONS, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the PRINCIPLE OF SHARED RESPONSIBILITIES between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.
This Constitutional guarantee is implemented by the Labor Code. Thus it is also statutorily guaranteed. Art 211 (a) To promote and emphasize the primacy of FREE COLLECTIVE BARGAINING and negotiations, including voluntary arbitration, mediation and conciliation, as modes of setting labor or industrial disputes; It is implemented by the following provisions of the Labor Code: 1. PROCEDURE Art. 250 Art. 251 In relation with Art. 233 2. DUTY TO BARGAIN COLLECTIVELY Art. 252 Art. 253 3. TERMS Art. 253-A 6.1 GENERAL CONCEPTS 1. What is collective bargaining? Collective bargaining has been defined as the process of negotiation between an ER or ERs and the EEs organization or union to reach an agreement on the terms and conditions of employment for a specified period. It covers the entire range of organized relationships between ERs and EEs represented by union, this includes the negotiation, administration, interpretation or application of the labor contract. (Alcantara) 2. What are the most important aims or aspects of collective bargaining? The most important aims are : a. To establish industrial peace by enabling capital and labor to resolve their disputes and controversies on terms mutually acceptable and satisfactory to themselves. b. To enhance industrial efficiency through speedy resolution of labor disputes concerning fixing of wages, working hours and other terms and conditions of contracts incorporating such agreements, and the adjustment or settlement of any grievance arising thereunder. c. To establish benefits of labor higher or greater than those fixed by law. The various aspects are : a. The duty of the parties to bargain and negotiate on proposals concerning wages, working hours and other terms and conditions of employment. b. The duty of the parties to adhere to statutory standards of good faith, promptness and expeditious actions. c. The duty to refrain from unilateral changes concerning matters subject to bargaining. d. In case there is an existing CBA, the duty to adhere faithfully to its terms and not terminate or modify the same during its period of effectivity. (Alcantara) 5. What is the nature and purpose of collective bargaining?
Collective bargaining is a democratic framework to stabilize the relation between labor and management to create a climate of sound and stable industrial peace. It is a mutual responsibility of the ER and the union and is their legal obligation. (loy vs. NLRC) 6. What are the jurisdictional preconditions of collective bargaining? The mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are present : a. Possession of the status of majority representation of the EEs representative in accordance with any of the means of selection or designation provided by the Labor Code. b. Proof of majority representation. c. Demand to bargain under Art. 250. (Id.) 6.2 BARGAINABLE ISSUES OBLIGATION TO NEGOTIATE ; MANDATORY BARGAINING SUBJECTS 1. It is the obligation of the ER and the EEs representative to bargain with each other with respect to wages hours and other terms and conditions of employment. They are statutory of mandatory proposals requiring the party to whom they are made to bargain in good faith concerning them. (Azucena) However, the law does not compel agreements between ERs and EEs and neither party is obligated to yield even on a mandatory bargaining subject, for as long as they bargain in good faith. (Id.) 2. What are considered mandatory subjects of bargaining? a. Wages and other types of compensation b. Working hours c. Vacations and holidays d. Bonuses e. Pensions and retirement plans f. Seniority g. Transfer h. Lay-off i. EEs workloads j. Work rules and regulations k. Rent company houses l. Union security arrangements (Azucena) m. No-Lockout Clause n. Clause fixing contractual term. NON-MANDATORY SUBJECTS 1. The right to bargain on a non-mandatory subject does not include to right to insist on the inclusions of the non-mandatory subject in the CBA as a condition to any agreement. (Azucena) 2. Give some examples of non-mandatory subjects : a. Management prerogative clauses. b. Union discipline clause. c. Arbitration, strike vote or no-strike clauses. Nestle Phil. V NLRC (193 SCRA 504) 1991 HELD: Retirement Plan was "a collective bargaining issue right from the start" for the improvement of the existing Retirement Plan was one of the original CBA proposals submitted by the UFE to president of Nestle Philippines.
The union's original proposal was to modify the existing plan by including a provision for early retirement. The company did not question the validity of that proposal but merely offered to maintain the existing non-contributory retirement plan which it believed to be still adequate for the needs of its employees. The union modified its proposal, but the company was adamant. Impasse on the retirement plan become one of the issues certified to the NLRC for compulsory arbitration. Retirement plan is negotiable. Inclusion of the retirement plan in the CBA as part of the package of economic benefits extended by the company to its employees to provide them a measure of financial security after they shall have ceased to be employed in the company, reward their loyalty, boost their morale and efficiency and promote industrial peace, gives "a consensual character" to the plan so that it may not be terminated or modified at will by either party. The fact that the retirement plan is non-contributory does not make it a non-issue in the CBA negotiations. Almost all of the benefits granted to its employees under the CBA are noncontributory benefits. Since the retirement plan has been an integral part of the CBA since 1972, demand to increase the benefits due the employees is a valid CBA issue. Employees have a vested or demandable right to a non-contributory retirement plan. It is an existing benefit voluntarily granted to them by their employer. 6.3 BARGAINING PROCEDURE PRIVATE PROCEDURE Art. 251 : In the absence of the CBA, it shall be the duty of the ER and the representatives of the EEs to bargain collectively. IMPLICATION: Provisions of this code are only supplementary not mandatory with regards to the process of collective bargaining. Because it is the policy of the state to promote the primacy of FREE collective bargaining. (211a). > The Labor Code authorizes parties to provide for their own procedures in Collective Bargaining but it must be more EXPEDITIOUS that that provided in Art. 250. > If they are unable to agree they must follow procedure in the labor code (Art. 250). While it is a mutual obligation of the parties to bargain, the ER, however, is not under any legal duty to initiate contract negotiation. CODE PROCEDURE Describe the procedure in collective bargaining : In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, the following procedures shall be observed : 1. When a party desires to negotiate an agreement, it shall serve a written notice upon the other with a statement of its proposals. The other party shall make a reply thereto not later than 10 calendar days from the receipt of such notice. 2. Should difference arise on the basis of such notice and reply, either party may request a conference which shall begin not later than 10 calendar days from date of request. 3. If the dispute is not settled, the Board shall intervene upon request of either or both parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call. 4. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the dispute.
5. The Board shall exert efforts to settle disputes amicably and encourage the parties to submit their case to voluntary arbitration. (Art. 250) 6. The parties shall at the request of either of them, make available such up-to-date financial information on the economic situation of the undertaking, as is material and necessary for meaningful negotiations. Where the disclosure of some of the information could be prejudicial to the undertaking, its communication may be made condition upon a commitment that it would be regarded as confidential to the extent required. (Sec. 5, Rule XIII, Book V, IRRs) 7. Information and statements made at conciliation proceedings shall be treated as privilege communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. (Art. 233) 8. The agreement negotiated by the EEs bargaining agent should not be ratified or approved by the majority of all the workers in the bargaining unit. (Art. 231) [Ratification in not needed when the CBA is a product of an arbitral award. The arbitral award may result from voluntary arbitration or from the secretarys assumption of jurisdiction or certification of the dispute to the NLRC. (Azucena)] Art. 250 in summary: 1) 2) All proposal and counter-proposal must be in writing. No verbal proposal or counterproposal. Time periods are provided for by law. Reply: not later than 10 calendar days from receipt of notice. Request for a conference shall begin 10 days after making such request. TAKE NOTE: This procedure is DIRECTORY in nature and not mandatory, failure to comply with the prescribed time periods will not amount to an unfair labor practice. Stages of the Collective Bargaining Process
STAGE 1 Organization-Represenational normal course: > Formation & registration of union > Request & grant of voluntary recognition > Petition for certification/consent election (CE) > Holding of election > Certification of exclusive bargaining representative (EBR)
STAGE 2 Bargaining Proper normal course: > Bargaining preparations > Presentation of proposals and Counterproposals > Bargaining on specific mandatory or nonmandatory items > Conclusion of negotiations; signing > Ratification > Registration of CBA
STAGE 3 Contract Administration normal course: > Implamentation of of CBA provisions > CBA questions submitted to & resolved through grievance machinery or voluntary arbitration > Renegotiation on 2nd & 3rd year of non-representational provisions > Freedom period on the 5th year; holding of election to resolve EE representation detour/deviation > Strike because of gross violation of CBA economic provisions > 3rd party intervention; conciliationmediation or arbitration
detour/deviation > Election protest > Appeal to Labor Secretary > Certiorari in Court of Appeals > Strike because of union busting or other ULP by the ER > 3rd party intervention; conciliationmediation or arbitration
detour/deviation > Strike/lockout because of bargaining deadlock or ULP in bargaining > 3rd party intervention; conciliationmediation or arbitration
National Union of Restaurant Workers v. CIR , 10 SCRA 843 (64) HELD: IN letter sent by the union containing its demands, there appears marks, opposite each demand, such as a check for those demands to which Mrs. Felisa Herrera was agreeable, a cross signifying the disapproval of Mrs. Herrera, and a circle regarding those demands which were left open for discussion on some future occasion that the parties may deem convenient. Such markings were made during the discussion of the demands in the meeting. That Herrera had agreed to some of the demands shows that she did not refuse to bargain collectively. Tres did not refuse to bargain collectively because they accepted some of the demands while they refused the others even leaving open other demands for future discussion. Those demands were discussed at a meeting. Under Section 14 of Republic Act 875 whenever a party serves a written notice upon the employer making some demands the latter shall reply not later than 10 days from receipt, but this condition is merely procedural. Its non- compliance cannot be deemed to be an act of unfair labor practice. Tres did not ignore the letter. While Tres denied the capacity of the complaining union to bargain collectively, this is because they were of the impression that before a union could have that capacity it must first be certified by CIR. This is what they stated in their answer to the petition for certification filed by said union. Furthermore, another union also claimed to represent the majority of the employees of restaurant. A. NATURE OF PROCEDURE Collective bargaining does not end with the execution of an agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation to meet and confer promptly and expeditiously and in good faith for the purpose of adjusting any grievances or question arising under such agreement. (RSB vs. CIR) DUTY TO BARGAIN Explain the meaning of the duty to bargain effectively : The duty to bargain collectively means the performance of a mutual obligation to meet and confer promptly and expeditiously and in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting grievances or questions arising under such agreement and executing a contract
incorporating such agreement if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession. (Art. 252) In case there is an existing collective contract, the duty shall include the obligation to adhere faithfully to its terms and not terminate or modify the same during its period of effectivity. (Art. 253) Good faith bargaining is genuine and reasonable bargaining One cannot view an isolated act of a party and on that basis conclude that there is bad faith.
Duty to bargain in good faith (Art. 252): Can be broken down into two components: The positive statement and the Negative Statement. 1. POSITIVE STATEMENT NATURE of duty to bargain: Mutual Obligation
HOW: to meet and convene promptly and expeditiously in good faith. PURPOSE: for the purpose of negotiating an agreement(CBA)
NEGOTIABLE ISSUES: 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 2. NEGATIVE STATEMENT DUTY: but such duty does not compel any party to agree to a proposal or to make any concession. 3. EXECUTION OF A CONTRACT: Art. 252 also states that it is part of the duty to bargain to execute a contract incorporating such agreements if requested by either party. TAKE NOTE: Proposals embodied in minutes does not form part of the CBA. (Samahang Manggagawa sa Top Farm v. NLRC (295 SCRA 171, 1998) ARTICLE 253. Duty to bargain collectively when there exists a collective bargaining agreement. 1. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate or modify such agreement during its lifetime. 2. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. 3. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the term and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Violations of Duty to Bargain 1Failure or refusal to meet and convene 2Evading the purposes of bargaining 3Not observing GF in bargaining 4Grossly violating the economic provisions of the CBA Natl Congress of Unions, etc. vs. Callcja Art. 253 of the LC provides that it shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day freedom period and/ or until a new agreement is reached by the parties. Despite the lapse of the formal effectivity of the CBA, the law still considers the same to be continuing in force and effect until a new CBA shall have been validly executed. 6.4 THE CBA
What is the CBA? It is a negotiated contract between a legitimate labor organization and the ER concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries. (Sec. 1, Rule VI, Book V, IRRs) REGISTRATION - PERIOD, REQUIREMENTS AND ACTIONS Art. 231 : Within 30 days from the execution of a CBA the parties shall submit copies of the same directly to the Bureau or Regional Office of the DOLE for registration accompanied with verified proofs of its posting in 2 conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for registration of such CBA within 5 calendar days from the receipt thereof. The Regional office shall furnish the Bureau with a copy of the CBA within 5 days from its submission. The Bureau shall maintain a file of all CBAs and other related agreements and records of settlements of labor disputes and copies of orders, decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Sec. of Labor and Employment. CONTRACT BENEFICIARIES DOCTRINE OF FAIR REPRESENTATION: When a collective bargaining agreement is entered into by the union representing the employees & the employer, even the non-member employees in the appropriate bargaining unit are entitled to the benefits of the agreement. RATIONALE: The rationale behind the extension of the benefits of a collective bargaining agreement even to non-union members is to preclude undue discrimination. Rivera v San Miguel Brewery (24 SCRA 86) 1968 It is binding on all employees because a CBA is the law of the plant. Rivera stresses that he is not a member of the labor union, and Article XV of the private plan is not binding on him. Assuming he is not bound by the terms of the private plan, then it is only just and logical that its benefits be withheld likewise from him. When a collective bargaining contract is entered into by the union representing the employees and the employer, even the non-member employees are entitled to the benefits of the contract. To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against non-members. Mactan Workers Union v Aboitiz (45 SCRA 577) 1972 HELD: The terms and conditions of a collective bargaining contract constitute the law between the parties. Those who are entitled to its benefits can invoke its provisions. In the event that an obligation therein imposed is not fulfilled, the aggrieved party has the right to go to court for redress. Nor does it suffice as a defense that the claim is made on behalf of non-members of intervenor Associated Labor Union, for it is a well-settled doctrine that the benefits of a collective bargaining agreement extend to the laborers and employees in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organization. 1. A CBA provides for the deduction of union dues from non-member of the bargaining union. Is the stipulation valid? Yes. It provides for the collection of an agency fee from the members who accept and enjoy the benefits attained through the efforts of the bargaining agent. The non-union members should not be unjustly enriched at the expense of the bargaining agent. (Alcantara) 2. How about if the stipulation was not provided for in the CBA but was merely requested by the bargaining union from the ER? The stipulation is still valid. EEs of an appropriate collective bargaining unit who are not members of the recognized collective agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such union members accept the benefits under the CBA. The individual authorization required under
Art. 241 shall not apply to the non-members of the recognized collective bargaining agent. (Art. 248) The law does not impose as a condition for the collection of the agency fee that the same be provided in the CBA, the basis of the unions right to the agency fee is quasi-contractual, not contractual. (Alcantara) 3. The CBA negotiated by union Y provides for wage increases to EEs in the production and maintenance department. To avoid discrimination, the company also granted the increases to EEs in the administrative and sales department. Union Y now demands an agency fee from the EEs of these departments. Is such demand valid? No. In the 1st place, the EEs in the latter 2 departments do not belong to the bargaining unit covered by the agreement. In the 2nd place, the wage increases were not obtained through the efforts of union Y. (Id.) CONTRACT ADMINISTRATION AND ENFORCEMENT A. NATURE OF CONTRACT 1. While the terms and conditions of a CBA constitute the law between the parties, it is not, however, an ordinary contract to which is applied the principles of law governing ordinary contracts. A CBA, as a labor contract within the contemplation of Art. 1700, NCC which governs the relations between labor and capital, is not merely contractual in nature but impressed with public interest, thus it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and the purpose which it is intended to serve. (Davao Integrated vs. Abarquez) However, like ordinary contracts, ignorance of its terms by either party, including the EEs who are principals of the bargaining union, will not justify the breach of the contract. (Manalang vs. Artex) Kimberly Clark Phils v. Lorredo Ruling A CBA, just like any other contract, is respected as the law between the parties and compliance therewith in good faith is mandated. Similarly, the rules embodied in the CC on the proper interpretation of contracts can very well govern, the intention of the parties is primordial. If the terms of the contract are clear, the literal meaning of the stipulations shall control. But if the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former.
SUBSTITUTIONARY DOCTRINE (Benguet Consolidated v. BCI EEs & Workers Union) The substitutionary doctrine was formulated by the NLRB as its initial compromise solution to the problem facing it when there occurs a shift in the EEs union allegiance after the execution of a bargaining contract with their ER by the simple expedience of changing their bargaining agent. The EEs through their new bargaining agent, cannot renege on their CB contract except to negotiate with the management for the shortening thereof. In formulating the subtitutionary doctrine, the only condition involved was the EEs interest in the existing CBA. Justification for the doctrine is that the majority of the EEs is the true party in interest to the contract. The substitutionary doctrine cannot be invoked to support the contention that a newly certified CV agent automatically assumes all personal undertakings like the no-strike stipulation in the CVA made by the deposed union.
The new CBA should have a prospective effect because of the hold over principle (Art. 253 253-A) of the old CBA
2. The CBA was not formally ratified by the majority of the workers in the bargaining unit. However, the workers received and enjoyed the benefits under the CBA. Can the EEs later on have the contract invalidated for lack of formal ratification? No. The EEs have already enjoyed benefits from it. They cannot receive benefits under provisions favorable to them and later insist that the CBA is void simply because other provisions turn out not to the liking of certain EEs. (Planters Product vs. NLRC) 3. Are wage increases paid by the ER pursuant to laws and wage orders compliance with the wage increases provided for under a CBA? No. In the absence of a provision of law or the CBA to the effect that benefits provided by the former encompass those provided by the latter, benefits derived from either law or a contract should be treated as separate from each other. A CBA is a contractual obligation. EE benefits derived from law are exclusive of benefits arrived through negotiation and agreement unless otherwise provided by the agreement itself or by law. (Meycauayan College vs. Drilon) * a CBA is a contractual obligation, it is distinct from an obligation imposed by law B. GRIEVANCE PROCEDURE DISPUTE SETTLEMENT: ISSUES AND INDIVIDUAL GRIEVANCE Art. 255 Exclusive bargaining representation and workers participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees such unit for the purpose of collective bargaining. However, an individual employer or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits, and welfare. For this purpose, workers and employers may form labor-management councils; Provided, That the representatives of the workers in such labor management councils shall be elected by at least the majority of all employees in said establishment. Art. 260 Grievance Machinery and Voluntary Arbitration. The parties to a CBA shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from (1) the interpretation or implementation of their CBA and (2) those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the CBA. 1) or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. 2) In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the CBA, which shall act For this purpose, parties to a CBA shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators,
with the same force and effect as if the Voluntary Arbitrator or panel of Arbitrators has been selected by the parties as described above. 1. J, a member of a union that has been certified as the sole and exclusive bargaining representative of the EEs, sends a letter to management requesting, in view of inflation, for an increase in his wages. Is this allowed? Yes. Although there may be an exclusive bargaining agent, an individual EE or group of EEs have the right to present grievances to their ER. It would have been different if J demanded for wage increases for the other EEs. (Alcantara) Article 261 gives the VOLUNTARY ARBITRATOR (or panel of Voluntary Arbitrators) original and exclusive jurisdiction to hear and decide: 1Unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement; and 2Those arising from the interpretation or enforcement of company personnel policies. 3Also violations of CBA, if not resolved through grievance machinery Gross Violations = flagrant and/or malicious refusal to comply with the economic provisions of the CBA If the violation is GROSS in character, treat as ULP which should be heard and decided by a Labor Arbiter BUT, In Art. 262, parties are allowed to submit the ULP (gross violations) to a voluntary arbitrator 4Even bargaining deadlocks and all other disputes may, by agreement of the parties, be considered proper subject of voluntary arbitration. As ruled by the SC in San Miguel Corp v. NLRC (March 15, 1996): A termination dispute may be submitted by the parties to voluntary arbitration, but in the absence of such agreement in clear and unequivocal language, the dispute should be lodged with a labor arbiter in line with article 217.
Caltex Refinery Employees Association v. Brilliantes , 279 SCRA 218 (1997) No particular setup for a grievance machinery is mandated by law. Rather, Article 260 of the Labor Code, as incorporated by RA 6715, provides for only a single grievance machinery in the company to settle problems arising from "interpretation or implementation of their collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies." We believe that the procedure described by public respondent sufficiently complies with the minimum requirement of the law. Public respondent even provided for two steps in hearing grievances prior to their referral to arbitration. The parties will decide on the number of arbitrators who may hear a dispute only when the need for it arises. Even the law itself does not specify the number of arbitrators. Their alternatives whether to have one or three arbitrators have their respective advantages and disadvantages. In this matter, cost is not the only consideration; full deliberation on the issues is another, and it is best accomplished in a hearing conducted by three arbitrators. In effect, the parties are afforded the latitude to decide for themselves the composition of the grievance machinery as they find appropriate to a particular situation. At bottom, we cannot really impute grave abuse of discretion to public respondent on this issue. Master Iron Labor Union v NLRC (219 SCRA 47) 1993 HELD: Union staged the strike only after the Corporation had failed to abide by the agreement forged between the parties upon the intervention of no less than the DOLE after the union had complained of the Corporation's unabated subcontracting of workers who performed the usual work of the regular workers. Companys failure to traverse unions allegations that the NLRC abused its discretion in holding that the provision on grievance procedure had not been exhausted clearly sustains such allegation and upholds the contention that the Corporation refused to undergo said procedure.
It should be remembered that a grievance procedure is part of the continuous process of collective bargaining. It is intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace. The Corporation's refusal to heed request to undergo the grievance procedure clearly demonstrated its lack of intent to abide by the terms of the CBA. The Corporation's insistence that the hiring of casual employees is a management prerogative betrays its attempt to coat with legality the illicit curtailment of its employees' rights to work under the terms of the contract of employment and to a fair implementation of the CBA. As to the no-strike clause in a CBA, it is applicable only to economic strikes. Corollarily, 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. An economic strike is defined as one which is to force wage or other concessions from the employer which he is not required by law to grant In this case, strike was grounded on violation of the CBA or the Corporation's practice of subcontracting workers; discrimination; coercion of employees; unreasonable suspension of union officials, and unreasonable refusal to entertain grievance. San Miguel Corp. v. NLRC 304 SCRA 1 (1999) Grievance machinery is mandatory provision of the CBA. PAL v Santos (218 SCRA 415) 1993 HELD: Section 2, Article IV of the PAL-PALEA CBA states that division head shall answer the grievance within 5 days from the date of presentation. If the division head fails to act within 5 days, the grievance must be resolved in favor of the aggrieved party. Grievance was filed with Mr. Abad's secretary during his absence. Under Section 2, the division head shall act on the grievance within 5 days. Grievants knew that division head was then "on leave" when they filed their grievance. This knowledge, however, should not prevent the application of the CBA. When Abad failed to act within the reglementary period, complainants, believing in good faith that the effect of the CBA had already set in, cannot be blamed if they did not conduct ramp inventory. It is hard to believe that everything under Abad's authority would have to stand still during his absence from office. Someone has to be left to attend to Abad's duties. This may be a product of inadvertence on the part of PAL management, but certainly, complainants should not be made to suffer the consequences. Grievance of employees is not a matter which requires the personal act of Mr. Abad and thus could not be delegated. PAL could at least have assigned an officer-in-charge to look into the grievance and possibly make his recommendation to Mr. Abad. It is of no moment that Mr. Abad immediately looked into the grievance upon returning to work, for it must be remembered that the grievants are workingmen who suffered salary deductions and who rely so much on their meager income for their daily subsistence and survival. When these employees first presented their complaint, PAL failed to act on it. It was only after a formal grievance was filed and after Mr. Abad returned to work that PAL decided to turn an ear. Grievance machinery was established for both labor and management as a vehicle to thresh out whatever problem may arise in the course of their relationship, every employee is duty bound to present the matter before the management and give the latter an opportunity to impose whatever corrective measure is possible. C. CONTRACT DURATION AND RENEWALS Art. 253-A Terms of a collective bargaining agreement. POLITICAL ASPECT: Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned,
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be for a term of five (5) years.
No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the DOLE -outside of the sixty-day period immediately before the date of the expiry of such five year term of the Collective Bargaining Agreement. ECONOMIC ASPECT: All other provisions of the CBA shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the CBA entered into within six months from the expiry of the term of such other provisions as fixed in such CBA, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of the retroactivity thereof, In case of a deadlock in the renegotiation of the CBA, the parties may exercise their rights under this Code. Book V Rule XVI Sec. 3: Terms of collective bargaining agreement--REPRESENTATION ASPECT: The representation status of the incumbent exclusive collective bargaining representative which is a party to a duly registered collective bargaining agreement shall be for a term of 5 years. No petition questioning the majority status of the incumbent exclusive bargaining representative shall be entertained And no certification shall be conducted by the Department outside of the sixty-day period immediately before the date of expiry of such five-year term. NON-REPRESENTATION ASPECT: All other provisions of said agreement shall, AS A MATTER OF RIGHT, be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions shall retroact to the day immediately following such date. If any such provisions are entered into beyond six months, the parties shall agree on the duration of retroactivity. In case of a deadlock in the renegotiation, the parties may exercise their rights under the Code. In the case of renegotiation, all requirements for registration prescribed under the two immediately preceding sections shall be complied with, whichever is applicable, except payment of the registration fee. San Miguel Corp Employees Union v. Confesor , GR-111262 9/19/96 HELD: Article 253-A is a new provision. This was incorporated by Section 21 of Republic Act No. 6715 (the Herrera-Veloso Law) which took effect on March 21, 1989. This new provision states that the CBA has a term of five (5) years instead of three years, before the amendment of the law as far as the representation aspect is concerned. All other provisions of the CBA shall be negotiated not later than three (3) years after its execution. The "representation aspect": -refers to the identity and majority status of the union that negotiated the CBA as the exclusive bargaining representative of the appropriate bargaining unit concerned. "All other provisions" -simply refers to the rest of the CBA, economic as well as non-economic provisions, except representation.
Obviously, the framers of the law wanted to maintain INDUSTRIAL PEACE and stability by having both management and labor work harmoniously together without any disturbance. Thus, no outside union can enter the establishment within five (5) years and challenge the status of the incumbent union as the exclusive bargaining agent. Likewise, the terms and conditions of employment (economic and non-economic) can not be questioned by the employers or employees during the period of effectivity of the CBA. The CBA is a contract between the parties and the parties must respect the terms and conditions of the agreement. Notably, the framers of the law did not give a fixed term as to the effectivity of the terms and conditions of employment. It can be gleaned from their discussions that it was left to the parties to fix the period. In the instant case, it is not difficult to determine the period of effectivity for the nonrepresentation provisions of the CBA. Taking it from the history of their CBAs, SMC intended to have the terms of the CBA effective for three (3) years reckoned from the expiration of the old or previous CBA which was on June 30, 1989. 2. Contract continues to have legal effects even after its expiry date, until a new CBA is renegotiated and entered into. (Lopez Sugar Corporation vs. FFW) 4. Union A and Co. B concluded a CBA with a duration of 3 years. Upon the expiration of the 3-year period, Co. B discontinued to benefits under the CBA. Is this legal? No. Art. 253 requires the parties to keep the status quo and to continue in full force, and effect until a new agreement is reached. (Alcantara) Representation Aspect (60-day FREEDOM PERIOD) Refers to the identity and majority status of the union that negotiated the CVA as the exclusive bargaining representative All other representations Refers to the rest of the CVA, economic as well as non-economic EXCEPT representational provisions
EFFECT OF EXPIRY Pier 8 Arrastre v Confesor , 241 SCRA 294 (1995) HELD: 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 sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. All other provisions of the CBA shall be renegotiated not later than (3) years after its execution. Any agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such CBA, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity. Although a CBA has expired, it continues to have legal effects as between the parties until a new CBA has been entered into. It is the duty of both parties to the CBA to keep the status quo, and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day freedom period and/or until a new agreement is reached by the parties. The legal effects of the immediate past CBA between company and union terminated, and the effectivity of the new CBA began, only when Secretary resolved their dispute. New Pacific Timber and Supply Co. Inc v. NLRC , 328 SCRA 404 (2000)
ISSUE: WON the terms of an existing CBA particularly as to the economic provisions, can be extended beyond the three year period prescribed by law in the absence of a new agreement? HELD: Until a new CBA has been executed by and between the parties, they are duty bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreements. The law does not provide for an exception nor qualification as to which of the economic provisions of the existing agreements are to retain force and effect, therefore it encompasses all provisions. The New CBA is given PROSPECTIVE effect generally since 253 and 253-A provides for an automatic renewal clause in existing CBAs. PURPOSE: To avoid creating a gap during which no agreement would govern. Better for industrial peace if effectivity of the CBA is longer. D. CBA AND 3RD PARTY APPLICABILITY Unless expressly assumed, labor contracts such as employment contracts and CBAs are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between parties. As a general rule, there is no law requiring a bona fide purchaser of assets of an ongoing concern to absorb in its employ the EEs of the latter. However, although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the EEs of the seller of such assets or enterprise the parties are liable to the EEs if the transaction between the parties is colored or clothed with bad faith. (ALU vs. NLRC) A labor contract merely creates an action in personam and does not create any real right which should be respected by 3rd parties. An innocent transferee of a business establishment has no liability to the EEs of the transferor to continue employing them. Sundowner Devt. Corp. v Drilon (180 SCRA 14) 1989 HELD: Labor contracts such as employment contracts and CBAs are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. A labor contract merely creates and action in personam and does not create any real right which should be respected by third parties. This conclusion draws its force from the rights of an employer to select his employees and to decide when to engage them. The same can only be restricted by law through the exercise of police power. There is no law requiring a bona fide purchaser of assets of an on-going concern to absorb in its employ the employees of the latter. However, although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the employers of the seller of such assets or enterprise, the parties are liable to the employees if the transaction between the parties is colored or clothed with bad faith. In the CAB, it is undisputed that when Mabuhay surrendered the leased premises to Syjuco and asked Syjuco to offer same to other lessees it was Syjuco who found Sundowner and persuaded to lease said premises. Mabuhay had nothing to do with the negotiations and consummation of the lease contract bet Sundowner and Syjuco. Manlimos v. NLRC , 242 SCRA 145 (1995) We disagree with the Labor Arbiter's reliance on the case of Mobil Employees Association vs. National Labor Relations Commission. The NLRC was correct in holding that Mobil was not applicable because Mobil involved the termination of employment under Article 283 (before Article 284) of the Labor code and not termination of employment as a result of the change of corporate ownership, as in the case of private respondent Super Mahogany Plywood
Corporation. In Mobil, the original employer, Mobil Oil Philippines, Inc., completely withdrew from business and was even dissolved. In the case at bar, there was only a change of ownership of Super Mahogany Plywood Corporation which resulted in a change of ownership. In short, the corporation itself, as a distinct and separate juridical entity, continues to exist. The issue of whether there was a closing or cessation of business operations which could have operated as just cause for the termination of employment was not material. The change in ownership of the management was done bona fide and the petitioners did not for any moment before the filing of their complaints raise any doubt on the motive for the change. On the contrary, upon being informed thereof and of their eventual termination from employment, they freely and voluntarily accepted their separation pay and other benefits and individually executed the Release or Waiver which they acknowledged before no less than a hearing officer of the DOLE. A change of ownership in a business concern is not proscribed by law. In Central Azaucarera del Danao vs. Court of Appeals, this court stated: There can be no controversy for it is a principle well-recognized, that it is within the employer's legitimate sphere of management control of the business to adopt economic policies or make some changes or adjustments in their organization or operations that would insure profit to itself or protect the investment of its stockholders. As in the exercise of such management prerogative, the employer may merge or consolidate its business with another, or sell or dispose all or substantially all of its assets and properties which may bring about the dismissal or termination of its employees in the process. Such dismissal or termination should not however be interpreted in such a manner as to permit the employer to escape payment of termination pay. For such a situation is not envisioned in the law. It strikes at the very concept of social justice. In a number of cases on this point, the rule has been laid down that the sale or disposition must be motivated by good faith as an element of exemption from liability. Indeed, an innocent transferee of a business establishment has no liability to the employees of the transferor to continue employing them. Nor is the transferee liable for past unfair labor practices of the previous owner, except, when the liability therefor is assumed by the new employer under the contract of sale, or when liability arises because of the new owner's participation in thwarting or defeating the rights of the employees. Where such transfer of ownership is in good faith, the transferee is under no legal duty to absorb the transferor's employees as there is no law compelling such absorption. The most that the transferee may do, for reasons of public policy and social justice, is to give preference to the qualified separated employees in the filling of vacancies in the facilities of the purchaser. E. CBA AND THE SEC. OF LABOR AND EMPLOYMENT May the parties be required by the Sec. of Labor and Employment to execute a CBA embodying terms and conditions that the latter may determine? Yes. This is pursuant to the power of compulsory arbitration vested in the Secretary. (Art. 263)
Section 7. UNFAIR LABOR PRACTICE

7.1 INTRODUCTORY CONCEPTS FOR A ULP TO EXIST THE FOLLOWING MUST CONCUR: 1. WHO IS THE ACTOR: If under Art. 248: Employer If under Art. 249: Labor Organization
Take note:
that a Labor Organization may commit a ULP under either 249 or 248. Since Art. 212e recognizes that there are times when a Labor Organization can be defined as an employer if it is in relation to its own employees. Thus if ULP committed against its own employees, the Labor Organization is liable under Art. 248. If Committed against it union members who are employees of a different employer, it commits ULP under Art. 249.
2. What ACT was committed These acts are enumerated under Art. 248 and 249 3. Was it directed against the right to self-organization and/or collective bargaining? If yes, then it may be a ULP case. If No, then it cannot be a ULP case. Give the concept of unfair labor practice under the Labor Code : Unfair labor practices (V-I-D-Hi) 1. Violate the constitutional right of workers and EEs to Self-organization 2. Are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect. 3. Disrupt industrial peace. 4. Hinder the promotion of healthy and stable labor management relations. ULP are not only violations of civil rights of both labor and management BUT are also criminal offenses against the state CIVIL ASPECTS of all cases involving ULP which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative reliefs, shall be under the jurisdiction of labor arbiters resolve cases within 30 days Recovery of civil liability in the administrative proceedings shall bear recovery under the civil code.(No double recovery) No criminal proceeding may be instituted without a final judgment, finding that a ULP was committed PROVIDED, HOWEVER, the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt BUT merely as proof of compliance of the required requirements. Any allegation of ULP has to be proved by facts and evidence.
GPL Employees Union v. Great Pacific Life Assurance Corp. , 303 SCRA 113 (1999) While an act or decision of an employer may be unfair, certainly NOT EVERY UNFAIR ACT or decision constitutes unfair labor practice (ULP) as defined and enumerated under Art. 248 of the Labor Code. There should be no dispute that ALL the prohibited acts constituting unfair labor practice in essence relate to the workers RIGHT TO SELF-ORGANIZATION. Thus, an employer may be held liable under this provision if his conduct affects in whatever manner the right of an employee to self-organize. The decision of respondent GREPALIFE to consider the top officers of petitioner UNION as unfit for reinstatement is NOT essentially discriminatory and constitutive of an unlawful labor practice of employers under the above-cited provision.
Meaning of Discrimination Discrimination in the context of the Code involves either encouraging membership in any labor organization or is made on account of the employees having given or being about to give testimony under the Labor Code. These have not been proved in the case at bar. There can be NO discrimination where the employees concerned are not similarly situated. A union officer has larger and heavier responsibilities than a union member. By committing prohibited activities during the strike, de la Rosa as VP of Union demonstrated a higher degree of imprudence and irresponsibility. Verily this justifies his dismissal. Policy of the Labor Code Since the objective of the Labor Code is to ensure a stable but dynamic and just industrial peace, the dismissal of undesirable labor leaders should be upheld. Regarding Management prerogative in relation to Discrimination It bears emphasis that the employer is free to regulate all aspects of employment according to his own discretion and judgment. This prerogative flows from the established rule that labor laws do not authorize substitution of judgment of the employer in the conduct of his business. Recall of workers clearly falls within the ambit of management prerogative. The employer can exercise this prerogative without fear of liability so long as it is done in 1) GOOD FAITH for the advancement of his interest and 2) not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements. It is valid as long as it is not performed in a malicious, harsh, oppressive, vindictive or wanton manner or out of malice or spite. Readmitting the union members to the exclusion of Domingo and de la Rosa was nothing less than a sound exercise of management prerogative, an act of self-preservation in fact, designed to insure the maintenance of peace and order in the company premises. CONSTRUCTION Caltex Filipino Managers and Supervisors Assn. v CIR (44 SCRA 350) 1972 HELD: It is imperative that in order to attain the laudable objectives of RA 875 calculated to safeguard the rights of Ees, the provisions thereof should be liberally constructed in favor of the EE and strictly against the ER, unless otherwise intended by or patent from the language of the statute itself. 7.2 REQUISITE RELATIONSHIP CONDITIONS PRECEDENT TO AN UNFAIR LABOR PRACTICE What are the conditions precedent to an unfair labor practice charge? 1. The injured party comes within the definition of EE as that term is defined by the Code. (EE-ER relationship exists) 2. The act charged as unfair labor practice must fall under Art. 248 or 249. * There must be an employer-employee relationship. American President Lines, Inc. v Clave (114 SCRA 826) 1982 HELD: Applying the Four Factors Test (selection and engagement, payment of wages, power of dismissal, and control), there exists no ER-EE relation between APL and the individual watchmen. It necessarily follows that the ER cannot be guilty of the ULP charge as under RA 875, such may occur only within the context of an ER-EE relationship. This next case is an exception, the law created an artificial employer-employee relationship:
Phelps-Dodge Corp. v NLRB (313 U.S. 177) 1941 HELD: This case is an exception to the rule laid down in American President Lines, an ULP can be committed outside the ER-EE relationship because the policy of the law is to foster unionism. The ultimate concern of the National Labor Relation Act was to claimant the causes of certain substantial obstructions to the free flow of commerce. This vital national purpose was to be accomplished by encouraging the practice and procedure of CB and by protecting the exercise by workers of full freedom of association. TAKE NOTE: The general rule is that for a ULP case to arise there must be an employeremployee relationship, but if the employer requires as a condition for employment that the employees will NOT join the union, there is imposed an artificial employee-employer relationship for the purposes of unfair labor practice. This is to achieve the policy objectives of the law.
7.3 NO UNFAIR LABOR PRACTICE : ILLUSTRATIVE INSTANCES OF VALID
EXERCISE OF MANAGEMENT RIGHTS

PERSONNEL MOVEMENTS 1. As a rule, it is the prerogative of the company to promote, transfer or even demote its EEs to the other positions when the interests of the company reasonably demand it. Unless there are instances which directly points to interference by the company with the EEs rights to self-organization, the transfer of an EE should be considered as within the bounds allowed by law. (Rubberworld vs. NLRC) 2. 9 teachers were hired by a school on a yearly basis. The nine are members of a union. After their 2nd yearly contract, the school refused to renew their contract on the ground that their teaching performances were not satisfactory. Is the refusal unfair labor practice? No. The refusal was not by reason of their union membership but by reason of their poor teaching performances. (Bilboso vs. Victorias Mining) GRANT OF PROFIT-SHARING BENEFITS TO NON-UNION MEMBERS It is the prerogative of management to regulate, according to its discretion and judgment, all aspects of employment. Such management prerogative may be availed of without fear of any liability so long as it is exercised in good faith for the advancement of the ERs interest and not for the purpose of defeating or circumventing the rights of EEs under special laws or valid agreement and are not exercised in a malicious, harsh oppressive, vindictive or wanton manner or out of malice or spite. (Wise vs. Wise EEs Union) FORCED VACATION LEAVE The forced vacation leave without pay in view of the economic crisis, being neither malicious, oppressive or vindictive, does not constitute unfair labor practice. (Philippine Graphic vs. NLRC) ISSUANCE OF RULES OR POLICY Every business enterprise endeavors to increase its profits. In the process, it may adopt or devise means designed towards that goal. (SMC vs. Ople)
TAKING ACTION AGAINST SLOWDOWN EEs have the right to strike, but they have no right to continue working while rejecting the standards desired by their ER. Hence, the ER does not commit as unfair labor practice by discharging EEs who engaged in slowdown, even if their object is a pay increase and therefore is lawful. (Azucena) EE DISCIPLINE The dismissal of a union member because of threats made against the life of the ER and there being evidence that more active members of the union were retained is not an unfair labor practice. (PTUC vs. CIR) CLOSED SHOP AGREEMENTS Dismissal of an EE upon demand of a union pursuant to a closed shop agreement is not an unfair labor practice. (Lirag Textile vs. Blanco)
7.4 UNFAIR LABOR PRACTICE OF ERS RESTRAINT, INTERFERENCE OR COERCION Art. 248 : It shall be unlawful for the ER to interfere with, restrain or coerce EEs in the exercise of their right to self-organization. Take note: Comparing 248a with 249a: interfere does not constitute a ULP under 249a. Art.255- Exclusive bargaining representation and workers participation in policy and decision-making.The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. HOWEVER, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law not with standing, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to [participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits, and welfare. For this purpose, workers and employers may form LABOR-MANAGEMENT COUNCILS: Provided, that the representatives of the workers in such labor management councils shall be elected by at least the majority of all employees in said establishment. (g) Art.277- Miscellaneous provisions.The Ministry shall help promote and gradually develop, WITH THE AGREEMENT of labor organizations and employers, LABOR MANAGEMENT COOPERATION PROGRAMS at appropriate levels of the enterprise based on shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and quality of working life. In establishments where no legitimate labor organization exists, LABOR-MANAGEMENT COMMITTEES may be formed VOLUNTARILY by workers and employers for the purpose of promoting industrial peace.
(h)
The Department of Labor and Employment shall endeavor to enlighten and educate the workers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code. TAKE NOTE:
Interfere is defined in the dictionary as: to meddle, obstruct or hinder, to act in a way that impedes or obstructs others, to enter into the concern of others. The Labor Management Cooperation Programs and the Labor Management Committees could not be considered as interference of employer with the right to self-organization since this committees and programs are entered into VOLUNTARILY and WITH the AGREEMENT of the Labor Union. Besides, the purpose of this committee and program is the promotion of industrial peace. 1. Although experience has shown that certain forms of conduct, however disguised, either directly or indirectly result in actual interference with or intimidation of EEs in exercising their rights, to distinguish between culpable interference from an innocent and noninterfering course of conduct is often difficult. Interference with EE organizational rights was found where the superintendent of the ER threatened the EEs with cutting their pay; increasing rent of the company houses, or closing the plant if they supported the union and where the ER encouraged the EEs to sign a petition repudiating the union. (Azucena) TOTALITY OF CONDUCT DOCTRINE An ERs expression of opinion about unionization may or may not amount to ULP depending on combination of circumstances. The totality of conduct doctrine holds that the culpability of the ERs remarks is to be evaluated not only on the basis of their implications, but against the background of collateral circumstances. Under this doctrine, expressions of opinion by an ER, though innocent in themselves, frequently are held to be culpable or objectionable because of the circumstances under which they are uttered. A. INTERROGATION In order that questioning of an EE concerning his union activities would not be deemed coercive, the ER must communicate to the EE the purpose of the questioning, assure him that no reprisal would take place, and obtain his participation on a voluntary basis. In addition, questioning must also occur in a context free from ER hostility to union organization and must not itself be coercive in nature. (Id.) Blue Flash Express, Inc. v. NLRB Ruling When interrogation is conducted with the proper safeguards, the fact that it is systematic does not impart a coercive power to the interrogation. The test is whether, under all circumstances, the interrogation with the EEs in the exercise of rights guaranteed by the act. Note: Although this case marks an important departure from the previous practice in rejecting the doctrine that interrogation per se is unlawful, and adopting the principle that it is privileged: 1- when the purpose is legitimate 2- when accompanied by assurances against reprisal, and 3- when unaccompanied by other ULPs Operating Engineers Local 49 v. NLRB Ruling The board revised the Blue Flash test and announced the standards which may be used as guidelines to determine whether a poll by the ER is lawful. Absent unusual circumstances, the polling of EEs by an ER will be violative of Sec. 8(a) (1) of the Act (prohibition on interference, restraint or coercion of EEs right to self organization) unless the ffg safeguards are observed: 1the purpose of the poll is to determine the truth of a unions claim of majority 2this purpose is communicated to the EEs 3assurances against reprisals are given
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the EEs are polled by secret ballot, and the ER has not engaged in ULP or otherwise created a coercive atmosphere.
B. PROHIBITING AND INTERFERING IN ORGANIZING ACTIVITIES Give instances of unfair labor practice in the form of prohibitions against union organizing activities : 1. Rule prohibiting solicitation of union membership in company property during nonworking and working time. (Id.) But if the prohibition is merely during working hours, this is not unfair labor practice since the ER has the prerogative of promulgating rules and enhance production within its premises during working hours. (Alcantara) 2. Dismissal of union members upon their refusal to give up their membership, under pretext of retrenchment due to reduced dollar allocations. (Manila Pencil Co. vs. CIR) 3. Refusal over period of years to give salary adjustments according to improved salary scales in the CBAs. (Benguet Consolidated vs. BCI EEs Union) 4. Dismissal of an old EE allegedly for inefficiency, on account of her having joined a union and engaging in union activities. (East Asiatic vs. CIR) 5. Issuance of suspension and termination orders for EEs participating in a verification election. (Gochangco Workers Union vs. NLRC) 6. Dismissal of EEs who refused to resign from their union and to affiliate with another one which was formed at the instance of the ER. (Progressive Development vs. CIR) 7. C, the duly elected president of the union, was dismissed by the company for allegedly threatening the lives of 4 EEs. It was however established that he was very active in union affairs and that he was dismissed a day after his union sent collective bargaining proposals to the company; and that C, had no reason to threaten the 4 EEs. (Royal Undergarment vs. CIR) 8. Refusal to renew teaching contracts of teachers because of fear of the school that there will be a strike the succeeding semester. (Rizal-Memorial Colleges Union vs. NLRC) * an apprehension that there might be a future strike in the school is not a ground for dismissal of the teachers Insular Life Employees Association v. Insular Life Assurance Co. (37 SCRA 244) 1971 HELD: Free speech on both sides and for every faction on any side of the labor relation is to be made a constitutional and useful right. Labor is free to turn its publicity on any labor oppression, substandard wages or unfairness or objectionable working condition. The ER too, should be free to answer and turn publicity on the records of leader of the union which seeks the confidence of his men. When Inapplicable The protection of free speech is however, inapplicable where the expression of opinion by the ER/agent contains a promise of benefit, threat or reprisal. When the ER offered reinstatement and attempted to `bribe the strikers with comfortable cots, free coffee, and occasional movies, OT pay for work performed in excess of 8 hours, and arrangement for their families, so the would abandon their strike and return to work, it was in fact engaged in strike breaking and /or union busting and consequently ULP. The respondents contend that the sending of the letters, exhibits A and B, constituted a legitimate exercise of their freedom of speech. We do not agree.
The said letters were directed to the striking employees individually by registered special delivery mail at that without being coursed through the Unions which were representing the employees in the collective bargaining. ULP- Individual bargaining or communication: interference with the right of collective bargaining: "The act of an employer in notifying absent employees INDIVIDUALLY during a strike following unproductive efforts at collective bargaining that the plant would be operated the next day and that their jobs were open for them should they want to come in has been held to be an unfair labor practice, as an ACTIVE INTERFERENCE with the right of collective bargaining through dealing with the employees individually instead of through their collective bargaining representatives." (31 Am. Jur. 563, citing NLRB v. Montgomery Ward & Co. [CA 9th] 133 F2d 676, 146 ALR 1045) Indeed, it is an unfair labor practice for an employer operating under a collective bargaining agreement to negotiate or to attempt to negotiate with his employees individually in connection with changes in the agreement. And the basis of the prohibition regarding individual bargaining with the strikers is that although the union is on strike, the employer is still under obligation to bargain with the union as the employees' bargaining representative (Melo Photo Supply Corporation vs. National Labor Relations Board, 321 U.S. 332). Examples of ULP Indeed, some such similar actions are illegal as constituting unwarranted acts of interference. 1) Thus, the act of a company president in writing letters to the strikers, urging their return to work on terms inconsistent with their union membership, was adjudged as constituting interference with the exercise of his employees' right to collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621). 2) It is likewise an act of interference for the employer to send a letter to all employees notifying them to return to work at a time specified therein, otherwise new employees would be engaged to perform their jobs. 3) Individual solicitation of the employees or visiting their homes, with the employer or his representative urging the employees to cease union activity or cease striking, constitutes unfair labor practice. Common element of above examples All the above-detailed activities are unfair labor practices because they tend to undermine the concerted activity of the employees , an activity to which they are entitled free from the employer's molestation. Moreover, since exhibit A is a letter containing promises of benefits to the employees in order to entice them to return to work, it is not protected by the free speech provisions of the Constitution (NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70). The same is true with exhibit B since it contained threats to obtain replacements for the striking employees in the event they did not report for work on June 2 1958. The free speech protection under the Constitution is inapplicable where the expression of opinion by the employer or his agent contains a promise of benefit, or threats, or reprisal (31 Am. Jur. 544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs. Goigy Co., 211 F2d 533, 35 ALR 2d 422). Indeed, when the respondents offered reinstatement and attempted to "bribe" the strikers with "comfortable cots," "free coffee and occasional movies," "overtime" pay for "work performed in excess of eight hours," and "arrangements" for their families, so they would abandon the strike and return to work, they were guilty of strike-breaking and/or union-busting and, consequently, of unfair labor practice.
It is equivalent to an attempt to break a strike for an employer to offer reinstatement to striking employees individually, when they are represented by a union, since the employees thus offered reinstatement are unable to determine what the consequences of returning to work would be. Other violations of right to self-organization: Likewise violative of the right to organize, form and join labor organizations are the following acts: 1) the offer of a Christmas bonus to all "loyal" employees of a company shortly after the making of a request by the union to bargain; 2) wage increases given for the purpose of mollifying employees after the employer has refused to bargain with the union, or for the purpose of inducing striking employees to return to work; 3) the employer's promises of benefits in return for the strikers' abandonment of their strike in support of their union; 4) and the employer's statement, made about 6 weeks after the strike started, to a group of strikers in a restaurant to the effect that if the strikers returned to work, they would receive new benefits in the form of hospitalization, accident insurance, profit-sharing, and a new building to work in. Even act of interference is ineffective, it is still a ULP: The circumstance that the strikers later decided to return to work ostensibly on account of the injunctive writ issued by the Court of First Instance of Manila cannot alter the intrinsic quality of the letters, which were calculated, or which tended, to interfere with the employees' right to engage in lawful concerted activity in the form of a strike. Interference constituting unfair labor practice will not cease to be such simply because it was susceptible of being thwarted or resisted, or that it did not proximately cause the result intended. For success of purpose is not, and should not, be the criterion in determining whether or not a prohibited act constitutes unfair labor practice. TEST OF INTERFERENCE: "The test of whether an employer has interfered with and coerced employees within the meaning of subsection (a) (1) is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of employees' rights under section 3 of the Act, and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining." (Francisco, Labor Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A., 1948, 170 F2d 735). Discrimination in this case: It is not denied that when the strikers reported for work on June 2, 1958, 63 members of the Unions were refused readmission because they had pending criminal charges. However, despite the fact that they were able to secure their respective clearances 34 officials and union members were still refused readmission on the alleged ground that they committed acts inimical to the Companies. It is beyond dispute, however, that non-strikers who also had criminal charges pending against them in the fiscal's office, arising from the same incidents whence the criminal charges against the strikers evolved, were readily readmitted and were not required to secure clearances. This is a clear act of discrimination practiced by the Companies in the process of rehiring and is therefore a violation of sec. 4 (a) (4) of the Industrial Peace Act. The respondents did not merely discriminate against all the strikers in general. They separated the active from the less active Unionists on the basis of their militancy, or lack of it, on the picket lines. Unionists belonging to the first category were refused readmission even after they were able to secure clearances from the competent authorities with respect to 'the criminal charges filed against them. It is significant to note in this connection that except for one union official who deserted his union on the second day of the strike and who later participated in crashing through the picket lines, not a single union officer was taken back to work. Discrimination undoubtedly exists where the record shows that the union activity of the rehired strikers has been less prominent than that of the strikers who were denied reinstatement.
"So is there an unfair labor practice where the employer, although authorized by the Court of Industrial Relations to dismiss the employees who participated in an illegal strike, dismissed only the leaders of the strikers, such dismissal being evidence of discrimination against those dismissed and constitution a waiver of the employer's right to dismiss the striking employees and a condonation of the fault committed by them." (Carlos and Fernando, Labor and Social Legislation, p. 62 citing Phil. Air Lines, Inc. v. Phil. Air Lines Employees Association, L-8197, Oct. 31, 1958.). "Delayed reinstatement is a form of discrimination in rehiring, as is having the machinery of reinstatement in the hands of employees hostile to the strikers, and reinstating a union official who formerly worked in a unionized plant, to a job in another mill, which was imperfectly organized." (Morabe, The Law on Strikes, p. 473, citing Sunshine Mining Co. 7 NLRB 1252; Cleveland Worsted Mills, 43 NLRB 545; italics supplied.) Equally significant is the fact that while the management and the members of the screening committee admitted the discrimination committed against the strikers, they tossed back and around to each other the responsibility for the discrimination. Thus, Garcia admitted that in exercising for the management the authority to screen the returning employees, the committee admitted the non-strikers but refused readmission to the strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella, chairman of the management's screening committee, while admitting the discrimination, placed the blame therefor squarely on the management (tsn., Sept. 20, 1960, pp. 7-8, 14-18). But the management, speaking through the respondent Olbes, head of the Companies, disclaimed responsibility for the discrimination. He testified that "The decision whether to accept or not an employee was left in the hands of that committee that had been empowered to look into all cases of the strikers." (tsn., Sept. 6, 1962, p. 19.) C. VIOLENCE OR INTIMIDATION Violations have been found where the ER threatened EEs favoring the union with force or violence. (Azucena) In another case, the ER was found guilty of unfair labor practice when 2 EEs were provoked into a fight by 2 recently hired EEs pursuant to a strategy of the company designed to provide an apparent lawful cause for their dismissal and said dismissed EEs had not figured in similar incidents before or violated companys rules in their many years with the company. (Visayan Bicycle vs. NLU) D. ESPIONAGE AND SURVEILLANCE One form of pressure which some over-eager ERs sometimes use is the practice of spying upon EEs. Inasmuch as the pressure results more from the EEs apprehension than from the ERs purpose in spying, and the use of its results, it has been held to be no answer to a charge of unfair labor practice that the fruits of espionage were not used. When an ER engages in surveillance or takes steps leading his EEs to believe it is going on, a violation results because the EEs come under threat of economic coercion or retaliation for their union activities. (Azucena)
Insular Life EEs Association v. Insular Life Assurance Co. Ruling Espionage by an ER of union activities or surveillance thereof, are instances of interference, coercion or restraint of EEs in connection with the right to organize, join and form unions as to constitute ULP. ULP is committed whether the espionage is carried out by a professional labor spy or detective, official or supervisory EEs, or fellow EEs at the request/direction of the ER, or an ex-EE.
E. ECONOMIC INDUCEMENTS 1. A violation results from an ERs announcements of benefits prior to a representation election, where it is intended to induce the EEs to vote against the union. (Id.)
2. While a strike is going on, the president of the company sent each worker a letter stating among others that if the latter returned to work, he can have his meals within the office, make a choice whether to go home at the end of the day or to sleep nights at the office, enjoy free coffee and occasional movies. Is the writing of the letter unfair labor practice? Yes. The letter tends to undermine the concerted activity of the EEs, an activity which they are entitled free from the ERs molestation. (Insular Life EEs Association vs. Insular Life)
Insular Life EEs Assoc. v. Insular Life Assurance Co. Ruling When the ER offered reinstatement and attempted to bribe the strikers with comfortable cots, free coffee, and occasional movies, OT pay for work performed in excess of 8 hours, and arrangement for their families, so they would abandon their strike and return to work, it was in fact engaged in strike breaking and/or union busting and consequently ULP.
F. EXPRESSION OF ANTI-UNION OPINION If the ER evinced willingness to be guided by and to accept the EEs choice, criticism or depreciating remarks made by the ER concerning a particular labor union or labor unions generally did not constitute an unfair labor practice, provided, of course, the remarks were not so hostile as to evidence or produce a coercive or intimidating purpose or effect. (Azucena) F.1 TOTALITY OF CONDUCT DOCTRINE The culpability of ERs remarks were to be evaluated not only on the basis of their implicit implications, but were the be appraised against the background for and in conjunction with the collateral circumstances i.e. history of particular ERs labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference. (Id.) Visayan Bicycle Manu. Co. v. Natl Labor Union , 14 SCRA 5 (65) Rothenberg has this to say: ". . . it can be established that the true and basic inspiration for the employer's act is derived from the employee's union affiliations or activities, the assignment by the employer of another reason, whatever its semblance or validity, is unavailing. Thus, it has been held that the facts disclosed that the employer's acts in discharging employees were actually prompted by the employer's improper interest in the affected employee's union affiliations and activities, even though the employer urged that his acts were predicated on economic necessity, desire to give employment to more needy persons, lack of work, cessation of operations, refusal to work overtime, refusal of non-union employees to work with union employees, seasonal lay-off, libelous remarks against management, violation of company rules." (Rothenberg on Labor Relations, pp. 400-401; italics supplied.) Translation: An employer may have a valid ground for termination under Art. 282 or the companypolicies. Such act committed by the employee may be, standing alone, considered just cause for termination. BUT if read with the circumstances and in light of unfair labor practice and the right to elf-organize, it may be considered as an unfair labor practice even though only a small connection exists. TOTALITY RULE: One single act may be innocent if standing alone, but if the totality of circumstance show that the employer was motivated by an unfair labor practice then a case for ULP may arise. TAKE NOTE: Effect or failure of the act is immaterial. G. MASS LAY-OFF
1. A companys capital reduction efforts, a subterfuge, a deception, to camouflage the fact that it has been making profits and to justify mass lay-off of its EE ranks, especially of union members, were an unfair labor practice. (Madrigal and Company vs. Zamora) 2. There is unfair labor practice in the lay-off of a bank of 65 EEs who were active union members allegedly by reason of retrenchment, although the bank was not suffering any losses. (Peoples Bank vs. Peoples Bank EEs Union) G. LOCKOUTS, CLOSURE 1. A lockout, actual or threatened, as a means of dissuading the EEs from exercising their rights clearly an unfair labor practice. (Azucena) 2. An ER which closes its business to put an end to a unions activities and which made no effort to allow the EEs attempt to exercise their right to self-organization and collective bargaining commits unfair labor practice. (Sy Chi Junk Shop vs. Federacion Obrero de la Industria) 3. Where there is a simulated sale as a device to merely get rid of the EEs who were members of the union, the company is guilty of unfair labor practice. (Moncada Bijon Factory vs. CIR) The acquiring company created to relieve the old company of its obligations is liable for the old companys obligations. (PLASLU vs. Sy Indong) The doctrine of piercing the veil of corporate identity will be utilized, to the effect, that the separateness of corporate personality will be disregarded if it is being used to run away from corporate obligations. (Delfin vs. Inciong) H. RUN-AWAY SHOP The transfer of an industrial plant from one location to another in order to discriminate against EEs at the old plant because of their union activities. (Azucena) Doctrine of SUCCESSOR EMPLOYER The new company will be treated as a continuation or successor of the one that closed. In such a case, the separated EEs will have to be employed in the new firm because in the first place they should not have been separated at all. I. REFUSAL TO HIRE STRIKING WORKERS There is unfair labor practice in the refusal of ER to reinstate strikers who abandoned their strike and who voluntarily and unconditionally offered to return to work. (Cromwell vs. CIR) YELLOW DOG CONTRACT 1. Art. 248 : It shall be unlawful for the ER to require as a condition of employment that a person or an EE shall not join a labor organization or shall withdraw from one to which he belongs. 2. What is a yellow dog contract? It is a promise exacted from workers a condition of employment that they do not belong to, or attempt to foster, a union during their period of employment. The typical yellow dog contract contains a representation by the EE that he is not a member of a labor union and a promise by him not to join a labor union or upon joining a union to quit his employment. (Alcantara) 3. X, a member of a union, applied for employment with Y Co. The union is not among the unions in the bargaining unit. He was told by the personnel manager that he cannot be employed unless he resigned from his union. X refuses to do so. He was not hired. Is this unfair labor practice?
Yes. This is an example of an exaction of a yellow dog contract. The defense that X is not yet an EE of Y is not tenable since the unfair labor practice covered by a yellow dog contract may be committed against a prospective EE. (Alcantara) CONTRACTING WORK OUT 1. Art. 248 : It shall be unlawful for an ER to contract out services or functions being performed by union members when such will interfere with, restrain or coerce EEs in the exercise of their rights to self-organization. 2. Shell dissolved its security guard section, transferred 18 guards to other departments and eventually dismissed them, then contracted out to an independent security agency. Such section was among the departments covered by the existing CBA. In the absence of an express reservation in the CBA of Shells right to abolish the section, did the ER commit unfair labor practice? Yes. The dissolution of a section is a violation of the CBA, the terms of which cannot be unilaterally disregarded by either party. Shell should have specifically reserved its right to dissolve the section; a statement of management prerogatives couched in general terms is not sufficient. (Shell Oil vs. Shell) Contracting work out by an ER is a ULP when it is motivated by a desire to prevent his EEs from organizing and selecting a collective bargaining representative. COMPANY DOMINATED UNION 1. Art. 248 : It shall be unlawful for an ER to initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial aid or other support to it or its organizers or supporters. 2. What are the various manifestations of domination of labor union? a. Initiation of the company union idea. This may further occur in 3 styles: 1- outright formation by the employer or his representatives; 2- employee formation on outright demand or influence by the ER; 3- managerially motivated formation by EEs b. Financial support to the union. An ER commits ULP if he defrays the union expenses or pays the fees of the attorney who drafted the union expenses or pays the fees of the attorney who drafted the unions constitution and by-laws. c. ER encouragement and assistance Immediately granting the union exclusive recognition as a bargaining agent without determining majority representation. d. Supervisory assistance Solicitation of membership, permitting union activities during working time or coercing EEs to join the union by threats of dismissal or demotion. (Philippine American Cigarette Factory Union vs. Philippine American Cigarette Factory) DISCRIMINATION 1. Art. 248 : It shall be unlawful for an EE to discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. [Discouraging membership in a labor organization includes not only discouraging adhesion to union membership but also discouraging participation in union activities such as a legitimate strike. (Azucena)] 2. Give some examples of discrimination resulting in unfair labor practices :
a. Discrimination in work quota between members and non-members of union. (AHS/Philippines EEs Union vs. NLRC) b. Discrimination in dissemination of bonus allocation of salary adjustments between members and non-members of union contrary to previous practice of dividing equally the percentage of net profits. (Manila Hotel vs. CIR) c. Even where business conditions justified a lay-off of EEs, unfair labor practices in the form of discriminatory dismissal were found where only unionists were permanently dismissed while non-unionists were not. (Manila Pencil vs. CIR) d. Discrimination in regularization between old EEs who were members of union and new EEs who were non-members. The new EEs were immediately given permanent appointments after their hiring. (Manila Railroad vs. Kapisanan ng mga Manggagawa sa Manila Railroad) e. Indirect discrimination i.e. the discharge of an EE due to the union activities of wife, brother or husband. (Azucena) 3. What is the test of discrimination to be considered unfair labor practice? It is necessary that the underlying reason for the discharge be established. The fact that a lawful cause for discharge is available is not a defense where the EE is actually discharge because of his union activities. If the discharge is actually motivated by a lawful reason, the fact that the EE is engaged in union activities at the time will not lie against the ER and prevent him from the exercise of his business judgment to discharge an EE for cause. (Id.) 4. A company considers one factor for promotion the fact that an EE is Ilocano. Assuming this is discriminatory, is this unfair labor practice? No. Only such act as would interfere with the EEs right to self-organization, encourage or discourage membership in a labor organization, or discriminate against an EE of having given or being about to give testimony under the Code are considered unfair labor practices. The said provisions, being penal in character, should be strictly construed. (Alcantara) Wise and Co. v. Wise and Co. Ees Union , 178 SCRA 536 (89) HELD: There can be no discrimination committed by company as the situation of the union employees are different and distinct from the non-union employees. Indeed, discrimination per se is not unlawful. There can be no discrimination where the employees concerned are not similarly situated. The union can not claim that there is grave abuse of discretion by the company in extending the benefits of profit sharing to the non-union employees as they are two (2) groups not similarly situated. These non-union employees are not covered by the CBA. They do not derive and enjoy the benefits under the CBA. The grant by the company of profit sharing benefits to the employees outside the "bargaining unit" falls under the ambit of its managerial prerogative. It appears to have been done in good faith and without ulterior motive. More so when as in this case there is a clause in the CBA where the employees are classified into those who are members of the union and those who are not. In the case of the union members, they derive their benefits from the terms and conditions of the CBA contract which constitute the law between the contracting parties. Both the employer and the union members are bound by such agreement. *** The Professor criticizes the practice of extending the benefits of a CBA to non-union members outside the appropriate bargaining unit because it has a chilling effect on the union. In the Wise case, the company extended the profit sharing benefit in CBA to those outside its coverage. Discrimination Sweepstakes Staff Personnel Ruling : PCSO v Assoc. of
Under RA 875, an ER commits an ULP when it discriminates against a labor union in favor of another. Discriminatory acts under the applicable law are not limited to hiring or tenure but extend to terms and conditions of employment. An ER can discriminate in favor of a union, even if it were not company dominated. Discriminatory acts can be effected against a union itself. Since the PCSO extended privileges and concessions to the PCSSU while denying the same privileges and concessions to the respondent union at a time when neither union had been recognized as sole bargaining representative.
CLAUSE
VALID DISCRIMINATION: UNION SECURITY Union security clause is any form of agreement which imposes upon EEs the obligation to acquire or retain union membership, otherwise their employment will be terminated. The objective is to assure continued existence of the union through enforced membership. In a sense, there is discrimination when certain employees are obliged to join a particular union. But is discrimination favoring unionism; it is a valid kind of discrimination.
VIOLATION OF DUTY TO BARGAIN 1. Art. 248 : It shall be unlawful for an ER to violate the duty to bargain collectively as prescribed by this Code. 2. While the law does not compel the parties to reach an agreement, it does contemplate that both parties will approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement. (Kiok Loy vs. NLRC) 3. ALU was certified as the bargaining agent of Balmar Farms. Balmar subsequently received a letter by the president of the union of its workers that they wanted to negotiate directly with the company and not through ALU. Because of this, Balmar refused to negotiate with ALU. Is this unfair labor practice? Yes. ALU has been certified as the exclusive bargaining agent, and it is not for Balmar to question which group is the bargaining representative of its workers. (Balmar farms vs. NLRC) A ULP is committed when it is shown that the ER, after having been served with a written bargaining proposal did not even bother to submit a reply. TESTIMONY OF EE Art. 248 : It shall be unlawful for an ER to dismiss , discharge or otherwise prejudice or discriminate against an EE for having given or being about to give testimony under this Code. NEGOTIATION OR ATTORNEYS FEES Art. 248 : It shall be unlawful for an ER to pay negotiation of attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute. VIOLATION OF CBA 1. Art. 248 : It shall be unlawful for an EE to violate a CBA. 2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer be treated an unfair labor practice and shall be resolved as grievances under the CBA. 7.5 UNFAIR LABOR PRACTICE OF LABOR ORGANIZATIONS RESTRAINT OR COERCION BY LABOR ORGANIZATION
1. Art. 249 : It shall be unfair labor practice for a labor organization to restrain or coerce EEs in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership. TAKE NOTE: Interfere is not included as an act of ULP under 249a because a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership. 2. The provision is violated by a unions restraining or coercing an EE in the exercise of his right to refuse to participate or recognize a strike i.e. blocks their ingress and egress from the plant or damages their automobiles. (Azucena) DISCRIMINATION 1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to cause an ER to discriminate against an EE, including discrimination against an EE with respect to who, membership in such organization has been denied or to terminate an EE on any ground other than the usual terms and conditions under which membership is made available to other members. 2. The union may not arbitrarily use the union security clause to unjustly discriminate against non-members of the union. (Salunga vs. CIR) 3. Due to negligence of a mother federation in attending to a case filed by its local against the ER, 32 out of the 36 members of the local union signed a resolution of disaffiliation from the mother federation. The federation demanded dismissal of the union members pursuant to the maintenance of membership clause in the CBA. Thereafter, the union members were dismissed. Is there unfair labor practice? Yes. The union members were dismissed by reason of their freedom to disaffiliate. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills) 4. What is the liability of the ER and the mother federation? The companys liability should be limited to reinstatement considering that the dispute revolve around the mother federation and its local. The mother federation at whose instance the workers were dismissed, should be held liable for payment of backwages. (Id.) REFUSAL TO BARGAIN Art. 249 : It shall be unfair labor practice for a labor organization to violate the duty, or refuse to bargain collectively with the ER, provided it is the representative of the EEs. FEATHERBEDDING AND MAKE-WORK ARRANGEMENTS 1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to cause an ER to deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed including the demand for free for union negotiations. 2. Define FEATHERBEDDING : Name given to EE practices which create or spread employment by unnecessarily maintaining or increasing the number of EEs used, or the amount of time consumed to work on a particular job. (Azucena) 3. A union in a company declares a strike to compel the ER to assign 2 checkers to 1 container. If it can be established that only 1 checker is needed for a container, has the union committed in unfair labor practice? Yes. The union is guilty of featherbedding. NEGOTIATION FEES
Art. 249 : It shall be unfair labor practice for a labor organization to ask for or accept negotiations or attorneys fees from the ERs as part of the settlement of any issue in collective bargaining or any other dispute. Sweetheart Contract VIOLATION OF CBA 1. Art. 249 : It shall be unfair labor practice for a labor organization to violate a CBA. 2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA. {Gross Violations of a CBA] Flagrant and/or malicious refusal to comply with the economic provisions of such agreement. (Alcantara) 7.6 ENFORCEMENT, REMEDIES AND SANCTIONS PARTIES LIABLE FOR ACTS 1. Who may commit an unfair labor practice? The ER or a labor organization may commit unfair labor practices. (Id.) 2. In case the ER committing the unfair labor practices is a corporation, association or partnership, who may be held criminally liable? Only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified the unfair labor practices shall be held criminally liable. (Art. 248) 3. Who may be held criminally liable for the unfair labor practices committed by labor unions? Only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified the unfair labor practices shall be held criminally liable. ( Art. 249) PROSECUTION AND PRESCRIPTIVE PERIOD A. CIVIL ASPECT 1. Art. 247 : Subjects to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Arts. 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall revolve such cases within 30 days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. 2. Art. 290 : All unfair labor practices shall be filed with the appropriate agency within 1 year from the accrual of such unfair labor practice, otherwise, they shall be forever barred. B. CRIMINAL ASPECT 1. Art. 247 : No criminal prosecution may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the administrative proceedings. During the pendency of the administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted. The final judgment in the administrative proceeding shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth.
2. Art. 290 : All unfair labor practices shall be filed with the appropriate agency within 1 year from the accrual of such unfair labor practice, otherwise, they shall be forever barred. 3. Art. 228 : The criminal charge shall fall under the concurrent jurisdiction of the Municipal or regional trial Court. 4. When is an unfair labor practice deemed to be purely an administrative offense and not a criminal act? When the acts complained of hinges on a question of interpretation or implementation of ambiguous provisions of an existing CBA. (Art. 288) COMPROMISE Unfair labor practice is not subject to compromise. (Gochangco Workers Union vs. NLRC) AFPMBAI v. AFPMBAIEU (97 SCRA 715) 1980 HELD: Quitclaims and releases executed by EES do not estop them from pursuing their claims arising from the ULP of the ER. The basic reason is that such quitclaims are against public policy and therefore, null and void. Since the dismissal of the EES constituted ULP, it is immaterial whether some have executed quitclaims or not. The acceptance of termination pay does not divest the laborer of the right to prosecute his ER for ULP. The reason is that the EE is placed in a position where he needs to have money, a case of adherence not of his choice. ULP acts are beyond compromises such as quitclaims, releases and settlement. Are the rules stated above abandoned in the case of Reformist Union? No. Reformist is a case of compulsory arbitration. Reformist Union v. NLRC , 266 SCRA 713 (1997) The dispute or strike was settled when the company and the union entered into an agreement on 19 January 1990 where the private respondents agreed to accept all employees who by then, had not yet returned to work. By acceding to the peaceful settlement brokered by the NLRC, the private respondents waived the issue of the illegality of the strike. The very nature of compulsory arbitration makes the settlement binding upon the private respondents, for compulsory arbitration has been defined both as "the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all the parties," and as a mode of arbitration where the parties are "compelled to accept the resolution of their dispute through arbitration by a third party." Clearly then, the legality of the strike could no longer be reviewed by the Labor Arbiter, much less by the NLRC, as this had already been resolved. It was the sole issue submitted for compulsory arbitration by the private respondents, as is obvious from the portion of their letter quoted above. The case certified by the Labor Secretary to the NLRC was dismissed after the union and the company drew up the agreement mentioned earlier. This conclusively disposed of the strike issue. The agreement entered into by the company and the union, moreover, was in the nature of a compromise agreement, i.e., "an agreement between two or more persons, who for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing." Thus, in the agreement, each party made concessions in favor of the other to avoid a protracted litigation. While we do not abandon the rule that "unfair labor practice acts are beyond and outside the sphere of compromises," the agreement herein was voluntarily entered into and represents a reasonable settlement, thus it binds the parties.
On this score, the Labor Code bestows finality to unvitiated compromise agreements: Art. 227. Compromise agreements. Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion. RELIEF IN UNFAIR LABOR PRACTICE CASES What are the various forms of relief available in unfair labor practice cases? 1. Cease and Desist Order Order served upon such person requiring him to cease and desist from such unfair labor practice. 2. Affirmative order Directing full reinstatement of EE with back pay. 3. Disestablishment Orders directing the ER to withdraw all recognition from a company-dominated labor union and to disestablish the same. 4. Order to bargain Affirmative order to the respondent to bargain with the bargaining agent. PENALTIES Art. 288 : Except as otherwise provided in this Code, or unless the acts complained of hinges on a question of interpretation or implementation of ambiguous provisions of an existing CBA, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with 1. A fine of not less than P1,000.00 nor more than P10,000.00 or 2. Imprisonment of not less than 3 months or more than 3 years , or 3. Both such fine and imprisonment at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence.
Section. 8. UNION SECURITY

8.1 STATUTORY BASIS Art. 248 : Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition of employment, except those EEs who are already members of another union at the time of the signing of the CBA. 8.2 TYPES UNION SECURITY PROVISIONS What are the different types of union security arrangements? 1. Closed shop Agreement whereby an ER binds himself to hire only members of the contracting union who must continue to remain members of the union in good standing for the duration of the agreement as a condition for the continued employment. 2. Union shop One whereby an ER is permitted to employ a non-union-worker, but to retain employment such worker must become a union member after some period and maintain his membership therein in good standing for the duration of the agreement. 3. Maintenance of membership clause Does not require non-members to join the union but provides that those who do join must maintain their membership for the duration of the union contract, under penalty of discharge.
4. Agency shop An agreement whereby EEs must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by members.
PREFERENTIAL SHOP AGREEMENT The ER agrees to give preference to the members of the bargaining union in hiring or filing of vacancies and retention in case of lay-off. The ER can hire in the open market if union members are not available All things being equal, union members are given preference over non-union members with regards to hiring.
Distinguish closed shop from union shop : * Closed shop The ER cannot hire any worker who is not a member of the contracting union. Membership in the contracting union is a condition for employment and retention of employment. * Union shop ER may hire worker who is not a member of the contracting union but the worker must within a specified period after his employment become a member of the contracting union. Membership in the contracting union is a condition for continued employment. Hiring Union Shop Continued Employment Employees have After some time, access to labor employee must market. Can be become a member hired even if not union member. Ground for Termination If they employee does not join the union after a reasonable time, it will be grounds for termination After due process is observed If not a member at anytime, grounds for termination After due process is observed If disaffiliates from union, grounds for termination After due process is observed
Closed Shop
Employee must become a member at the time of hiring
Must be a member all through-out
Maintenance shop
Already a member at the time of hiring
Must maintain membership, otherwise it shall be a ground for termination
8.3 RATIONALE The validity of a union security provisions is largely recognized; it is intended to make the union strong so that true collective bargaining may be assured. Statutes recognizing the validity of closed shop agreements have been justified on the basis of police power. The recognition of the validity of such agreements has been held to be the most prized achievement of unionism. (Juat vs. CIR) RATIONALE-employee action UST v. Bitonio , 318 SCRA 185 (1999)
Self-organization is a fundamental right guaranteed by the Philippine Constitution and the Labor Code. Employees have the right to form, join or assist labor organizations for the purpose of collective bargaining or for their mutual aid and protection. Whether employed for a definite period or not, any employee shall be considered as such, beginning in his first day of service, for purposes of membership in a labor union. Corollary to this right is the prerogative not to join, affiliate with or assist a labor union. Therefore, to become a labor union member, an employee must, as a rule, not only signify the intent to become one, but also take some positive steps to realize that intent. The procedure for union membership is usually embodied in the unions constitution and bylaws. An employee who becomes a union member acquires the rights and the concomitant obligations that go with this new status and become bound by the unions rules and regulations. Juat v. CIR , 15 SCRA 391 (1965) A closed shop agreement has been considered as one form of union security whereby only union members can be hired AND workers must remain union members as a condition of continued employment. RATIONALE CLOSED SHOP: The requirement for employees or workers to become members of a union as a condition for employment redounds to the benefit and advantage of said employees because by holding out to loyal members a promise of employment in the closed-shop the union wields group solidarity. In fact it is said that the closed-shop contract is the most prized achievement of unionism. To who is Closed-shop proviso of a CBA applicable? Closed-shop proviso of a collective bargaining agreement entered into between an employer and a duly authorized labor union is applicable not only to the employer and a duly authorized labor union is applicable NOT ONLY to the (1) employees or laborers that are employed AFTER the collective bargaining agreement was entered into. BUT ALSO to (2) old employees who ARE NOT members of any labor union at the time the said collective bargaining agreement was entered into. In other words, if an employee or laborer is already a member of a labor union different from the union that entered into a collective bargaining agreement with the employer providing for a closed-shop, said employee or worker cannot be obliged to become a member of that union which had entered into a CBA with the employer as a condition for his continued employment. Guijarno v. CIR , 52 SCRA 307 (1973) GENERALLY: a state may NOT compel ordinary voluntary associations to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege. EXCEPTION: The rule is qualified in respect of labor unions holding a monopoly in the supply of labor, either in a given locality, or as regards a particular employer with which it has a closed-shop agreement. Consequently, it is well settled that such unions are NOT entitled to arbitrarily exclude qualified applicants for membership, and a closed-shop provision would not justify the employer in discharging, or a union in insisting upon the discharge of, an employee whom he union thus refuses to admit to membership, without any reasonable ground thereof. To further increase the effectiveness of labor organizations, a closed-shop has been allowed.
8.4 VALIDITY OF AGREEMENT AND EFFECT ON FREEDOM OF CHOICE A union security provision is not a restriction of the right of freedom of association guaranteed by the Constitution. (Villar vs. Inciong) valid exercise of police power * a CLOSED SHOP provision in a CBA should not be applied retroactively Villar v. Inciong , 121 SCRA 444 (1983) A closed-shop is a valid form of union security, and a provision thereof in a collective bargaining agreement is not a restriction of the right of freedom of association guaranteed by the Constitution. Where in a closed-shop agreement it is stipulated that union members who cease to be in good standing shall immediately be dismissed, such dismissal does not constitute an unfair labor practice exclusively cognizable by the CIR. Malayang Samahan v. Ramos , 326 SCRA 428 (2000) The reason behind the enforcement of union security clauses which is the sanctity and inviolability of contracts cannot override ones right to due process. 8.5 CONTRACT DRAFTING AND INTERPRETATION OF PROVISIONS UNION
SECURITY
1. A CBA provides : The union shall have the exclusive right and privilege to supply the company with laborers and the company agrees to hire only such persons who are members of the union. If the union member is expelled, is the company obliged to terminate the EEs employment? No. The stipulation does not establish a closed-shop agreement : Dismissal pursuant to a closed-shop clause must clearly appear in the CBA. (Confederated Sons of Labor vs. Anakan) 2. A CBA provides : The ER agrees to employ only members in good standing of the union. The ER, however, reserves its rights to accept or reject EEs where they fail to meet its requirements. The ER agrees not to employ any new EE unless he is a member of good standing of the union provided such new EE meets the qualifications required by the ER. Is the ER obliged to terminate an expelled member of the union? No. The contract does not clearly prescribe the period within which the EE must remain a member of good standing of the union. And it is not clear that membership in the union is a condition for continuation or retention of employment. Stipulations of this nature are strictly construed; doubts are resolved against the existence of the right to dismiss. Rizal Labor Union v. Rizal Cement Co. In order for an employer to be bound under a union security clause in the CBA, to dismiss an employee for lack of or loss of union membership, the stipulation must be so clear and unequivocal as to leave absolutely no room for doubt. There must be a provision that union members must be in good standing to keep their job.
8.6 CLOSED SHOP AGREEMENT

1. When is a closed shop provision not applicable? All EEs in the bargaining unit covered by a closed shop agreement are subject to its terms, except:
a.
Any EE who at the time the closed shop agreement takes effect is a bona fide member of a religious organization which prohibits its members from joining labor unions on religious grounds (Victoriano vs. Elizalde Rope Workers Union) EEs already in the service and already members of a labor union or unions other than the majority union at the time the closed shop agreement took effect. (Sta. Cecilia Sawmills vs. CIR) Supervisors ineligible to join the majority union because of the membership therein of EEs under their supervision. (BISCOM vs. PAFLU) EEs excluded from the closed shop by express terms of the agreement. These exclusions applies to other types of union security arrangements, such as the agency shop. (National Brewery and Allied Industries Labor Union vs. SMC)
b.
c. d.
2. X union has a CBA with Y. Co. which provides The Company undertakes not to employ anyone who is not a member of the Union and to dismiss from employment any EE who resigns or is expelled from the Union. Z, an EE, resigns from the union. By reason of the agreement, he is dismissed. Is the dismissal valid? Yes. His dismissal was effected pursuant to the closed shop provision of the CBA. The validity of such provision is recognized. (Just vs. CIR) 3. Union A wins over Union B in a certification election, then enters into a CBA with the ER. The CBA contained a closed shop provision. Is the ER obliged to dismiss the members of union? No. The closed shop agreement cannot be enforced against EEs who are already members of another union at the time of the signing of the CBA. To compel the members of a minority union to disaffiliate from their union and join the majority or contracting union would render nugatory the right of the EEs to self-organization. (Freeman Shirt vs. CIR) 4. The Bagong Buhay Union had with the Artex Development a CBA with a closed shop stipulation. 3 of its members affiliated themselves with another union. When being dismissed, they claimed they were unaware of the contents of the CBA. Is the contention tenable? No. Neither their ignorance, nor their dissatisfaction with the CBA would justify breach thereof or the formation by them of a union of their own. A union member who is employed under an agreement between the union and his ER is bound by the provisions thereof. (Manalang vs. Artex Development) A closed shop provision in a CBA should not be applied retroactivity
8.7 MAINTENANCE OF MEMBERSHIP

1. A CBA provides : Both parties agree that all EEs of the company who are already members of the union at the time of the signing of this agreement shall continue to remain members of the union for the duration of the agreement. 3 members of the union resigned to join a new union. They were dismissed. Is their dismissal legal? No. The contractual provision relied upon does not expressly provide that membership in the union is a condition for continued employment in order that an ER may be bound to dismiss EEs who does not maintain their membership in the union is a condition for continued employment. In order that an ER may be bound to dismiss EEs who do not maintain their membership in the union, the stipulation to this effect must be so clear as to leave no room for doubt. An undertaking of this nature is so harsh that it must be strictly construed and doubts must be resolved against the existence of the right to dismiss. (Manila Cordage vs. CIR) 2. About 8 months after the execution of a CBA, some union members joined another union and even filed a petition for certification election. As the CBA contained a maintenance of membership clause the bargaining agent sought the dismissal of the EEs. Is this valid?
Yes. The union members committed acts of disloyalty. When members seek the destruction of the organization to which they belong, they forfeit their right to remain as members. (Tanduay Distillery Union vs. NLRC) 3. Does the expiration of the CBA preclude the dismissal of the guilty unionmembers? No. The expiration of the CBA did not cleanse from them from the acts of disloyalty. They committed such acts while the CBA was in force. (Id.) 4. If the act of disloyalty was committed during the freedom period, could the union security clause still be enforced? No. The requirement for union members to maintain their membership is good standing ceases to be binding during the 60-day freedom period immediately preceding the expiration of the CBA. (Id.) 5. X union has a CBA with Y Co., containing a maintenance of membership clause. Due to the refusal of Z to join it, X demanded the dismissal of Z pursuant to the clause. Is this valid? No. The maintenance of membership clause only applies to EEs who are members of the contracting union at the time of the execution of the CBA and to those who may thereafter on their own volition join the union. (Alcantara)
Although union security clauses are valid and enforceable, this does not erode the fundamental requirement of DUE PROCESS
8.8 FINANCIAL SECURITY AGENCY SHOP Art. 248 : EEs of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the CBA. The individual authorization required under Art. 242 of this Code shall not apply to the nonmembers of the recognized collective bargaining agent. CHECK-OFF: Art. 113 b: No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees except: for union dues, in cases where the right of the worker of his union to check-off has been recognized by the employer OR authorized in writing by the individual worker concerned. Art. 241 m,n,o: m. The books of accounts and other records of the financial activities of any labor org shall be open to inspection -by any officer or member thereof -during office hours; n. No special assessment or other extraordinary fees may be levied upon the members of a labor org: -unless authorized by a written resolution -of a majority of all the members of a general membership meeting -duly called for the purpose. -The secretary of the org shall record: -the minutes of the meeting -including the list of all members present, -he votes cast, -the purpose of the special assessment or fees and -the recipient of such assessments or fees. The record shall be attested to by the president. (No need to be under oath)
--
o. Other than for mandatory activities under the Code, no special assessments, atty.s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee -without an individual written authorization duly signed by the Ee. -The authorization should specifically state -the amount, -purpose and -beneficiary of the deduction; ABS-CBN SUPERVISORS EMPLOYEES UNION V. ABS-CBN , 1999 A check-off is a process or device whereby the employer, on agreement with the Union, recognized as the proper bargaining representative, OR on PRIOR authorization from its employees, deduct union dues or agency fees from the latters wages and remit them directly to the union. Its desirability in a labor organization is quite evident. It is assured thereby of CONTINOUS FUNDING. As this Court has acknowledged, the system of check-off is primarily for the benefit of the Union and only indirectly, for the individual employees. the legal basis of check-off is found in statutes or in contracts. The statutory limitation on checkoffs are found in Article 241 g : No officer, agent, or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws. etc. See also 241 m,n,o. FROM PROFESSORS LECTURE requisites so that special assessment for unions incidental expenses be valid Article 241 speaks of three (3) requisites that must be complied with in order that the special assessment for Unions incidental expenses, attorneys fees and representation expenses be valid and upheld: 1. authorization by a written of the majority of all the members at the general meeting for that purpose. 2. secretarys record of the meeting. 3. Individual written authorization for check-off. National Brewery and Allied Industries Labor Union v. SMC , 8 SCRA 805 (1963) This case justifies the practice of charging AGENCY FEE to NON-UNION MEMEBERS who benefit from the CBA negotiated by the representative union. It is true, as the union claims, that whatever benefits the majority union obtains from the employer accrue to its members as well as to non-members. But this alone does not justify the collection of agency fee from non-members. For the benefits of a collective bargaining agreement are extended to all employees regardless of their membership in the union because to withhold the same from the non- members would be to discriminate against them. (International Oil Factory Workers Union (FFW) v. Martinez, et al., G.R. No. L-15560, Dec. 31, 1960). Moreover, when a union bids to be the bargaining agent, it voluntarily assumes the responsibility of representing all the employees in the appropriate bargaining unit. That is why Section 12 of the law states that "The labor organization designated or selected for the purpose of collective bargaining by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of all the employees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment." The union's contention that non-members are "free riders" who should be made to pay for benefits received by them is answered in the concurring opinion of Mr. Jenkin in the General Motors case, supra at 498, thus: "This statement of the limits to permissible encouragement of
union membership restricts unions, in contractually guaranteeing their own financial security against 'free riders,' to agreements of the type contemplated by Congress, i.e., 'permitted union shop' or 'maintenance of membership contract,' both being agreements explicitly 'requiring membership.' " And now We come to the next point raised by the union, namely, that non-members should be made to pay on the principle of quasi contract. The union invokes Article 2142 of the Civil Code which provides that "Certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasicontract to the end that no one shall be unjustly enriched or benefited at the expense of another." (Italics ours) But the benefits that accrue to non-members by reason of a collective bargaining agreement can hardly be termed "unjust enrichment" because, as already pointed out, the same are extended to them precisely to avoid discrimination among employees. (International Oil Factory Worker's Union (FFW) v. Martinez, et al., G.R. No. L-15560, Dec. 31, 1960). Besides, as the trial court held, there is no allegation in the complaint that the amount of P4.00 represents the expense incurred by the union in representing each employee. For the benefits extended to non-members are merely incidental. RATIONALE of agency fee: Lastly, it is contended that the collection of agency fee may be justified on the principle of agency. In answer to this point, it may be stated that when a union acts as the bargaining agent, it assumes the responsibility imposed upon it by law to represent not only its members but all employees in the appropriate bargaining unit of which it is the agent. The Civil Code states that agency is presumed to be for compensation unless there is proof to the contrary. (Art. 1875). There can be no better proof that the agency created by law between the bargaining representative and the employees in the unit is without compensation than the fact that these employees in the minority voted against the appellant union. AGENCY FEE now has a statutory basis Art. 248 e 2nd paragraph: employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent mat be assessed a reasonable fee equivalent to the dues and other fees paid by members of a recognized collective bargaining agent, if such non-union member accepts the benefit under the CBA Take note: In the case of agency fee, individual authorization not applied, or not required. This is for practical reasons, because the law recognizes the extreme difficulty of imposing agency fee on non-union members, more especially to members of rival unions. AL Ammen Trans v Bicol Transportation Employees Mutual Association , 91 Phil 649 Check-off may be enforced: 1) with the consent of the employer or 2) by authority in writing by the employees. When the union and the employer agree, the attitude of the employees is immaterial. When the employees duly authorize the check-off, as provided by the last clause, the employer's consent is unnecessary and its recognition of the right is obligatory. If this were not so, if in any case the employer's conformity were essential, it would have to be concluded that the second clause is superfluous and meaningless, for the first clause already provides for such conformity as a condition precedent. On the economic and practical side, petitioner complains that the practice imposes an extra burden on the employer. This alone is no reason for opposing the arrangement. Wage
increases, reduction of working hours, sick leave, hospitalization and other privileges granted to the employed entail diminution of profits and additional duties and obligations to an extent much greater than the inconvenience and additional expense involved in the adoption of the check-off system. In fact, the circumstances of this case make said adoption more compelling than in ordinary cases. The petitioner is operating in four provinces comprising nearly the whole Bicol region. The employees, the majority of whom are affiliates of the respondent labor union, are scattered in these provinces. It is not difficult to see how much easier and less expensive it is for the company to handle the collection of membership dues than it would be for individual members to make remittances to their union's office, or for the union to send out collectors in so wide a territory. The extra work and expense incurred by the company in deducting from its employees' salaries the amounts the employees owe their union are small in comparison with the savings in time and money by the union and the employees, savings which can not fail to effect increased efficiency and redound to the benefit of the employer itself in the long run. In the adjustment of industrial conflicts concessions have to be made and some rights to be surrendered, or enforced if necessary in the interest of conciliation and peace. The system of check-off is avowedly primarily for the benefit of the union and only indirectly of the individual laborers. However, the welfare of the laborers depends directly upon the preservation and welfare of the union. It is the union which is the recognized instrumentality and mouthpiece of the laborers. Only through the union can the laborers exercise the right of collective bargaining and enjoy other privileges. Without the union laborers are impotent to protect themselves against "the reaction of conflicting economic changes" and maintain and improve their lot. To protect the interests of the union ought therefore to be the concern of arbitration as much as to help the individual laborers. 8.9 LIABILITIES OF UNION AND ER LIABILITY OF UNION TO PAY WAGES AND FRINGE BENEFITS OF ILLEGALLY DISMISSED EE Where the ER compelled the EE to go on forced leave upon recommendation of the union for alleged violation of the EE of the closed shop agreement, the union is the party liable to pay the wages and fringe benefits which the EE failed to receive. The ER would not have compelled the EE were it not for the unions insistence. (Manila Mandarin EEs Union vs. NLRC) ER IN GOOD FAITH NOT LIABLE Where the ER dismissed his EEs in the belief in good faith that such dismissal was required by the closed shop provisions of the CBA with the union, he may not be ordered to pay back compensation to such EEs although their dismissal is illegal. (NLU vs. Zip Venetian Blind) * although union security clauses are valid and enforceable, this does not erode the fundamental requirements of due process
IMPLEMENTATION OBLIGATION AND LIABILITIES Guijarno v. CIR Union pays back wages for illegally dismissed employees due to its insistence. Liberty Cotton Mills Workers Union v. Liberty Cotton Mills , 1979
Considering, however, that their dismissal was effected without previous hearing, and at the instance of PAFLU, this mother federation should be, as it is hereby, held liable to the petitioners for the payment of their back wages. Tanduay v. NLRC Union members cannot escape CBA they approved. Carino v. NLRC , 1990 Turning now to the involvement of the Company in the dismissal of petitioner Cario, we note that the Company upon being formally advised in writing of the expulsion of petitioner Cario from the Union, in turn simply issued a termination letter to Cario, the termination being made effective the very next day. We believe that the Company should have given petitioner Cario an opportunity to explain his side of the controversy with the Union. Notwithstanding the Union's Security Clause in the CBA, the Company should have reasonably satisfied itself by its own inquiry that the Union had not been merely acting arbitrarily and capriciously in impeaching and expelling petitioner Cario. In Liberty Cotton Mills Worker's Union, et al v. Liberty Cotton Mills, et al. the Court held respondent company to have acted in bad faith in dismissing the petitioner workers without giving them an opportunity to present their side in their controversy with their own union. "xxx xxx xxx It is OUR considered view that respondent company is equally liable for the payment of backwages for having acted in bad faith in effecting the dismissal of the individual petitioners. Bad faith on the part of respondent company may be gleaned from the fact that the petitioner workers were dismissed hastily and summarily. At best, it was guilty of a tortious act, for which it must assume solidary liability, since it apparently chose to summarily dismiss the workers at the union's instance secure in the union's contractual undertaking that the union would hold it "free from any liability" arising from such dismissal. xxx xxx xxx While respondent company, under the Maintenance of Membership provision of the Collective Bargaining Agreement, is bound to dismiss any employee expelled by PAFLU for disloyalty, upon its written request, this undertaking should not be done hastily and summarily. The company acted in bad faith in dismissing petitioner workers without giving them the benefit of a hearing. It did not even bother to inquire from the workers concerned and from PAFLU itself about the cause of the expulsion of the petitioner workers. Instead, the company immediately dismissed the workers on May 29, 196 in a span of only one day stating that it had no alternative but to comply with its obligation under the Security Agreement in the Collective Bargaining Agreement, thereby disregarding the right of the workers to due process, selforganization and security of tenure. xxx xxx xxx The power to dismiss is a normal prerogative of the employer. However, this is not without limitations. The employer is bound to exercise caution in terminating the services of his employees especially so when it is made upon the request of a labor union pursuant to the Collective Bargaining Agreement, as in the instant case. Dismissals must not be arbitrary and capricious. Due process must be observed in dismissing an employee because it affects not only his position but also his means of livelihood. Employers should therefore respect and protect the rights of their employees, which include the right to labor. . . . xxx xxx xxx" In Manila Cordage Company v. Court of Industrial Relations, et al., 10 the Court stressed the requirement of good faith on the part of the company in dismissing the complainant and in effect held that precipitate action in dismissing the complainant is indication of lack of good faith. xxx xxx xxx The contention of the petitioners that they acted in good faith in dismissing the complainants and, therefore, should not be held liable to pay their back wages has no merit. The dismissal of the complainants by the petitioners was precipitate and done with undue haste. Considering that the so-called 'maintainance of membership' clause did not clearly give the petitioners the right to dismiss the complainants if said complainants did not maintain their membership in the Manco
Labor Union, the petitioners should have raised the issue before the Court of Industrial Relations in a petition for permission to dismiss the complainants. xxx xxx xxx" We conclude that the Company had failed to accord to petitioner Cario the latter's right to procedural due process. The right of an employee to be informed of the charges against him and to reasonable opportunity to present his side in a controversy with either the Company or his own Union, is not wiped away by a Union Security Clause or a Union Shop Clause in a CBA. An employee is entitled to be protected not only from a company which disregards his rights but also from his own Union the leadership of which could yield to the temptation of swift and arbitrary expulsion from membership and hence dismissal from his job.
Section 9 : UNION CONCERTED ACTIVITIES

9.1 BASIS OF RIGHT TO ENGAGE IN CONCERTED ACTIVITIES 1. CONSTITUTION Article XIII, Sec 3: LABOR. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It 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. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. TAKE NOTE: The boxed portion above states the PURPOSE and MEANS test which is the test for the legality of the strike. PURPOSE: For purpose of enforcing right to 1) self-organization (strikes against ULP) and 2) collective bargaining and negotiations (economic strikes based on bargaining deadlock) MEANS: Peaceful and in accordance with the law
2.
STATUTORY Art. 263 (b)
Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, CONSISTENT WITH THE NATIONAL INTEREST, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.
TAKE NOTE: Observation: The right to strike is constitutionally guaranteed and also statutorily guaranteed, while the right to lock-out is only statutorily guaranteed. Even under the Labor Code, the Purpose and Means Test is also enunciated: PURPOSE: Collective bargaining or (for their mutual aid and protection) MEANS: Consistent with the National Interest. LIMITATIONS: The Constitution and the Labor Code grudgingly grants the right to strike or lock-out because among all the rights granted to the workers, the law sets limitations for the exercise of the right. It is the most regulated activity. Limitation by the Constitution: Limitation set by the Labor Code: Should be exercised IN ACCORDANCE WITH LAW. Should be exercised CONSISTENT NATIONAL INTEREST. (read in relation to Art. 263 g) WITH THE
Implication of the Limitation:
The joint coordinated activities may be forbidden or restricted by law or by contract. (Ilaw at Buklod v. NLRC)
Here is an example of a case wherein a strike is limited or forbidden by a provision of law. This case involves a case of wage distortion. Ilaw at Buklod v NLRC , 198 SCRA 586 (1991) Among the rights guaranteed to employees by the Labor Code is that of engaging in concerted activities in order to attain their legitimate objectives. Article 263 of the Labor Code, as amended, declares that in line with "the policy of the State to encourage free trade unionism and free collective bargaining, workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection." A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recognized in respect of employers. The more common of these concerted activities as far as employees are concerned are: a) strikes the temporary stoppage of work as a result of an industrial or labor dispute;
b) picketing the marching to and from at the employer's premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute; and c) boycotts the concerted refusal to patronize an employer's goods or services and to persuade others to a like refusal. On the other hand, the counterpart activity that management may licitly undertake is the lockout the temporary refusal to furnish work on account of a labor dispute. In this connection, the same Article 263 provides that the "right of legitimate labor organizations to strike and picket and of employer to lockout, consistent with the national interest, shall continue to be recognized and respected." Test of legality The legality of these activities is usually dependent on: 1) the legality of the purposes sought to be attained and 2) the means employed therefor. It goes without saying that these joint or coordinated activities may be forbidden or restricted by law or contract.
Restricted by law: In the particular instance of "distortions of the wage structure within an establishment" resulting from "the application of any prescribed wage increase by virtue of a law or wage order," Section 3 of Republic Act No. 6727 prescribes a specific, detailed and comprehensive procedure for the correction thereof, thereby implicitly excluding strikes or lockouts or other concerted activities as modes of settlement of the issue. The legislative intent that solution of the problem of wage distortions shall be sought by voluntary negotiation or arbitration, and not by strikes, lockouts, or other concerted activities of the employees or management, is made clear in the rules implementing RA 6727 issued by the Secretary of Labor and Employment pursuant to the authority granted by Section 13 of the Act. Section 16, Chapter I of these implementing rules, after reiterating the policy that wage distortions be first settled voluntarily by the parties and eventually by compulsory arbitration, declares that, "Any issue involving wage distortion shall not be a ground for a strike/lockout." Restricted by contract: Moreover, the collective bargaining agreement between the SMC and the Union, relevant provisions of which are quoted by the former without the latter s demurring to the accuracy of the quotation, also prescribes a similar eschewal of strikes or other similar or related concerted activities as a mode of resolving disputes or controversies, generally, said agreement clearly stating that settlement of "all disputes, disagreements or controversies of any kind" should be achieved by the stipulated grievance procedure and ultimately by arbitration. The provisions are as follows: The Union was thus prohibited to declare and hold a strike or otherwise engage in non-peaceful concerted activities for the settlement of its controversy with SMC in respect of wage distortions, or for that matter; any other issue "involving or relating to wages, hours of work, conditions of employment and/or employer-employee relations." The partial strike or concerted refusal by the Union members to follow the five-year-old work schedule which they had therefore been observing, resorted to as a means of coercing correction of "wage distortions," was therefore forbidden by law and contract and, on this account, illegal. BLT Bus Co. v. NLRC HELD: The right to strike is one of the rights recognized and guaranteed by the constitution as an instrument of labor for its protection against exploitation by management. By virtue of this right, the workers are able to press their demands for better terms of employment with more energy and persuasiveness, posing the threat to strike as their reaction to the employer's intransigence. History of Concerted Activities Bisig ng Manggagawa v. NLRC Strike has been considered the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment. It may be that in highly developed countries, the significance of strike as a coercive weapon has shrunk in view of the preference for more peaceful modes of settling labor disputes. In underdeveloped countries, however, where the economic crunch continues to enfeeble the already marginalized working class, the importance of the right to strike remains undiminished as indeed it has proved many a time as the only coercive weapon that can correct abuses against labor. It remains as the great equalizer. In the Philippine milieu where social justice remains more as a rhetoric than a reality, labor has vigilantly fought to safeguard the sanctity of the right to strike. Its struggle to gain the right to strike has not been easy and effortless. Labor's early exercise of the right to strike collided with
the laws on rebellion and sedition and sent its leaders languishing in prisons. The spectre of incarceration did not spur its leaders to sloth; on the contrary it spiked labor to work for its legitimization. This effort was enhanced by the flowering of liberal ideas in the United States which inevitably crossed our shores. It was enormously boosted by the American occupation of our country. Hence, on June 17, 1953, Congress gave statutory recognition to the right to strike when it enacted RA 875, otherwise known as the Industrial Peace Act. For nearly two (2) decades, labor enjoyed the right to strike until it was prohibited on September 12, 1972 upon the declaration of martial law in the country. The 14-year battle to end martial rule produced many martyrs and foremost among them were the radicals of the labor movement. It was not a mere happenstance, therefore, that after the final battle against martial rule was fought at EDSA in 1986, the new government treated labor with a favored eye. Among those chosen by then President Corazon C. Aquino to draft the 1987 Constitution were recognized labor leaders like Eulogio Lerum, Jose D. Calderon, Blas D. Ople and Jaime S.L. Tadeo. These delegates helped craft into the 1987 Constitution its Article XIII entitled Social Justice and Human Rights. For the first time in our constitutional history, the fundamental law of our land mandated the State to ".. 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." This constitutional imprimatur given to the right to strike constitutes signal victory for labor. Our Constitutions of 1935 and 1973 did not accord constitutional status to the right to strike. Even the liberal US Federal Constitution did not elevate the right to strike to a constitutional level. With a constitutional matrix, enactment of a law implementing the right to strike was an inevitability. RA 6715 came into being on March 21, 1989, an intentional replication of RA 875. In light of the genesis of the right to strike, it ought to be obvious that the right should be read with a libertarian latitude in favor of labor. In the wise words of Father Joaquin G. Bernas, S.J., a distinguished commissioner of the 1987 Constitutional Commission ". . . the constitutional recognition of the right to strike does serve as a reminder that injunctions, should be reduced to the barest minimum". BLT Bus Co. v. NLRC HELD: The strike is indeed a powerful weapon of the working class. But precisely because of this, it must be handled carefully, like a sensitive explosive, lest it blow up in the workers' own hands. Thus, it must be declared only after the most thoughtful consultation among them, conducted in the only way allowed, that is, peacefully, and in every case conformably to reasonable regulation. Any violation of the legal requirements and strictures, such as a defiance of a return-to-work order in industries affected with public interest, will render the strike illegal, to the detriment of the very workers it is supposed to protect. Even war must be lawfully waged. A labor dispute demands no less observance of the rules, for the benefit of all concerned. POLICY STATEMENT In line with the policy of the State to encourage free trade unionism and free collective bargaining, workers shall have the right to engage in concerted activities for purposes of collective bargaining or for mutual benefit and protection. A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recognized in respect of ERs. (Ilaw at Buklod ng Manggagawa vs. NLRC) 9.2 STRIKE ACTIVITY 1. Define a strike. It is a temporary stoppage of work by the concerted action of EEs as a result of an industrial or labor dispute. (Art. 212) A valid strike needs a labor dispute. (Azucena) Labor dispute Any controversy or matter concerning terms and conditions of employment or the association of representation of persons in negotiation, fixing,
maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relations of ERs and EEs. (Art. 212) IMPLICATION: An inter-union and intra-union cannot be a valid ground for a strike or lock-out. Since a Labor dispute is technically defined under art. 212 > Absent a labor dispute there can be no concerted activities under the labor code. Take note: welga ng bayan (political strike) is not a valid strike under the labor code since no labor dispute is involved. A labor dispute is technically defined as to include controversies or matters relating to terms and conditions of employment or representation issues. A welga ng bayan for purpose of lowering oil price is not a valid strike under the labor code. (but may be upheld as a valid exercise of speech, although employee may still suffer consequence of abandonment of work.) Exceptional case: Phil Blooming Mills case, not right to strike but freedom of expression. Wage distortion issues are not also valid ground for a strike since the law provides for a procedure to settle the problem. (Ilaw at Buklod case, see digest in this reviewer)
A labor dispute can nevertheless exist regardless of whether the disputants stand in the proximate relation of ER and EE provided the controversy concerns, among others, the terms and conditions of employment or a change or arrangement thereof. Put differently, as defined by law, the existence of a labor dispute is not negatived by the fact that the plaintiffs and defendants do not stand in the proximate relations of ER and EE. (SMC employees Union vs. Bersamira, 186 SCRA 496 )
2. Fruit Canning Co. has been requiring workers to render overtime work of 5 hours everyday for the past 6 months. Due to the refusal of the ER to stop this practice, all the EEs refused to work overtime and left the plant after working 8 hours during the day. They reported for the regular work schedule the following morning. Is this a strike? Yes. It is a temporary stoppage of work by the concerted action of the EEs by reason of a labor or industrial dispute. A labor dispute includes any controversy or matter concerning terms and conditions of employment. (Alcantara) 3. The EEs due to a dispute involving wages worked for only 8 hours a day instead of 10 hours in accordance with a practice which had been followed for 5 years. Is the refusal of the workers to adhere to the 10-hours work schedule a strike? Yes. It is a limited or partial strike. (Id.)
RESTRICTION ON THE RIGHT TO STRIKE 1- It must result from an industrial or labor dispute 2- It must be consistent with the national interest
NATURE AND PURPOSE A strike is coercive activity resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, mush less, paralyzed. Because of this threat or danger of loss, the company gives in to the demand of the strikers, just so it can maintain continuity in production. (Philippine Can Company vs. CIR) TEMPORARY IN NATURE IMPLICATION: Employee-Employer relationship continues to exist, it is only at best suspended. Mere participation in a strike in not a ground for termination.
EFFECT OF WORK RELATIONSHIP EEs who go on strike do not quit their employment. It is a mere temporary stoppage of work. The declaration of a strike does not amount to renunciation of the employment relation.
The relationship of ER and EE continues. (Rex Taxi vs. CIR) During a strike, the ER-EE relationship is not terminated but merely suspended as the work stoppage is not permanent but only temporary. The EEs status during a strike remains but the effects of employment are suspended, hence, a striking EE, as a rule, is not entitled to his wage during a strike. (Azucena) GROUNDS FOR STRIKING A. ALLOWABLE STRIKES Art. 263 (c) 1) In cases of bargaining deadlock,(ECONOMIC STRIKES) > the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Department at least thirty (30) days before the intended date thereof. TAKE NOTE: Only a recognized bargaining agent may file a notice of strike regarding a bargaining deadlock. Thus it implies that only a legitimate labor organization may file such notice of strike. 2) In cases of unfair labor practice,
> the period of notice shall be fifteen (15) days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. TAKE NOTE: In absence of a bargaining agent, ONLY a legitimate labor organization may file. Not just any labor organization. Another way the law encourages union registration. 3) Union Busting
> However, in case 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. TAKE NOTE: Concept of union busting is a technical definition. The following must concur: 1) 2) A union officer was dismissed from employment Such union officer was duly elected Implication: An appointed union officer is not contemplated by this provision. 3) He was elected in accordance with the procedure prescribed in the Constitution and By-laws of the Union. This means that he was VALIDLY elected.
IMPLEMENTING RULES: Grounds for strike and lockout. A strike or lockout may be declared in cases of: 1) bargaining deadlocks and 2) unfair labor practices. Violations of collective bargaining agreement shall not be considered unfair labor practice and shall not be strikeable. EXCEPTION: except flagrant and/or malicious refusals to comply with its economic provisions. These will be considered as a ULP which is a ground for striking.
> No strike or lockout may be declared on ground involving inter-union ad intra-union disputes or on issues brought to voluntary or compulsory arbitration. Sec. 2 Who may declare a strike or lockout. Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices. 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 grounds of unfair labor practices. B. PROHIBITED STRIKES 1) Inter-union and intra-union disputes > because no labor dispute is involved.
Art. 263 (b) : However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. 2) In an industry indispensable to the national interest, when already certified by the Sec. Of Labor or President
Art. 263 (g) : When, 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, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission 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.
3)
Did not bargain collectively, Did not file notice of strike or did not take strike vote
Art. 264. Prohibited activities. (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Department. 4) When controversy submitted to compulsory arbitration or voluntary arbitration
Still under Art. 264 > No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. 5) When in an improved offer balloting, majority of union members accept the improve offer
Art. 265. Improved offer balloting . - In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of the strike.
When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. (As amended by RA 6715) 6) No strike, when law prescribes a procedure for settling the dispute or when grievance procedure under CBA has not been exhausted yet Ilaw at Buklod ng Manggagawa v. NLRC The CBA clearly states that settlement of "all disputes, disagreements or controversies of any kind" should be achieved by the stipulated grievance procedure and ultimately by arbitration. The Union was thus prohibited to declare and hold a strike or otherwise engage in non-peaceful concerted activities for the settlement of its controversy with SMC in respect of wage distortions, or for that matter, any other issue "involving or relating to wages, hours of work, conditions of employment and/or employer-employee relations." The partial strike or concerted refusal by the Union members to follow the five-year-old work schedule which they had theretofore been observing, resorted to as a means of coercing correction of "wage distortions," was therefore forbidden by law and contract and, on this account, illegal. This case is sort of an exception to the ruling above Phil Metal Foundries v. CIR It is admitted by petitioner that it accepted the invitation of Baylon for a grievance conference on October 5, 1963. Yet, two hours after it accepted the letter of invitation, it dismissed Baylon without prior notice and/or investigation. Such dismissal is undoubtedly an unfair labor practice committed by the company. Under these facts and circumstances, Baylon and the members of the Union had valid reasons to ignore the schedule grievance conference and declared a strike. When the Union declared a strike in the belief that the dismissal of Baylon was due to union activities, said strike was not illegal. It is not even required that there be in fact an unfair labor practice committed by the employer. It suffices, if such a belief in good faith is entertained by labor, as the inducing factor for staging a strike. The strike declared by the Union in this case cannot be considered a violation of the "no strike" clause of the Collective Bargaining Agreement because it was due to the unfair labor practice of the employer. Moreover, a no strike clause prohibition in a Collective Bargaining Agreement is applicable only to economic strikes. The strike cannot be declared as illegal for lack of notice. In strikes arising out of and against a company's unfair labor practice, a strike notice is not necessary in view of the strike being founded on urgent necessity and directed against practices condemned by public. AVOIDANCE OF STRIKES 1. Pacific measures must first be exhausted before strikes are to be declared. Strikes and other coercive means of settling the dispute are deemed justified only when peaceful alternatives have proved unfruitful in settling the dispute. (PHILMAROA vs. CIR) 2. The union sent demands for the dismissal of a foreman on grounds that he maltreated an EE. The company refused to dismiss the foreman but reopened his case in the fiscals office. Because of the companys refusal, the union went to strike. Is the strike legal?
No. The demand for the dismissal had been accorded the attention it merited. (NLU vs. CIR)
An agency that helps in avoiding strikes by exhaustion of pacific remedies/measure is the NCMB A dispute undergoing preventive mediation or arbitration cannot serve as a reason for holding a strike or lockout
NO STRIKE CLAUSE IN CBA Master Iron Labor Union v. NLRC As this Court has held in Philippine Metal Foundries, Inc. vs. CIR (90 SCRA 135 [1979]), a nostrike clause in a CBA is applicable only to economic strikes. Corollarily, 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. Is the No strike clause a valid stipulation in a CBA? Yes. But it is applicable only to economic strikes. What is an economic strike? An economic strike is defined as one which is to force wage or other concessions from the employer which he is not required by law to grant (Consolidated Labor Association of the Philippines vs. Marsman & Co., Inc., 11 SCRA 589 [1964]). In this case, the striking workers enumerated in their notice of strike the following grounds: violation of CBA or the Corporation's practice of subcontracting workers; discrimination; coercion of employees; unreasonable suspension of union officials, and unreasonable refusal to entertain grievance. Professor Perfecto Fernandez, in his book Law on Strikes, Picketing and Lockouts, states that an economic strike involves issues relating to demands for higher wages, higher pension or overtime rates, pensions, profit sharing, shorter working hours, fewer work days for the same pay, elimination of night work, lower retirement age, more healthful working conditions, better health services, better sanitation and more safety appliances. The demands of the workers, being covered by the CBA, are definitely within the power of the Corporation to grant and therefore the strike was not an economic strike. PROTECTION OF STRIKE What are the general protections of the right to strike? The right to strike is given the following protections: 1. It is generally not subject to labor injunctions or restraining order. (Art. 254) 2. EEs may not be discriminated against merely because they have exercised the right to strike. (Art. 248) 3. The use of strike breakers is prohibited. (Art. 264) 9.3 TYPES, CHANGES AND CONVERSION - STRIKES DEFINITIONS 1. Economic strike Intended to forge wage and other concessions from the ER, which is not required by law to grant. (Consolidated Labor Association vs. Marsman) Also known as bargaining strikes.
2. Unfair labor practice strike Called against the unfair labor practices of the ER, usually for the purpose of making him desist from further committing such practices. (Azucena) 3. Sympathetic strike One in which the striking EEs have no demands or grievances of their own, but strike for the purpose of property of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers. (Id.) 4. What are the tests in determining the existence of an unfair labor practice strike? There are two tests in determining the existence of an unfair labor practice strike: a. Objectively, when the strike is declared in protest of unfair labor practice which is found to have been actually committed; b. Subjectively, when a strike is declared in protest of what the union believed to be unfair labor practices committed by management, and the circumstances warranted such belief in good faith although subsequently as not committed. (Id.) It is not required that there be as such in fact unfair practice committed by the ER. It suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a strike. (Shell Oil Workers Union vs. Shell) Violations of CBAs except flagrant and/or malicious refusal to comply with its economic provisions shall not be considered unfair labor practice and shall not be strikeable. (Sec. 1, Rule XIII, Book V, IRRs) No strike clause-No lockout: Valid applicable only to economic strikes not ULP strikes CHANGE IN TYPE An economic strike may be converted into an unfair labor practice strike, as when a strike for greater benefits is called off in anticipation of negotiations and eventual agreement but is resumed upon the commission by the ER of acts of discrimination against the leaders of the strike. (Consolidated Labor Association vs. Marsman) * An economic strike changes in character to one of an unfair labor practice from the time a company refuses to reinstate some of its striking employees because of their union activities after it had offered to readmit all the strikers and in fact did readmit the others (non-union strikers). May a strike be converted into a lock-out? An economic strike changes in character to one for ULP from the time the company refuses to reinstate some of its striking employees because of their union activities after it had offered to readmit all the strikers and in fact did readmit the others (Consolidated Labor Association v. Marsman and Co.) NON-CONVERSION STRIKE TO LOCKOUT A strike is not converted into a lockout by the filing of notice of offer to return to work during pendency of dispute. (Rizal Cement Workers Union vs. CIR) SYMPATHETIC STRIKE Because a valid strike presupposes a labor dispute, it follows that a sympathetic strike is illegal. (Azucena) ex. Welga ng bayan Are work slowdowns also a form of strike?
Work slowdowns are an illegal strike. They are a strike on installment basis, were apparently a pattern of manipulating production depending on whether the unions demand were met. (Phil Thread Workers Union v. Confessor, supra) > Slowdown is generally condemned as inherently illicit and unjustifiable, because while the employer continues to work and remain at their position and accept the wages paid to them, they at the same time select what part of their allotted task they want to perform to the employers damage, they work on their own terms. (Ilaw at Buklod v. NLRC, supra) 9.4 LOCKOUT DEFINITION Define a lockout : Lockout means that temporary refusal to any ER to furnish work as a result of an industrial or labor dispute. (Art. 212) It is an ERs act excluding EEs who are union members from his business and factory premises. (Sta. Mesa Slipways vs. CIR) A valid lockout needs a labor dispute. (Azucena) NATURE AND PURPOSE Lockout is recognized as a valid weapon of management in collective bargaining. It may be declared to bring pressure upon the union, where a impasse has arisen during bargaining negotiations or where the union commits unfair labor practices, subject to statutory requirements. (Azucena)
EFFECT OF WORK RELATIONSHIP Strike and lockout are similar in the sense that they connote temporary stoppage of work. The relationship of ER and EE continues. (Id.) 9.5 LEGALITY OF STRIKE OR LOCKOUT What are the 6 factors affecting the legality of strike or a lockout? An illegal strike or lockout is one which : 1. Is contrary to a specific prohibition of law; 2. Violates a specific requirement of law; 3. Declared for an unlawful purpose 4. Employs unlawful means; 5. Declared in violation of an existing injunction; 6. Contrary to an existing agreement (Azucena) CONTRARY TO SPECIFIC PROHIBITION OF LAW Government EEs have the right to organize but they do not have the right to strike. Since the terms and conditions of government EEs are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their EEs. (SSEA vs. CA) Who may declare a strike or lockout ? Any certified or duly recognized bargaining representative may declare a strike & the employer may declare a lockout. > 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 grounds of unfair labor practices.
PROCEDURAL REQUIREMENTS
GENERALLY, the following are procedural requirements for a strike. They have been held to be mandatory. Not following them has the consequence of declaring the strike an illegal one. (nfsw vs. ovejera) What are the procedural requisites for a strike to enjoy the protection of law? 1. A NOTICE OF STRIKE OR LOCKOUT with the required contents, should be filed with the DOLE, specifically the regional branch of the National Conciliation and Mediation Board, copy furnished the ER or the union, as the case may be. ( Art. 263) [notice of intent] > Point where cooling-off period is counted from 2. A COOLING OFF PERIOD must be observed i.e. a time gap is required to cool off tempers between the filing of notice and the actual execution of the strike or lockout; the cooling off period is 30 days in case of bargaining deadlock and 15 days in case of unfair labor practice. However, in cases of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the cooling off period need not be observed. (Id.) But strike vote is still conducted and the results submitted to the NCMB 3. During the cooling-off period, the NCMB mediates and conciliates the parties. They are not allowed to do any act which may disrupt or impede the early settlement of the dispute. A part of their duty to bargain, they are obliged to participate fully and promptly in the NCMB meetings. (Id.) 4. Before a strike or lockout may actually be started, a STRIKE VOTE OR LOCKOUT VOTE should be taken by secret balloting, with 24-hour prior notice to the NCMB. The decision to declare a strike requires the secret ballot approval of the majority of the total union membership in the bargaining unit concerned. Similarly, a lockout needs the secret ballot concurrence of majority of the directors or partners. (Id.) Purpose: So that there will be no wild card strike. > Observe that not all members of an appropriate bargaining unit are to participate in a strike vote. Only UNION member in such appropriate bargaining unit. Non-union members are not included in strike votes. Voting base: majority of the total union membership 5. The RESULT OF THE STRIKE OR LOCKOUT VOTE should be reported to the NCMB at least 7 days before the intended strike or lockout, subject to the cooling off period. (Id.) This is intended to give the DOLE an opportunity to verify whether the projected strike or lockout really carries the imprimatur of the majority of union members or board of directors, as the case may be. A strike or lockout held within 7-day waiting period is plainly illegal. (Lapanday Workers Union vs. NLRC) An NCMB primer indicates that the 7-day reporting period and the cooling off period (if required) run separately and are counted separately The 7 days are in addition to the 15 or 30 days cooling-off period 6. No strike or lockout may be declared on grounds involving inter-union and intra-union disputes. (Id.) 7. No strike or lockout shall be declared without the labor organization or the ER first having bargained collectively i.e. exhaustion of grievance procedure before declaration of strike. (Art. 264) 8. No strike or lockout shall be declared after assumption of jurisdiction by the President of the Secretary of Labor. (Art. 263)
9. No strike or lockout shall be declared after certification or submission of the dispute to compulsory or voluntary arbitration, nor may a strike or lockout be declared during the pendency of cases involving the same grounds for the strike or lockout. (Azucena) 10. Non-observance of procedural requirement makes strike illegal. (NFSW vs. Ovejera) Only a LLO can legally hold a strike (ULP only not economic except if EBA) Any certified or duly recognized bargaining representative may declare a strike incase of bargaining deadlocks and ULPs. The ER may declare a lock out in the same cases. In the absence of a duly certified or duly recognized bargaining representative, any LLO in the establishment may declare a strike but only on ground of ULP. Under the law, the ff can declare a strike: Certified Bargaining representative (The fact that the union was certified means that it is a registered union can be certified) 2Duly recognized bargaining representative (the union can either be registered or non-registered, as the ER may voluntarily recognize it despite its not being registered) 3LLO (by definition, means a registered union, but only in the absence of #1 or #2 and only on ULP) 1 ununionized employees cannot hold a lawful work stoppage because only a union can file a notice of strike and only a union can take a strike vote amoung its members and then report its result to the NCMB. Is there a cooling-off period for a UNION-BUSTING strike? The Professor Dissini believes that the cooling-off period, as well as the seven day strike ban is WAIVED in cases of UNION-BUSTING strike. The reason for this is that the law provides for the word IMMEDIATELY. And the reason for the law providing for the word immediately Is that because the existence of the union is threatened by the dismissal of the union officer. If they still wait for the seven day or fifteen day period, the union might not exist anymore to hold its strike. Professor Azucena thinks otherwise. (I havent read professor Azcunea, but this is what my professor says, when it comes to labor law and our exam, he is the boss!) Prof. Azucena believes that even in Union-Busting strikes the seven-day strike ban period is still observed. Immediately is interpreted in such a way that the 15-day cooling-off period for ULP will be reduced to seven days. National Federation of Sugar Workers (NSFW) vs. Ovejera [ May 31, 1982 ] (a) Language of the law. The foregoing provisions (Art. 264 and 265) hardly leave any room for doubt that the cooling-off period in Art. 264(c) and the 7-day strike ban after the strikevote report prescribed in Art. 264(f) were meant to be, and should be deemed, mandatory. When the law says "the labor union may strike" should the dispute "remain unsettled until the lapse of the requisite number of days (cooling-off period) from the mandatory filing of the notice," the unmistakable implication is that the union may not strike before the lapse of the cooling-off period. Similarly, the mandatory character of the 7-day strike ban after the report on the strike-vote is manifest in the provision that "in every case," the union shall furnish the MOLE with the results of the voting "at least seven (7) days before the intended strike, subject to the (prescribed) cooling-off period." It must be stressed that the requirements of cooling-off period and 7-day strike ban must both be complied with, although the labor union may take a strike vote and report the same within the statutory cooling-off period.
If only the filing of the strike notice and the strike-vote report would be deemed mandatory, but not the waiting periods so specifically and emphatically prescribed by law, the purposes (hereafter discussed) for which the filing of the strike notice and strike-vote report is required would not be achieved, as when a strike is declared immediately after a strike notice is served, or when as in the instant case the strike-vote report is filed with MOLE after the strike had actually commenced. Such interpretation of the law ought not and cannot be countenanced. It would indeed be selfdefeating for the law to imperatively require the filing on a strike notice and strike-vote report without at the same time making the prescribed waiting periods mandatory. (b) Purposes of strike notice and strike-vote report. In requiring a strike notice and a cooling-off period, the avowed intent of the law is to provide an opportunity for mediation and conciliation. It thus directs the MOLE "to exert all efforts at mediation and conciliation to effect a voluntary settlement" during the cooling-off period. So, too, the 7-day strike-vote report is not without a purpose. As pointed out by the Solicitor General "Many disastrous strikes have been staged in the past based merely on the insistence of minority groups within the union. The submission of the report gives assurance that a strike vote has been taken and that, if the report concerning it is false, the majority of the members can take appropriate remedy before it is too late." If the purpose of the required strike notice and strike-vote report is to be achieved, the periods prescribed for their attainment must, as aforesaid, be deemed mandatory. ". . . when a fair interpretation of the statute, which directs acts or proceedings to be done in a certain way, shows the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power or must be performed before certain other powers can be exercised, the statute must be regarded as mandatory. So it has been held that, when a statute is founded on public policy [such as the policy to encourage voluntary settlement of disputes without resorting to strikes], those to whom it applies should not be permitted to waive its provisions. (c) Waiting period after strike notice and strike-vote report, valid regulation of right to strike. To quote Justice Jackson in International Union vs. Wisconsin Employment Relations Board, 336 U.S. 245, at 259 "The right to strike, because of its more serious impact upon the public interest , is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining . . ." The cooling-off period and the 7-day strike ban after the filing of a strike-vote report, as prescribed in Art. 264 of the Labor Code, are reasonable restrictions and their imposition is essential to attain the legitimate policy objectives embodied in the law. We hold that they constitute a valid exercise of the police power of the state. (d) (I omitted paragraph d para mabawasan yung binabasa niyo) (e) NFSW strike is illegal. The NFSW declared the strike six (6) days after filing a strike notice, i.e., before the lapse of the mandatory cooling-off period. It also failed to file with the MOLE before launching the strike a report on the strike-vote, when it should have filed such report "at least seven (7) days before the intended strike." Under the circumstances, we are perforce constrained to conclude that the strike staged by petitioner is not in conformity with law ECONOMIC AND UNFAIR LABOR PRACTICE STRIKE 1. The Labor Code recognizes only two valid grounds for the declaration of a strike . The 2 are : a. collective bargaining deadlock; and
b. ERs unfair labor practice. A strike not based on any of these 2 causes is necessarily tainted with illegality. (Azucena) 2. When does a deadlock arise? A deadlock arises when there is an impass which presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude the agreement between the parties. Where for instance, the ER never made any serious efforts to respond to proposals from the union, it cannot be maintained that a deadlock arose. (Divine Word University vs. Secretary of Labor) 3. Legality of strike is not dependent upon the ability of management to grant demands. If said demands cannot be granted for being unjust or unreasonable, the only consequence should be their rejection and not the punishment of the workers who presented them. (Caltex vs. PLO)
HOW TO KNOW IF THE STRIKE IS LEGAL?

PURPOSE AND MEANS TEST > If the purpose is trivial, unjust, and unreasonable or it was carried out through unlawful means, the strike is illegal. > In cases no falling within the prohibition against strikes, its legality depends upon: 1- the purpose for which it is maintained 2- the means employed in carrying it on
Luzon Marine Dept. Union v. Roldan

The strike was illegal because the reason for it was merely to prove that the union numbered more than 30 members. We have adverted to the ruling of this Court in Rex Taxicab Company vs. Court of Industrial Relations, supra, that in cases not falling within the prohibition against strikes, the legality or illegality of a strike depends, first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable or unjust or if in carrying on the strike, the strikers should commit violence or cause injuries to persons or damage to property, the strike, although not prohibited by injunction, may be declared by the court illegal, with the adverse consequences to the strikers.
Phil. Marine Officers Guild v. Cia. Maritima

In this jurisdiction, however, acts of violence in carrying on a strike are not so easily overlooked in the determination of its legality or illegality. To overlook them "would encourage abuses and terrorism and would subvert the very purpose of the law which provides for arbitration and peaceful settlement of disputes. This Court has repeatedly frowned upon the use of unlawful means in carrying out a strike. In cases not falling within the prohibition against strikes, the legality or illegality of a strike depends first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable, or unjust or if in carrying on the strike the strikers should commit violence or cause injuries to persons or damage to property, the strike, although not prohibited by injunction, may be declared by the court illegal with the adverse consequences to the strikers.
Here we find that the majority opinion predicated the illegality of the strike not merely on the infringement of said agreement by the union but on the proven fact that, in carrying out the strike, coercion, force, intimidation, violation (sic) with physical injuries, sabotage and the use of unnecessary and obscene language or epithets were committed by top officials and members of the union in an attempt to prevent arbitration and peaceful settlement of labor disputes. As aptly said in one case: 'A labor philosophy based upon the theory that might is right, in disregard of law and order, is an unfortunate philosophy of regression whose sole consequences can be disorder, class hatred and intolerance. The CIR, in finding the PMOG responsible for the aforementioned acts of violence, said: As some of the above offenses were perpetrated by the picketers not only in Yenko's presence but in direct cooperation with him and under his leadership PMOG cannot seriously pretend innocence and avoid complicity in or liability for their acts and conduct and the consequent effects thereof upon Maritima's property. Rule on vicarious liability has been abandoned : True, Section 9(c) of the Act has discarded the principle of "vicarious liability" under which a striking labor organization is necessarily held responsible for the acts of even a single striker. That the law, as it is now, requires in order to hold an association or organization liable for the unlawful acts of individual officers, members, or agents, 'proof of actual participation in, or actual authorization of such acts or of ratifying of such acts after actual knowledge thereof .' It is not essential that two or three of these elements should concur. One suffices. In the case at bar, the unlawful acts, as already pointed out, were done in the presence of Yenko as well as with his cooperation and under his direction and, hence, conclusive of the actual participation and ratification thereof of PMOG. Moreover, there is nothing in the record to show that this union disauthorized or objected to Yenko's acts and those of the other picketers despite the fact that such acts had undoubtedly come to its knowledge or that of its officers and members. Under the circumstances, the CIR correctly held that the PMOG strike against MARITIMA was illegal.
Caltex Phil Inc. v. Phil. Labor Org., Caltex Chapter

These demands, if granted, would certainly tend to improve the conditions of the laborers and employees affected, and cannot be said to be trivial, much less illegal. But whether the same are unreasonable or unjust is a matter to be decided after proper consideration. If said demands cannot be granted for being unjust or unreasonable, the only consequence, in the appropriate words of the Court of Industrial Relations in banc, should "be their rejection and not the punishment of the workers who presented them." To make the legality or illegality of strikes dependent solely on whether the demands of laborers may or may not be granted, is in effect to outlaw altogether an effective means for securing better working conditions. Union of Filipro Employees v. Nestle Phil. The NLRC correctly upheld the illegality of the strikes and the corresponding dismissal of the individual complainants because of their "brazen disregard of successive lawful orders of then Labor Ministers Blas F. Ople, Augusto Sanchez and Labor Secretary Franklin Drilon dated December 11, 1985, January 30, 1986 and February 4, 1986, respectively, and the cavalier treatment of the provisions of the Labor Code and the return-to-work orders of the Minister (now Secretary) of Labor and Employment, or Articles 264 and 265 (now renumbered Arts. 263 and 264). In addition, the NLRC gave the following reasons: the strike was staged in violation of the existing CBA provisions on "No Strike/No Lockout Clause" stating that a strike, which is in violation of the terms of the collective bargaining statement, is illegal, especially when such terms provide for conclusive arbitration clause; instead of exhausting all the steps provided for in the grievance machinery provided for in the collective bargaining agreement to resolve the dispute amicably and harmoniously within the plant level, UFE went on strike; the prescribed mandatory cooling-off period and then 7-day strike and after submission of the report of strike vote at Nestle's Makati Offices and Muntinlupa and Cabuyao Plants were not complied with, while no notice of strike was filed by respondents when they staged the strike at Nestle's
Cagayan de Oro Plant contrary to the pertinent provision of Articles 263 and 264 of the Labor Code, emphasizing that "the mandatory character of these cooling-off periods has already been categorically ruled upon by the Supreme Court; in carrying out the strike, coercion, force, intimidation, violence with physical injuries, sabotage, and the use of unnecessary and obscene language or epithets were committed by the respondent officials and members of either UFE or WATU. It is well-settled that a strike conducted in this manner is illegal.
Reliance Surety and Insurance Co, v, NLRC

In effecting a change in the seating arrangement in the office of the underwriting department, the petitioner merely exercised a reasonable prerogative employees could not validly question, much less assail as an act of unfair labor practice. The Court is indeed at a loss how rearranging furniture, as it were, can justify a four-month-long strike. GUIDELINES AND BALANCING OF INTEREST Shell Oil Workers Union v. Shell Co. of the Phils. Under the circumstances, it would be going too far to consider that it thereby became illegal. This is not by any means to condone the utilization of force by labor to attain its objectives. It is only to show awareness that in labor conflicts, the tension that fills the air as well as the feeling of frustration and bitterness could break out in sporadic acts of violence. If there be in this case a weighing of interests in the balance, the ban the law imposes on unfair labor practices by management that could provoke a strike and its requirement that it be conducted peaceably, it would be, to repeat, unjustified, considering all the facts disclosed, to stamp the strike with illegally. It is enough that individual liability be incurred by those guilty of such acts of violence that call for loss of employee status. Almira v. BF Goodrich Phils, Inc. Legal despite the presence of violence because there were injuries on both sides because management did not, understandably, play a passive role confronted as it was with the unruly disruptive tactics of labor. This is not, by any means, to condone activities of such character, irrespective of the parties responsible. It is merely to explain what cannot be justified. A strike otherwise valid, if violent in character, may be placed beyond the pale. Care is to be taken, however, especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike, responsibility in such a case should be individual and not collective. A different conclusion would be called for, of course, if the existence of force while the strike lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal because of the means employed. IS GOOD FAITH A DEFENSE? Interwood Employees Assoc v. International Hardwood If the determination whether a strike is legal or illegal were to depend upon the reason or motive, no matter how groundless or false it may be, the striking members of a labor union had in mind or believed in good faith at the time they staged the strike, there would then be no need for the court to pass upon that question, because what the strikers had in mind or believed in good faith at the time they struck can hardly be refuted, rebutted or disproved. If the Court of Industrial Relations were bound to believe and so find what the striking members of a labor union allege or claim to be the reason or motive for their staging a strike, because as claimed by the petitioner the right of the members of a labor union to strike for mutual aid or protection, as recognized in section 3, Republic Act No. 875, is an absolute right, then there would no longer be any necessity for holding or conducting a hearing, where both parties to the controversy may
present their proofs and upon which the Court is to determine which of the claims or contentions is true, correct and lawful, as disclosed by the evidence before it. Luzon Stevedoring Corp. v. CIR In Interwood Employees Association vs. International Hardwood & Veneer Co ., L-7409, May 18, 1956. 52 O.G. 3936, 3941, the Court has ruled that if the strikers act from an unlawful, illegitimate, unjust, unreasonable, or trivial ground, reason or motive, even if they do so in good faith, and the Court of Industrial Relations so finds, the strike may be declared illegal notwithstanding their good faith. As a general rule, where the union believed that the employer committed ULP and the circumstances warranted such belief in good faith, the resulting strike may be considered legal although, subsequently, such allegations of ULP were found to be groundless. HOWEVER, a mere claim of good faith would not suffice. People Industrial and Commercial Employees and Workers Org. v. People Industrial and Commercial Employees and Workers Corp. The strike is legal. A strike may be considered legal when the union believed that the respondent company committed unfair labor acts and the circumstances warranted such belief in good faith although subsequently such allegation of unfair labor practices are found out as not true. Master Iron Labor Union v. NLRC All told, the strike staged by the petitioners was a legal one even though it may have been called to offset what the strikers believed in good faith to be unfair labor practices on the part of the employer. Verily, such presumption of legality prevails even if the allegations of unfair labor practices are subsequently found out to be untrue. Consonant with these jurisprudential pronouncements, is Article 263 of the Labor Code which clearly states "the policy of the State to encourage free trade unionism and free collective bargaining". Paragraph (b) of the sale article guarantees the workers' "right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection" and recognizes the "right of legitimate labor organizations to strike and picket and of employers to lockout" so long as these actions are "consistent with the national interest" and the grounds therefor do not involve inter-union and intra-union disputes. Give some examples of strike having a lawful purpose. 1. Strike incident to collective bargaining. (Id.) 2. Self-defenses i.e. strike held against the formation of a company dominated union. (Davao Free Workers vs. CIR) 3. Strike against ERs unfair labor practice. (Zamboanga Wood Products vs. NLRC) 4. Unfair labor practice strike in good faith, although such acts by the ER were not found to be unfair labor practices. (Pepsi-Cola Labor Union vs. NLRC) 5. Strike to compel recognition of and bargaining with majority union. (Caltex Filipino Managers and Supervisors Association vs. CIR) [However, a strike for union recognition is through a certification election. (Azucena) Give some examples of strikes with no lawful purposes: 1. Strike due to rearrangement of office. (Reliance Surety vs. NLRC)
2. Strike due to companys sales evaluation policy (GTE Directories vs. Sanchez) 3. Strike to compel removal of an EE not due to violation of union security arrangement. (Azucena) 4. Salary distortion under the Wage Rationalization Act (IBM vs. NLRC) 5. Inter-union or intra-union dispute. (Art. 263) 6. Strike to compel company to produce bank statements to show actual financial condition of the company. What the union may only require are up-to-date financial information normally submitted to relevant government agencies such as balance sheets and financial statements. (Sec. 5, Rule XIII, Book V, IRRs) MEANS AND METHODS 1. Even if the purpose of a strike is valid, the strike may be held invalid where the means employed are illegal. (United Seamens Union of the Philippines vs. Davao Shipowners Association) The use of violence, intimidation, restraint or coercion in carrying out concerted activities, which are injurious to the rights of property, or to particular individuals make a strike illegal. (Liberal Labor Union vs. Phil. Can Co.) However, minor disorders will not suffice to make a strike illegal (Insular Life EEs Assn.vs. Insular Life) 2. The strike by a union in a gasoline company was attended with violence in 4 or 5 occasions. The strike is sought to be declared illegal on grounds that it was attended by violence. Is this allegation tenable? It depends on the factual circumstance of the case. If the acts of violence are not pervasive, and the responsibility for the acts are individual, then the strike may be considered still legal. (Shell Oil Workers Union vs. Shell) 3. If some management officials were unable to leave the premises because of a strike, may the strikers be held guilty of illegal detention? No. The detention was not done in criminal intent. While no doubt to be deplored, such conduct cannot be made a basis for a finding of criminal guilt. (People vs. Barba) No person engaged in picketing shall: 1Commit any act of violence, coercion or intimidation 2Obstruct the free ingress to or egress from the ERs premises for lawful purposes 3Obstruct public thoroughfares Coercing or threatening non-striking EEs is illegal The union may persuade non-striking members, BUT cannot coerce or intimidate them, to join the strike, Will a violence committed during a strike make the strike an illegal one? It depends. Generally in ULP strikes, the court has been liberal. > If violence is committed only by some individuals, the strike will not be declared illegal but the person actually committing such illegal act will suffer the consequences. > If the violence is pervasive and widespread, consistently and deliberately resorted to as a matter of policy, it is illegal because of the means employed. What is effect if strike is declared illegal? FOR THE OFFICERS: > if he knowingly participates in illegal strike: losses employment status.
FOR THE EMPLOYEE: > Mere participation in illegal strike: not ground for termination of employment, even though employer hired a replacement. But participation in ILLEGAL ACTS during a strike (whether legal strike or illegal strike): means loss of employment for the employee. TAKE NOTE: Vicarious liability, meaning the fault of one is the fault of all, is not applicable in strikes. Only those who performed the illegal acts will be punished.(Shell oil & Almira case) Effect of Illegality Art. 264. Prohibited activities. (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Department. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. EFFECT OF UNLAWFUL LOCK-OUT > Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. EFFECT OF UNLAWFUL STRKE Who may be declare to have lost his employment status? 1) Any union officer who knowingly participates in an illegal strike 2) And any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Who may NOT BE declared to have lost their employment? Provided, that mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. IMPLEMENTING RULES: Hiring of replacements. The mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment even if a replacement had been hired by the employer during such lawful strike. But any union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. Diwa ng Pagkakaisa v. Filtex Internation Corp. HELD: Work was resumed in the afternoon of February 20, 1961, and all the employees were readmitted except the union officers. In other words the incident of February 19 was already closed; and if a strike was called on February 26 it was because the readmission of the said officers, as demanded in the letter of the union dated February 22, was refused. Since such refusal appears to be groundless, the fact that a strike was called on February 26, 1961 would not affect the resolution of this case, the only issue here being the legality or illegality of the alleged strike of February 19. The decision appealed from is hereby modified by ordering the reinstatement of the officers of the union who were refused admission by the respondent, with backwages from the date of such refusal less whatever amounts earned by them from other employment during the same period or could have been earned with the exercise of reasonable diligence. In assessing the backwages the guidelines indicated by this Court in the case of
Itogon-Suyoc Mines, Inc. vs. Sagilo-Itogon Workers' Union, and subsequently applied in East Asiatic Co., Ltd., et al. vs. CIR, should be observed, as follows: First. To be deducted from the back wages accruing to each of the laborers to be reinstated is the total amount of earnings obtained by him from other employment(s) from the date of dismissal to the date of reinstatement. Should the laborer decide that it is preferable not to return to work, the deduction should be made up to the time judgment becomes final. And these, for the reason that employees should not be permitted to enrich themselves at the expense of their employer. Besides, there is the `law's abhorrence for double compensation.' Second. Likewise, in mitigation of the damages that the dismissed respondents are entitled to, account should be taken of whether in the exercise of due diligence respondents might have obtained income from suitable remunerative employment We are prompted to give out this last reminder because it is really unjust that a discharged employee should, with folded arms, remain inactive in the expectation that a windfall would come to him. A contrary view would breed idleness; it is conducive to lack of initiative on the part of a laborer. Both bear the stamp of undesirability. Maria Christina Fertilizer Plant Employees Assoc. v. Tandayag (see Dissenting Opinion also) The Supreme Court affirmed the resolution of the Industrial Court lawful acts, had lost their status as employees. A strike is illegal where the strikers resort to unlawful acts in the conduct of the strike, such as conducting a highly coercive picketing, preventing the plant supervisor from checking defects in the company plant, threatening with harm or violence a contractor dealing with the company, using human barricades to block the ingress of nonstrikers, and displaying inflammatory placards. It is not a grave abuse of discretion for the Court of Industrial Relations to declare that union officers and members, who took part in an illegal strike, authorized the unlawful acts, committed them or ratified them, had lost their status as employees. Dissent of Justice Fernando On a more specific level, it may be stated that a strike does not automatically carry the stigma of illegality even if no unfair labor practice were committed by the employer. It suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a strike. So it was clearly stated by Chief Justice Concepcion, while still an Associate Justice of this Court: "As a consequence, we hold that the strike in question had been called to offset what petitioners were warranted in believing in good faith to be unfair labor practices on the part of Management, that petitioners were not bound, therefore, to wait for the expiration of thirty (30) days from notice of strike before staging the same, that said strike was not, accordingly, illegal and that the strikers had not thereby lost their status as employees of respondents herein. Why a mere finding of the illegality of a strike should not be automatically followed by wholesale dismissal was once again stressed in the recent case of Almira v. B. F. Goodrich Philippines, Inc. in these words: "It would imply at the very least that where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the law's concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all the circumstances of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what had been done by them. For all this while, since private respondent considered them separated from the service, they had not been paid. From the strictly juridical standpoint, it cannot be too strongly stressed, to follow Davis in his masterly work, Discretionary Justice, that where a decision may be made to rest on informed judgment rather than rigid rules, all the equities of the case must be accorded their due weight. Finally, labor law determinations, to quote from Bultmann, should be not only secundum rationem but also secundum caritatem." This decision, it must be noted, was rendered after the effectivity of the present Constitution. Hence this dissent, there being, to my mind, a failure to meet the more exacting standard to justify dismissal of strikers, even on the assumption that the strike could be declared illegal.
Pepsi Cola Labor Union v. NLRC Although the strike was declared illegal, there was absence of proof that the rank and file members of the Union who participated therein deserve their loss of employment. Their sole membership in the union or their given authority to it to strike, believing in good faith that it was their sole bargaining representative, did not make them liable if they did not actually participate therein. The officers of the Union who staged the strike in defiance of the Med-Arbiter's ruling should be held solely responsible. Bacus v. Ople A mere finding of the illegality of a strike should not be automatically followed by wholesale dismissal of the strikers from their employment Union of Filipro Employees v. Nestle A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as amended. The Union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. Reliance Surety and Insurance v. NLRC In staging the strike in question, a strike that was illegal in more ways than one, the reinstated union officers were clearly in bad faith, and to reinstate them without, indeed, loss of seniority rights, is to reward them for an act public policy does not sanction. We can not apply, either, the ruling in Bacus v. Ople, where we held that the mere finding of illegality attending a strike does not justify the "wholesale" dismissal of strikers who were otherwise impressed with good faith. The Court must not be understood to be abandoning the teachings of either Ferrer, Almira, or Bacus. The Court reiterates that good faith is still a valid defense against claims of illegality of a strike. We do find, however, not a semblance of good faith here, but rather, plain arrogance, pride, and cynicism of certain workers. Luzon Marine Dept. Union v. Roldan We have adverted to the ruling of this Court in Rex Taxicab Company vs. Court of Industrial Relations, supra, that in cases not falling within the prohibition against strikes, the legality or illegality of a strike depends, first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable or unjust or if in carrying on the strike, the strikers should commit violence or cause injuries to persons or damage to property, the strike, although not prohibited by injunction, may be declared by the court illegal, with the adverse consequences to the strikers. Phil. Marine Officers Guild v. Cia Maritima In this jurisdiction, however, acts of violence in carrying on a strike are not so easily overlooked in the determination of its legality or illegality. To overlook them "would encourage abuses and terrorism and would subvert the very purpose of the law which provides for arbitration and peaceful settlement of disputes. this Court has repeatedly frowned upon the use of unlawful means in carrying out a strike. In cases not falling within the prohibition against strikes, the legality or illegality of a strike depends first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable, or unjust or if in carrying on the strike the strikers should commit violence or cause injuries to persons or damage to property, the strike, although
not prohibited by injunction, may be declared by the court illegal with the adverse consequences to the strikers. Here we find that the majority opinion predicated the illegality of the strike not merely on the infringement of said agreement by the union but on the proven fact that, in carrying out the strike, coercion, force, intimidation, violation (sic) with physical injuries, sabotage and the use of unnecessary and obscene language or epithets were committed by top officials and members of the union in an attempt to prevent arbitration and peaceful settlement of labor disputes. As aptly said in one case: 'A labor philosophy based upon the theory that might is right, in disregard of law and order, is an unfortunate philosophy of regression whose sole consequences can be disorder, class hatred and intolerance. The CIR, in finding the PMOG responsible for the aforementioned acts of violence, said: As some of the above offenses were perpetrated by the picketers not only in Yenko's presence but in direct cooperation with him and under his leadership PMOG cannot seriously pretend innocence and avoid complicity in or liability for their acts and conduct and the consequent effects thereof upon Maritima's property. True, Section 9(c) of the Act has discarded the principle of "vicarious liability" under which a striking labor organization is necessarily held responsible for the acts of even a single striker. That the law, as it is now, requires in order to hold an association or organization liable for the unlawful acts of individual officers, members, or agents, 'proof of actual participation in, or actual authorization of such acts or of ratifying of such acts after actual knowledge thereof.' It is not essential that two or three of these elements should concur. One suffices. In the case at bar, the unlawful acts, as already pointed out, were done in the presence of Yenko as well as with his cooperation and under his direction and, hence, conclusive of the actual participation and ratification thereof of PMOG. Moreover, there is nothing in the record to show that this union disauthorized or objected to Yenko's acts and those of the other picketers despite the fact that such acts had undoubtedly come to its knowledge or that of its officers and members. Under the circumstances, the CIR correctly held that the PMOG strike against MARITIMA was illegal. Caltex Phil. Inc., v. Phil. Labor Org. If after the decision of the Court of Industrial Relations declaring a strike illegal, new demands or matters arise not connected with, or similar to, the demands in the former case, and the laborers struck anew, the new strike cannot be held as a violation of the decision.
LABOR INJUNCTION
DEFINITION AND NATURE Miriam Webster Dictionary INJUNCTION: An injunction is available as a remedy for harm for which there is no adequate remedy at law. Thus it is used to prevent a future harmful action rather than to compensate for an injury that has already been occurred, or to provide relief from harm for which an award of money damages is not a satisfactory solution or for which a monetary value is impossible to calculate. A defendant who violates an injunction is subject to penalty for contempt. Philippine Airlines, Inc. v. NLRC , 287 SCRA 672 (1998) GENERALLY, injunction is a preservative remedy for the protection of one's substantive rights or interest. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. It is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation . The application of the injunctive writ rests upon the existence of an emergency or of a special reason before the main case be regularly heard. The essential conditions for granting such temporary injunctive relief are:
1) that the complaint alleges facts which appear to be sufficient to constitute a proper basis for injunction and 2) that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. INJUNCTION is also a special equitable relief granted only in cases where there is no plain, adequate and complete remedy at law. In labor cases, Article 218 of the Labor Code empowers the NLRC "(e) 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 or render ineffectual any decision in favor of such party; . . . (Emphasis Ours) Complementing the above-quoted provision, Sec. 1, Rule XI of the New Rules of Procedure of the NLRC, pertinently provides as follows: "Section 1. Injunction in Ordinary Labor Dispute. A preliminary injunction or a restraining order may be granted by the Commission through its divisions pursuant to the provisions of paragraph (e) of Article 218 of the Labor Code, as amended, -when it is established on the bases of the sworn allegations in the petition -that the acts complained of, a) involving or arising from any labor dispute before the Commission, which, b) if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party. The foregoing ancillary power may be exercised by the Labor Arbiters: -ONLY as an INCIDENT to the cases pending before them in order to preserve the rights of the parties during the pendency of the case, -BUT excluding labor disputes involving strikes or lockout. From the foregoing provisions of law, the power of the NLRC to issue an injunctive writ originates from "any labor dispute" upon application by a party thereof, which application if not granted "may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party." The term "LABOR DISPUTE" is defined as "any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment regardless of whether or not the disputants stand in the proximate relation of employers and employees." The term "CONTROVERSY is likewise defined as "a litigated question; adversary proceeding in a court of law; a civil action or suit, either at law or in equity; a justiciable dispute." A "justiciable controversy" is "one involving an active antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical question or issue." Taking into account the foregoing definitions, it is an ESSENTIAL REQUIREMENT that: there must first be a LABOR DISPUTE between the contending parties before the labor arbiter. Why does injunction not apply to the facts of this case? In the present case, there is no labor dispute between the petitioner and private respondents as there has yet been no complaint for illegal dismissal filed with the labor arbiter by the private respondents against the petitioner. Furthermore, an examination of private respondents' petition for injunction reveals that it has no basis since there is no showing of any urgency or irreparable injury which the private respondents might suffer.
When is an injury considered irreparable? An injury is considered irreparable if it is of such constant and frequent recurrence that no fair and reasonable redress can be had therefor in a court of law, or where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation. It is considered irreparable injury when it 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 exists no certain pecuniary standard for the measurement of damages. In the case at bar, the alleged injury which private respondents stand to suffer by reason of their alleged illegal dismissal can be adequately compensated and therefore, there exists no "irreparable injury," as defined above which would necessitate the issuance of the injunction sought for. Article 279 of the Labor Code provides that an employee who is unjustly dismissed from employment shall be entitled to reinstatement, without loss of seniority rights and other privileges, and to the payment of full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. The ruling of the NLRC that the Supreme Court upheld its power to issue temporary mandatory injunction orders in the case of Chemo-Technische Mfg., Inc. Employees Union-DFA, et. al. vs. Chemo-Technische Mfg., Inc. et. al., docketed as G.R. No. 107031, is misleading. As correctly argued by the petitioner, no such pronouncement was made by this Court in said case. On January 25, 1993, we issued a Minute Resolution in the subject case stating as follows: "Considering the allegations contained, the issues raised and the arguments adduced in the petition for certiorari, as well as the comments of both public and private respondents thereon, and the reply of the petitioners to private respondent's motion to dismiss the petition, the Court Resolved to DENY the same for being premature." It is clear from the above resolution that we did not in anyway sustain the action of the NLRC in issuing such temporary mandatory injunction but rather we dismissed the petition as the NLRC had yet to rule upon the motion for reconsideration filed by petitioner. Thus, the minute resolution denying the petition for being prematurely filed. Finally, an injunction, as an extraordinary remedy, is not favored in labor law considering that it generally has not proved to be an effective means of settling labor disputes. POLICY behind prohibition of issuance of injunction: > It has been the policy of the State to encourage the parties to use the non-judicial process of negotiation and compromise, mediation and arbitration. Thus, injunctions may be issued only in cases of extreme necessity based on legal grounds clearly established, after due consultations or hearing and when all efforts at conciliation are exhausted which factors, however, are clearly absent in the present case. A. RULE ON INJUNCTIONS As a GENERAL RULE, labor disputes are not subject to injunction. HOWEVER, the protective force of the law will be applied when prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party. (Azucena) * Labor dispute jurisdiction (NLRC) Caltex Filipino Managers and Supervisors Association v. CIR , 44 SCRA 350 (1972) RATIONALE for prohibition:1) It is well known that the scheme in Republic Act No. 875 for achieving industrial peace rests essentially on a FREE AND PRIVATE AGREEMENT between the employer and his employees as to the terms and conditions under which the employer is to give work and the employees are to furnish labor, unhampered as far as possible by judicial or administrative
intervention. On this premise the lawmaking body has virtually prohibited the issuance of injunctive relief involving or growing out of labor disputes. 2) The prohibition to issue labor injunctions is designed to give labor a comparable bargaining power with capital and must be liberally construed to that end. It is said that the prohibition creates substantive and not purely procedural law. Within the purview of our ruling, speaking through Justice Labrador, in Social Security Employees Association (PAFLU), et al. vs. The Hon. Edilberto Soriano, et al. (G.R. No. L-20100, July 16, 1964, 11 SCRA 518, 520),: GENERAL RULE: EXCEPTION: there can be no injunction issued against any strike. EXCEPT in only one instance, that is, when a labor dispute arises in an INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST and such dispute is CERTIFIED BY THE PRESIDENT of the Philippines to the Court of Industrial Relations in compliance with Sec. 10 of Republic Act No. 875.
Purpose of an injunction in an UNCERTIFIED case: As a corollary to this, an injunction in an uncertified case must be based on the strict requirements of Sec. 9(d) of Republic Act No. 875; the purpose of such an injunction is not to enjoin the strike itself, but only unlawful activities. In this case Judge Tabigne cautioned the parties to maintain the status quo; he specifically advised the employees NOT TO GO ON strike. Will disobedience to the judges advice constitute contemp of court? No. According to SC what Judge Tabigne stated during said hearing should be construed what actually it was an advice. To say that it was an order would be to concede that respondent court could validly enjoin a strike, especially one which is not certified in accordance with Sec. 10 of Republic Act No. 875. To adopt the view of respondent court would not only set at naught the policy of the law as embodied in the said statute against issuance of injunctions, but also remove from the hands of labor unions and aggrieved employees an effective lawful weapon to either secure favorable action on their economic demands or to stop unfair labor practices on the part of their employer. B. REQUIREMENTS OF VALID INJUNCTION Art. 218 : 1. Unlawful acts are being committed or threatened to be committed. 2. The act, if not enjoined or if not performed forthwith, may cause grave or irreparable damage. 3. Witnesses must be heard an opportunity for cross-examination provided. 4. The complaint is made under oath. 5. As to each item of relief, the injury to the complainant will be greater by its denial than to defendant by its grant. 6. Complainant has no adequate remedy at law. 7. Public officers are unwilling or unable to do their duty to adequately protect complainants property. Ilaw at Buklod ng Manggagawa (IBM) v. NLRC , 198 SCRA 586 (1991) GENERAL RULE: Cannot issue EX PARTE
As a rule such restraining orders or injunctions do not issue ex parte, but only after compliance with the following requisites, to wit: a) a HEARING held "after due and PERSONAL NOTICE thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant's property;" b) reception at the hearing of "testimony of witnesses, with opportunity for crossexamination, in support of the allegations of a complaint made under oath," as well as "testimony in opposition thereto, if offered . . .; c) "a finding of fact by the Commission, to the effect: (1) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, -but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, -except against the person or 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;
(2) (3)
That substantial and irreparable injury to complainant's property will follow; That as to each item of relief to be granted , greater injury will be inflicted upon complainant by the denial of relief than will be indicted upon defendants by the granting of relief; That complainant has no adequate remedy at law; and That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection."
(4) (5)
EXCEPTION: When it can issue ex parte. However, a temporary restraining order may be issued ex parte under the following conditions: a) the complainant "shall also allege that, unless a temporary restraining order shall be issued without notice, -a SUBSTANTIAL and IRREPARABLE INJURY to complainant's PROPERTY will be unavoidable;" b) there is "TESTIMONY under OATH, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice;" c) the "complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission;" and d) the "temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days."
The reception of evidence "for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission." The record reveals that the Commission exercised the power directly and plainly granted to it by sub-paragraph (e) Article 217 in relation to Article 254 of the Code, and that it faithfully observed the procedure and complied with the conditions for the exercise of that power prescribed in said sub-paragraph (e). It acted on SMC's application for immediate issuance of a temporary restraining order ex parte on the ground that substantial and irreparable injury to its property would transpire before the matter could be heard, on notice; it, however, first direct SMC Labor Arbiter Carmen Talusan to receive SMC's testimonial evidence in support of the application and thereafter submit her recommendation thereon; it found SMC's evidence adequate and issued the temporary restraining order upon bond. No irregularity may thus be imputed to the respondent Commission in the issuance of that order. In any event, the temporary restraining order had a lifetime of only twenty (20) days and became void ipso facto at the expiration of that period. In view of the foregoing factual and legal considerations, all irresistibly leading to the basic conclusion that the concerted acts of the members of petitioner Union in question are violative of the law and their formal agreement with the employer, the latter's submittal, in its counterpetition that there was, in the premises, a "legal duty and obligation" on the part of the respondent Commission "to enjoin the unlawful and prohibited acts and omissions of petitioner IBM and the workers complained of" 20 a proposition with which, it must be said, the Office of the Solicitor General concurs, asserting that the "failure of the respondent commission to resolve the application for a writ of injunction is an abuse of discretion especially in the light of the fact that the restraining order it earlier issued had already expired" must perforce be conceded. C. TEMPORARY RESTRAINING ORDER The Code allows the issuance of a temporary restraining order without prior notice to other parties concerned. The issuance is predicated on complainants testimony or petition under oath that unless the order is issued without notice, substantial or irreparable injury to complainants property will be unavoidable. A temporary restraining order, however, automatically expires after 20 days. (Id.) PROCEDURE for issuance of Temporary Restraining Order a) the complainant "shall also allege that, unless a temporary restraining order shall be issued without notice, -a SUBSTANTIAL and IRREPARABLE INJURY to complainant's PROPERTY will be unavoidable;" b) there is "TESTIMONY under OATH, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice;" c) the "temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days." d) No such temporary restraining order or temporary injunction shall be issued except on condition that -- "complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission;"
ILAW at Buklod ng Manggagawa v. NLRC A TRO may be issued ex parte under the following conditionsa) The complainant shall also allege that, unless a TRO shall be issued without notice, a substancial and irreparable injury to the complainants property will be unavoidable b) There is testimony under oath, sufficient, if sustained, to justify the Commission in issuing the temporary injunction upon hearing after notice c) The complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorneys fee, and expense of defense against the order of against the ranting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission; and d) The TRO shall be effective for no longer than 20 days and shall become void at the expiration of said 20 days.
D. JURISDICTION TO ISSUE INJUNCTION Lies not with the regular courts but with the Commission (NLRC). (Maria Cristina Fertilizer Plant EEs Assn. Vs. Tandayag) However, regular courts may issue injunction if it is to prevent strikers from preventing the lawful movement of 3 rd parties. (Republic Flour Mill Workers Assn. vs. Reyes) Role Of The Labor Arbiter (Book V Rule Xxi Sec. 13) The reception of evidence for the application of the writ of injunction may be delegated by the Commission to any Labor Arbiter who shall submit his recommendations to the Commissions for its consideration and resolution. Nestle Phils. Inc. V. NLRC , 195 SCRA 340 (1991) The power of the NLRC to issue writs of injunction is found in Article 218 of the Labor Code, which provides: "Art. 218. Powers of the Commission. The Commission shall have the power and authority: "(e) 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 or render ineffectual any decision in favor of such party: . . ." MAIN POINT OF THE CASE : That power, as the statute provides, can only be exercised in a LABOR DISPUTE. Injunction and Med-Arbiter Dinio v. Laguesma , 273 SCRA 109 (1997) There is no question that the issuance of a temporary restraining order is addressed to the sound discretion of the Med-Arbiter. However, "this discretion should be exercised based upon the grounds and in the manner provided by law." In the case of labor injunctions or temporary restraining orders, one may issue only in instances where the complainant or applicant will suffer grave or irreparable damages as provided in Sec. 5, Rule XVI, Book V of the Omnibus Rules Implementing the Labor Code: Sec 5. Injunctions. No temporary injunctions or restraining order in any case involving or growing out of a labor dispute shall be issued by any court or other entity. On the other hand,
the Office of the President, the Secretary of Labor, the Commission, the Labor Arbiter or medarbiter may enjoin any or all acts involving or arising from any case pending before any of said offices or officials which if not restrained forthwith may cause grave or irreparable damage to any of the parties to the case or seriously affect social or economic stability. In the instant controversy, the first petition for injunction and temporary restraining order filed by petitioners on 29 January 1992 was manifestly insufficient to show grave or irreparable injury and it puzzles us to no end how the Med-Arbiter could have issued the temporary restraining order on such flimsy basis. For instance, petitioners alleged that the PCIBEU-Comelec was illegally constituted, yet, they unhesitatingly participated in the pre-election process. They announced their candidates and actively campaigned for them. In the petition for injunction itself, petitioners even stated that they filed their certificates of candidacy in compliance with the directives of the PCIBEU-Comelec. 23 How can petitioners obey the orders of the PCIBEUComelec and at the same time reject its authority? This should have put the Med-Arbiter on guard. We thus concur with the findings of the public respondent: While it is true that the Med-Arbiter has the authority to issue a writ of preliminary injunction, or a temporary restraining order against any act arising from any case pending before him, the exercise thereof shall always be subject to the test of reasonableness. The Med-Arbiter should ascertain that the act complained of, if not restrained forthwith, may cause grave or irreparable damage to any of the parties to the case. Damage is considered "irreparable": (a) if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law (Allendorf vs. Abalanson, 38 Phil. 585), or (b) where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation (SSC vs. Bayona, et al., L13555, May 30, 1962). Measured against such test, the act complained of in the present case such as the conduct of the election as originally set on 31 January 1992 may not be said to cause "grave or irreparable" damage to the petitioner-appellee considering that any complaint or question on the conduct of the election maybe the subject of protest, an administrative remedy available and convenient to the parties in the case. On the contrary, considering that the petition for issuance of a writ of injunction was filed barely two days before the date set for the conduct of the election, when the election materials were already readied and the other mechanics for election had already been threshed out, to say the least, the damage that would result would substantially be more, should the election be postponed to another indefinite time. It is well to remember that "injunctions or restraining orders are frowned upon as a matter of labor relations policy," and as a general reminder: There is no power the exercise of which is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. E. INJUNCTION IN NATIONAL INTEREST CASES When is a strike enjoined by the assumption of jurisdiction of the president or the Secretary of Labor and Employment? A strike or lockout is prohibited after assumption of jurisdiction by the President or the Secretary of Labor : 1. in industries indispensable to the national interest; or
2. after certification or submission of the dispute to compulsory or voluntary arbitration. (Art. 264) The Code vests the President and the Secretary of Labor almost unlimited discretion as to what industries may be considered indispensable to national interest. (Azucena) E.1 POWER TO ASSUME JURISDICTION CONSTITUTIONAL Art. 263 and 264 have been enacted pursuant to the police power to the State. It is an inherent power of the State which does not need to be expressly conferred by the Constitution. (Union of Filipro EEs vs. Nestle) E.2 CERTIFICATION OF LABOR DISPUTE : AUTOMATIC INJUNCTION Such assumption of the Secretary or certification to the NLRC for compulsory arbitration has the effect of automatically enjoining the intended or ongoing strike or lockout as specified in the assumption or certification order. (Azucena) This assumption or certification order is immediately effective even without a return-to-work order. (Union of Filipro EEs vs. Nestle) A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal. (Zamboanga Wood Products vs. NLRC) Not only union officers but also union members who defy return-to-work order are subject to dismissal for participation in an illegal act. (St. Scholasticas College vs. Torres) Assumption and certification orders are executory in character and are to be strictly complied with by the parties even during the pendency of any petition questioning their validity.
E.3 EFFECT OF CERTIFICATION FOR COMPULSORY ARBITRATION The certification for compulsory arbitration overrides other unresolved proceedings before the NLRC. Proceedings in the injunction and unfair labor practice cases filed by the ER necessarily have to be suspended to await the outcome of the compulsory arbitration proceedings. (Bagong Bayan Realty vs. Ople) E.4 INCIDENTAL ISSUES May the Secretary of Labor, in the exercise of his jurisdiction under Article 263 (g) takes cognizance of an issue which is merely incidental to the labor dispute over which he has assumed jurisdiction? Yes, provided said issue is involved in the labor dispute itself or otherwise submitted to him for resolution. (St. Scholasticas College vs. Torres) Basically, the following points are what the Professor Disini emphasized in the integration lecture. 1. Labor Injunction is not the same as the injunction under the rules of court. 2. General rule is stated in Art. 254 The exceptions are in Art. 218 and Art. 264 > If you are filing injunction under Art. 218, the allegations of the acts committed are different from the allegations of acts committed under Art. 264. BUT the procedure to follow is the same, Art. 218. 3. Procedure for issuance of TRO is different from procedure of issuance of Injunction. > There similarity is in the testimony given. > But TRO is different because it is valid only for 20 days. 4. It is important to take note of the BOND filed. And what other remedies there are just incase the injunction or TRO is wrongfully issued.
AGREEMENT OF THE PARTIES
1. A no strike prohibition in a CBA is applicable only to economic strikes. An unfair labor practice strike is not covered and workers may go on strike based on the unfair labor practice despite the no-strike provision. (Master Iron Labor Union vs. NLRC) 2. Is no-strike clause binding on the newly certified bargaining agent? No. This is a personal undertaking of the old certified bargaining agent which does not bind the newly certified bargaining agent. (Benguet Consolidated vs. BCI EEs Union) 3. There is no violation by the union of the no-strike clause if the work stoppage was not initiated or supported by the union. (Azucena) 4. About 1,400 EEs of a company staged a mass walk-out. The strike was staged without prior notice and in violation of the no-strike clause. It is not however disputed that the company did not pay the salaries of the EEs for 2 months. In the exercise of his power of compulsory arbitration, may the Secretary of Labor declare the strike illegal? Even on the assumption that the illegality of the strike is predicated on its violation of the lack of notice of strike and the no-strike clause, still the automatic finding of the illegality of strike finds no authoritative support in the light of the attending circumstances. (Bacus vs. Ople) 9.6 EMPLOYMENT OF STRIKE BREAKERS AND ROLE OF PEACE OFFICERS
DURING STRIKES
Art. 264 : 1. No ER shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. 2. No public official or EE including officers and personnel of the AFP or the PNP, or armed person, shall bring in, introduce or escort any individual who seeks to replace strikers in entering or leaving the premises of a strike are, or work in place of strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur. 212 (r) Strike-breaker means any person who obstructs impedes, or interferes with BY force, violence, coercion threats, or intimidation ANY PEACEFUL PICKETING BY EEs during any labor controversy affecting wages, hours or conditions of work or in the exercise of RSO or CB POLICE/MILITARY personnel should station themselves outside a 50-meter radius from the picket line. However, if the 50 meter radius includes a public thoroughfare, they may station themselves at that thoroughfare to keep free flow of traffic REQUIREMENT FOR ARREST & DETENTION General Rule: With previous consultation with the Secretary of Labor Exceptions: 1) Grounds of national security and public peace 2) In case of commission of crime
BY-STANDER RULE: The by-stander establishment, which is entitled to enjoin a labor strike or picket must be entirely different from, without any communication whatsoever to, either party to the dispute. Master Iron Labor Union v. NLRC The bringing in of CAPCOM soldiers to the peaceful picket lines without any reported outbreak of violence, was clearly in violation of the following prohibited activity under Article 264 (d) of the Labor Code. As the Labor Arbiter himself found, no pervasive or widespread coercion or violence were perpetrated by the petitioners as to warrant the presence of the CAPCOM soldiers in the picket lines. In this regard, worth quoting is the following excerpt of the decision in Shell Oil Workers' union vs. Shell Company of the Philippines, Ltd., 39 SCRA 276 [1971], which was decided by the Court under the old Industrial Peace Act but which excerpt still holds true: ". . . What is clearly within the law is the concerted activity of cessation of work in order that .. employer cease and desist from an unfair labor practice. That the law recognizes as a right. There is though a disapproval of the utilization of force to attain such an objective. For implicit in the very concept of a legal order is the maintenance of peaceful ways. A strike otherwise valid, if violent in character, may be placed beyond the pale. Care is to be taken, however, especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike, responsibility in such a case should be individual and not collective. A different conclusion would be called for, of course, if the existence of force while the strike lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal because of the means employed." Arrest and Detention of Law Violators Art. 266 Requirement for arrest and detention. - Except on grounds of national security and public peace, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor and Employment. 9.7 IMPROVED OFFER BALLOTING What is meant by improved or reduced offer balloting? 1. Strike In an effort to settle a strike, the DOLE shall conduct a referendum by secret balloting on the improved offer of the ER on or before the 30 th day of the strike. When at least a majority of union members vote to accept the improved offer, the striking workers shall immediately return to work and the ER shall thereupon readmit them upon signing of the agreement. 2. Lockout In case of a lockout, the DOLE shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of partnership vote to accept the reduced offer, the workers shall immediately return to work and the ER shall thereupon readmit them upon signing of the agreement. (Art. 265) 9.8 PICKETING, SLOWDOWN AND OTHER CONCERTED ACTIVITIES A. DEFINITION Define picketing Walking or patrolling in the vicinity of a place of business involved in a labor dispute and, by word of mouth, banner or placard, undertaking to inform the public concerning the dispute. Picketing includes stationing persons at the site of the labor dispute for the purpose
of exercising coercion or intimidation on other. However, the requirement of the law is that the picket must be a moving picket. (Azucena) Important from the Professor Disinis Integration: 1) Picketing is not mentioned in the law of strikes. 2) It is a form of exercising the freedom of expression. 3) It cannot be enjoined, but it may be regulated. 4) Stranger picketing is allowed. 5) RUN-AWAY SHOP: employees can picket in new work place. Definition Law Dictionary Picketing by members of a trade union or strikers, consists in posting members at all the approaches to the works struck against for the purpose of reporting the workman going to or coming from the works; and to use suck influence as may be in their power to prevent the workman from accepting the work there. (Bouviers Law Dictionary) Nature and Purpose of Picket Line Purpose: Publicize labor dispute and seek sympathy Nature Insular Life Assurance Co. Ltd. Employees Assoc. v. Insular Life Insurance Co. Ltd. The heated altercations and occasional blows exchanged on the picket line do not affect or diminish the right to strike. Persuasive on this point is the following commentary: We think it must be conceded that some disorder is unfortunately quite usual in any extensive or long drawn out strike. A strike is essentially a battle waged with economic weapons. Engaged in it are human beings whose feelings are stirred to the depths. Rising passions call forth hot words. Hot words lead to blows on the picket line. The transformation from economic to physical combat by those engaged in the contest is difficult to prevent even when cool heads direct the fight. Violence of this nature, however much it is to be regretted, must have been in the contemplation of the Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing therein should be construed so as to interfere with or impede or diminish in any way the right to strike. If this were not so, the rights afforded to employees by the Act would indeed be illusory. We accordingly recently held that it was not intended by the Act that minor disorders of this nature would deprive a striker of the possibility of reinstatement." (Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews, Labor Relations and the Law, p. 378) Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a necessary incident of the strike and should not be considered as a bar to reinstatement. Thus it has been held that: "Fist-fighting between union and non-union employees in the midst of a strike is no bar to reinstatement." Security Bank Employees Union v. Security Bank and Trust Co. The union despite various TROs and return to work orders by the court, still held their strike. The union contends that the lower court judge committed grave abuse of discretion when he issued ex parte a restraining order prohibiting the workers from staging or continuing a strike or picketing "of whatever kind or form, particularly, at plaintiff's main office at Escolta, Manila," as well as any of its branches. It is true that respondent Bank is in the unenviable position of an innocent bystander caught in the cross-fire. It enlists one's sympathy, but it cannot with reason assert that its difficulties are in no way connected with a labor controversy. Besides, it is now too late to consider as lacking the elements of a labor dispute a situation where rival unions vie for supremacy. This court has so indicated in at least two decisions, Balaquezon Trans. Labor Union v. Muoz-Palma and Malayang Manggagawa sa Esso v. Esso Standard Eastern.
Even if it be granted, however, that the ordinary procedure provided by the Rules of Court could be relied upon, the last mentioned order of respondent Judge dated January 3, 1968, which modified what was issued by him on November 2, 1967 enjoining "the defendants or their representatives from picketing of whatever kind or form", still could not survive the jurisdictional test. It suffers from the fatal defect of prohibiting any picketing of whatever kind or form." This cannot be done consistently with the Industrial Peace Act, which categorically provides that no Court, Commission or Board of the Philippines "shall have jurisdiction except as provided in section ten of this Act to issue any restraining order, temporary or permanent injunction in any case involving or growing out of a labor dispute to prohibit any person or persons participating or interested in such dispute from doing whether singly or in concert, any of the following acts: (5) Giving publicity to the existence of, or the facts involved in any labor dispute, whether by advertising, speaking, patrolling, or by any method not involving fraud or violence;. Moreover, this Court, in Caltex Refinery Association v. Lucero, made explicit its disapproval of an injunction against strikes, holding that "no Court can issue a restraining order against union members who plan to hold a strike even if the same may appear to be illegal." That is so in view of the unmistakable language employed in the Industrial Peace Act, with reference to strikes. The statutory command on picketing likewise calls for a similar declaration. The obstacle that bars the Bank from attaining its objective to bar all picketing is indeed too formidable to surmount. Also, even without such a categorical mandate expressed in the Act, the recognition of peaceful picketing as a constitutional right embraced in the freedom of expression dating from the 1947 decision of Mortera v. Court of Industrial Relations, precludes the issuance of such a blanket prohibition as that imposed in the challenged order of respondent Judge of January 3, 1968. This is not to say that picketing, like freedom of expression in general, has no limits. Certainly, to the extent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. Equally so, there can be no indiscriminate ban on the freedom to disseminate the facts of a labor dispute and to appeal for public sympathy, which is the aim of peaceful picketing, without a transgression of the Constitution, sufficient to oust a court of jurisdiction, even on the assumption that it was originally possessed of such a competence, which was not so in this case as had been earlier made clear.
Mortera v. CIR The prohibition should be understood to cover only illegal picketing, that is, picketing through the use of illegal means. Peaceful picketing cannot be prohibited. It is part of the freedom of speech guaranteed by the Constitution. Therefore, the order of the Court of Industrial Relations prohibiting picketing must be understood to refer only to illegal picketing, that is, picketing through the use of illegal means. Phil. Assoc. of Free Labor Unions v. Cloribel INNOCENT BYSTANDER RULE AS DISCUSSED IN THIS CASE 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 even in the absence of employer-employee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including
those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus the right may be regulated at the instance of third parties or "innocent bystanders" if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. In one case, decided by this Court, we upheld a trial court's injunction prohibiting the union from blocking the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found between the two mills owned by two different corporations other than their being situated in the same premises. It is to be noted that in the instances cited, peaceful picketing has not been totally banned but merely regulated. And in one American case, a picket by a labor union in front of a motion picture theater with which the union had a labor dispute was enjoined by the court from being extended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located. B. PICKETING AND LIBEL LAWS The mere fact that the language employed by the picketers is far from being courteous and polite does not give rise to a cause for libel and damages. (PCIB vs. Philnabank EEs Assn.) * Picketing cannot be prohibited or enjoined but may be regulated. C. ER-EE RELATIONSHIP Absence of an ER-EE relationship does not make picketing illegal. (De Leon vs. NLU) D. RESTRICTIONS 1. Art. 264 : No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the ERs premises for lawful purposes, or obstruct public thoroughfares. 2. A picketing labor union has no right to prevent EEs of another company from getting in and out of its rented premises, otherwise it will be held liable for damages against an innocent by-stander. (Liwayway vs. Permanent Concrete Workers Union) 3. Picketing as a concerted activity is subject to the same limitations as strike, particularly as to lawful purpose and lawful means. Like the freedom of expression in general, it has limits. Thus, to the extent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. (Security Bank EEs Union vs. Security Bank) Innocent 3rd Party Rule and Liabilities Liwayway Publishing Co. v. Permanent Concrete Workers Union We find and hold that there is no connection between the Liwayway Publications, Inc. and the striking Union, nor with the company against whom the strikers staged the strike, and neither are the acts of the driver of Liwayway its general manager, personnel manager, the man incharge of the bodega and other employees of Liwayway in reaching the bodega to obtain newsprint therefrom to feed and supply its publishing business interwoven with the labor dispute between the striking Union and the Permanent Concrete Products company. If there is a connection between Liwayway publishing company and the Permanent Concrete Products company, it is that both are situated in the same premises, which can hardly be considered as
interwoven with the labor dispute pending in the Court of Industrial Relations between the strikers and their employer. 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 cannot be curtailed even in the absence of employer-employee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third parties or ìnnocent bystanders' if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. In one case decided by this Court, we upheld a trial court's injunction prohibiting the union from blocking the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found other than their being situated in the same premises. It is to be noted that in the instances cited, peaceful picketing has not been totally banned but merely regulated. And in one American case, a picket by a labor union in front of a motion picture theater with which the union had a labor dispute was enjoined by the court from being extended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located. E. PROHIBITED ACTIVITIES Art. 264 : No person shall obstruct, impede or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by EEs during any labor controversy or in the exercise of the right of self-organization or collective bargaining, or shall aid or abet such obstruction or interference. F. POWER OF COURTS TO CONFINE PICKETING While peaceful picketing is entitled to protection as an exercise of free speech, courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. (PAFLU vs. Cloribel) SLOWDOWN 1. Define slowdown: Method by which ones EEs, without seeking a complete stoppage of work, retard production and distribution in an effort to compel compliance by the ER with the labor demands made upon by him. (Azucena) 2. Slowdown is considered inherently illicit and unjustifiable because while the EEs continue to work and remain at their positions and accept wages from them, they at the same time select what part of their allocated task they care to perform of their own volitions or refuse openly or secretly to the ERs damage to the other work. (IBM vs. NLRC) BOYCOTT 1. Define boycott : It is the concerted refusal to patronize an ERs goods and services and to persuade others to a like refusal. (Id.) 2. Is a boycott lawful? EEs may lawfully exert economic pressure on their ER by means of a boycott, provided they act peaceably and honestly. (Alcantara)
9.9 CONSEQUENCES OF CONCERTED ACTIONS STRIKERS RETENTION OR LOSS OF EMPLOYMENT Does participation in a strike mean loss of employment for the worker? A mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the ER during such lawful strike. (Art. 264) However, if the strike is illegal.: 1. The union officer who knowingly participated in an illegal strike; and 2. Any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost their employment status. An ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof that he committed illegal acts during a strike. (INPORT vs. NLRC) Anyone who commits an ILLEGAL ACT during a strike may be dismissed from employment, whether he is a member or an officer of the union and regardless of whether the strike itself is legal or not. A LAWFUL STRIKE is a protected workers activity - an EE on strike is still an EE - after the strike, he has the right to re-assume his job unless in the meantime he has lost it by committing certain illegal acts. What the law prohibits is NOT the hiring of temporary replacements BUT the use of strike breakers (troublemakers) DO #10 does not permit an ER to engage the services of a contractor/subcontractor to provide substitute services in place of the striking workers. WHO DECLARES LOSS OF EMPLOYMENT STATUS The law grants the ER the option of declaring loss of employment status. (Id.) NO FINANCIAL ASSISTANCE TO DISMISSED STRIKERS Financial assistance is not required to be given to a worker who participated in an illegal strike. (Chua vs. NLRC) STRIKE ON GOOD FAITH BELIEF THAT COMPANY COMMITTED UNFAIR LABOR PRACTICE Strikers who conducted an illegal strike on the good-faith belief that the company had committed unfair labor practice, which turns out to be false, do not forfeit their employment. They are entitled to reinstatement. (Ferrer vs. CIR) STRIKE NOT MARKED WITH GOOD FAITH Strikers who conducted a strike which is illegal and not marked with good faith forfeit their employment. (Reliance Surety vs. NLRC) APPLICATION OF THE PARI-DELICTO RULE Is the pari-delicto rule applicable in strikes and lockouts? Yes. When the parties are in pari delicto the EEs having staged an illegal strike and the ER having declared an illegal lockout such situation warrants the restoration of the status quo ante and brining back the parties to their respective positions before the illegal strike and illegal lockout through reinstatement, without backwages, of the dismissed EEs. (Philippine Inter-Fashion vs. NLRC)
BACKWAGES 1. In an economic strike, the strikers are not entitled to backwages on the principle that a fair days wage accrues only for a fair days labor. ( SMB vs. NLU) For an unfair labor practice strike, the right of the workers to receive backpay depends on whether they are voluntary or involuntary strikers. If they are involuntary strikers, they are entitled to backpay. (Macleod vs. Progressive Federation of Labor) However, when they are voluntary strikers, that is, they were not discriminatorily dismissed by the ER, then they are generally not entitled to backpay, except when they voluntary offer to return to work and the ER refuses to readmit them. (Cromwell EEs Assn. vs. CIR) 2. Are EEs who are unable to work by reason of a lockout validly declared by the ER entitled to wages corresponding to the period of the lockout? No. The refusal of the ER to furnish work is lawful. And since the EEs did not render any service, they should not get paid; this in accordance with the no work no pay rule. (Alcantara) INVOLUNTARY STRIKERS (ULP STRIKES) Discriminatorily dismissed EEs receive backpay from the date of the act of discrimination, that is, from the day of their illegal discharge. VOLUNTARY STRIKERS (ULP STRIKES) EEs who struck as a voluntary act of protest against what they considered ULP of the company are not entitled to backwages. The stoppage of their work was not the direct consequence of the companys ULP. Nevertheless, even after the court has made a finding of ULP, it has the discretion to determine whether or not to grant back pay. ERS RIGHT TO HIRE REPLACEMENT DURING STRIKE Discuss the principles governing the hiring of worker replacements during a strike? During the pendency of an economic strike, the ER may hire replacements on a permanent basis and is not bound to discharge such permanent replacements in the event that the strikers decide to resume their employment. (Consolidated Labor Assn. vs. Marsman) On the other hand, while replacements may also be hired by the ER to take the places left vacant by the EEs engaged in unfair labor practice strike, such replacements are not permanent and the ER is under a duty to dismiss them as soon as the strikers request reinstatement in their previous position. (Insular Life EEs Assn. vs. Insular Life) DAMAGES Union officers may not be vicariously held liable for illegal act of strikers. The rule of vicarious liability no longer applies. (Benguet Consolidated vs. BCI EEs Assn.)
WHO SUFFERS BURDEN OF ECONOMIC LOSS?

1. In a ULP Strike a. If the worker was the direct victim of the ULP: Backpay, the employer suffers economic loss. b. If the striker was not the direct victim and only voluntarily joined the strike: no backpay Crownwell Employees and Laborers Union v. CIR There are two types of employees involved in unfair labor practice cases should be distinguished, namely, those who were discriminatorily dismissed for union activities and those who voluntarily went on strike even if it is in protest of an unfair labor practice. Both types of employees are entitled to reinstatement. From the rule that employees who strike because of unfair labor practice are entitled to reinstatement, however, must be excepted those who, although discriminatorily discharged,
must nevertheless be denied reinstatement because of (1) unlawful conduct or (2) because of violence. Discriminatorily dismissed employees receive back pay from the date of the act of discrimination, that is, from the day of their discharge. However those employees who voluntarily went on strike even if in protest against what they considered unfair labor practices of the company are not entitled to backpay. The stoppage of their work was not the direct consequence of the company's unfair labor practice. Hence, their economic loss should not be shifted to the employer. Consolidated Labor Association v. Marsman In an economic strike, the strikers are not entitled to backpay, since the employer should get the equivalent day's work for what he pays his employees. During the time that the strike was an economic one, complainants had no right to back pay. The Industrial Court could not have made a finding of unfair labor practice with respect to such time, as none had so far been committed. This being an unfair labor practice case, it cannot, therefore, order reinstatement much less back pay for that period. SSS v. SSS Supervisors Union We find for SSS based on the equitable tenet of a "fair day's wage for a fair day's labor." "The age-old rule governing the relation between labor and capital or management and employee is that of a `fair day's wage for a fair day's labor.' If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. It is hardly fair or just for an employee or laborer to fight or litigate against his employer on the employer's time." In this case, the failure to work on the part of the members of respondent Union was due to circumstances not attributable to themselves. But neither should the burden of the economic loss suffered by them be shifted to their employer, the SSS, which was equally faultless, considering that the situation was not a direct consequence of the employer's lockout or unfair labor practice. Under the circumstances, it is but fair that each party must bear his own loss." Considering, therefore, that the parties had no hand or participation in the situation they were in, and that the stoppage of the work was not the direct consequence of the company's lockout or unfair labor practice, `the economic loss should not be shifted to the employer.' Justice and equity demand that each must have to bear its own loss, thus placing the parties in equal footing where none should profit from the other there being no fault of either." Phil. Inter-Fashion v. NLRC The findings show that both petitioner and the 114 strikers are in pari delicto, a situation which warrants the maintenance of the status quo. This means that the contending parties must be brought back to their respective positions before the controversy; that is, before the strike. Therefore, the order reinstating the 114 employees is proper. With such restoration of the status quo ante it necessarily follows, as likewise submitted by the Solicitor General, that the petition must be granted insofar as it seeks the setting aside of the award of three months' backwages to the 114 employees ordered reinstated on the basis of the general rule that strikers are not entitled to backwages (with some exceptions not herein applicable, such as where the employer is guilty of oppression and union-busting activities and strikers ordered reinstated are denied such reinstatement and therefore are declared entitled to backwages from the date of such denial). More so, is the principle of "no work, no pay" applicable to the case at bar, in view of the undisputed finding of illegality of the strike.
Section 10. REMEDIES

WHAT ARE THE DIFFERENT REMEDIES AVAILABLE IN LABOR DISPUTES? 1. Grievance procedure In adjustment of complaint following steps prescribed in the CBA or company policy. 2. Conciliation Process where a disinterested 3rd party meets with management and labor, at their request or otherwise, during a labor dispute or in collective bargaining conferences, and by cooling tempers, aids in reaching an agreement. 3. Mediation A 3rd party studies each side of the dispute then makes proposal for the disputants to consider, but a mediator cannot render an award. 4. Enforcement or compliance order An act of the Secretary of Labor in the exercise of his visitorial or administrative authority to enforce labor laws, polices, plans, programs, rules and regulations. 5. Certification of bargaining representatives Determination of which union shall represent EEs in collective bargaining. This is handled by Med-Arbiters of DOLE. 6. Arbitration The submission of a dispute to an impartial determination on the basis of impartial evidence and arguments of the parties. 7. Assumption of jurisdiction An authority vested by law to the Secretary of Labor or the President to decide a dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. 8. Certification to NLRC An action of the Secretary of Labor empowering the NLRC to compulsorily arbitrate a dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. 9. Injunction An extraordinary remedy and is not favored in labor law. As a general law, an injunction or a restraining order to prevent or stop the doing of an act is avoided in resolving a labor dispute because the state policy and aim is to encourage the parties to use the non-judicial processes of negotiation and compromise, mediation and arbitration. 10. Judicial action Complaint with regular court in cases falling under its jurisdiction i.e. criminal case of unfair labor practice. 11. Appeal Process by which an order, decision or award is elevated to a higher authority, on specified grounds, so that the order, decision or award may be modified or set aside and a new one issued. 12. Judicial review No law allows appeal from decision of the Secretary of Labor or of the NLRC, or of a voluntary arbitrator. In these cases, the special civil action of certiorari, prohibition and mandamus may be lodged with the Supreme Court. 13. Compromise settlement In any stage of these settlement processes, the labor dispute may be resolved by the parties through a compromise agreement, provided the agreement is freely entered into and is not contrary to law, moral or public policy. (Azucena) DUE PROCESS Sec. 4 Rule 5 of the New Rules of Procedure of the NLRC vests upon the Labor arbiter the discretion to determine the need for a formal trial or hearing. o He may at his discretion, merely require the parties to submit their respective position papers/memoranda and decide on the basis thereof without resorting to technicalities.
Labor laws mandate the speedy disposition of cases with the lease attention to technicalities but without sacrificing the fundamental requisites of due process.
What cases fall under the exclusive and original jurisdiction of labor arbiters? Labor arbiters shall have exclusive and original jurisdiction to hear and decide within 30 working days after submission of the case by the parties for decision without extension the following cases involving all workers, whether agricultural or non-agricultural : 1. Unfair labor practices. 2. Termination disputes. 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment. 4. Claims for actual, moral and exemplary and other forms of damages arising form the ER-EE relations. 5. Cases arising from any violation of Art. 264 of this Code, including questions involving the legality of strikes and lockouts. 6. Except claims for EEs compensation, social security, medicare and maternity benefits, all other claims arising from ER-EE relations, including those of persons in domestic or household service, involving an amount exceeding P5,000.00 whether or not accompanied with a claim for reinstatement. Does service of notice of hearing upon respondent confer jurisdiction of the former? No. Notices of hearings are not summonses. In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the Labor Arbiter are null and void. (Larkins vs. NLRC) Do labor arbiters have jurisdiction to hear and decide claims for damages arising from unfair labor practices? Yes. The civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative reliefs, shall be under the jurisdiction of the labor arbiters. (Art. 247) Does the Regional Director of the DOLE have jurisdiction to hear and decide money claims of workers? Yes. He is empowered through summary procedure, to hear money claims and benefits, including legal interest, owing to a househelper provided the complaint does not include a claim for reinstatement and the aggregate money claims of each EE or househelper does not exceed 5,000. (Art. 129) How are disputes arising from wage distortions settled? When there is a CBA, through the grievance procedure and, if it remains unresolved, through voluntary arbitration. When there is no CBA, the dispute shall be settled through the NCMB and, if it remains unresolved after 10 calendar days of conciliation, shall be referred to the appropriate branch of the NLRC. (Art. 124) Expulsion of union members is an INTRA-UNION affair BUT it becomes a termination dispute when the company dismisses the workersthe jurisdiction is with the LABOR ARBITER. JURISDICTION BY ESTOPPEL: A party to a case who participated actively in the litigation before an office cannot subsequently question the jurisdiction of that office. The appellate jurisdiction of the SOLE is limited only to a review of cancellation proceedings decided by the BLR in the exercise of its exclusive and original jurisdiction (not in the exercise of BLR appellate jurisdiction),
Cases not falling under the jurisdiction of labor arbiters: 1. Civil action to collect sum of money owed by the EE to the ER. (Georg Gortjahm vs. Isnani)
2. Action for damages for breach of contractual stipulations. (Dai-Ichi Electronis vs. Villarama) 3. Tortious acts by the president of a company against EEs. (Medina vs. Bartolome) 4. Replevin case to recover fishing vessel from striking crew members. (Basaya vs. Militante) 5. Civil case to annul the public auction sale of several properties of the ER used to pay liabilities to the EEs on the ground that the properties were owned by 3 rd parties. (Manliguez vs. CA) In contrast to the Pucan vs. Bengzon case, what was being questioned was not the writ of executions issued by the DOLE but the ownership over the property in question. (Alcantara) 6. Suit filed by an independent contractor. (Cabe vs. Tumang) 7. Intra-company disputes. (Dy vs. NLRC) Cases falling under the jurisdiction of the labor arbiters: 1. Legality of strikes and lockouts. (Samahang Manggagawa ng Liberty Commercial Center vs. Pimentel) 2. Suit for damages from picketing that accompany a strike. (NFL vs. Eisma) 3. Complaint arising from implementation of union security clause. (Sanyo Philippines Workers Union vs. Canizares) May an illegally dismissed EE still file a civil case for tort against the ER if he was already awarded damages in the illegal dismissal case that he filed with the labor arbiter? No. The judgment of the labor arbiter granting the illegally dismissed EE separated pay operated as a bar to his subsequent action for a tort against the ER if he was already awarded damages in the illegally dismissed EE separation pay operated as a bar to his subsequent action for the recovery of damages before the regular court under the doctrine of res judicata. (Primero vs. IAC) In his complaint with the labor arbiter for illegal dismissal, A sought payment for holiday pay and the 13th month pay may A be awarded 13 th month pay and holiday pay even if he did not prove that he was paid these benefits? Yes. The claimants allegation of these benefits is a negative allegation which need not be supported by evidence unless it is an essential part of the cause of action. The burden of proving that payment of said benefits have been made rests with the ER. (Seaborne Carriers vs. NLRC) May the labor arbiter increase the original award it made after its decision was rendered final and executory by a dismissal of the NLRC of an appeal with respect to the said case? Yes. The backwages merely correspond to the period of dismissal when the case was originally heard by the labor arbiter. Recomputation is necessary to arrive at a just and proper determination of the monetary awards. (Industrial Timber vs. NLRC) May the labor arbiter adjudicate on claims not alleged in the complaint? Yes, provided the claims are made in the complaints position paper. But claims for wage differentials are not made in the complaint or in the position paper cannot be passed upon. (DBP vs. NLRC) May the labor arbiter decide the case on the basis of a supplemental position paper submitted after the parties have filed their position papers and agreed to consider the case submitted for the decision?
No. After submitting the case for decision, the parties shall not be allowed to allege facts not referred to and any cause of action not included in the complaint or position papers, affidavits and other documents. (Manebo vs. NLRC) Does the labor arbiter have jurisdiction over a claim of an EE of the SEAFDECAQD an international organization? No. Being an international organization SEAFDEC-AQD enjoys functional independence and freedom from control of the state in whose territory its office is located. (SEAFDEC-AQD vs. NLRC) How about JUSMAG? No. The act of hiring cannot be considered a waiver of the foreign states immunity from suit. (JUSMAG vs. NLRC) Does the Med-Arbiter have jurisdiction over inter-union conflicts? Yes. The decision of the Med-Arbiter is appealable to the Secretary of Labor. (Pepsi Cola Sales and Advertising Union vs. Secretary of Labor) May a legally dismissed EE be entitled to receive moral and exemplary damages? Yes, provided the dismissal is effected in an anti-social and oppressive manner. (Quisaba vs. Sta. Ines Veneer and Plywood) What matters falls under the exclusive and original jurisdiction of voluntary arbitrators provided for in a CBA? Unresolved grievances arising from the: 1. Interpretation or implementation of the CBA and those arising from the interpretation of enforcement of company personnel policies; 2. Interpretation and enforcement of company personnel policies; and 3. All other disputes including unfair labor practices and bargaining deadlocks submitted to them by agreement of the parties. (Art. 262) Labor cases involving companies that are under receivership should be suspended accordingly.
Within what period should a complaint for unfair labor practice, illegal dismissal and money claims be filed with the labor arbiters? 1. Unfair labor practice 1 year from accrual thereof (Art. 290) 2. Illegal dismissal 4 years from accrual thereof (Art. 1146, NCC) 3. Money claims 3 years form the time the cause of actions accrues (Art. 291) Give the effect of the pendency of a money claim before the labor arbiter on criminal and civil actions arising from or based on the same cause of action? Money claims shall be filed independently of the criminal action that may be instituted in the proper courts. Pending the final determination of the merits of the money claims, no civil action arising from the same cause of action shall be filed with any court. (Art. 292) Are the technical rules of evidence followed in proceedings before labor arbiters? No. (Art. 221) May non-lawyers appear before labor arbiters? Non lawyers may appear before labor arbiters only if they represent themselves or their organizations or members thereof. (Art. 222) What are the grounds so that decisions of labor arbiters are appealable?
Decisions of labor arbiters are appealable within 10 calendar days to the NLRC on the following grounds: 1. If there is prima facie evidence of abuse of discretion on the part of the labor arbiter. 2. If the decision, order or award was secured through fraud or coercion, including graft and corruption. 3. If made purely on questions of law. 4. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. (Art. 223) How is appeal perfected? Filing by the appellant with the labor arbiter his memorandum of appeal, copy furnished the appellee, and the payment of the appeal fee within 10 calendar days. (Vir-Jen Shipping vs. NLRC) Is the NLRC or labor arbiter empowered to conduct an ocular inspection? Yes, for any information or date concerning any matter or question relative to the object of the investigation. (Art. 219) May the NLRC order the reinstatement of workers who did not appeal from a decision of the labor arbiter ordering payment of separation pay in lieu of reinstatements? No. An appellee who has not himself appealed cannot obtained from the appellate court any affirmative relief other than those granted in the decision of the court below. (SMI Fish Industries vs. NLRC) Is the decision of the NLRC appealable to the Secretary of Labor ? No. Decisions of the NLRC may only be questioned before the Supreme Court by means of a petition for certiorari. (Alcantara) May the NLRC consider evidence submitted for the first time on appeal? Yes. (Bristol Laboratories vs. NLRC) Does the NLRC exercise any original jurisdiction? Yes. In cases of labor disputes certified to it by the Secretary of Labor for compulsory arbitration and it can also entertain petitions for injunction. (Id.) Is PD 1508, the Katarungang Pambarangay Law, applicable to labor cases? No. (Montoya vs. Escayo) Give the scope of visitorial powers of the Secretary of Labor and Employment and regional directors under Art. 128 of the Labor Code? The visitorial power provided for under Art. 128 is confined to checking compliance with labor standard laws. However, this does not include adjudication of money claims clearly within the ambit of the labor arbiters authority under Art. 217 of the Labor Code. (Ong vs. Parel) If a party submits to the jurisdiction of a labor tribunal and obtains an unfavorable judgment, can later on question the jurisdiction of the said tribunal? No. When a party has voluntarily submitted to the jurisdiction of a court tribunal, he cannot later on, if he gets an unfavorable judgment adopt an inconsistent posture and attack the latters jurisdiction. (Tijam vs. Sibonghanoy) Is the reinstatement aspect of the decision of the labor arbiter self-executory even pending appeal? No. There must be a writ of execution which may be issued by the Labor Arbiter motu proprio or on motion of an interested party. (Maranaw Hotel vs. NLRC)
Do courts or administrative bodies have the power to set or fix rates of pay, wages, hours of work and other terms and conditions of employment? As a rule, courts and administrative bodies cannot fix the terms and conditions of employment because what is being promoted is collective bargaining. (Alcantara)
Section 11. CHOICE QUESTIONS ON PUBLIC SECTOR EES

1. J, a supervisor of Casino Filipino was dismissed by PAGCOR due to loss of confidence. He filed a case for damages with the RTC. PAGCOR filed a motion to dismiss on ground of lack of jurisdiction of the RTC to hear thecase. Is the ground valid? Yes. The case involving whether J was illegally dismissed falls under the jurisdiction of the Merits Systems Protection Board and the Civil Service Commission. The claim for damages was merely incidental to the illegal dismissal. (PAGCOR vs. CA) 2. Is the case not cognizable by the labor arbiter? No. PAGCOR is a GOCC with an original charter. (Id.) 3. What is GOCC with original charter? It is a GOCC with a legislative charter i.e. PAGCOR and DBP. (Alcantara) 4. May EEs of the government go on strike and may the latter declare a lockout? No. The terms and conditions of government EEs are fixed by law and thus they are prohibited from using the normal instruments available to private sector EEs. However, under Sec. 13 of EO 180, the terms and conditions or improvements thereof not fixed by law may be the subject of negotiations between duly recognized EEs organizations and appropriate government authorities. (Id.) 5. Assuming that EEs of GOCCs with original charters cannot go on strike, may they nevertheless from unions and petition for certification election? Yes. Although they are covered by civil service laws, they are guaranteed the right to self-organization. Under EO 180, where there are two or more duly registered EEs organizations in the appropriate bargaining unit, the BLR shall, upon petition order the conduct of certification election and certify the winner as the exclusive representative of the rank-and-file EEs in the said organizational unit. (TUPAS vs. NHA) 6. Some 800 public school teachers did not conduct their classes and instead converged at Liwasang Bonifacio to protest the non-payment of their benefits. Is the mass action lawful? No. EEs in the public service do not have the right to strike. (MPSTA vs. Laguio) 7. The NHC is 100% government-owned organized in accordance with EO 399, the Uniform Charter of Government Corporations. Are its EEs covered by the provisions of the Labor Code? Yes. The NHC is incorporated under and pursuant to a general legislation and not by an act of Congress or by special law. (TUPAS vs. NHC) 8. The Public Sector Management Council has jurisdiction to hear charges of unfair labor practice filed by a government EE against their ER. In deciding the unfair labor practice charge, the PSLMC may also rule on the complainants dismissal if the two issues are unavoidably linked. (PLM vs. CSC) { notes } LIBERAL CONSTRUCTION OF PROCEDURAL RULES MAY BE APPLIED ONLY ON THE FFG: 1Where a rigid application will cause miscarriage of justice 2Where the interest of substantial justice will be served
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Where the resolution of the motion is addressed in sole to the sound and judicious discretion of the court 4Where the injustice to the adverse party is not commensurate with the degree of his thougtlessness Dismissal of appeals bases solely on technicality is frowned upon. Strict rules on evidence should not be applicable in workmens compensation cases Probability not ultimate proof/degree of certainty is the test of proof in compensation proceedings An EE who refuses to submit any evidence is deemed to admit her guilt. Notice to counsel is notice to party, thus appeal out of time cannot be entertained, mistakes of lawyer bind the client Perfection of an appeal within the reglementary period is not only mandatory but also jurisdictional The posting of a cash or surety bond by the ER is an indispensable requirement in order for the ER appeal may be perfected The order of reinstatement by the LA is not stayed by the filing of an appeal, such order is immediately executory.

Labor 22004

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Labor 22004

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Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA

PART I INTRODUCTORY MATERIALS

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1.3 LABOR RELATIONS POLICY

Section 2. RIGHT TO SELF- ORGANIZATION

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Section 3. LABOR ORGANIZATION

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ACTION OR DENIAL OF APPLICATION, AND REMEDY

EFFECTS ON FREEDOM OF ASSOCIATION

RIGHTS OF LEGITIMATE LABOR ORGANIZATION