Labrel Summary 1st Exam Points

LABOR RELATIONS1ST EXAM Prof: FR.
AUGUSTINE NAZARENO
RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI
LABREL SUMMARY
POINTS TO REMEMBER
NOTES FROM 2012 LABOR RELATIONS LEC10/6/2013 6:44:00 AM

know the basics of EER In the phils, we do not allow full SO ur union organized labor with govt sector. basis: govt employment is not a property right.
GENERAL PRINCIPLES --In the constitution, there is an assumption that more is given to those who have less in life to correct the imbalance in society --labor legis is one of the social justice thrusts of the consti --right to form a unions is NOT a constitutional right just because its found in the consti. (not allowed: managerial employees, govt eEE, armed forces, police, fire, jail guards) --the one mentioned in the consti about labor is just POLICY STATEMENT and not right. --situation: a non-employee may be accepted as member because that is his right of association; BUT he is no longer covered in the negotiations of the Union --ung union mentioned sa article 3 is just mere association and not the 'union' that labor code is talking about
EXAM POINTS (2013 transcript) 1. A PERSON MAY BE A MEMBER OF MORE THAN 1 LABOR ORGANIZATION. If there is as yet no exclusive bargaining agent that has signed a union security clause, YOU CAN BE A MEMBER OF ALL THE UNIONS. If the CBL allows it, then it is possible. However, one limitation is UNION SECURITY CLAUSE. 2. You can be a member of a labor organization for purposes of collective bargaining and another union for purpose other than collective bargaining. (i.e. supervisor who resigned and was illegally dismissed went to rank and file union to represent him in an illegal dismissal caseALLOWED. No more conflict of interest) 3. While there is Exclusive bargaining agent, there can be another union in the bargaining unit (employees not compelled to comply with union security clause; however, this is not done in practice because the employee will be paying 2 union dues) 4. 5. UNION SECURITY CLAUSE IS SUSPENDED DURING THE 60-DAY FREEDOM PERIOD. BUT what is still effective is the PAYMENT OF UNION DUES. That continues because it is coterminous with the fact of representation. 6. SIGNING IN A CONFORME SHEET IN A PETITION FOR CERTIFICATION ELECTION BEFORE THE FREEDOM PERIOD IS NOT AN ACT OF DISLOYALTY. A union security clause is interpreted strictly against the labor organization because it is derogatory to the right to self-organization. It is not an act of disloyalty and does not merit expulsion from the union or termination of employment. 7. AN EMPLOYEE IS STILL A MEMBER OF THE UNION DESPITE ABSENCE FROM WORK (even without pay; EER is not severed)
LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO
8.
Right to self-organization is a PERSONAL RIGHT. BUT although it is a personal right, it can be SECONDARILIY ESPOUSED BY THE UNION and it is subject to redress and grievance if the union discriminated against is vis--vis other union.
9.
Homeworkers have a right to self-organization
10. Minors have the right to self organization according to the CHILD AND WELFARE CODE ( not labor code) 11. NON-resident aliens that have work permits and can claim reciprocityhave right to self-organization. 12. Members of cooperatives who are at the same time members of the unionnot allowed 13. If they resign in the cooperative membership and just remain as employeeallowed. 14. HOW CAN PERSONALITY OF UNION CEASE? a. RIGHT TO CANCEL UNION REGISTRATION through a 2/3 vote of general membership in a meeting called for the purposegiven by 9481. This can be done with or without cause. b. 246cancel union registration with cause i. misrepresentation/false statement/fraud in the adoption of CBL, minutes and list of members ii. misrepresentation/false statements/fraud in the election of officers, minutes of election and list of votes iii. c. voluntary dissolution by members
decertification electionhappens during the 60day freedom period when at least 25% of the bargaining unit sign a petition to decertifiy a union in order to go back to a regime of individual employer-employee relationship. THERE IS STILL A UNION BUT THERE IS NO CBA. i. Basis is MAJORITY of the valid votes cast.
15. Inclusion of managerial employeesAUTOMATIC DROPPED OUT from the list. No longer a ground for dismissing the petition for certification election. 16. Supervisory unions who have the same employer as the rank and file union MAY BELONG TO THE SAME FEDERATION. There is no more doctrine of separation of union. 17. In the PRIVATE SECTORvoluntary recognition is made upon submission of a REQUEST for voluntary recognition in the DOLE. 18. In the PUBLIC SECTORit is AUTOMATIC if there is only 1 employees organization. No need for cert election. 19. Cert election is held in the public sector only if there are more than 1 employees organization. 20. NOT ALL GOCCs with original charter is government. 21. Certification election is non-adversarial. 22. Description of the bargaining unit example: RANK AND FILE, PRODUCITON WORKERS 23. What is sought to be ascertained in the cert election is the will of the bargaining unit as to the exercise of their right to self-organization. a. WON they desire representation 3
b.
Who will represent them i. Note: if there is already past collective bargaining history, the 1st issue is considered answered.
24. when the VOTES ARE EQUAL between no union and 1 labor organizationSTATUS QUO. 25. CERTIFIATION ELECTION IS FACT-FINDING PROCEEDING. a. b. THUS, it is NOT FATAL to a petition if you failed to describe the bargaining unit. If the petition is not in accordance with the form and substance prescribed, its dismissal is WITHOUT PREJUDICE TO ITS REFILING. c. MANAGEMENT IS NOT A PARTY TO THE PROCEEDING. i. ii. iii. Its right is limited only to RECEIVE A COPY OF THE PETITION FOR CERT ELECTION. It cannot intervene. But another union is the one allowed to file a motion for intervention.
26. Configuration of the bargaining unit is a matter of legitimate management interest. MANAGEMENT CAN COMMMENT BUT IT CANNOT MOVE TO DENY PETITION FOR CE. 27. If the management has already signed a CBA with another union and there is a petition for cert election while the CBA is still existing, MANAGEMENT DOES NOT HAVE RIGHT TO FILE MOTION TO DISMISS PETITION. The right person to file the petition is the UNION WHOM MANAGEMENT HAS ENTERED INTO A CBA with. 28. Since a petition for CE is non-adversarial, it is binding against the whole world. If there is only one union who wins a CE, it bars all the other unions to file the same. 29. If a Collective bargaining agreement is enforcedEXCLUSIVE FOR 5 YEARS. a. b. It is only exclusive in negotiating an AGREEMENT. It is NOT EXCLUSIVE in REPRESENTING THE UNION or BRINGING GRIEVANCE. Any individual or groups of individual may bring a grievance. 30. If it has not concluded a CBA, it is Binding only for 1 year (cert year rule) 31. BUT the status as exclusive bargaining representative may be overthrown within the period of 5 years though SCHISM. a. If you are a minority and you withdrew your allegiance from the union while the union security clause is in effect, that is a ground for disloyalty and you may be expelled b. But all of you will withdraw allegiance, then that is valid. It is the union who will be terminated instead. 32. To determine if there is schismconduct REFERENDUM. 33. SIGNATURE SUPPORT a. In UNORGANIZEDNo requirement for signature support. The moment the petition is filedautomatic cert election.
b.
ORGANIZEDrequired but can be less than the percentage required; if there is 25% signature support. Med-arbiter has no discretion to deny the petition. It is considered as conclusive as to the will of the bargaining unit re: representation.
34. WITHDRAWAL OF UNION SUPPORT a. b. c. Made BEFORE FILING OF PETITION FOR CEpresumed voluntary AFTERinvoluntary but does not affect the petition. But this presumption no longer holds because there is no longer any requirement to divulge the names of the union officers of the local chapter. Just name officers of the national federation. 35. UNORGANIZED ESTABLISHMENTnot whether the employer has no union yet or no EBA. Reference must be as to there is yet NO EBA WITH RESPECT TO THE APPROPRIATE BU. 36. The employees of FEBTC cannot be compelled to become union members just merely because of the union security clause and the merger agreement. 37. CASES a. BPI V. BPI-EU (2011) i. Taking a second look on this point, we have come to agree with Justice Brions view that it is more in keeping with the dictates of social justice and the State policy of according full protection to labor to deem employment contracts as automatically assumed by the surviving corporation in a merger, even in the absence of an express stipulation in the articles of merger or the merger plan. ii. By upholding the automatic assumption of the non-surviving corporations existing employment contracts by the surviving corporation in a merger, the Court strengthens judicial protection of the right to security of tenure of employees affected by a merger and avoids confusion regarding the status of their various benefits which were among the chief objections of our dissenting colleagues. However, nothing in this Resolution shall impair the right of an employer to terminate the employment of the absorbed employees for a lawful or authorized cause or the right of such an employee to resign, retire or otherwise sever his employment, whether before or after the merger, subject to existing contractual obligations. iii. Even as we now recognize the right to continuous, unbroken employment of workers who are absorbed into a new company pursuant to a merger, it is but logical that their employment may be terminated for any causes provided for under the law or in jurisprudence without violating their right to security of tenure. [Bank of the Philippines Islands vs. BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unibank, 658 SCRA 828(2011)] 5
b. BPI-EU V. BPI (2013) i. issue in this case is whether or not the act of BPI to outsource the cashiering, distribution and bookkeeping functions to BOMC is in conformity with the law and the existing CBA. Particularly in dispute is the validity of the transfer of twelve (12) former FEBTC employees to BOMC, instead of being absorbed in BPI after the corporate merger. ii. The Union, however, insists that jobs being outsourced to BOMC were included in the existing bargaining unit, thus, resulting in a reduction of a number of positions in such unit. The reduction interfered with the employees right to self-organization because the power of a union primarily depends on its strength in number. 28
iii. It is incomprehensible how the reduction of positions in t he collective bargaining unit interferes with the employees right to self - organization because the employees themselves were neither transferred nor dismissed from the service. iv. It is to be emphasized that contracting out of services is not illegal per se. It is an exercise of business judgment or management prerogative. Absent proof that the management acted in a malicious or arbitrary manner, the Court will not interfere with the exercise of judgment by an employer. 32
v. sanctioned by said circular, BPI outsourced the cashiering (i.e., cash-delivery and deposit pick-up) and accounting requirements of its Davao City branches. vi. the subject functions appear to be not in any way directly related to the core activities of banks. They are functions in a processing center of BPI which does not handle or manage deposit transactions. Clearly, the functions outsourced are not inherent banking functions, and, thus, are well within the permissible services under the circular. vii. banks perform only two (2) main or basic functions deposit and loan functions. Thus, cashiering, distribution and bookkeeping are but ancillary functions whose outsourcing is sanctioned under CBP Circular No 1388. viii. In one case, the Court held that it is management prerogative to farm out any of its activities, regardless ofwhether such activity is peripheral or core in nature. What is of primordial importance is that the service agreement does not violate the employee's right to security of tenure and payment of benefits to which he is entitled under the law. Furthermore, the outsourcing must not 6
squarely fall under labor-only contracting where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, c. ABBOT V. ALCARAZ i. While it is Abbotts management prerogative to promulgate its own company rules and even subsequently amend them, this right equally demands that when it does create its own policies and thereafter notify its employee of the same, it accords upon itself the obligation to faithfully implement them. Indeed, a contrary interpretation would entail a disharmonious relationship in the work place for the laborer should never be mired by the uncertainty of flimsy rules in which the latters labor rights and duties would, to some extent, depend. In this light, while there lies due cause to terminate respondents probationary employment for her failure to meet the standards required for her regularization, and while it must be further pointed out that Abbott had satisfied its statutory duty to serve a written notice of termination, the fact that it violated its own company procedure renders the termination of respondents employment procedurally infirm, warranting the payment of nominal damages. d. STA. LUCIA V. SOLE i. Employees in two corporations cannot be treated as a single bargaining unit even if the businesses of the two corporations are related ii. The inclusion in the union of disqualified employees is not among the grounds for cancellation of registration, statement unless or such inclusion the is due to
misrepresentation,
false
fraud
under
circumstances
enumerated in Sections (a) to (c) of Article 239 of the Labor Code, and the proper procedure is for the employer to file a petition for cancellation of certificate of registration of such union and not to immediately commence voluntary recognition proceedings with another labor organization The
employer may voluntarily recognize the representation status of a union in unorganized establishments.The employer may voluntarily recognize the representation status of a union in unorganized establishments. SLECC was not an unorganized establishment when it voluntarily recognized SMSLEC as its exclusive bargaining representative on 20 July 2001. CLUP-SLECC and its Affiliates Workers Union filed a petition for certification election on 27 February 2001 and this petition remained pending as of 20 July 2001. Thus, SLECCs voluntary recognition of SMSLEC on 20 July 2001, the subsequent negotiations
and resulting registration of a CBA executed by SLECC and SMSLEC are void and cannot bar CLUP-SLECCWAs present petition for certification election. iii. Same; Same; Same; Certification Elections; In petitions for certification election, the employer is a mere bystander and cannot oppose the petition or appeal the Med-Arbiters decision; Exception.We find it strange that the employer itself, SLECC, filed a motion to oppose CLUP-SLECCWAs petition for certification election. In petitions for certification election, the employer is a mere bystander and cannot oppose the petition or appeal the Med-Arbiters decision. The exception to this rule, which happens when the employer is requested to bargain collectively, is not present in the case before us.
38. If one union filed petition for CE but was dismissed because there was a problem with their registration and in the meantime, employer entered into CBA with another union by voluntary recognitionNOT ALLOWED. There must be a certification election. The fact that there is another union present, it means that there is more than 1 labor org in that establishment. 39. If majority of the eligible voters do not participate and there is an electionFAILED ELECTION. 40. A 2nd cert election is NOT ALWAYS a run-off election. 41. REQUISITES FOR RUN-OFF: a. b. Valid election before 3 choices and none received majority of the valid votes cast votes of the unions is at least 50% in total (NOT votes for the no union ha! VOTES FOR THE
c.
UNION)
42. You can have certification if there is only 1 union running because in effect, there will still be 2 choices: union A or no union. 43. POINTS ON RUN-OFF ELECTION a. AT THE VERY LEAST, IN A RUN-OFF ELECITON, YOU NEED TO HAVE 2 UNIONS RUNNING and NO UNION. b. Ang madaog dapat kay ang 2 unions with the highest number of votes. It cannot be union A and No union. That can never be. c. Therefore, the 2 possible situations are: i. ii. No union wins or 2 unions go through a run-off election
44. contract bar rule cannot does not prevent a bargaining unit from asking for a referendum or plebiscite. Both can be conducted even if there is still a CBA. (this is because the CBA is still effective; only that there is a change in the exclusive bargaining representative) 45. 2 instances where there is NO VOLUNTARY RECOGNITION: 8
a. b.
Within 1 year after a union has been voluntarily recognized If there is a petition for CE that is filed but dismissed and then there is a pending re-registration of the same. If another union files again for voluntary recognition, pending that re-registration, the petition for voluntary recognition cannot be granted. By that fact that there is a pending reregistration of another union, there is already an organized establishment.
CHARTER TEST --those with original charter (government) --without charter(corp code; private)
EXCEPTIONS TO CHARTER TEST (naa sila orig charter but there were not considered as govt agencies) 1. PSCAA 2. GOCC under 106-107 (i.e. GSIS made liable for the differential wages not paid by teh secu agency to the secu guards)
GOVT CORPS (covered by CSC law) BSP--Govt PNRC--sui generis Veterans federation--PUBLIC corporation Local water districts PAGCOR Philippine international trading corp
NOT COVERED BY GOVT Pnoc-edc lumanta v. nlrc and food terminal TUCP v. national housing corp Philippine veterans bank
--those union of workers organized for MUTUAL AID OR PROTECTION (not for CBA) is just an exercise of right of association ; no need to establish EER.
Include outline in the laptop
DECLARATION OF POLIY
--Policy in employment which are mala in se do not need to have prior consultation; but actual company policies that are not mala in se REQURE prior consultation before implementation --other policies: Policy of state regulation; non-interference of state to terms and conditions of work agreed by parties; interference only in exceptional cases
MANAGERIAL, SUPERVISORY AND RANK AND FILE Employee--can only be a natural person and NOT a juridical s employer--can both be natural or juridical person.
MANAGERIAL--vested with powers to execute management policies or hire/assign/discipline employees supervisory--Effectively recommends managerial actions
--managerial employees are pseudo employees. they act for the ER and so there are PROHIBITED to join a union. ; violative of principles of agency and there is CONFLICT of interest
supervisory--limited right to SO; also called the BU imposed by law
BAUTISTA V. INCIONG--organizer of labor unions who was employed by the federation is an EMPLOYEE; the labor union fed was considered an employer.
RANK AND FILE--EE other than MSC
CONFIDENTIAL EMPLOYEE--absolute prohibition to exercise SO
REPUBLIC PLANTERS BANK V. SECRETARY--branch manager, cashier, and operations officer of bank, chief accountant are confidential employees. they are privy to the information of management which is significant to labor relations and such info is used in collective bargaining
SMC V. LAGUESMA --Confidential employees are those who (1) assist in confidential capacity and (2) who formulate mgt poicies in teh field of lab rel.
Requisite: 1. confidential relationship exist between EE and supervisor AND 10
2. Supervisor must handle the prescribed responsibilities relating to labor relations.
(the 2 requisites are CUMULATIVE and both must be met) --IMPORTANT element: employees' need to use the lab rel information; DAPAT LABOR RELATIONS INFORMATION; thus, infor from the business standpoint i.e. financial info or technical trade secrets or merely incidental to his duties and knowledge is not necessary in his duties--NOT CONFIDENTIAL EMPLOYEE --confidential employees CAN NEVER JOIN UNION by reason of doctrine of NECESSARY IMPLICATION. theya re necessarily included in the prohibition coz they are the same as managerial employees.
SUGBUANON RURAL BANK V. LAGUESMA --Student counselors in UIC are NOT CONFIDENTIAL EMPLOYEES. to be a confidential E, the matter in your possession and has a duty to safeguard must be labrel related confidential infro.
LABOR-RELATIONS MATTERS: Salaries assets profits and liabilities of school or employer **they must have bearing on the bargaining process PAYMASTER OF RANK AND FILENOT a confidential employee PAYMASTER OF SUPERVISORYConfidential trade secrets/industrial secrets/chemical secrets--NOT labor relations related. it is more on industrial-related.
DISTINCITON OF MANAGERIAL AND SUPERVISORY EMPLOYEES
FRANKLIN BAKER V. TRAJANO--Distinction lies in the exercise of independent judgment. if there is use of independent judgment and you effectively recommend --SUPERVISORY; but if you just do routinary activity--NOT supervisory.
TEST: WON person possesses authority to act in the interest of his ER in the matters specified AND WON authority is merely routinary or clerical in nature but requires use of independent judgment. if the recommendatory power is subject to review and final action by the dept heads of the company, the same is not an exercise of independent judgment as required by law.
TOYOTA MOTORS V. TIMPCLU/ DUNLOP V. SECRETARY--union which is composed of supervisory/rank and file-PROHIBITED. it could not possess teh requisite personality to file for recognition of LLO. the union's composition is in violation of the LC. 11
AMENDMENT: 245-a: MERE INCLUSION AS MEMMBERS OF EMPLOYEES OUTSIDE TEH BU SHALL NOT BE AGROUND FOR CANCELLATION OF UNION REGISTRATION. such ee's are deemed automatically removed from the list of membership of the union. (RA 9481, JUNE 14, 2007)
OTHER CATEGORIES of employees based on LABOR STANDARDS (those with right to SO are part of the RANK AND FILE category)
SECURITY GUARDS --they can join unions vis a vis their DIRECT employers only (the security agency) and not the clients fo their employers because there is no EER with the client and the relationship only is imposed in case there is underpayment/non-payment of wages and other benefits. for other purposes, there is no EER.
BASIS: EO 111 and RA 6715 MERALCO V. SECRETARY--since MERALCO has its own security force, they can form a union vis a vis MERALCO; the non-managerial security personnel are eligible to join LO of the rank and file or that of the supervisory ees depending on their rank.
DOMESTIC HELPERS OR HOUSE HELPERS --GR: not allowed to form a union (because they did not grout out of the industrial revolution and if they are so allowed, it would put an impossible strain on the family living) With the enactment of kasambahay law, do they have now the right to forma union? --they can form associations for mutual aid and protection
HOMEWORKERS --CAN form/join/assist a union of their own choosing in accordance with section 3. DO 5 ; Feb 4, 1992
MINORS --they CAN be members of union and CAN exercise right to SO. --BUT they CANNOT be officers of the union.
**yellow dog contract--contract where there is a contract that you should join union and if you already have one, you must withdraw from the same--VOID; violation of right to SO
EMPLOYEES OF CONTRACTORS-SUBCOTNRACTORS
12
--they
HAVE
the
right
to
SO,
CBA,
peaceful
concerted
action
vis
vis
their
EMPLOYER
CONTRACTOR/SUBCONTRACTOR but not the indirect employer --EXCEPTION: labor-only contracting
NERI CASE--court took judicial notice of the widespread practice in both public and private sectors of contracting out security, janitorial and maintenance services
HYATT HOTEL--The direct employers considered by teh court is NOT the security agency but the secu head of the hyatt hotel itself. control test used.
SINGLE EMPLOYEE WORKPLACES --There is no prohibition for her to exercise her right to SO but she can simply affiliate with a labor federation who will in turn, represent her in the CBA with her employer. LC no reqt of minimum of employees for the exercise of SO.
EMPLOYEES OF INTERNATIONAL ORGANIZATIONS --CANNOT form union vis a vis their employer.
SEAFDEC V. NRC --beyond juris of NLRC. being an intl org, it enjoys functional independence.
INTERNATIONAL CATHOLIC MIGRATION V. CALLEJA --grant of diplomatic privileges to Intl catholic migration commission and IRRI EXTENDS to immunity from application of phil labor laws --employees therein CANNOT join labor organizations
NON-RESIDENT ALIENS --Labor code ONLY allows resident aliens with working permits to exercise right to SO if the reciprocity requirement is met. (art. 269) --aliens WORKING in the phils with valid working permits have a QUALIFIED right to self-org.
GENERAL MILING--working permit MUST BE ISSUED BY DOLE even if BOI had already granted the alien a working visa.
RECIPROCITY REQUIREMENT--must be proven. this fact is NOT presumed.
13
EMPLOYEES OF COOPERATIVES WHO ARE AT THE SAME TIME MEMBERS THEREOF --Member-consumers who are employees of the coop CANNOT form/join/assist labor union (owner cannot bargain with himself or with co-owners --employees who are NOT members nor co-owners of the cooperatives CAN exercise right to SO, CB and negotiation. (batangas v. young)
CENTRAL NEGROS ELEC COOP V. SECRETARY --Member employee who withdraw their membership MAY join labor org (resignation is an expression of their preference for union membership)
PRINCIPLES 1. Employees of a coop are entitled to exercise right to so EXEPT THOSE Who are members of the cooperative ;they are considered owners and owners cannot bargain with himself or other co-owners --BUT employee members of a coop may WITHDRAW as members of the coop to join a labor union.
EMPLOYEES OF THE CORPORATION rule: does not apply to a STOCKHOLDER in a CORPORATION who is at the same time an employee of a corporation of which he is a stockholder. his interest is INCHOATE. (different case when it comes to cooperatives; Sa cooperative, you have one vote in the decision making; in corporation, you cannot usually vote because management or bod decides)
EMPLOYEES OF GOCC WITH ORIGINAL CHARTERS --Although written article 276 about government employees, it is merely a directive to the DOLE that they have NOTHING TO DO with goccs with original charters
EMPLOYEES OF GOCCS WITHOUT original charters/under corporation code --ARIZALA V. CA--EO 111 restored tight to SO and bargain of these employees --GISS exercises proprietary functions --EO 180, RA 6715 granted to govt employees the right to collective bargaining EXEPT regarding terms of their employment which are fixed by law; as to term fixed by law, they are NOT prohibited to strike to obtain changes thereof.
NASECO V. NLRC--NASECO is a GOCC WITHOUT original charter; thus NLRC HAS JURISDICTION
BSP V. NLRC--GOCC WITH original charter and also an instrumentality of govt; covered by govt laws; BSP employees are under CSC laws AND not by the labor code 14
SAMAHANG MANGGAWA NG RIZAL PARK V. NLRC--national parks devt committee is a govt agency, under CSC laws and not labor code. while they are ALLOWED to organize and join employees, EO 180 provides that in case of dispute, it is the PSLMC (pub sector labor mgt council) who will hear the dispute and NOT the DOLE.
CABRERA V. NLRC--relations of personnel in NASECO is governed by the LABOR CODE, NLRC because it is organized under the corporation code.
PAGCOR V. CA --PAGCOR is a GOCC with original charter; thus under CSC laws
UNIQUE CASE OF WATER DISTRICTS --Water distribution is a PROPRIETARY FUNCTION; that's why the properties of water districts CAN BE EXPROPRIATED by the state because water districts DO NOT PERFORM govtl functions --but WORKERS of water districts are GOVERNMENT employees.
PRINCIPLES ON GOCCS: --GOCC WITHOUT original charter (dili govt)--covered by LABOR CODE --WITH original charter (govt)--EO 180/CSC laws
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GOVERNMENTS RIGHT TO SO
CAN GOVT EMPLOYEES FORM UNIONS?
10/6/2013 6:44:00 AM
--with original charters (govt)--NO; they cannot form union for purposes of collective bargaining --without original charters--under corporation code; they have the right to organize and bargain collectively with their respective employers.
EO 180 Providing guidelines for the exercise of the right to organize govt employees and creating PSLMC
COVERAGE --includes GOCCs with original charters --high level employees (policy making, managerial, highly confidential) not eligible to join rank and file --does NOT apply to members of AFP, police officers, firemen and jail guards
REGISTRATION OF EMPLOYEES ORGANIZATION --REGISTER with both CSC and DOLE --APPLY with BLR (DOLE) OR regional offices of dole (then transmit to BLR within 3 days from receipt)
ISSUANCE OF REGISTRATION CERTIFICATE --issued upon approval of application --certifies it as LEGITIMATE employees organization --gives it the RIGHT TO REPRESENT MEMBERS --must be JOINTLY APPROVED by the chair of CSC and SOLE
SOLE AND EXCLUSIVE EMPLOYEES REP --APPROPRIATE organizational unit employers unit consisting of rank and file --designated as sole and exclusive rep
VOLUNTARY RECOGNITION --once registered and there is a showing that no other EO is registered or is seeking registration AND it has majority support of rank and file
WHEN THERE ARE 2 OR MOR REGISTERED EO --BLR shall upon petitionorder Certification election
WHAT MAY BE SUBJECT OF NEGOTIATIONS BETWEEN REO and govt auth --terms and conditions of employment or improvements thereof EXCEPT those fixed by law
WHAT GOVENRS THEIR CONCERTED ACTIVITIES AND STRIKES Civil service law
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EXAM POINES 2013 LECTURES

EXAM POINTS
10/6/2013 6:44:00 AM
Not all employees have right to self organization. Law EXCLUDES managerial employees. Right to SO is statutory. It is not found in the constitution but in the labor code. Right to SO is a privilege right Freedom of association is constitutional right. The right to SO also includes the right NOT TO JOIN. YOU can only for union vis--vis your employer. (security guards can only form union with the security agency and not the client himself whom they are rendering service to.)
VICTORIANO V. ELIZARDE HOMEWORKERS: General rule: freedom of association gives you the right to join an organization and the right NOT to join Exception: closed shop provision Exception to exception: religious conviction
SALUNGA V. CIR Facts: the employee resigned but when he knew that there was a closed shop provision, he withdrew his resignation but the uion would no longer accept him. General rule: Basic rules as to membership, loss and internal regulations of the unionprerogative of the union. Exception: when union entered into a closed shop provision, it is no longer a private matter but a public interest. State has an overriding supervisory concern in the labor organization Applied in the case: the union was obligated to accept him back. Thus, he was reinstated by the SC and the union was made liable to pay him his backwages.
GUIJARNO V. CIR Union has to be protected from the EMPLOYER, GOVT and LABOR OROGANIZATION.
To give the right to SO to government employees requires amendment of the constitution. UNLESS YOU DO A FUNDAMENTAL OVERHAUL OF CHAGING THE PROVISIONS INT EH CONSTITUTION. THERE CAN BE NO LAW GRANTING COLLECTIVE BARGAINING TO GOVERNMENT EMPLOYEES. Who have the right to self org? commercial, industrial, agricultural, religious, charitable, medical/educational institutions NOT COVERED: Domestics/house helpers A labor organization may not be exclusively for collective bargaining. It can have other purposes but the MAIN purpose must be still for CB. A labor organization can be at the same time a credit cooperative. It can register in CDA.
An LO that does not engage in CB CAN be registered in DOLE. LABOR ORGANIZATIONin whole or in part for collective bargaining WORKERS ASSOCIATIONfor mutual aid and protection Dole registers both LO and workers associations (org for mutual aid and protection; i.e. mortuary society) A labor organization may affiliate with a federation and becomes its affiliate. Suppose there is a provision that says they can only disaffiliate at a given period of time, it is NOT BINDING. The LOCAL MAY DISAFFILIATE ANYTIME.
SPECIAL FEATURES OF A LABOR ORGANIZATION
UNION SECURITY CLAUSE/CLOSED SHOP provisioncontractual limitation on the right to SO It is a voluntary organization. But there is a rule on check off New rule on PETITION FOR CANCELLATION OF UNION REGISTRATION (with grounds)must produce SUBSTANTIAL evidence, not only material but CONSEQUENTIAL. Must be shown that there was misrepresentation/false statement/fraud in connection with CBL, election of officers, etc. (discrepancy must be of such number as would change the outcome of the election of officers) PETITION TO CANCEL REGISTRAITON (without grounds) or VOLUNTARY CANCELLATION OF REGISTRATION Officers call the meeting of the general membership 2/3 of general membership votes to dissolve the organization Cancellation petition on grounds provided in 247. Apply to the BUREAU OF LABOR RELATIONS (DOLE) (made by the board of directors, attested by president)
TYPES OF EMPLOYEES AND RIGHT TO SELF-ORGANIZATION In the PRIVATE SECTOR
MANAGERIAL EMPLOYEES lays down policies/ manage unit/power to ire, fire, discipline, promote, demote, transfer Not eligible to join/assist/form LO (expressed and absolute) Labor organization may be held liable if it is acting as employer. However, if the managerial employee already resigned and then he joined the rank and file who likewise REPRESENTED HIM as COUNSEL against employerALLOWED (reason for prohibition no longer present) and what is at stake is the RIGHT TO COUNSEL. You have right to choose whoever it is to assist you in a case. You can choose a union. TITLE DOES NOT MAKE THE MANAGERIAL EMPLOYEE (i.e. sanitary manager is not a managerial employee; executive secretary) there is no use of independent judgment. 19
SUPERVISORY EMPLOYEES Those who in the interest of an employer exercise such authority and NOT merely clerical in nature; requires use of INDEPENDENT JUDGMENT EFFECTIVELY RECOMMENDS the hiring, firing and disciplining of lower employees Allowed to form union by themselves but not with rank and file May affiliate with the same federation as that of rank and file (rank and file and supervisors union operating within the same establishment may join in the same federation or national union)
RANK AND FILE Has the fullness of the power of self-organization Any employee for a definite period or not, shall beginning fro his first day of service be considered an employee for purpose of membership in labor union. o o SITUATIONS Union for regular employees in relation to probationary employees Probationary employee CANNOT demand membership but the union for regular employees MAY ADMIT him because union is also at liberty to create its rules and exceptions to the same. BUT union CANNOT include the probationary employee in the benefits afforded in the CBA.
CONFIDENTIAL EMPLOYEES 4th classification as employee in the private sector by virtue of JURISPRUDENCE. Branch manager, assistant bank manager, accountant, ashier No right to SO because by doctrine of NECESSARY IMPLICAITON. NOT CONFIDENTIAL : student counselors NOT ALL CONFIDENTIAL INFORMAITON HELD BY AN EMPLYEE RENDERS HIM A CONFIDENTIAL EMPLOYEE. It must be information that is LABOR RELATIONS-RELATED. o o o i.e bargaining, information that influences bargaining process,etc PAYROLL CLERK COST ACCOUNTATNT
NOT CONFIDENTIAL LABREL INFO: industrial secrets,
20
RIGHT TO SO OF PUBLIC SECTOR

RIGHT TO SELF-ORGANIZAITON OF PUBLIC SECTOR
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GOVERNMENT EMPLOYEES governed by EO 180 covers al employees of GOCCs with original charter Not given the right to self-organization by the constitution; unless the provision public office is a public trust is removed in the constitution, right to SO shall really be denied to govt employees. CHARTER TEST Exceptions to charter test o Philippine society for prevention of cruelty to animals (charter test only prospective in application; just because it was made under a charter does not make it at all a govt entity. Thus it is a private entity and COA does not have right to audit its funds) o o Veterans federation of the Philippines PNRC
PNOCGovernment PNOC-EDCnot government BSPGovernment
PROHIBITED TO FORM UNION: HIGH LEVEL EMPLOYEES (policy making, managerial and highly confidential)ABSOLUTE prohibition in forming a union AFP, police, firemen and jail guards (prohibited because by the nature of their organization, they survive as a unit; they depend on each other to survive)
Security guards are allowed to form union vis-a-vis the security agency CANNOT FORM EO 180
Can only enter in COLLECTIVE NEGOTIATION AGREEMENT (leaves, athletic days, etc) EMPLOYEES ORGANIZATIONLEGITIMATE employees organization (once registered) Once electedSOLE AND EXCLUSIVE representative WHERE TO REGISTER: in the CIVIL SERVICE COMM and DOLE WHO OVERSEES UNION ACTIVITY IN PUBLIC SECTOR: Public sector Labor Mgt Council PSLMC Chairman: CSC Commissioner Members: o SOLE
o o o
S of finance SO DOJ SO DBM
JURISDICITON OVER INTRA AND INTER-UNION DISPUTES both in the public and private sector: Bureau of labor relations of DOLE issues on election of officers and members of the board in the union is within the power of BLR issues on who between the 2 unions must represent the employees. BLR has supervisory power of the unions. ALLIANCE OF GOVT WORKERS V. MINISTER OF LABORRepublic of the Philippines cannot be covered by the general term employer. It cannot be made to pay 13th month pay to government employees. Terms and conditions of government employment are fixed by law and they cannot use the weapons employed in the private sector to secure concession from their employers. (if they want increases in their compensation, GO TO CONGRESS!)
22
OTHER CHARACTERS
ALIENS
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ALLOWED if the alien has a working permit AND if the reciprocity requirement is met.
EMPLOYEES OF COOPERATIVE Member of cooperative AND also an employeecannot form union But if he RESIGNS as member of cooperative and joins the rank and file unionALLOWED
MINORS Employment age: 15 (for kasambahay: 13) Allowed to join a union but CANNOT be an officer of the union
EMPLOYEES OF CONTRACTORS OR SUBCONTRACTORS Bona fide contracting is allowed. Labor only contracting is PROHIBITED. BONA FIDE CONTRACTING o o o Registered in ODLE Has sufficient capital, investments and equipment Employees of bona fide contracting may only form union vis a vis their employer and not the person they are rendering services to (i.e. security guards) LABOR ONLY CONTRACTING o Case of PHILBANK V. NLRCthe manpower agency was cancelled and the employer is Phil bank Com. The contractual employee can exercise right to SO as against Phil Bank Com. HOMEWORKERS POSSESSES the right to SO (Section 3, DO 5, Feb. 4, 1992)
SINGLE EMPLOYEE WORKER Nurse receptionist of a doctor with own clinic There is NO MINIMUM number to form a labor organization. If you are a lone employee, just AFFILIATE WITH A FEDERATION and the federation will bargain with the employer in your behalf.
UNION
UNIONS
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What is definitive is its PURPOSE and not its membership. Its purpose must include at least collective bargaining.
Those AMBULANT, INTERMITTENT, SELF-EMPLOYED, RURAL WORKERS AND WITHOUT DEFINITE EMPLOYESworkers association lang; only for mutual aid and protection and NOT for collective bargaining.
Workers association CANNOT FILE PETITION FOR CERTIFICATION ELECITON; only a legitimate labor organization.
HOW TO FORM LABOR ORGANIZAITON 10/6/2013 6:44:00 AM

HOW TO FORM A LABOR ORGANIZATION
INDEPENDENT REGISTRATION BY PETITION OF 20% OF THE EMPLOYEES If there are untruthful statements in the petitionground for cancellation of union registration Grounds for cancellationmust be consequential, material Remedy for refusal to register a labor organization which is compliant with requirements of the law is MANDAMUS.
CHARTERING AND CREATION OF A LOCAL CHAPTER The local chapter shall acquire a legal personality ONLY FOR PURPOSES OF IFLING PETITITON FOR CERTIFICAITON ELECTION. You do not have personality for all other purposes. IT CANNOT FILE CASE FOR AND IN BEHALF OF ITS MEMBERS. How do you gain full personality? ORGANIZE. Adopt your own cbl, elect officers and submit papers to dole. Must provided proof of affiliation of at least 10 locals recognized as CBA in their respective establishments
OTHER TERMINOLOGIES
BARGAINING REPRESENTATIVE Could mean the exclusive bargaining agent or a live person The person who actually talks and bargains Can be replaced
COLLECTIVE BARGAINING AGENT Refers ONLY to the JURIDICAL PERSON and NOT the natural person. Only refers to the union Cannot be replaced
REGISTRATION
POINTS ON REGISTRATION
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REGISTRAITON IS NECESSARY FOR COLLECTIVE BARGAINING. Registration in the SEC is not the same registration required by DOLE to become a legitimate labor organization
(cebu seamens association v. pura ferrer)

ONCE REGISTERED, REGISTRAITON IS NO LONGER SUBJECT TO COLLATERAL ATTACK. You must institute a separate case.
2 ways by which a unions registration is successfully attacked file petition for cancellation of registration of union based on 3 grounds in 246. o Fraud/misrepresentation int eh adoption of CBL Note: Organizational meeting o Independent registrationhappens before registration Chartering of localthe meeting happens after being registered
Fraud/misrep in the election of officers For example, 10 of those in the list were already promoted as supervisors yet they were included as among those who votedthat is still FALSIFICAITON but is NOT MATERIAL.
VOLUNTARY DISSOLUTION Voting is 2/3 No grounds needed
RIGHTS AND CONDITIONS OF MEMBERSHIP10/6/2013 6:44:00 AM

RIGHTS AND CONDITIONS OF MEMBERSHIP
Violation of the rights/conditions NO LONGER A GROUND FOR CANCELLATION OF UNION REGISTRAITON. It is only a ground to PENALIZE THE CULPABLE OFFICERS after due hearing and investigation.
RIGHT AGAINST ARBITRARY/EXCESSIVE/OPRESSIVE FINE AND FORFEITURES What determines the reasonableness of the fee is in relation to the earnings of the union member.
RIGHT TO FULL AND DETAILED REPORTS FROM OFFICERS OF ALL FINANCIAL TRANSACTIONS
RIGHT TO ELECT OFFICERS BY SECRET BALLOT Practice now is to vote by delegation Term of office is 5 years to coincide with term of CBA
RIGHT TO DECIDE BY SECRET BALLOT ANY QUESTION OF MAJORITY POLICY AFFECTING THE ENTIRE MEMBERHSIP Union dues To strike or not to strike Voted by MAJORITY OF THE QUORUM
CONDITION: NO person convicted of crime involving moral turpitude shall be eligible as union officer
CONDITION/PROHIBITION: No officer shall collect fees or make disbursements of money unless authorized by the CBL
CONDITION: EVERY PAYMENT OF FES SHALL BE EVIDENCED BY RECEIPT Signed by the officer making the collection Entered in the record of the organization Labor org is EXEMPT from income TAX
CONDITION: EXPENDITURES MUST BE AUTHORIZED How? o o CBL Written resolution by majority of the members (majority of the quorum only)
Requires qualified notice
RIGHT TO RECEIVE FINANCIAL REPORTS Late submission will only be penalized and not ground for cancelation of union registration
CONDITION: PROHIBITION ON COMPENSATION OF OFFICERS OFFICERS OF Labor organization NOT PAID ANY COMPENSATION OTHER THAN SALARIES PRVOIDED IN THEIR CBL or RESOLUTION authorized by ALL THE MEMBERS (Absolute majority) Minutes of meeting and list of participants subject to inspection by SOLE Necessary expenses may be reimbursed for as long as you can produce receipts If there is anomaly with respect to compensation and reimbursement, it is a ground for impeachment or expulsion from the organization.
RIGHT TO REQUIRE TREASURER TO RENDER FINANCIAL REPORTS At least once a year within 30 days after CLOSE of fiscal year At such other times as required by SIMPLE MAJORITY of members Upon vacating office o o Requirement of audit: NO EXTERNAL AUDIT NEEDED. Must provided for a balance sheet and profit and loss statement
RIGHT OF INSPECTION Express request in writing You may copy the books of accounts and other records of financial activities at YOUR OWN EXPENSE
RULE ON SPECIAL ASSESSMENT OR EXTRAORDINARY FEES Special return resolution Approved by ABSOLUTE MAJORITY Qualified notice with records of minutes of the meeting
FEES FOR NON-MANDATORY ACTIVITIES If mandatorymay collect even without resolution If not mandatoryrequires INDIVIDUAL WRITEN RESOLUTION SIGNED BY EMPLOYEE Collection for attorneys and negotiation feesrequires the resolution + individual written authorization
DUTY TO INFORM MEMBERS on MANDATORY ACTIVITIES Regarding CBL, CBA and other labor relations system
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Note: the requirement that 30% must report on the violation is merely DIRECTORY.
Criminal and civil liabilities that may arisestill with COURTS.
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RIGHTS AND CONDITIONS OF MEMBERHSIP
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RIGHTS OF LEGITIMATE LABOR ORG

RIGHTS
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Right to act as representative of its members for purposes of collective bargaining o If you have been certified as EBA, then you can bargain. Mere registration of the union does not give you the status to bargain with employer. o It bargains not only for its members but also for non-members but are part of the bargaining unit
If you have registered and elected as EBA, then you can be the exclusive representative of the employees in the appropriate bargaining unit.
WHEN EBA MAY DEMAND LATEST AUDITED FINANCIAL STATEMENT FROM EMPLOYER: o o o Upon certification as EBA (within 30 days from date of receipt of request) During negotiation of cba 60 days before expiration of CBA you may also ask for the SCHEDULES THERE MUST BE A WRITTEN REQUEST. Otherwise, the refusal of the owner to furnish him with financial statement shall not constitute unfair labor practice.
To own real/personal property (inherent) To sue and be sued (inherent) To undertake all other activities to benefit the org and its members including HOUSING, COOPERATIVES, Other projects.
Other rules Notwithstanding any provision to the contrary, INCOME AND PROPERTIES OF LO SHALL BE FREE FROM TAXES. o o o Union dues are tax exempt But the building of the union that is rented out is NOT tax-exempt. The property must be DIRECTLY AND EXCLUSIVEDLY USED FO LAWFUL PURPOSE by the union EXEMPTIONS COVERED: o o o o Income tax Property tax Gift tax on grants/endowments/gift/donation/ Duties and other assessments
RIGHTS OF LEGITIMATE LO10/6/2013 6:44:00 AM

LABOR ORGANIZATION 1. 2. 3. 4. 5. 6. You can only be a govt employee if you are either appointed or employed. What make a labor organization are its purpose and NOT its composition. Purpose: for collective bargaining, in whole or in part. There are 2 ways to register to become a LEGITIMATE labor organization-= 234 (independent registration) and 234-A (chartering)) After being certified as a LLO, the next step is Certification Election. As an LLO, you must be registered in the list of labor organizations kept by the BUREAU of labor relations. However, even without CE, there is an instance where after registration; there is direct certification. [basis: Article 242 (c)] here, there is VOLUNTARY RECOGNITION and the procedure that is followed is couched in Rule 7. o run off election o consent election o referendum and o plebiscite 6. ELECITON PROCEEDINGS Refers to period during election starting from opening to closing of polls INCLUDING counting/tabulation/consolidation of votes but EXCLUDING period of final determination of challenged votes and canvass thereof 7. ELIGIBLE VOTER voter belonging to the appropriate BU 8. EXLCUSIVE BARAGAINING REPRESENTATIVE Legitimate labor union duly recognized/certified as sole and exclusive bargaining rep or agent in the BU 9. BARGAINING REPRESENTATIVE LLO or officer or agent of the LO won employed by the employer 10. MED-ARBITER The one who hears the petition in the BLR 11. Refers to an enterprise where there exists a recognized/certified sole and exclusive bargaining agent (with respect to the particular bargaining unit in that establishment)
TERMINOLOGIES 1. BARGAINING UNIT group of employees sharing mutual interest within a given employer unit comprised of all ro less than all of the entire body of employees in the employer unit erroneous definition because there is ALWAYS 2 BARGAINING UNITS IN A GIVEN EMPLOYER (Supervisory and rank and file) a union does NOT represent the employees. UNION REPRSENTS A BARGAINING UNIT. CANCELLATION PROCEEDINGS Process leading to revocation of certificate of registration of the labor organization Cancellation proceedings DO NOT PRECLUDE conduct of certification election. CERTIFICAITON ELECTION Process of determining through secret ballot the sole and exclusive rep of the employees in an appropriate bargaining unit and to resolve the 2 issues If organized, options are: petitioner, forced intervenor and intervenors If UNORGANIZEDpetitioner, intervenors and NO UNION NOTE: during the freedom period, 25% of the workers can file a petition for DECERTIFICATION ELECTION. CONSENT ELECTION Election voluntarily agreed upon by the parties There is no longer controversy as to the configuration of the bargaining unit. ELECTION OFFICER officer from BLR in the regional office authorized to conduct the different forms of election o Certification election
RULE 7- VOLUNTARY RECOGNITION

1. WHEN TO FILE:
a.
2.
3.
Unorganized w/ only 1 LLO i. Employer may voluntarily recognize the representation status of such union ii. Employer AND union shall submit a notice of voluntary recognition with Regional office w/c issued the labor unions certificate of recognition or cert of chartered local WITHIN 30 DAYS from such recognition.
2.
REQUIREMENTS:
4.
5.
notice of VR shall be accompanied by original copy and 2 duplicate copies of the ff. documents: a. Joint statement under oath (of employer and union president) of VR attesting to fact of VR b. Cert of posting of the joint statement for 15 consecutive days in @ least 2 conspicuous places in the establishment or BU where union seeks to operate c. Approximate # of employees in the BU + names of those who support VR comprising @ least a majority of the members of the BU and
d.
Statement that labor union is the ony LLO operating w/I the BU.
m. n.
All accompanying documents of the notice for VR shall be certified under oath by the employer rep AND president of recognized labor union. Note: The posting is for the purpose that if the employees think agreement does not reflect their agreement, they can complain to the BLR.
o.
3. ACTION ON THE NOTICE

a.
b. c.
If notice of VR is sufficient in form, number and substance + no other registered labor union Regional office (thru lab rel division) record the fact of VR in its roster AND notify the labor union WITHIN 10 DAYS from receipt of the notice If insufficient in form, # and substance within same period, notify the union and advice compliance with requirements. If NONE complies within 30 days from receipt of advisory-> RO shall return the notice for VR without prejudice to its resubmission. NOTE: i. Notice becomes final by INACTION
p.
q.
r.
4. EFFECT OF RECORDING OF FACT OF VOLUNTARY RECOGNITIONDIRECT CERTIFICAITON

a.
b.
union shall enjoy the rights/privileges and obligations of an existing EBA of all employees in the BU entry of VR shall BAR the filing of a petition for CE by any LO for 1 year from such date of entry; upon expiration pwede na unless a CBA between ER and VR labor union was executed and registered with Regional Office in accordance with rule 17
s.
t.
POINTS: i. VR under this provision is binding against the whole world; all other labor orgs are prevented to represent the workers. j. Policy of recognition is adopted because of big labor federations who can just easily form unions in local areas k. Labor codes definition of CE is incorrect: the correct definition is that it is a process by
With respect to CE, the UNION REPRESENTS THE BARGAINING UNIT and NOT the employees. In the entire unit of employees, there is at least 2 bargaining units. Why? Because Article 245 created a BU by operation of lawthe supervisors unit. The determination of the EBA is NONLITIGUOUS in nature. This was first enunciated in the LVN case. thus, if the petition is defective, it should not be dismissed outright. However, even if non-adversarial ang nature of the CE, it is technical to PREVENT fly by night labor organizations that seeks to take advantage of the endurance of workers. FR. GUS the whole idea of VR and direct certification RUNS COUNTER TO THE VERY ESSSENCE OF THE RIGHT TO SO. It opens the possibility of employer simulating the choice of the BU. I am a firm believer of the inconsistency and non-legitimacy of recognition. If there are misrepresentations or falsification in the petition filedit can be a ground for falsification of public document BUT the employer is afraid to convict you because the falsification is based on the JOINT STATEMENT made by the employer himself. So he himself will be guilty of the charges. The representative of the bargaining is a juridical person; such that there is another natural person who actually sits and bargains. That person may be changed anytime. The bargaining representative MAY OR NOT be employed by the employer (because usually, it is not the union president who talks; it can be a lawyer who is with authority from the union, appointed through a board resolution)
RULE 8-CERTIFICATION ELECTION

1. WHO MAY FILE
a. Any legitimate labor organization i. Local/independent union ii. Federation or national union shall not be required to disclose the names of the locals officers and members but shall attach the charter certificate it issued to the local Employer when requested to bargain collectively in a BU where NO registered CBA exists; employer files petition in the regional office 25% of the bargaining unit supporting a petition for the abolishing of the union and the same is filed during the freedom period
l. Original definition of CE is erroneous because it assumes that BU wants representation. The right to SO include the right NOT to join. Therefore, if you are the only labor organizationproceed to election the choices are: UNION A Or NO UNION. If the NO UNION votes win, then it will be the individual contracts of the employees will govern.
which 2 facts are verified; WON BU wants representation and if they want, who will represent them
b.
c.
NOTE: in ALL CASES (whether filed by employer or LLO) Employer NOT considered a party 35
thereto w/ a concomitant right to oppose a petition for CE. Its participation is only limited to: a. Being notified/informed of petitions of such nature; and b. Submitting list of employees during the pre-election conference should MedArbiter act favorably on the petition. (employer has NO RIGHT TO FILE MOTION TO DISMISS THE PETITION. If the petition if ever is dismissed, it is never with prejudice. It MAY BE REFILED) ANY EMPLOYEE has right to intervene for protection of his individual right.
v. vi.
2. WHERE TO FILE
a.
b.
Regional office which issued petitioning unions Cert. of registration/cert. of creation of chartered local heard by MED ARBITER RULES i. If 2 or more petitions filed in same BU filed in same RO Automatically consolidated ii. 2 or more petitions filed in different ROs RO in which petition was first filed shall exclude all others; the rest shall indorse petition to the one where it was first filed iii. If workplace is on boundary of 2 regional offices the workplace is the basis of venue; the RO which has jurisdiction is the one with the CORRECT VENUE; Petition shall be in writing Verified under oath: i. If filed by the labor org by president of the LO ii. if federation in behalf of the local it shall be verified by the president or duly authorized rep of the federation; iii. if it is the employer verified by the owner, president OR any corporate officer authorized by the Board of Directors CONTENTS: i. name of petitioner/address/affiliation/date and number of CR (if federation, the national president or authorized rep shall certify under oat as to existence of local chapter + attach charter cert or a certified copy thereof; if local files attach the charter cert or certified copy) ii. name/address/nature of EMPLOYERs business iii. description of BU iv. approximate number of employees in BU
vii.
viii.
names/address of other LLU in the BU statement of the ff: 1. BU is unorganized or that there is no registered CBA covering employees in the BU 2. If there is CBA petition filed within the freedom period 3. If another one previously recognized in a valid cert, consent or run off election same is filed outside the 1 year period from the DATE OF RECORDING and no appeals is pending In Organized establishment signature of at least 25% of all employees in the BU is attached AT TIME of filing Other relevant facts.
3. FORMS AND CONTENTS OF PETITION

a. b.
NOTE: a. Certification election is non adversarial; it is FACT finding b. Failure to comply, petition is NOT dismissed but will be given back for property compliance c. VERIFICATION need to prevent fly by night personalities that take advantage of automatic certification policy in unorganized establishments. Because if xa lang isa sa unorganized establishments, med-arbiter will automatically conduct CE. So verification is for the purpose of limiting the abuse in the policy of CE. d. If there was non-compliance with the requirements there is no penalty for re-filing.
4. WHEN NOT TO FILE

a. CERTIFICATION YEAR RULE w/in 1 year from the time a labor organization is certified as EBA through the fact of voluntary recognition or a valid certification, consent or run-off election i. organized theres an operating CBA or there is no CBA but there is already a certified EBA ii. unorganized no CBA and no EBA iii. This applies to BOTH organized and unorganized establishments. So within 1 year from and after a certification election, there can be no other CE which can be conducted. iv. If in a CE, a union wins, within 1 year, no other petition for CE can be filed. If the no union votes win, no petition for CE can also be filed within the same period of 1 36
c.
year. This is to give both employer and workplace rest. Therefore, only after 1 year can another CE covering the same BU be allowed. b. DEADLOCK BAR RULE i. Deadlock can happen even if the 1 year period after the certification of the LLO as the EBA ii. Deadlock is shown when there is already in BOTH or either parties, voluntary arbitration, compulsory arbitration or the declaration of strike. If that happens, no petition for CE on that BU can be entertained. iii. This is ONLY APPLICABLE TO ORGAINZED ESTABLISHMENTS. CONTRACT BAR RULE i. For as long as there is an existing CBA, no petition for certification election covering the same bargaining unit can be entertained by the med-arbiter EXCEPT during the 60 day freedom period.
iii.
iv. v.
vi.
c.
Employer has a RIGHT to receive a copy of the CE petition. (basis: Article 258-A) even if he is merely a by-stander. Employer is NOT a party to the case because there is no litigation. REPRESENTATION ISSUE in Organized establishments employer may file a Manifestation with the med-arbiter attaching affidavits of employees withdrawing their support from the union. However, that will not be a ground for dismissing the petition. HOLD THE CE. If it is the FEDERATION filing not required to disclose names of the local chapters officers and members.
7. FORCED INTERVENOR
a. b. c.
5. RAFFLE OF THE CASE

a. b. c. d. e.
Who assigns the raffle: Regional director or his duly authorized representative When: upon receipt of the petition What: assign case by raffle to a MEDARBITER. How: in the presence of the petitioner if he so desires Petition shall be then transmitted to the assigned med-arbiter from the receipt of petition Med-arbiter shall prepare and serve a notice of preliminary conference to be held WITHIN 10 WORKING DAYS from such receipt within 3 WORKING days from receipt petition and notice of prelim conference shall be served to employer; notice of prelim con served to incumbent bargaining agent (if any) service may be made by personal service, registered mail or courier service. POSTING reqt: copy of the petition and notice of PC posted within the same 3 day period in at least 2 conspicuous places in the establishment; if multiple-location workplaces posting made in at least 2 conspicuous places in every location. NOTE: i. ii. Petitioning union NOT obliged to furnish copy to employer BEFORE filing the petition for CE It is the med-arbiter who must send out a copy of the petition.
The forced intervenor is the incumbent bargaining agent He is AUTOMATICALLY one of the choices in the CE. So in organized establishments, the forced intervenor is the 1st intervenor. If theres another LLO, he files a motion to intervene and shall be called 2nd intervenor and so on and so forth. Organized establishment any LLO other than incumbent bargaining agent may file during the freedom period; form and contents of the motion are the same with the petition for CE Unorganized may be filed at ANY time prior to the decision of the Med-arbiter; form and contents are the same Motion resolved in the SAME decision issued in the petition for CE. Who conducts: med-arbiter When: within 10 days from the receipt of the petition for CE What is determined: i. BU to be representedBU means a group of employees of a given employer comprised of all or less than all of the entire body of employees, which the collective interests of all the EE, consistent with equity to ER, indicate to best suited to serve reciprocal rights and duties of the parties under the CB provisions of the law ii. Contending labor unions iii. Possibility of consent election iv. Existence of any of the bars to CE and v. Such other matters as may be relevant for the final disposition of the case
8. MOTION FOR INTERVENTION

a.
b. c.
6. NOTICE OF PRELIMINARY CONFERENCE

a.
b.
9. PRELIMINARY CONFERENCE; HEARING

a. b. c.
c. d.
37
NOTE: i.
DETERMINATION OF APPROPRIATE BARGAINING UNIT

(Belyca v. pura ferrer calleja) This is the first part in CE. The 2nd part is: inclusion and exclusion proceedings. Further, the order to hold the certification election is final and appealable. It disposes with finality the issue on the appropriateness of the bargaining unit. How do you determine the appropriate bargaining unit? 4 CRITERIA: a. PRIOR COLLECTIVE BARGAINING HISTORY whatever is the past BU, that is presumed as the appropriate BU; this can only be changed by any intervening substantial cause carrying with it compelling reasons, cause or consideration which causes substantial changes in the BU (Naftu v. mainit lumber; san Miguel v. laguesma) b. GLOBE DOCTRINE choice or will of the employees as to the precise configuration of the bargaining unit c. MUTUALITY OF INTERST OR COMMUNALITY OF INTEREST most important test of grouping; affinity and unity of the employees interest such as substantial similarity of work and duties or similarity of compensation and working conditions d. SIMILARITY OF EMPLOYMENT STATUSwhether regular or probationary; seasonal or temporary, etc.
v.
vi.
vii.
viii. ix. x.
xi.
xii.
iii.
IMPORTANCE OF the distinction: the factors mentioned are NOT decisive nor conclusive; however, the union represents the bargaining unit and NOT the employees. SIGNIFICANCE OF BARGAINING UNIT it mentioned or described 3 times: i. Forms and contents of petition (rule 8, section 4) description is tentative for it is the LO which proposes the configuration; Employer can protest the description ii. Order/decision of Med-arbiter to hold the CE (rule 8, section 13) employer can question
the order; such order of the MA is appealable iii. Order certifying the EBA (rule 9, section 16) can still be questioned; because if the BU coverage is expanded to those not originally covered, you are violating their right to selforganization If there is inclusion or exclusion by implication in the bargaining unit, there can be nullification of such inclusion or exclusion; The right to self-organization cannot be waived by the union and may be waived only by the employee himself because such is a personal right. LIMITATION of the scope of the collective bargaining unit you cannot enter into a CBA with employees who are not in the appropriate bargaining unit. Who decides which is the appropriate bargaining unit? THE STATE. Who decides the exclusive bargaining agent? The WORKERS. The state merely certifies who the EBA is. Nature of exclusive bargaining agent the duty of bargaining is really exclusive as it even excludes the employees themselves; therefore, if you are part of the BU, you can no longer assert your individual contract with ER because the EBA is the only entity who can bargain for you. Whatever CBA provides, that will govern. In UNORGANIZED establishment, the determination of the appropriate BU is the 1st issue to be determined; in ORGANIZED it is no longer an issue because of that prior bargaining history. CALIFORNIA MANUFACTURYING V. LAGUESMA what is the configuration of the appropriate BU? There are 2: supervisors and the rank and file bargaining units.
10. GROUNDS FOR THE DENIAL OF THE PETITION: Med arbiter MAY dismiss on any of the ff. grounds: a. Petitioning union OR national union/federation not listed in the DOLEs registry of LLO OR legal personality revoked/cancelled with finality i. BLR keeps the roster of both government and private labor unions ii. You can be held liable for perjury since the petition is verified iii. This is the only ground where MOTION TO DISMISS is allowed.
iv.
38
b.
Failure of local/federation in behalf of the local to submit a duly issued charter certificate upon filing of the petition for CE; i. The one filing the petition is the local or the federation for and in behalf of the local/chapter ii. The local will know he is the list through the Registry of Unions and file of Collective agreement kept by the BLR iii. If it is the federation who files a petition for himself, allege that you are in the list by GIVING the registration number. iv. If found to be not in the list, it can be liable for perjury v. Benefit if it is the federation who files petition for and in behalf of the local only the president and officers of the national union signs the petition; locals do not have to sign an dso the employer would not know who the members of the union are. vi. Benefit if it is the local who files it is the local who has the personality to enter into a CBA, decide what percentage of dues collected, etc. local will have the key role in negotiation and CBA and not the national union. Filing petition BEFORE or AFTER the freedom period of the duly registered CBA; i. This ONLY APPLIES to ORGANIZED ESTABLISHMENTS; ii. The freedom period under the ORIGINAL CBA is not affected by any amendment, extension or renewal of the CBA. Therefore, even if within the 1 year period, CBA is amended, the original 60 days remains. It will not be changed just because it was amended or extended/renewed. Petition was filed WITHIN 1 YEAR from entry of VR, or a valid certification, consent or runoff election and no appeal on the RESULTS of the certification, consent or run-off election is pending. i. No petition must be filed within 1 year from the date of the publication of the results of the CE ii. This APPLIES TO BOTH ORGANIZED and UNORGANIZED establishments. iii. This is the ONLY prohibitive rule APPLICABLE TO UNORGANIZED ESTABLISHMENTS with respect to the filing of the petition for certification election. Duly certified union has commenced and sustained negotiations with employer in
accord with Article 250 within the 1 year period referred in section 14 (c) OR there exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or cert. bargaining agent is a party. i. ONLY applicable to ORGANIZED establishments ii. See discussion on deadlock bar rule f. Failure to submit the 25% support requirement for the filing of the petition for CE i. What is the ground is the TOTAL FAILURE to submit the 25% signature support ii. If there is 25% support medarbiter has no discretion but to conduct the CE iii. If less than 25% order a CE still. Non-appearance of petitioner , for 2 consecutive scheduled conference before MA despite due notice i. This rule should be changed! ii. This is not consistent with the rule that a CE is non-litigious in nature. Absence of the EER between ALL the members of the petitioning union and the establishment where the proposed BU is sought to be represented. i. This is decided BEFORE the declaration of the appropriate bargaining unit. Employer will make a manifestation.
g.
h.
c.
d.
EXAM POINTS If the petition was defective in form, the Medarbiter may dismiss it but it cannot deny its refilling If the petition does not contain a description of the bargaining unit he can dismiss it or he can give it back to you and ask you to put such description. EMPLOYEES SIGNATURE WITHDRAWAL, if made: o BEFORE filing of the petition for certification electionpresumed voluntary o AFTER filinginvoluntary and will NOT affect the petition. SIGNATURE SUPPORT o Not really important in unorganized establishments. The moment it is filed, the discretion of the med-arbiter is only to order the cert election. That is the policy of AUTOMATIC CERTFIICAITON. o IN ORGANIZEDif you have 25% signature support, that is automatic certification election. No discretion to deny the petition.
e.
39
General rule: NO CERTIFICIAOTN ELECTION ON A NON-WORKING DAY. It must be a working day. Exception: if with approval of management and ALL contending parties agree, then the medarbiter can conduct the agreement of parties and make the certification election happen. It is not the med-arbiter who supervises the election. It si the election officer of the BLR. The med-arbiter is only the one who decides WON to proclaim.
Exception: (same may be filed in the Med-arbiter) 1. if the petitioning union is NOT LISTED in the Doles roster or 2. Existing CBA is not registered with DOLE.
13. RELEASE OF ORDER/DECISION

a.
11. PROHIBITED GROUNDS FOR DENIAL/SUSPENSION OF THE PETITION

a.
THE
b.
c.
d.
INCLUSION-EXCLUSION PROCEEDINGS By virtue of article 245-a (RA 9481, may 25, 2007), the inclusion as union members of the EEs outside the BU, shall NOT be a ground for the cancellation of the union registration. The purpose of the law of adding this one is to overturn previous jurisprudence which dismissed the petitions for CE d/t inclusion of supervisors in the union of the rank and file employees In exclusion inclusion proceedings, if there has been a declaration of the appropriate BU, and order to hold the CE is issued lok at the employees embraced I the BU, if you are not there, you are automatically out. What if part-time salesmen, part-time production, and therefore, such employee is covered under 2 bargaining units. What is the solution? I DO NOT KNOWfr. Gus ancillary means subsidiary issues This provision enunciates policy of the BLR that it abhors interlocutory orders. All issues are settled in the main case as to WON to grant the petition for CE Example of Ancillary issues are: i. Issues pertaining to the existence of EER raised before med-arbiter during the hearing and pleadings This shall be resolved in the same order/decision of the MED-ARBITER granting/denying petition for CE ii. Validity of the petitioning unions
Med-arbiter shall release his order granting/denying petition: i. Personally to the parties ii. On agreed date and time iii. Release made within 10 days from the last hearing
14. APPEAL FROM THE ORDER GRANTING THE CONDUCT OF CE

a.
b.
Unorganized establishment i. It is NOT SUBJECT TO APPEAL; ii. Any issue arising therefrom may be raised through PROTEST on the conduct and results of the CE Organized establishment i. May be APPEALED to the office of the SECRETARY ii. File memorandum of appeal within 10 days from receipt of such order iii. Appeal shall be verified under oath iv. Memo of appeal shall sate the grounds relied upon by the appellant with supporting arguments and evidence In both organized and unorganized appeal to the office of Secretary within 10 days from receipt of such decision. Appeals in both order granting and denying shall mean CALENDAR days. In the Regional office where the petition originated Copy of the memo must be furnished to the contending unions and the employer prior to filing of the memo of appeal, there must be proof of service of the same to other parties, ie. Employer and the union. Within 24 hours from such receipt, Regional director shall cause the transmittal thereof with the entire records of the case to the office of the secretary. (usually the 24 hours
12. ANCILLARY ISSUES

a. b.
15. APPEAL FROM ORDER DENYING THE PETITION

a.
b.
c.
16. WHERE TO FILE APPEAL

a. b.
cert. of registration or its legal personality as a labor organization heard/resolved by
c.
the REGIONAL DIRECTOR in an independent petition for cancellation of its registration (not by the med-arbiter in the petition for CE) iii.
is not followed because MA usually waits for the reply to be filed before the entire records are sent to the Sec. of Labors office) 17. IF NO APPEAL IS TAKEN, ORDER/DECISION SHALL BECOME FINAL
a. b. c. d.
Validity of registration and execution of CBA heard/resolved
THE
by the REGIONAL DIRECTOR in an independent petition for cancellation of its registration (not by the med-arbiter in the petition for CE)
When final: when no appeal is taken within the 10 day period Who enters the finality: med-arbiter Where: in the records of the case What: med-arbiter shall cause transmittal thereof to the Regional Director
40
18. PERIOD TO FILE REPLY IF AN APPEAL IS MADE

a. b. c. a.
ii.
Who: any party to the petition When: within 10 days from receipt of the memo of appeal Where filed: in the Office of the Secretary Within 15 days from receipt of the memo of appeal and the entire records, secretary shall decide on the appeal Filing of the memo of appeal from the order or decision of the MA STAYS the holding of any cert. election Secretarys decision shall become F/E AFTER 10 DAYS from the receipt thereof by the parties. NO MFR shall be entertained.
iii.
19. DECISION OF THE SECRETARY
b. c.
The definition under rule 1, book 5 section 1 of Consent election is ERRONEOUS. (CE voluntarily agreed upon by the parties, w/ or w/o intervention by department incorrect!) Section 24 gives the CORRECT definition because in a consent election: there is a petition for certification election which is filed and the parties agree on the appropriateness of the BU and its parameters and they give consent to the holding of the CE. 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. This happens when the incumbent EBA enters or renews the expiring CBA during the freedom period. According to section 25, it will NOT BAR a petition for certification election. A petition for CE cannot be denied on the basis of the contract bar rule. Just REMEMBER: during the freedom period, the CONTRACT BAR RULE DOES NOT APPLY. Existing CBA will not bar a petition for CE. The right to self organization during the last 50 days freedom period is SUPERIOR to existing contracts and to succeeding contracts thats concluded earlier; no petition for CE can be barred during the 60-day freedom period on the basis of the contract bar rule. Reasons: vacancy, prolonged absence, or excessive workload as determined by the Regional director What: Regional director shall transmit the entire records of the case to the Bureau within 48 hours from receipt Bureau shall assign the case to ANY med-arbiter from any of the Regional offices or from the bureau.
22. EFFECTS OF EARLY AGREEMENTS

a.
20. TRANSMITTAL OF RECORDS TO REGIONAL OFFICE

a. When: entire records shall be remanded to the Regional office of origin for implementation WITHIN 48 HOURS from notice of receipt of decision by parties and finality of the decision Implementation of the decision shall not be stayed unless restrained by the appropriate courtthe Court of appeals.
b.
b.
c. d.
21. EFFECTS OF CONSENT ELECTION

a.
b.
c.
Where a petition for certification election had been filed and upon the intercession of the med-arbiter and the parties agree to hold a consent election the results thereof shall constitute a bar to the holding of a certification election for 1 year from the holding of such consent election. Where an appeal has been filed from the results of the consent election the running of the 1 year period shall be suspended until the decision on appeal has become F/E. Where no petition for CE was filed but the parties themselves agree to hold a consent election with the intercession of the Regional office the result thereof shall constitute a bar to another petition for certification election
23. NON-AVAILABILITY OF THE MED-ARBITER

a.
b.
NOTES: i. There is CONSENT election when: 1. Parties agree to hold Consent election 2. No more hearing held where the employer is notified in order to ascertain the description of the bargaining unit prior to the holding of the election. If so, proceed na to the inclusionexclusion proceedings; 3. Consent election is the ONLY time where the 3 instances of providing for the description of the bargaining unit are the same or has identical descriptions
RULE IX CONDUCT OF THE CERTIFICAITON ELECITON

1. RAFFLE FO THE CASE
a. Who raffles: the Regional director shall cause the raffle of the case to an Election officer who shall have control of the preelection conference and election proceedings When: Within 24 hours from receipt of the notice of entry of final judgment granting the conduct of a certification election. Who: election officer shall cause the issuance of the notice of pre-election conference upon the contending unions When: within 24 hours from receipt of the assignment for the conduct of a certification election 41
b.
2. PRE-ELECTION CONFERENCE
a.
b.
c. d.
Pre-election conference shall be scheduled WITHIN 10 CALENDAR days from receipt of the assignment. Employer shall be required to submit the certified list of employees in the BU, or where necessary, the payrolls covering the members of the BU at the time of filing of the petition. When waived: failure of any party to appear during the pre-election conference despite notice What is waived: right to present and question or object to any of the agreements reached in the pre-election conference However, this waiver shall not deprive the non-appearing party of the right to be furnished notices of and to attend SUBSEQUENT pre-election conferences. Election officer shall keep the minutes of matters raised and agreed upon during the pre-election conference Parties shall acknowledge the completeness and correctness of the entries in the minutes by affixing their signatures theroen. If any of the parties revfuse to sign the minutes Election officer shall not such fact in the minutes + the reason for the refusal to sign In ALL cases, parties shall be FURNISHED a copy of the minutes Pre-election conference shall be completed WITHIN 30 DAYS from the date of the first hearing. Notes: the pre-election conference is really gubot because in this part, parties will agree as to the appropriateness of the bargaining unit, who are excluded and included. So the discussion really becomes a bit chaotic.
b.
In case of disagreement over voters list or eligibility of voters all contested voters shall be ALLOWED to vote; but votes will be segregated and sealed in individual envelopes. NOTE: i. all employees who are MEMBERS of the ABU this is wrong! You cannot be a member of a bargaining unit; you are a member of a union! Even if natanggal naka, you are a qualified voter as long as your dismissal is under contention When in doubt, the contested voter is allowed to vote but vote is segregated. You will know the significance of this kay if ang lead sa winner is big that even if you open those segregated, then no need to open the sealed and segregated envelopes. If it matters, then it will be contained in the decision of the Med-arbiter in proclaiming the results of the election.
3. WAIVER OF RIGHT TO BE HEARD

a.
b. c.
ii. iii.
4. MINUTES OF PRE-ELECITON CONFERENCE

a.
b. c.
6. PROCEDURE IN THE CHALLENGE OF VOTES

a.
d. e.
5. QUALIFICATION EXCLUSION
a. i.
OF
VOTERS;
INCLUSION-
Who are eligible? ALL employees who are MEMBERS of the appropriate BU sought to be represented by the petitioning union, AT THE TIME OF ISSUANCE OF THE ORDER granting the conduct of a CE Employee dismissed from work but has CONTESTED the legality of the dismissal in a forum of appropriate jurisdiction AT THE TIME OF ISSUANCE of the order for the conduct of CE; UNLESS his dismissal was declared valid in a final judgment at the time of the CONDUCT of the certification election
ii.
Ballot of the voter who has been properly challenged during the pre-election conferences, shall be placed in an envelope w/c shall be sealed by the election officer in the presence of the voter and the representatives of the contending unions. b. Election officer shall indicate on the envelope: i. the voters name ii. union challenging the voter iii. ground for the challenge c. sealed envelope shall be then SIGNED by the election officer and the representatives of the contending unions d. election officer shall note all challenges in the minutes of the election proceedings and shall have custody of all envelopes containing the challenged votes. e. Envelopes shall be opened and the question of eligibility shall be passed upon by the MED-ARBITER ONLY if the number of segregated votes will materially alter the results of the election. POINTS: In challenging votes, you must challenge right then and there. Raise your objection to the Election representative of DOLE. Record it in the minutes. Reduce the challgen into writing within 3 days from close of the election (when actual voting has stopped but before proclamation) a. Election officer shall cause the posting of notice of election AT LEAST 10 DAYS before
7. POSTING OF NOTICES
42
b.
c.
the acutla date of the election in 2 CONSPICUOUS places in the company premises Notice shall contain the ff: i. Date and time of election ii. Names of all contending unions iii. Description of the bargaining unit and the list of eligible and challenged voters Posting of the notice, information required to be included therein and the duration of the posting CANNOT BE WAIVED by the UNIONS or the employer. Election officer, together with the authorized representatives of the contending unions and the employer shall before the start of the actual voting inspect the polling place, ballot boxes and the polling booths Election officer shall prepare the ballots in ENGLISH/FILIPINO or the LOCAL dialect; Number of ballots should correspond to the number of voters in the bargaining unit PLUS a reasonable number of extra ballots for contingencies All ballots shall be signed at the back by the election officer and an authorized representative of each of the contenting unions A party who refuses or fails to sign the ballots, WAIVES its right to do so and election officer shall enter the fact of refusal or failure and the reason therefore in the records of the case Voter must put a cross (X) or check () mark in the square opposite the name of the union of his choice or NO UNION if he does not want to be represented by any union If ballot is torn, defaced or left unfilled in such manner as to create doubt or confusion or to identify the voter it is considered spoiled; If voter inadvertently spoils a ballot he shall return it to the election officer who shall destroy it and give him another ballot. NOTES: i. Even if written in English or Filipino, this is USELESS if the voter is illiterate.
Note: The objections raised are those with respect to the right to vote.
12. PROTEST; WHEN PERFECTED

a.
ANY party-in-interest may file a protest based on the conduct or mechanics of the election. NOTE: i. Party-in-interest could be: 1. ANY OF THE CONTENDING UNIONS, 2. EMPLOYEE IN THE BARGAINING UNIT OR 3. THE OFFICER OR 4. A FEDERATION who does not have an EE-ER relationship with the company where certification is held or 5. Employee whose employment has ceased because he was terminated and termination is still under contention; for as long as termination is antecedent to the actual election and the termination is related to the exercise of the right to self-organization. It is NOT the employer. Employer is not a party at all; he is merely a by-stander. The issue as to WON the BU wants representation is solely the decision of the employees and the employer has nothing to do with it, nor can he stop or discourage the same. Therefore, only a party-in interest can make a protest.
8. SECRECY AND SANCTITYT OF THE BALLOT

a.
9. PREPARATION OF BALLOTS
a. b.
c.
d.
10. HOW TO VOTE/ MARKING OF VOTES

a.
b.
b.
c.
HOW TO MAKE THE PROTEST i. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are DEEMED WAIVED. (this is not
11. ON THE SPOT QUESTIONS/ HOW TO RAISE AN OBJECTION

a.
ii.
harsh because as a general rule, protests must be based on substantial reason; that is why the rules require that you have it recorded)
Protesting party must FORMALIZE its protest with the med-arbiter, with specific rounds, arguments and evidence, WITHIN 5 DAYS AFTER the close of the proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed DROPPED.
b.
Election officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the election officer rule on any of the grounds for challenge, (challenge of voters: it is ruled
only by the MED-ARBITER)
43
NOTE: The close of proceeding is NOT the same as the close of election proceeding under the omnibus election code. The close in the omnibus election code is when there is already a proclamation of the results. In certification election, the close of the proceeding DOES NOT included the canvassing of the votes (I dunno. Perhaps it refers to the close of actual voting.)
no protest is recorded in the minutes of the election. NOTE: i. You have to wait for 5 days from the cessation of voting if there is protest before you can declare the winner. But if there is no protest, no need to wait for 5 days. Declare dayon ang winning union. Who wins? MAJORITY OF THE VALID VOTES. Remember, there are invalid votes, stray votes; tanggalon nimu na, what remains are the valid votes. However, this is NOT the only condition for winning. See # 16 (section 17 in the IRR)
ii.
13. CANVASSING OF VOTES

a.
b.
c. d. e.
Votes shall be counted and tabulated by the election officer in the presence of the reps of contending unions Upon completion of canvass, the EO shall give each rep a copy of the minutes of the election proceedings and the results of the election. Ballots and tally sheets shall be sealed in an envelope and signed by the EO and the reps of each union and transmitted to the MA, together with the minutes and results of the election WITHIN 24 hours from the completion of the canvass where election is conducted in more than 1 region, consolidation of results shall be made WITHIN 15 DAYS from the conduct thereof.
16. EFFECT OF FAILURE OF ELECTION

a.
A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within 6 months from the date of declaration of the failure of election. Where the number of votes cast in a certification or consent election is LESS THAN THE MAJORITY OF THE NUMBER OF ELIGIBLE VOTERS and there are no material challenged votes, the EO shall declare a failure of election in the minutes of the election proceedings. NOTE: i. For a VALID election there must be at least a majority of the voters who participate, regardless of whether the ballot is invalid, stray, etc.. if less, then there is failure of election.
17. WHEN IS THERE FAILURE OF ELECTION

a.
14. CONDUCT OF ELECTION AND CANVASS OF THE VOTES

a.
b. c.
Election precincts shall open and close ON THE DATE/TIME AGREED upon during the pre-election conference. Opening and canvass of vtes shall proceed immediately AFTER the precincts have closed. Failure of the REPS of the contending unins to appear during the election proceedings and canvass of votes shall be considered a WAIVER OF THE RIGHT TO BE PRESENT and question the conduct thereof. NOTE: i. ii. This is important because if the precinct has not yet closed, there is yet no canvassing In other words, in the conduct of cert. election, there is UNIFORMITY IN THE CLOSING OF PRECINCTS AND IN THE CANVASSING OF VOTES. If other precincts have not yet closed voting, no canvassing of the other precincts shall be held.
18. WHEN THERE IS RUN-OFF ELECTION

a.
b.
15. CERTIFICATION OF BARGAINING AGENT

a.
THE
COLLECTIVE
The union which obtained the MAJOIRTY of the VALID VOTES cast shall be certified as the sole and EBA of ALL the employees in the appropriate bargaining unit WITHIN 5 DAYS from the day of the election, provided
Suppose the majority of the eligible voters participate and there are at least 3 choices and NONE of the choices receive the majority of valid votes cast, what happens? There is RUN-OFF ELECTION. Another election is held between the 2 choices with the highest number of votes. RULE X Section 1 when an election w/c provides for 3 or more choices, in none of the contending unions receiving a majority of the valid votes case and there are NO OBJECTIONS or challenges w/c if sustained can materially alter the results, the EO shall motu proprio conduct a run-off election within 10 days from the close of the election proceedings between the labor unions receiving the 2 highest number of votes; provided that the total # of votes is at least 50% of the number of votes cast. NO UNION shall not be a choice in the runoff election
44
Notice of run-off elections shall be posted by the EO at least 5 days before the actual date of run-off election. Section 2 qualification of voters; the same voters list is used; the ballots shall provide as choices the unions receiving the highest and 2nd highest number of votes cast. The labor union receiving the greater number of valid votes cast shall be certified as the winner, subject to rule 20, rule IX. NOTE: NOT ALL 2nd elections are run-off elections. Remember: run-off elections require a 1st valid election. So if the 1st election is a failure of election w/c means no election at all, another election has to be held. The 2nd election then cannot be a runoff election.
b.
c.
d.
19. ACTION ON THE MOTION FOR THE IMMEDIATE HOLDING OF ANOTHER ELECTION IN CASE OF FAILRUE OF ELECITON
a.
20. PROCLAMATION AND CERTIFICATION OF THE RESULT OF THE ELECTION

a.
Within 24 hours from receipt of the motion, the EO shall schedule another certification or consent election within 15 days from the receipt of the motion and cause the posting of notice at least 10 days prior to the scheduled date of election in 2 most conspicuous places in the establishment. Same guidelines and list of voters shall be used in the election. W/I 24 hours from the final canvass of votes, there being a valid election, the EO shall transmit the records of ht case to the MA, who shall within the same period from receipt, issue an ORDER proclaiming the results of the election and certifying the union w/c obtained a majority of the valid votes cast, as the SEBA under any of the ff. conditions: i. No protest was filed, or even if one was filed, the same was not perfected within the 5 day period for perfection of protest; ii. No challenge or eligibility issue was raised or even if raised, resolution of the same will not materially change the results. Winning union shall have the rights privileges and obligations of a duly certified CBA from the time the CERTIFICATION IS ISSUED. Where majority of the valid votes cast results in NO UNION obtaining the majority, the Med-arbiter shall declare such fact in order.
e.
appeal shall be under OATH, consist of a MEMO OF APPEAL, STATE THE GROUNDS RELIED upon with supporting arguments and evidence. If no appeal filed within the 10 day period, the order/decision shall become final and executory. MA shall enter this fact in the records Section 22 where to file appeal file in the Regional office where petition originated, copy furnished to contending unions and employer. Within 24 hours from receipt of appeal, the RD shall cause the transmittal thereof together with the entire records to the office of the secretary. Section 23 period to file Reply file reply to the appeal by any party to the petition WITHIN 10 DAYS from receipt of the memo of appeal. Reply filed directly to the Office of the secretary. Section 24decision of the secretary secretary has 15 days from receipt of the entire records to decide on the appeal. His decision becomes final AFTER 10 DAYS from receipt thereof by the parties. No MFR shall be entertained. Section 25 transmittal of the records to the Regional office WITHIN 48 hours from notice of receipt of he decision, the entire records of the case shall be remanded to the Regional office of origin for the implementation of the decision o the secretary and shall not be stayed unless restrained by the appropriate court.
22. POLICY OF ELECTION

a.
AUTOMATIC
CERTIFICAITON
b. c.
b.
d.
c.
21. APPEAL PROCEDURE ELECTION PROTEST

a.
IN
CERTIFICAITON
e.
Section 21 decision of the MA may be appealed to Secretary WITHIN 10 DAYS from receipt of the parties of a copy thereof;
This is a policy adopted by the department of labor and the Labor code because of the constitutional bias for the exercise of the right to self-organization. Right to SO is the only way that employees can stand in equal footing with the employer or capital. In petitions for certification election, it is as much as possible, given due course. If petition is defective, it is NOT dismissed. If a petition for CE in UNORGANIZED establishment is sufficient in form and substance but WITH OR WITHOUT supporting signatures, it is given due course. If unorganized establishment, the signature support is not required. In a petition in ORGANIZED establishment: i. has at least 25% of the signatures in the bargaining unit certification election is AUTOMATICALLY conducted. Med-arbiter has no discretion to deny the same. ii. Cumulative signature support; less than 25% from petitioning union, less than 25% from intervenors but from the same bargaining unit= 25% med-arbiter has NO discretion but to rant the petition. The law considers as a threshold the 25% signature support to establish substantial
45
doubt as to the continuing representation status of the incumbent bargaining agent. The allegiance therefore of the bargaining unit to the incumbent EBA is questionable. In all cases, the best way to determine the will of the employees is to hold the certification election. 23. IMPORTANT MATTERS TO REMEMBER: a. 3 rules when you cannot file the petition: certification year, deadlock bar and contract bar rule. b. A CBA, once entered is: i. Posted in the workplace and ratified by the bargaining unit ii. After ratification, it is registered with the DOLE and employer pays the registration fees. It must be registered 30 days after it has been entered into. iii. Once registered, it is considered a certified CBA. c. A collective bargaining agreement which even if NOT registered BUT provides for substantial benefits, accepted and enforced for a considerable period of time and which already provides substantial benefits
There are states in the US which allow still the employees to bargain for themselves. If employees do not want the EBA, they can negotiate for themselves. However, this will not work in the Philippines because if that is so, no union will ever survive! Consent election is a certification election, agreed upon by the parties, and subsequently made part and parcel of the order of the med-arbiter to conduct a certification election. Department of labor has to be involved because if not, it is no longer a certification election but a voluntary recognition-direct certification. agreed upon by the parties and adopted by the BLR MA as its order dili ka pwede na ikaw2x lang mag-mao2x dira. The danger is that there will be a group of workers who may be excluded in the process. There workers will have no remedy at all if the intervention of the department of labor is not invoked. RUN-OFF ELECTION Valid election where there are o at least 3 choices and o none of which garners a majority of the valid votes cast and o the total # of votes for the unions is at least 50% of the votes case; effect: a 2nd election is held between the 2 choices which garnered the most number of votesmajority of the valid votes cast VALID CERTIFICAITON ELECTION Certification election is valid if at least a majority of the eligible voters cast their ballots. The majority is 50% + 1 =51 (in case there are 100 eligible voters) If there is no majority who participatedthere is FAILURE OF ELECTION. There is therefore a need to schedule another date for election. The 2nd election is NOT ALWAYS a run-off election because the first voting is a failed election. The exclusive bargaining agent is NOT IN ALL INSTANCES the CHOICE of the majority of the bargaining unit. This is because the law requires that the choice of the bargaining unit cannot be less than of the bargaining units eligible voters + 1. This rule is not considered iniquitous for the higher value of getting the workers united against management which is already united. RUN-OFF has to be distinguished from INVALID CERTIFICATION. Invalid certification happens when less than 50% of the majority of the eligible voters cast their votes. DATE OF ELECTION it must be a working day. Even if everybody knows about the election but when less than 50% actually vote, then that is an invalid election. There will be another election
2. CONSENT ELECTION
3. RUN-OFF ELECTION
(benefits and wage rates which is above labor standards and not a sweetheart contract) BARS A PETITION FOR
CERTIFICATION ELECTION while the CBA is subsisting, except during the freedom period.
TERMS TO REMEMBER:
1. CERTIFICATON ELECTION
it is the proceeding, fact-finding in nature to determine WON an appropriate bargaining unit desires representation and if so, who shall be their exclusive bargaining agent. The definition given by the labor code is WRONG because it assumes that the BU wants representation; remember: the right to SO includes the right not to join. 2 issues: WON BU is the appropriate bargaining unit this is PROPOSED by the union BUT ULTIMATELY DECIDED by the STATE WON BU wants representation and who the EBA would be this is SOLELY the PREROGATIVE OF EMPLOYEES and the state merely recognizes or certifies the choice of the employees. The EXCLUSIVE bargaining agent is really exclusive as to the whole world and even to the employees themselves. This is an exception to the rule on agency. The moment there is an EBA for a particular bargaining uit, not even the employees of that unit can take back the right to negotiate for terms and conditions of work (excluding of course the EBA itself). Reason for the law: make the union strong.
46
called but it is NOT a run-off election but a TRUE CERTIFICATION ELECTION.
1. PRINCIPLE OF AUTONOMY
a.
4. REFERENDUM
See case of: a. LITEX EMPLOYEES V. EDUVALA b. BENGUET CONSOLIDATED V. BENGUET EMPLOYEES UNION c. PAMBANSANG KAPATIRAN V. SECRETARY Referendum happens when there is a SCHISM where a vast majority of the employees in the bargaining unit withdraw their allegiance in the union. When the entire overwhelming majority of the bargaining unit disaffiliates from the federation and chooses to affiliate with another federation during the 5 year period of the CBA, even outside the freedom period, it is VALID. If the DOLE is in doubt as to whether or not there is a massive disaffiliation, it will conduct a REFERENDUM ELECTION. When this happens, the EBA is replaced with a new one. The SUBSTITUTIONARY DOCTRINE then applies. If its a local affiliating with a new mother federation, the latter merely takes the place of the old exclusive bargaining agent. His rights are only limited to the following: i. It cannot enter into a new CBA; it only administers and continues the old CBA ii. He can negotiate to shorted the CBA but the management can stand by its prerogative under the old CBA iii. Only difference: new EBA is NOT BOUND by the personal obligations covered in the old CBA such as the no strike clause, etc. PLEBISCITEconducted when you have a general bargaining unit occupied by positions of various kinds of workers and some of them wanted to separate and form their own bargaining unit. Here you conduct a plebiscite to DETERMINE THE WILL OF THE WORKERS REFERENDUMconducted to decide WON the local will disaffiliate with the national federation or not. (remember: local can disaffiliate anytime; local is the principal and the federation is just the agent) See case of : a. AIR PHILIPPINES V. PHILIPPINE FLIGHT ATTENDANT ASSOCIATION b. LVN V. PHILIPPINE MUSICIANS GUILD Note: distinguish decertification election from cancellation of union registration.
b.
Parties are free to enter into contracts and stipulate such terms and conditions for as long as those are not contrary to law, morals, etc. In collective bargaining, if there is already a Collective bargaining agreement enteired into, you do not have the freedom to proceed with your individual EE-ER contract. You have NO FREEDOM OF CONTRACT; NO AUTONOMY OF CONTRACT. For as long as you are part of the BU, the CBA is binding upon you. Contracts are perfected by mere consent unless the law provides a specific form. A CBA is an employer-employee contract. It takes the place of the individual employeremployee contract. It does not start in a vacuum or ab ovo. It replaces as many contracts as there are employees covered in the CBA. Contracts are binding mutually, equally between the parties and only parties privy to the contract except if there is a stipulation pour autrui. In collective bargaining, even if you were not yet an employee at the time the CBA was entered into, but when you become part of the bargaining unit, the CBA is binding on you. Who signs the CBA? The union. Who performs the obligations therein? It is NOT the union but the warm living bodies of employees. The CBA merely says appropriate bargaining unit. It doesnt mention of members. Because members may leave the workplace and some would come in. if they leave, the CBA is still effective and binding. NOTE: BE SURE TO KNOW THE EXCEPTION because the employee can enter into other agreements with the employer but it is not necessarily an EE-ER contract. For example, in a contract of loan, it is under the civil law. The labor arbiter has NO jurisdiction over that kind of contract.
2. PRINCIPLE OF CONSENSUALITY
a. b.
3. PRINICPLE OF MUTUALITY
a.
b.
c. d. e.
f.
5. DECERTIFICAITON ELECTION
COLLECTIVE BARGAINING AGREEMENT

1. 2. 3.
COLLECTIVE BARGAINING
PRINCIPLES OF CONTRACTS NOT APPLICABLE IN COLLECTIVE BARGAINING
4.
It is a contract entered into between the employer and the union on terms and conditions of work. Employer is called the pro-active party; the union and the employees are the reactive parties Employer has managerial prerogatives. He has the right to schedule, transfer, promote, demote, reassign workers, etc. for as long as he does not violate the Labor code. As the owner of the enterprise, he has a bundle of rights. On the other hand, the employee has rights contained in the labor code and in the CBA. The employer, in
47
5.
6. 7.
the exercise of his managerial prerogatives must not transgress any of these rights. As a NET RESULT of this relationship, there is NO SUCH THING as BREACH OF THE COLLECTIVE BARGAINING AGREEMENT. This is only true in CBA. Instead of breach, when employees rights are violated, they have a GRIEVANCE. The management does not have a grievance. He will act to relieve himself and assert his rights but it is not called a grievance. Further, if there is a CBA, the employee who has a grievance can invoke his rights under the LC and the CBA which the management has to respect. This is why management would never begin to enter into to CBA because without it, it is the individual contracts of adhesion which prevails.
Landmark case: REPUBLIC SAVINGS BANK V. CIR Collective bargaining does not end with the conclusion of a CBA. NOTE: Collective bargaining does not end with the conclusion of a CBA. For example, when you adjust grievances because of controversies arising from the CBA, that is still part of collective bargaining. The 3 phases have different contents.
NEGOTIATION PHASE
1.
WHEN RIGHT TO COLLECTIVE BARGAINING ARISES and EMPLOYERS DUTY TO BARGAIN ARISES
1. 2. Landmark cases: a. KIOK LOY (SWEDISH ICE CREAM) V. NLRC b. GENERAL MILLING V. CA In the case of Kiok Loy, the mechanics of CB is set in motion only when the ff. jurisdictional preconditions are present: a. Possession of the status of majority representation of the employees representative in accordance with any of the means of selection or designation provided for by the labor code b. Proof of majority representation and c. A demand to bargain under Article 251 (a) of the new labor code. In this case of Kiok Loy, a companys refusal to make counter proposal if considered in relation to the entire bargaining process may indicate bad faith and this is especially true where the unions request for a counter proposal is left unanswered. 3. Fr. Gus thinks this doctrine was amended by Article 242 because from the moment the union is declared as the EBA, he can demand copies of the latest audited financial statements. RESULT OF THE FAILURE TO BARGAIN in the case of kiok loy, it imposed the proposals presented by the EBA as the CBA of the union because of the failure of the management to give counter-proposals. An erring party should not be allowed to resort to impunity to schemes feigning negotiations by going through empty gestures.
The duty to bargain collectively is enunciated in article 252. There are 3 positive duties: 1. To meet and convene promptly and expeditiously 2. Meet 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 proposal for adjusting any grievances of questions arising under such agreement 3. Executing a contract incorporating such agreements if requested by either party 2 negative duties: a. Such duty does not compel any party to agree to a proposal or b. To make any concession. (the only duty is to SIT AND BARGAIN; no one can force a person to enter into an agreement)
EXAMPLES OF BAD FAITH BARGAINING

1.
KIOK LOY V. NLRC AND GENERAL MILLING V. CA Kiok loy refused clearly
4.
or did not acknowledge receipt of the proposal which under article 250, he should have made a counter proposal within 10 day from such receipt. For such failure, the SC affirmed the NLRCs decision to make the union draft of CBA as the CBA of the employees. (to fr. Gus, this defies not only simple logic but even all canons of contracts; he though this was a wild aberration of jurisprudence but this was reiterated in General Milling case) 2.
DIVINE WORD UNIVERSITY OF TACLOBAN V. SECRETARY there was

bad faith on the part of the university because it surreptitiously filed the petition for CE and yet during said conference, ti committed itself to sit down with the union. The university tried to preempt the conference which would have legally foreclosed its right to file the petition for certification election. In so doing, the university failed to act in accordance with article 252 which defines the meaning of the duty to bargain collectively as the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith. When the university agreed to sit
PHASES IN COLLECTIVE BARGAINING

1. 2. 3.
NEGOTIATION meet promptly and expeditiously; in good faith; for the purpose of concluding a CBA ADMINISTRATION meet promptly and expeditiously; in good faith; for the purpose of settling disputes SUBSEQUENT RENEGOTIATION PHASE meet promptly and expeditiously; in good faith; for the purpose renegotiating terms and conditions of work
48
down with the union, it clearly indicates that it recognized the union as the bargaining representative of the employees and is therefore estopped from questioning the majority status of the said union. 3.
but only the BU that is the subject matter of the negotiation. i.e. retirement benefits.
DUTY TO BARGAIN WHEN THERE EXISTS A CBA (article 253)

1. 2.
BRADMAN V. CIR SURFACE BARGAINING; parties meet on time but

there is no agreement that is reached. The SC ruled that 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 a reasonable effort to reach a common ground of agreement.
4.
BOULWARISM negotiating with other

people other than the bargaining representative. This is to put pressure to the union to agree on the counterproposal of the management. Note: there is a difference between BARGAINING REPRESENATIVE and EXCLUSIVE BARGAINING AGENT. EBA it refers to the legitimate labor organization; BARGAINING REP it can mean the labor organization, any officer or agent of such organization WON employed by the employer; it is the warm living bodies in the labor organization. This is why the management should only bargain with the bargaining rep and with no one else.
3.
5.
NESTLE V. CA If you keep on bargaining

not to bargain, you are actually bargaining. This is NOT bad faith bargaining because SC says the only bad faith bargaining is when you do not say anything and you just keep quiet. Here, the management firms stand against the issue of the retirement plan did not mean it was bargaining in bad fait because it had the right to insist on its position.
To maintain the status quo o you cannot change the CBA. You keep it that way Neither party shall terminate nor modify such CBA during its lifetime o There is an option though during the freedom period that upon agreement, they can serve a written notice to terminate and modify the agreement. You can re-negotiate actually in advance the terms and conditions during the freedom period. o I the union during the freedom period submits a proposal tot the employer and the employer meets expeditiously in good faith for the purpose of the CBA, it does so at his own risk. This is because if there is a petition for cert. election that is filed and the union na iyang kanegotiate did not win, he enters another CBA again. Good thing if no petition is filed. This means, the old CBA continues to be effective until a new CBA is concluded or arrived at. There is a holdover provided for by the law. May submit bargaining proposals during the 50day freedom period. o Here, the duty to respond within 10 day after receipt of the bargaining proposal is not operative. The duty to respond is only permissive and NOT mandatory.
RENEGOTIATION PHASE 1. When the 5 year period of the CBA is reached, during the 60 day freedom period, you are allowed to do renegotiation. 2. Everything is cumulated; CBA is cumulative. In this phase, you do not terminate, modify or maintain the status quo. The old CBA continues to govern the parties and then you are re-negotiating for a new CBA while you are administering the old CBA which is automatically holding over.
NOTES ON BARGAINING:
1. 2.
3.
4.
If the proposal or demands are very unreasonable, it should NOT nullify the bargaining negotiation. If for example, you object to the membership of the negotiating panel of the opposite party, you cannot just leave because that is refusal to bargain. If the union insists on something that is not related to the terms and conditions of work, like when the management decide to sell the company and gives the union the right of first refusal, that is NTO terms and conditions of work so it is not within this code of bargaining. There is NO DUTY TO BARGAIN. The duty to bargain only covers MANDATORY SUBJECTS OF BARGAINING terms and conditions of work that are within the bargaining unit; not those of other BU
PROVISIONS IN THE LABOR CODE WHERE THERE IS DUTY TO BARGAIN

1. ARTICLE 124 INVOCATION OF THE GRIEVANCE PROCEDURE OF THE CBA ON THE ISSUE OF WAGE DISTORTION
Art. 124 . Where the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrators within ten (10)
49
calendar days from the time said dispute was referred to voluntary arbitration.
NOTE: i. Wage distortion occurs when you have a workplace with a hierarchy of employees on different wage levels. If there is hierarchy and an order of increase in wage which does not apply to all of them, the application results in elimination or severe contraction of wage differences. How is that settled? File a grievance if there is a CBA. Once there is agrievance, the employr has the obliation to meet promptly and expeditiously to adjust the grievance. Case: REPUBLIC SAVINGS BANK V. CIR Letter to the president was treated as a grievance. The president should have attended to it immediately. In an instance where the grievance is NOT arbitrable, like when there is violation of the right to first refusal, that is NOT a grievance. Your remedy is to go to the regular courts. There can only be a grievance if it relates to a mandatory subject of bargaining. However, even if the matter is not arbitrable, the labor arbiter is given the first opportunity to determine the issue. He can either dismiss it or take cognizance of the issue. The next step after the grievance procedure is voluntary arbitration. If the voluntary arbitrator insists on his jurisdiction, he will continue to hear the case and the employers remedy then is to go to SC via a petition for certiorari.
other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession.
4. ARTICLE 253 DUTY TO BARGAIN DURIGN THE ADMINISTRATION PHASE
ii.
iii.
iv. v.
Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.
There are 3 instances there of the duty that you have to pay attention to: a. The duty not to terminate or modify the contract. b. The duty to attend to grievances precisely to maintain the CBA. c. Then there is the option to renew the contract even before the contract is ended and that is during the 60-day that is not a duty because the employer is free to bargain for the next contract but there is no obligation there or there is no duty. Why? Because there might be a petition for certification election and the incumbent bargaining agent may be change and the new one will want to negotiate for the new CBA because they dont want the old CBA which is not the product of their own negotiation. So there is no obligation during the 60-days it is permissive not mandatory.
2.
ARTICLE 251 DUTY TO BARGAIN IN THE ABASENCE OF CBA
NOTE: i.
Art 251. Duty Bargain Collectively in the Absence of Collective Bargaining Agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. This is a USELESS PROVISION. There is NO CBA, therefore, there is NO DUTY TO BARGAIN :0
OF DUTY TO DURING THE
5.
3.
ARTICLE 252 MEANING BARGAIN COLLECTIVELY NEGOTIATION PHASE
TERMS OF AGREEMENT
COLLECTIVE
BARGAINING
Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all
Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, 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 Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five50
year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, 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 thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No.
6715, March 21, 1989) NOTE: i.
ii.
the term of the CBA is five years then you agree on the wage rate, hours of work and others for all those five year. Now it is customary to have a yearly increase in wages by a CBA so there is a there is a 1st, 2nd, 3rd, 4th, & 5th year increase normally that what happens. Now, it says however all other provisions you have an option before the 3rd year ends that the remaining 2 years be re-negotiated. This is what happened in the General Milling case General Milling refused to negotiate the last 2 years because they said the union has already been rejected by the employees. The SC said you violated your duty to bargain collectively because you did not sit down to re-negotiate the last 2 years. Now, also in that provision it says the CBA
of the CBA shall be renegotiated not later than 3 years after its execution, so
iii.
remains in effect even after the CBA has ended and up to when? Until the new
CBA has entered into. Sa ato pa while you are already negotiating a new CBA after the 60-day freedom period that means all the duties that are concomitant in the collective bargaining in the negotiation phase is transfer to you, you must also administer an existing expired CBA, so all the duties in the 2nd phase which is the administration phase is also carried. And you continue still to negotiate the new CBA you can be meeting grievances in the old CBA and at the same time you are also negotiating. that is the most troublesome phasethe renegotiation phase because you are already administering the CBA and still you are negotiating a new one.
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LABOR RELATIONS1ST EXAM Prof: FR.

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

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Homeworkers have a right to self-organization

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LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

Include outline in the laptop

LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

supervisory--limited right to SO; also called the BU imposed by law

RANK AND FILE--EE other than MSC

CONFIDENTIAL EMPLOYEE--absolute prohibition to exercise SO

Requisite: 1. confidential relationship exist between EE and supervisor AND 10

LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

2. Supervisor must handle the prescribed responsibilities relating to labor relations.

DISTINCITON OF MANAGERIAL AND SUPERVISORY EMPLOYEES

LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

RIGHT TO SELF-ORG/CERTIFICATION ELECTION/COLLECTIVE BARGAINING RIZADA, RESCI ANGELLI

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CONTRACTOR/SUBCONTRACTOR but not the indirect employer --EXCEPTION: labor-only contracting

RECIPROCITY REQUIREMENT--must be proven. this fact is NOT presumed.

LABOR RELATIONS1ST EXAM Prof: FR. AUGUSTINE NAZARENO

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EXAM POINES 2013 LECTURES

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SPECIAL FEATURES OF A LABOR ORGANIZATION

TYPES OF EMPLOYEES AND RIGHT TO SELF-ORGANIZATION In the PRIVATE SECTOR

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PNOCGovernment PNOC-EDCnot government BSPGovernment

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(cebu seamens association v. pura ferrer)

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Criminal and civil liabilities that may arisestill with COURTS.