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QUAMTO (1987-2016)

LABOR RELATIONS

RIGHT TO SELF-ORGANIZATION

Who may/may exercise the right (2014, 2012, 2010,


2009, 2004, 2003, 2002, 2000, 1999, 1996 Bar)

Q: Solar Plexus Bar and Night Club allowed by tolerance


fifty (50) Guest Relations Officers (GRO) to work
without compensation in its establishment under the
direct supervision of its Manager from 8:00 p.m. to 4:00
a.m. every day, including Sundays and holidays. The
GROs, however, are free to ply their trade elsewhere at
anytime but once they enter the premises of the night
club, they are required to stay up to closing time. The
GROs earned their keep exclusively from commissions
for food and drinks, and tips from generous customers.
In time, the GROs formed the Solar Ugnayan ng mga
Kababaihang Inaapi (SUKI), a labor union duly
registered with DOLE. Subsequently, SUKI filed a
petition for certification election in order to be
recognized as the exclusive bargaining agent of its
members. Solar Plexus opposed the petition for
certification election on the singular ground of absence
of employer-employee relationship between the GROs
on one hand and the night club on the other hand.

May the GROs form SUKI as a labor organization for


purposes of collective bargaining? Explain briefly.
(2012, 1999 Bar)

A: The GROs may form SUKI as a labor organization for


purposes of collective bargaining. There is an employer-
employee relationship between the GROs and the night
club.

The Labor Code (in Article 138) provides that any woman
who is permitted or suffered to work, with or without

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Labor Law and Social Legislation

compensation, in any night club, cocktail lounge, massage time basis. Third, he has less than ten (10) employees
clinic, bar or similar establishment, under the effective in the establishment. Which reason or reasons is/are
control or supervision of the employer for a substantial tenable? Explain briefly. (2002 Bar)
period of time as determined by the Secretary of Labor,
shall be considered as an employee of such establishment A: None. First, Mang Bally's shoe business is a commercial
for purposes of labor and social legislation. enterprise, albeit a service establishment. Second, the mere
fact that the workers are paid on a piece-rate basis does not
In the case at bar, it is clearly stated that the women once negate their status as regular employees. Payment by piece
they enter the premises of the night club would be under is just a method of compensation and does not define the
the direct supervision of the manager from 8:00 p.m. to essence of the relation. (Lambo v. NLRC, G.R. No. 111042,
4:00 a.m. everyday including Sundays and holidays. Such is October 26, 1999). Third, the employees' right to self-
indicative of an employer-employee relationship since the organization is not delimited by their number. The right to
manager would be exercising the right of control. self-organization covers all persons employed in
commercial, industrial and agricultural enterprises and in
Q: How does the government employees’ right to self religious, charitable, medical, or educational institutions
organization differ from that of the employees in the whether operating for profit or not. (Art. 243, Labor Code).
private sector? (1996 Bar)
Q: Philhealth is a government-owned and controlled
A: There is no substantial difference of the right of self corporation employing thousands of Filipinos. Because
organization between workers in the private sector and of the desire of the employees of Philhealth to obtain
those in the public sector. In the public sector, Executive better terms and conditions of employment from the
Order No. 180, the purpose of self-organization is stated as government, they formed the Philhealth Employees
"for the furtherance and protection of their interest." In the Association (PEA) and demanded Philhealth to enter
private sector, Art. 243 of the Labor Code states "for the into negotiations with PEA regarding terms and
purpose of collective bargaining", and "for the purpose of conditions of employment which are not fixed by law.
enhancing and defending their interests and for their Are the employees of Philhealth allowed to self-
mutual aid and protection." Furthermore, no less than the organize and form PEA and thereafter demand
Constitution itself guarantees that ALL workers have the Philhealth to enter into negotiations with PEA for
right to self-organization. (Sec. 3, Article 13, 1987 better terms and conditions of employment?(2014 Bar)
Constitution).
A: Yes. Employees of Philhealth are allowed to self-organize
Q: Do workers have a right not to join a labor under Section 8, Article III and Section 3, Article XIII of the
organization? (2000 Bar) Constitution which recognize the rights of all workers to
self-organization. They cannot demand, however, for better
A: Yes. The constitutional right to self-organization has two terms and conditions of employment for the same are fixed
aspects, the right to join or form labor organizations and the by law (Art. 244, Labor Code), besides, their salaries are
right not to join said organization (Victoriano v. Elizalde standardized by Congress. (Art. 276, Labor Code).
Rope Worker’s Union, G.R. No. L-25246, September 12, 1974).
Moreover, if they are members of a religious group whose BARGAINING REPRESENTATIVE
doctrine forbids union membership, their right not to be
compelled to become union members has been upheld. Q: The Ang Sarap Kainan Workers Union appointed
However, if the worker is not a "religious objector" and Juan Javier, a law student, as bargaining representative.
there is a union security clause, he may be required to join Mr. Javier is neither an employee of Ang Sarap Kainan
the union if he belongs to the bargaining unit. (Reyes v. Company nor a member of the union. Is the
Trajano, G.R. No. 84433, June 2, 1992). appointment of Mr. Javier as a bargaining
representative in accord with law? Explain. (2000 Bar)
Q: Do the following workers have the right to self-
organization? Reasons/basis: A: Yes, the law does not require that the bargaining
representative be an employee of the company nor an
a. Employees of non-stock, non-profit organizations? officer or member of the union. (Art 212 (j), Labor Code).
b. Alien employees? (2000)
Determination of representation status (2016, 2014,
A: 2009, 2007, 2006, 2005, 2004, 1999, 1998, 1996, 1993,
a. Even employees of non-stock non-profit organizations 1992, 1990 Bar)
have the right to self-organization. This is explicitly
provided for in Art. 243 of the Labor Code. A possible Q: The modes of determining an exclusive bargaining
exception, however, are employee members of non- agreement (agent) are:
stock, non-profit cooperatives.
b. ALIEN EMPLOYEES with valid work permits may a. voluntary recognition
exercise the right to self-organization on the basis of b. certification election
parity or reciprocity, that is, if Filipino workers in the c. consent election
aliens' country are given the same right. (Art. 269, Labor
Code). Explain briefly how they differ from one another.
(2006, 2005, 2000, 1989 Bar)
Q: Mang Bally, owner of a shoe repair shop with only
nine (9) workers in his establishment, received A:
proposals for collective bargaining from the Bally Shoe
Union. Mang Bally refused to bargain with the workers a. There is voluntary recognition when in an unorganized
for several reasons. First, his shoe business is just a establishment with only one legitimate labor
service establishment. Second, his workers are paid on organization, the employer voluntarily recognizes the
a piecework basis (i.e., per shoe repaired) and not on a representation status of such a union. Within thirty

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34
QUAMTO (1987-2016)
(30) days from such recognition, the employer and c. Should Union A be declared the winner?
union shall submit a notice of voluntary recognition
with the Regional Office of the Department of Labor and A: No. The Labor Code provides that the Labor Union
Employment which issued the recognized labor union’s receiving the majority of the valid votes cast shall be
certificate of registration or certificate of creation of a certified as the exclusive bargaining agent of all the workers
chartered local. in the unit (Article 256, now Article 266, of the Labor Code).
b. Certification election refers to the process of Here, the number of valid votes cast is 490; thus, the
determining through secret ballot the sole and winning union should receive at least 246 votes. Union A
exclusive representative of the employees in an only received 200 votes.
appropriate bargaining unit for purposes of collective
d. Suppose the election is declared invalid, which of
bargaining or negotiation. A certification election is
the contending unions should represent the rank-
ordered by the Department of Labor and Employment,
and-file employees?
while a consent election is voluntarily agreed upon by
the parties, with or without the intervention by the A: None of them should represent the rank-and-file
Department. employees (Article 255, now Article 265, of the Labor Code).
c. When the process of determining through secret ballot
the sole and exclusive representative of the employees e. Suppose that in the election, the unions obtained
in an appropriate bargaining unit is not ordered by the the following votes: A-250; B-150; C-50; 40 voted
Department of Labor and Employment, but has been “no union”; and 10 were segregated votes. Should
voluntarily agreed upon by the parties with or without Union A be certified as the bargaining
the intervention of the Department of Labor and representative?
Employment, then the process is a consent election.
A: Yes. The Labor Code provides that the Labor Union
Q: There are instances when a certification election is receiving the majority of the valid votes cast shall be
mandatory. What is the rationale for such a legal certified as the exclusive bargaining agent of all the workers
mandate? (2005 Bar) in the unit (Article 256, now Article 266, of the Labor Code).
Here, the number of valid votes cast is 490. Thus, the
A: According to the Labor Code, in any establishment where winning union should receive at least 246 votes; Union A
there is no certified bargaining agent, a certification received 250 votes.
election shall automatically be conducted by the Med-
Arbiter upon the filing of a petition by a legitimate labor Q: Samahang East Gate Enterprises (SEGE) is a labor
organization. In the above-described situation, a organization composed of the rank-and-file employees
certification election is made mandatory because if there is of East Gate Enterprises (EGE), the leading
no certified bargaining agent as determined by a manufacturer of all types of gloves and aprons. EGE was
certification election, there could be no collective later requested by SEGE to bargain collectively for
bargaining in the said unorganized establishment. better terms and conditions of employment of all the
rank-and-file employees of EGE. Consequently, EGE
Q: Liwayway Glass had 600 rank-and-file employees. filed a petition for certification election before the
Three rival unions A, B, and C ‒ participated in the Bureau of Labor Relations (BLR).
certification elections ordered by the Med-Arbiter. 500
During the proceedings, EGE insisted that it should
employees voted. The unions obtained the following
participate in the certification process. EGE reasoned
votes: A-200; B-150; C-50; 90 employees voted “no
that since it was the one who filed the petition and
union”; and 10 were segregated votes. Out of the
considering that the employees concerned were its own
segregated votes, four (4) were cast by probationary
rank-and-file employees, it should be allowed to take
employees and six (6) were cast by dismissed
an active part in the certification process. Is the
employees whose respective cases are still on appeal.
contention of EGE proper? Explain. (2014 Bar)
(2014 Bar)
A: No. Under Article 258-A of the Labor Code, an employer
a. Should the votes of the probationary and dismissed is a mere bystander in certification elections, whether the
employees be counted in the total votes cast for the petition for certification election is filed by said employer or
purpose of determining the winning labor union? a legitimate labor organization. The employer shall not be
A: Yes. Rule IX, Section 5 of DOLE Department Order 40-03 considered a party thereto with a concomitant right to
provides that “[a]ll employees who are members of the oppose a petition for certification election.
appropriate bargaining unit sought to be represented by the
Q: Among the 400 regular rank-and-file workers of
petitioner at the time of the issuance of the order granting
MNO Company, a certification election was ordered
the conduct of a certification election shall be eligible to
conducted by the Med-Arbiter of the Region. The
vote. An employee who has been dismissed from work but
contending parties obtained the following votes:
has contested the legality of the dismissal in a forum of
appropriate jurisdiction at the time of the issuance of the 1. Union A – 70
order for the conduct of a certification election shall be 2. Union B – 71
considered a qualified voter, unless his/her dismissal was 3. Union C – 42
declared valid in a final judgment at the time of the conduct 4. No union – 180
of the certification election.” 5. Spoiled votes - 4
b. Was there a valid election? There were no objections or challenges raised by any
party on the results of the election.
A: Yes. To have a valid election, at least a majority of all
eligible voters in the unit must have cast their votes (Article
a. Can Union B be certified as the sole and exclusive
256, now Article 266, of the Labor Code). In the instant case,
collective bargaining agent among the rank-and- file
500 out of 600 rank-and-file employees voted.

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Labor Law and Social Legislation

workers of MNO Company considering that it garnered aid benefits and that the deduction was made pursuant
the highest number of votes among the contending to a board resolution of the directors of the union. Can
unions? Why or why not? Rogelio object to the deduction? Explain briefly. (2002
Bar)
A: No. To be certified as bargaining agent, the vote required
is majority of the valid votes cast. There were 396 valid A: Yes. In order that the special assessment (death aid
votes cast, the majority of which is 199. Since Union B got benefit) may be upheld as valid, the following requisites
only 71 votes, it cannot be certified as the sole and exclusive must be compiled with: (1) Authorization by a written
bargaining agent of MNO’s rank-and- file workers. resolution of the majority of all the members at the general
membership meeting duly called for the purpose; (2)
b. May the management or lawyer of MNO Company Secretary's record of the meeting; and (3) Individual
legally ask for the absolute termination of the written authorization for the check-off duly signed by the
certification election proceedings because 180 of the employee concerned. [ABS-CBN Supervisors Employees
workers — a clear plurality of the voters — have Union Members v. ABS-CBN Broadcasting Corp, and Union
chosen not to be represented by any union? Reasons. Officers, G.R. No. 106518, March 11, 1999; Art. 241(n) and (o),
Labor Code] In the problem given, none of the above
A: No, because 216 workers want to be represented by a requisites were complied with by the union. Hence, Rogelio
union as bargaining agent. Only 180 workers opted for No can object to the deduction made by the union for being
Union. Hence, a clear majority is in favor of being invalid.
represented by a union. NOTE: Substantial compliance of the requirements is not
enough in view of the fact that the special assessment will
c. If you were the duly designated election officer in diminish the compensation of union members. (Palacol v.
this case, what would you do to effectively achieve the Ferrer-Calleja, G.R. No. 85333, February 26, 1990).
purpose of certification election proceedings? Discuss.
(2009 Bar) Q: Atty. Facundo Veloso was retained by Welga Labor
Union to represent it in the collective bargaining
A: I will conduct a run-off election between the labor negotiations. It was agreed that Atty. Veloso would be
unions receiving the two highest number votes. To have a paid in the sum of P20, 000.00 as attorney's fees for his
run-off election, all the contending unions (3 or more assistance in the CBA negotiations. After the conclusion
choices required) must have garnered 50% of the number of the negotiations Welga Labor Union collected from
of votes cast. In the present case, there are four (4) its individual members the sum of P100.00 each to pay
contending unions and they garnered 216 votes. There for Atty. Veloso's fees and another sum of P100.00 each
were 400 vote cast. The votes garnered by the contending for services rendered by the union officers. Several
unions is even more than 50% of the number of vote cast. members of the Welga Labor Union approached you to
Hence, a run-off election is in order. seek advice on the following matters.

Q: The Construction and Development Corporation a. Whether or not the collection of the amount assessed
has a total of one thousand and one hundred (1,100) on the individual members to answer for the attorney's
employees. In a certification election ordered by the fees was valid?
Bureau of Labor Relations to elect the bargaining
representative of the employees, it was determined A: The assessment for attorney’s fees is not valid. The Labor
that only one thousand (1,000) employees are eligible Code prohibits the payment of attorney’s fees when it is
voters. In the election a total of nine hundred (900) effected through forced contributions from the workers
ballots was cast. There were fifteen (15) spoiled from their own funds as distinguished from the union funds
ballots and five (5) blank ballots. A total of four [Art. 222(b), Labor Code]. The obligation to pay the
hundred (400) votes was cast for ABC Labor Union, a attorney’s fees belongs to the union and cannot be shunted
total of two hundred forty (240) votes was cast in favor to the workers as their direct responsibility. (Bank of the
of JVP Labor Union, and a total of two hundred and Philippine Islands Employees’ Union vs. NLRC, G.R. Nos.
forty (240) votes was in favor of RLG Labor 69746-47, March 31, 1989).
Organization. Is there a valid certification election?
Why? (1990 Bar) b. Whether or not the assessment of P100.00 from the
individual members of the Welga Labor Union for
A: There is a valid certification election. In the facts of the services rendered by the union officers in the CBA
case in question, there is no bar to the holding of the negotiations was valid? (1997 Bar)
certification election.
A: The assessment for negotiation fees is not valid. The
Labor Code prohibits negotiation fees and other similar
The Labor Code provides (in Art. 256) that to have a valid
charges of any kind arising from any collective bargaining
certification election, at least a majority of all eligible
negotiations to be imposed on any individual member of the
voters in the bargaining unit must have cast their votes in
contracting union. (Art. 222(b), Labor Code)
the election. In the facts of the case in the question, 1, 000
employees are eligible voters and 900 voters, which is very
NOTE: Special assessments may be allowed like attorney’s
much more than the majority (501) of the eligible voters
fees and negotiation fees provided that there be strict
cast their votes.
compliance with the requisites of a valid special assessment.
(Art. 241 (n) and (o), Labor Code).
RIGHTS OF LABOR ORGANIZATION
Q: What requisites must a Union comply with before it
Check off, Assessment, Agency fees (2002, 2001, 1997 can validly impose special assessments against its
Bar) members for incidental expenses, attorney's fees,
representation expenses and the like? (2001, 2002 Bar)
Q: The union deducted P20.00 from Rogelio's wages for
January. Upon inquiry he learned that it was for death

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QUAMTO (1987-2016)
A: In order that the special assessment may be upheld as A: An APPROPRIATE BARGAINING UNIT is a group of
valid, the following requisites must be compiled with: (1) employees of a given employer comprised of all or less than
Authorization by a written resolution of the majority of all all of the entire body of employees, which the collective
the members at the general membership meeting duly interest of all the employees, consistent with the interest of
called for the purpose; (2) Secretary's record of the the employer, indicated to be the best suited to serve
meeting; and (3) Individual written authorization for the reciprocal rights and duties of the parties under the
check-off duly signed by the employee concerned. [ABSCBN collective bargaining provisions of the law. (See University
Supervisors Employees Union Members v. ABS-CBN of the Philippines v. Ferrer-Calleja, G.R. No. 96189, July 14,
Broadcasting Corp, and Union Officers, G.R. No. 106518, 1992).
March 11, 1999; Art. 241(n) and (o), Labor Code]
COLLECTIVE BARGAINING AGREEMENT (CBA)
COLLECTIVE BARGAINING
Mandatory provisions of CBA (2008, 1999 Bar)
Duty to bargain collectively (2010, 2009, 2008, 2001,
1999, 1996, 1992, 1991 Bar) Q: Jenson & Jenson (J & J) is a domestic corporation
engaged in the manufacturing of consumer products.
Q: ABC company and U labor union have been Its rank-and-file workers organized the Jenson
negotiating for a new Collective Bargaining Agreement Employees Union (JEU), a duly registered local union
(CBA) but failed to agree on certain economic affiliated with PAFLU, a national union. After having
provisions of the existing agreement. In the meantime, been certified as the exclusive bargaining agent of the
the existing CBA expired. The company thereafter appropriate bargaining unit, JEU-PAFLU submitted its
refused to pay the employees their midyear bonus, proposals for a Collective Bargaining Agreement with
saying that the CBA which provided for the grant of the company. In the meantime, a power struggle
midyear bonus to all company employees had already occurred within the national union PAFLU between its
expired. Are the employees entitled to be paid their National President, Manny Pakyao, and its National
midyear bonus? Explain your answer. (2010 Bar) Secretary General, Gabriel Miro. The representation
issue within PAFLU is pending resolution before the
A: Yes, under Article 253 of the Labor Code, the parties are Office of the Secretary of Labor. By reason of this intra-
duty-bound to maintain the status quo and to continue in union dispute within PAFLU, J & J obstinately and
full force and effect the terms and conditions of the existing consistently refused to offer any counterproposal and
CBA until a new agreement is reached by the parties. to bargain collectively with JEUPAFLU until the
Likewise, Art. 253-A provides for an automatic renewal representation issue within PAFLU shall have been
clause of a CBA. Although a CBA has expired, it continues to resolved with finality. JEU-PAFLU filed a Notice of Strike.
have legal effects as between the parties until a new CBA The Secretary of Labor subsequently assumed
has been entered into. jurisdiction over the labor dispute.

The same is also supported by the principle of holdover, a. Will the representation issue that has arisen
which states that despite the lapse of the formal effectivity involving the national union PAFLU, to which the duly
of the CBA, the law stills considers the same as continuing registered local union JEU is affiliated, bar collective
in force and effect until a new CBA shall have been validly bargaining negotiation with J & J? Explain briefly.
executed (MERALCO v. Hon. Sec. of Labor, 337 SCRA 90
[2000] citing National Congress of Unions in the Sugar A: The representation issue that has arisen involving the
Industry of the Philippines v. Ferrer-Calleja, 205 SCRA 478 national union PAFLU should not bar collective bargaining
[1992]). The terms and conditions of the existing CBA negotiation with J and J. It is the local union JEU that has the
remain under the principle of CBA continuity. right to bargain with the employer J and J, and not the
national union PAFLU. It is immaterial whether the
representation issue within PAFLU has been resolved with
Q: What jurisdictional pre-conditions must be present finality or not. Said squabble could not possibly serve as a
to set in motion the mechanics of a collective
bar to any collective bargaining since PAFLU is not the real
bargaining? (1996 Bar)
party-in interest to the talks; rather, the negotiations are
confined to the corporation and the local union JEU. Only
A: To set in motion the mechanics of collective bargaining, the collective bargaining agent, the local union JEU,
these jurisdictional pre-conditions must be present, possesses the legal standing to negotiate with the
namely:
corporation. A duly registered local union affiliated with a
1. The employees in a bargaining unit should form a labor national union or federation does not lose its legal
organization; personality or independence. (Adamson and Adamson, Inc. v.
2. The labor organization should be a legitimate labor The Court of Industrial Relations and Adamson and Adamson
organization; Supervising Union (FFW), G.R. No. L-35120, January 30,1984).
3. As such legitimate labor organization, it should be
recognized or certified as the collective bargaining
b. Can the Secretary of Labor decide the labor dispute
representative of the employees of the bargaining unit; by awarding the JEU CBA Proposals as the Collective
and
Bargaining Agreement of the parties? Explain briefly.
4. The labor organization as the collective bargaining
(1999 Bar)
representative should request the employer to bargain
collectively. (See Arts. 243, 234, 255 and 250 of the Labor
A: Yes, the Secretary of Labor can decide the labor dispute
Code). by awarding the JEU CBA proposals as the Collective
Bargaining Agreement between the parties because when
Q: What is an appropriate bargaining unit for purposes the Secretary of Labor (under Art. 263 [g]) assumes
of collective bargaining? (1999 Bar) jurisdiction over a labor dispute causing or likely to cause a
strike or lockout in an industry indispensable to the

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Labor Law and Social Legislation

national interest, the Secretary of Labor exercises the administrative proceeding. During the pendency of such
power of compulsory arbitration over the labor dispute, administrative proceeding, the running of the period for
meaning, that as an exception to the general rule, the prescription of the criminal offense herein penalized shall
Secretary of Labor now has the power to set or fix wages, be interrupted. The final judgment in the administrative
rates of pay, hours of work or terms and conditions of proceeding shall not be binding in the criminal case nor be
employment by determining what should be the CBA of the considered as evidence of guilt but merely as proof of
parties. (See Divine Word University v. Secretary of Labor, G.R. compliance of the requirements set forth by law. (Article
No. 91915, September 11, 1992) 247, Labor Code)

ALTERNATIVE ANSWER: Q: Differentiate “surface bargaining” from “blue-sky


bargaining”. (2010 Bar)
What is involved in the case is a corporation engaged in the
manufacturing of consumer products. If the consumer A: SURFACE BARGAINING is defined as “going through the
products that are being manufactured are not such that a motions of negotiating” without any legal intent to reach
strike against the company cannot be considered a strike in an agreement. The determination of whether a party has
an industry indispensable for the national interest, then the engaged in unlawful surface bargaining is a question of the
assumption of jurisdiction by the Secretary of Labor is not intent of the party in question, which can only be inferred
proper. Therefore, he cannot legally exercise the powers of from the totality of the challenged party’s conduct both at
compulsory arbitration in the labor dispute. and away from the bargaining table. It involves the
question of whether an employer’s conduct demonstrates
Q: Explain the automatic renewal clause of collective an unwillingness to bargain in good faith or is merely hard
bargaining agreements. (2008 Bar) bargaining (Standard Chartered Bank Employees Union
(NUBE)v. Confesor, 432 SCRA 308 [2004]).
A: The automatic renewal clause of Collective Bargaining
Agreements means that although a CBA has expired, it BLUE-SKY BARGAINING is defined as “unrealistic and
continues to have legal effects as between the parties until unreasonable demands in negotiations by either or both
a new CBA has been entered into (Pier 8 Arrastre & labor and management, where neither concedes anything
Stevedoring Services, Inc. v. Roldan-Confessor, 241 SCRA 294 and demands the impossible” (Standard Chartered Bank
[1995]). This is so because the law makes it a duty of the Employees Union (NUBE) v. Confesor, supra.).
parties to keep the status quo and to continue in full effect
the terms and conditions of the existing agreement until a By employers (2010, 2009, 2004, 2001, 1999, 1996,
new agreement is reached by the parties (Art. 253, Labor 1992, 1991, 1990 Bar)
Code).
Q: Article 248(d) of the Labor Code states that it shall
UNFAIR LABOR PRACTICE be unlawful for an employer to initiate, dominate,
assist in or otherwise interfere with the formation or
Nature, aspects (2010, 2009, 2007, 2005 Bar) administration of any labor organization. Including
the giving of financial or other support to it or to its
Q: Is the commission of an unfair labor practice by an organizers or officers.
employer subject to criminal prosecution? (2005 Bar)
X Company, Inc. has been regularly contributing
A: Yes. The second paragraph of Art. 247 of the Labor Code money to the recreation fund of the labor union
expressly so provides. The last paragraph of Art. 247 representing its employees. This fund, including the
provides that no criminal prosecution for unfair labor financial assistance given by the employer, is used for
practice maybe made without a prior final judgment in an refreshment and other expenses of the labor union
unfair labor practice administrative case (filed before the whenever the employees go on a picnic, on an
Labor Arbiter of the NLRC pursuant to Art. 217(a)(1) of the excursion, or hold a Christmas party. Is the employer
Labor Code). And even with such final judgment in an liable for unfair labor practice under Article 248(d) of
administrative case, still, the final judgment would not be the Labor Code? Explain your answer. (1990 Bar)
binding in the criminal case. Neither would such final
judgment be considered as evidence in the criminal case. At A: No. If the contributions of the employer benefit all the
best, it would only serve as proof of compliance of the employees and there is no employee discriminated against,
required prior exhaustion of administrative complaint. there is no unfair labor practice. The contributions, may be
considered a fringe benefit given by the employer.
Q: Discuss in full the jurisdiction over the civil and
criminal aspects of a case involving an unfair labor Q: Company "A" contracts out its clerical and janitorial
practice for which a charge is pending with the services. In the negotiations of its CBA, the union
Department of Labor and Employment. (2007 Bar) insisted that, henceforth, the company may no longer
engage in contracting out these types of services, which
A: Unfair labor practices are not only violations of the civil services the union claims to be necessary in the
rights of both labor and management but are also criminal company's business, without prior consultation. Is the
offenses against the State. union is stand valid or not? For what reason(s)? (2001
Bar)
The civil aspect of all cases involving unfair labor practices,
which may include claims for actual, moral, exemplary and
A: The union's stand is not valid. It is part of management
other forms of damages, attorney’s fee and other
prerogative, to contract out any work, task, job or project
affirmative relief, shall be under the jurisdiction of the
except that it is an unfair labor practice to contract out
Labor Arbiters.
services or functions performed by union members when,
However, no criminal prosecution shall be instituted such will interfere with, restrain or coerce employees in the
without a final judgment, finding that an unfair labor exercise of their rights to self- organization. (Art. 248(c) of
practice was committed, having been first obtained in the the. Labor Code)

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Q: Give three (3) examples of unfair labor practices on d. To cause or attempt to cause an employer to pay or
the part of the employer and three (3) examples of deliver or agree to pay or deliver any money or other
unfair labor practices on the part of the labor union. things of value, in the nature of an exaction, for services
(1996 Bar) which are not performed or not to be performed,
including the demand for fee for union negotiations;
A. Any three (3) from the following enumeration in the e. To ask for or accept negotiations of attorney's fees
Labor Code: from employers as part of the settlement of any issue
in collective bargaining or any other dispute; or
ART. 248. Unfair labor practices of employers. It shall be f. To violate a collective bargaining agreement.
unlawful for an employer to commit any of the following
unfair labor practice: Q: Around 100 workers of a mill in a coconut plantation
organized themselves for the purpose of promoting
a. To interfere with, restrain or coerce employees in the their common interest and welfare. The workers’
exercise of their right to self-organization; association prepared a petition for increasing the daily
b. To require as a condition of employment that a person pay of its members in compliance with minimum wage
or an employee shall not join a labor organization or rates for their sector in the region and for granting
shall withdraw from one to which he belongs; benefits to which they are entitled under the law.
c. To contract out services or functions being performed
by union members when such will interfere with, However, the workers became restless and anxious
restrain or coerce employees in the exercise of their after the owner-manager threatened them with mass
rights to self-organization; lay-off if the association would press for their demands.
d. To initiate, dominate, assist or otherwise interfere with Most of its members have worked in the mill for 10 to
the formation or administration of any labor organiza- 15 years with no improvement in working conditions
tion, including, the giving of financial or other support and monetary benefits.
to it, or its organizations, or supporters;
e. To discriminate in regard to wages, hours of work, and The leaders of the workers' association approached
other terms and conditions of employment in order to you and asked: What legal steps could they take to
protect their security of tenure? What advice could you
encourage or discourage membership in any labor
organization. Nothing in this Code or in any other law give them? (2004 Bar)
shall stop the parties from requiring membership in a A: I would advise them to register the workers’ association
recognized collective bargaining agent as a condition with the Department of Labor and Employment. Then, have
for employment, except those employees who are the workers' association file a ULP case against the
already members of another union at the time of the employer.
signing of the collective bargaining agreement.
Provided, that the individual authorization required
Q: A is employed by XYZ Company where XYZ
under Article 241, paragraph (o) of this Code shall not
Employees Union (XYZ-EU) is the recognized exclusive
apply to the non-members of the recognized collective
bargaining agent. Although A is a member of rival
bargaining agent;
union XYR-MU, he receives the benefits under the CBA
f. To dismiss, discharge, or otherwise prejudice or
that XYZ-EU had negotiated with the company.
discriminate against an employee for having given or
being about to give testimony under this Code;
XYZ-EU assessed A a fee equivalent to the dues and
g. To violate the duty to bargain collectively as prescribed
other fees paid by its members but A insists that he has
by this Code;
no obligation to pay said dues and fees because he is
h. To pay negotiation or attorney's fees to the union or its
not a member of XYZ-EU and he has not issued an
officers or agents as part of the settlement of any issue
authorization to allow the collection. Explain whether
in collective bargaining or any other dispute; or
his claim is meritorious. (2010 Bar)
i. To violate a collective bargaining agreement.
A: No. The fee exacted from A takes the form of an AGENCY
Any three (3) from the following provisions of the Labor
FEE. This is sanctioned by Article 248 (e) of the Labor Code.
Code:

ART. 249. Unfair labor practices of labor organizations. It The collection of agency fees in an amount equivalent to
shall be unfair labor practice for a labor organization. Its union dues and fees from employees who are not union
officers, agents or representatives: members is recognized under Article 248(e) of the Labor
Code. The union may collect such fees even without any
a. To restrain or coerce employees in the exercise of their written authorization from the non-union member
rights to self-organization. However, a labor organiza- employees, if said employees accept the benefits resulting
tion shall have the right to prescribe its own rules with from the CBA. The legal basis of agency fees is quasi-
respect to the acquisition or retention of membership; contractual (Del Pilar Academy v. Del Pilar Academy
b. To cause or attempt to cause an employer to dis- Employees Union, 553 SCRA 590 [2008]).
criminate against an employee, including
discrimination against an employee with respect to Q: Pablo works as a driver at the National Tire Company
whom membership in such organization has been (NTC). He is a member of the Malayang Samahan ng
denied or to terminate an employee on any ground Manggagawa sa NTC, the exclusive rank-and-file
other than the usual terms and conditions under which collective bargaining representative in the company.
membership or continuation of membership is made The union has a CBA with NTC which contains a union
available to other members; security and a check-off clause. The union security
c. To violate the duty, or refuse to bargain collectively clause contains a maintenance of membership
with the employer, provided it is the representative of provision that requires all members of the bargaining
the employees; unit to maintain their membership in good standing

39
Labor Law and Social Legislation

with the union during the term of the CBA under pain of A: LFEU’s claim that Libra Films committed ULP based on
dismissal. The check-off clause on the other hand its violation of the CBA is not correct. For violation of a CBA
authorizes the company to deduct from union to constitute ULP, the violation must be violation of its
members' salaries defined amounts of union dues and economic provisions. Moreover, said violation must be
other fees. Pablo refused to issue an authorization to gross and flagrant. Based on the allegation of the union,
the company for the check-off of his dues, maintaining what was violated was the maintenance of membership
that he will personally remit his dues to the union. clause which was a political or representational provision;
hence, no ULP was committed. (BPI Employees Union-Davao
(a) Would the NTC management commit unfair labor City v. BPI, 702 SCRA 42).
practice if it desists from checking off Pablo's union
dues for lack of individual authorization from Pablo? By Labor organizations

A. No. Under Article 9481, violation of the Collective Q: A labor union lawyer opined that a labor
Bargaining Agreement, to be an unfair labor practice, must organization is a private and voluntary organization;
be gross in character. It must be a flagrant and malicious hence, a union can deny membership to any and all
refusal to comply with the economic provisions of the CBA. applicants. Is the opinion of counsel in accord with law?
[1998 Bar]
ALTERNATIVE ANSWER:
A: No, the opinion of counsel is not in accord with law. The
No. Check-offs in the truth impose an extra burden on the Labor Code [in Article 249 (a and b)] provides that a labor
employer in the form of additional administrative and organization has the light to prescribe its own rules for the
bookkeeping costs. It is a burden assumed by management acquisition or retention of membership, but it is an unfair
at the instance of the union and for its benefit, in order to labor practice act for a labor organization to restrain or
facilitate the collection of dues necessary for the latter’s life coerce employees in the exercise of their right to self-
and sustenance. But the obligation to pay union dues and organization. Thus, a labor organization cannot
agency fees obviously devolves not upon the employer, but discriminate against any employee by denying such
the individual employee. It is a personal obligation not employee membership in the labor organization on any
demandable from the employer upon default or refusal of ground other than the usual terms and conditions under
the employee to consent to a check-off. The only obligation which membership or continuation of union membership is
of the employer under a check-off is to effect the deductions made available to other members.
and remit the collections to the union. (Holy Cross of Davao
College v. Joaquin, G.R. No. 110007 [1996]) PEACEFUL CONCERTED ACTIVITIES

(b) Can the union charge Pablo with disloyalty for BY LABOR ORGANIZATION
refusing to allow the check off of his union dues and, on
this basis, ask the company to dismiss him from Strike (2010, 2008, 2002, 2000, 1998 Bar)
employment? (2013 Bar)

A. No. The “check-off clause” in the CBA will not suffice. The Q: The day following the workers' voluntary return to
law prohibits interference with the disposition of one’s work, the Company Production Manager discovered an
salary. The law requires “individual written authorization” unusual and sharp drop in workers' output. It was
to deduct union dues from Pablo’s salaries. For as long as he evidently clear that the workers are engaged in a work
pays union dues, Pablo cannot be terminated from slowdown activity. Is the work slowdown a valid form
employment under the union security clause. As a matter of of strike activity? (1998 Bar]
fact, filing a complaint against the union before the
Department of Labor for forcible deduction from salaries A: A work slowdown is not a valid form of strike activity. If
does not constitute acts of disloyalty against the union. workers are to strike, there should be temporary stoppage
(Tolentino v. Angeles, 52 O.G. 4262) of work by the concerted action of employees as a result of
an industrial or labor dispute (See Article 212(o) of the
Q: The Collective Bargaining Agreement (CBA) between Labor Code)
Libra Films and its union, Libra Films Employees' Union
(LFEU), contains the following standard clauses: Q: Eaglestar Company required a 24-hour operation
and embodied this requirement in the employment
1. Maintenance of membership; contracts of its employees. The employees agreed to
2. Check off for union dues and agency fees; and work on Sundays and Holidays if their work schedule
3. No strike, no lock-out. required them, to do so for which they would be paid
additional compensation as provided by law. Last
While Libra Films and LFEU are in re-negotiations for March 2000, the union filed a notice of strike. Upon
an extension of the CBA, LFEU discovers that some of its Eaglestar’s petition, the Secretary of Labor certified
members have resigned from the union, citing their the labor dispute to the NLRC for compulsory
constitutional right to organize (which includes the arbitration. On April 20, 2000 (Maundy Thursday),
right NOT to organize). LFEU demands that Libra Films while conciliation meetings were pending, the union
institute administrative proceedings to terminate officers and members who were supposed to be on
those union members who resigned in violation of the duty did not report for work. Neither did they report
CBA's maintenance of membership clause. Libra Films for work on April 21 (Good Friday) and on April 22
refuses, citing its obligation to remain a neutral party. (Black Saturday), disrupting the factory’s operations
As a result, LFEU declares a strike and after filing a and causing it huge losses. The union denied it had
notice of strike and taking a strike vote, goes on strike. gone on a strike because the days when its officers and
The union claims that Libra Films grossly violated the members were absent from work were legal holidays.
terms of the CBA and engaged in unfair labor practice. Is the contention of the union correct? Explain briefly.
Are LFEU's claims correct? Explain. (2015 Bar) (2002 Bar)

UST BAR OPERATIONS


40
QUAMTO (1987-2016)
A: The contention of the union is NOT correct. temporary stoppage of work by the concerted action of
employees, as a result of a labor or industrial dispute, is
In the case, it is clear that the employees agreed to work on clearly a case of strike.
Sundays and Holidays if their work schedule required
them to do so for which they would be paid additional Q: What is the rationale for the State regulation of
compensation as provided by law. strike activity and what are the interests involved that
the State must balance and reconcile? (2000 Bar)
The above-mentioned agreement that the employees
A: The first rationale is the constitutional provision that
voluntarily entered into is valid. It is not contrary to law. It
the right to strike is to be exercised “in accordance with
is provided in the agreement that if they will work Sundays
law”. Another rationale is the Civil Code provision that the
or Holidays that they will be paid additional compensation
relations between employer*and employee are imbued
as provided by law. Neither is the agreement contrary to
with public interest and are subject to the provisions of
morals, good customs, public order or public policy.
special law. A third rationale is the police power of the
state.
Thus, when the workers did not report for work when by
agreement they were supposed to be on duty, there was a The interests to be balanced are the rights of the workers,
temporary stoppage of work by the concerted action of the as primary socio-economic force, to protection of the law,
employees as a result of an industrial or labor dispute to security of tenure, to concerted activities, etc. These
because they were on strike. (See Interphil Laboratories should be balanced with the right of the employer to
Employees Union-FFW v. Interphil Laboratories Inc., CR No. reasonable return on investment and to expansion and
142924, December 19, 2001) growth. General welfare or the general peace and progress
of society should also be considered. This is why
Q: On the day that the Union could validly declare a assumption of jurisdiction and certification to NLRC are
strike, the Secretary of Labor issued an order assuming allowed in “national interest" cases. [Art. 263, Labor Code:
jurisdiction over the dispute and enjoining the strike, Ilaw at Buklod rig Manggagawa v. NLRC, 198 SCRA 586
or if one has commenced, ordering the striking (1991); Lapanday Workers Union u. NLRC, 248 SCRA 96
workers to immediately return to work. The return-to- (1995)].
work order required the employees to return to work
within twenty-four hours and was served at 8 a.m. of Q: Cite two (2) examples on how the law regulates the
the day the strike was to start. The order at the same use of tire strike as a form of concerted activity. (2000
time directed the Company to accept all employees Bar)
under the same terms and conditions of employment
prior to the work stoppage. The Union members did A: Examples: (1) procedural requirements should be
not return to work on the day the Secretary’s observed, namely, filing of notice of strike, observance of
assumption order was served, nor on the next day; cooling-off period, taking of strike note, and report of the
instead, they held a continuing protest rally against the strike vote; (2) use of violence, intimidation or coercion
company’s alleged unfair labor practices. Because of and blockade of ingress-egress are not allowed. [Art 263
the accompanying picket, some of the employees who (b) (c) (f) (g), Labor Code]
wanted to return to work failed to do so. On the 3rd day,
the workers reported for work, claiming that they do Q: Johnny is the duly elected President and principal
so in compliance with the Secretary’s return-to-work union organizer of the Nagkakaisang Manggagawa ng
order that binds them as well as the Company. The Manila Restaurant (NMMR), a legitimate labor
Company, however, refused to admit them back since organization. He was unceremoniously dismissed by
they had violated the Secretary’s return-to-work order management for spending virtually 95% of his
and are now considered to have lost their employment working hours in union activities. On the same day
status. Johnny received the notice of termination, the labor
union went on strike.
The Union officers and members filed a complaint for
illegal dismissal arguing that there was no strike but a
Management filed an action to declare the strike
protest rally which is a valid exercise of the workers’
illegal, contending that:
constitutional right to peaceable assembly and
freedom of expression. Hence, there was no basis for a. The union did not observe the “cooling-off period”
the termination of their employment. mandated by the Labor Code; and
b. The union went on strike without complying with
You are the Labor Arbiter to whom the case was raffled. the strike-vote requirement under the Labor Code.
Decide, ruling on the following issues: Was there a (2009 Bar)
strike? (2008 Bar)
Rule on the foregoing contentions with reasons.
A: Yes, there was a strike. No matter how they call it, the
“continuing protest rally against the company’s alleged a. A: Yes. The conduct of a strike action without
unfair labor practices” constitutes a “temporary stoppage observing the cooling-off period is a violation of one of
of work by the concerted action of employees as a result of the requirements of law which must be observed. The
an industrial or labor dispute” - a case of strike as defined cooling- off periods required by Articles 263 (c) and
in Art. 212(o) of the Labor Code. 263 (f) of the Labor Code are to enable the DOLE to
exert efforts to amicably settle the controversy, and
Recently, in Santa Rosa Coca-Cola Plant Employees Union, et for the parties to review and reconsider their
al. v. Coca-Cola Bottlers Phils., Inc. (512 SCRA 437 [2007]), respective positions during the cooling-off periods.
the Supreme Court clarified that a strike comes in varied But the Labor Code also provides that if the dismissal
forms, from “slowdowns, mass leaves, sit downs” to other constitutes union busting, the union may strike
“similar activities.” A protest rally which results in immediately.

41
Labor Law and Social Legislation

b. A: Yes. The conduct of the strike action without a valid because of the refusal of the company to
strike vote violates Art. 263 (f) - In every case, the discuss the economic provisions of the CBA. Rule on
union or the employer shall furnish the [DOLE] the the contention.
results of the voting at least seven days before the
intended strike...” to enable the DOLE and the parties A: The Union’s contention is wrong. A strike may be
to exert the last effort to settle the dispute without declared only in cases of deadlock in collective bargaining
strike action. negotiations and unfair labor practice [Article 263(c) Labor
Code; Section 1, Rule V, NCMB Manual of Procedures]
Q: A is a member of the labor union duly recognized as
the sole bargaining representative of his company. The proposal of the company to discuss political provisions
Due to a bargaining deadlock, 245 members of the pursuant to the ground rules agreed upon does not
500-strong union voted on March 13, 2010 to stage a automatically mean that the company refuses to discuss
strike. A notice of strike was submitted to the National the economic provisions of the CBA, or that the company
Conciliation and Mediation Board on March 16, 2010. was engaged in “surface bargaining” in violation of its duty
Seven days later or on March 23, 2010, the workers to bargain, absent any showing that such tend to show that
staged a strike in the course of which A had to leave the company did not want to reach an agreement with the
and go to the hospital where his wife had just delivered Union. In fact, there is no deadlock to speak of in this case.
a baby. The union members later intimidated and
barred other employees from entering the work The duty to bargain does not compel either party to agree
premises, thus paralyzing the business operations of to a proposal or require the making of a concession. The
the company. parties’ failure to agree which to discuss first on the
bargaining table did not amount to ULP for violation of the
A was dismissed from employment as a consequence of duty to bargain.
the strike. Was the strike legal? Explain (2010 Bar)
Besides, the mass leave conducted by the union members
A: No. The strike was not legal due to the union’s failure to
failed to comply with the procedural requirements for a
satisfy the required majority vote of union membership
valid strike under the Rules, without which, the strike
(251 votes), approving the conduct of a strike [See Art.
conducted taints of illegality
263(f), Labor Code; Section 11, Rule XXII, Dept. Order No. 40-
.
03]. Also, the strike was illegal due to the non-observance
c. Union member AA, a pastor who headed the prayer
of the 30-day cooling off period by the union [Art. 263(c),
rally, was served a notice of termination by
Labor Code]. rights of employees to self-organization (Club
management after it filed the petition for
Filipino, Inc. v. Bautista, 592 SCRA 471 [2009]).
assumption of jurisdiction. May the company
validly terminate AA? Explain. (2010 Bar)
Q: On the first day of collective bargaining negotiations
between rank-and-file Union A and B Bus Company, the
former proposed a P45/day increase. The company A: No. The company cannot terminate AA because the
insisted that ground rules for negotiations should first Labor Code provides mere participation of a worker in a
be established, to which the union agreed. After strike shall not constitute sufficient ground for termination
agreeing on ground rules on the second day, the union of his employment.
representatives reiterated their proposal for a wage
increase. When company representatives suggested a Valid versus Illegal strikes (2010, 2007, 2004, 2003,
discussion of political provisions in the Collective 2000, 1994 Bar)
Bargaining Agreement as stipulated in the ground
rules, union members went on mass leave the next day Q: Discuss the legal requirements of a valid strike.
to participate in a whole-day prayer rally in front of the (2007 Bar)
company building.
A. The legal requirements of a valid strike are as follows:
a. The company filed a petition for assumption of
jurisdiction with the Secretary of Labor and 1. No labor union may strike on grounds involving inter-
Employment. The Union opposed the petition, union and intra-union disputes.
arguing that it did not intend to stage a strike. 2. In cases of bargaining deadlocks, the duly certified or
Should the petition be granted? Explain. recognized bargaining agent may file a notice of strike
with the Department of Labor and Employment at least
A: Yes. There was a strike. What the union engaged in was 30 days before the intended date thereof. In cases of
actually a “work stoppage” in the guise of a protest rally. unfair labor practice, the period of notice shall be 15
Article 212(o) of the Labor Code defines strike as a days and in the absence of a duly certified or recognized
temporary stoppage of work by the concerted action of bargaining agent, the notice of strike may be filed by
employees as a result of an industrial or labor dispute. The any legitimate labor organization in behalf of its
fact that the conventional term "strike” was not used by members. However, in case of dismissal from
the striking employees to describe their common course employment of union officers duly elected in
of action is inconsequential. What is controlling is the accordance with the union constitution and by-laws,
substance of the situation, and not its appearance. The which may constitute union busting where the
term "strike” encompasses not only concerted work existence of the union is threatened, the 15-day
stoppages, but also slowdowns, mass leaves, sit-downs, cooling-off period shall not apply and the union may
attempts to damage, destroy or sabotage plant equipment take action immediately.
and facilities, and similar activities (Santa Rosa Coca- Cola 3. A decision to declare a strike must be approved by a
Plant Employees Union, Donrico v. Sebastian, et al. v. Coca- majority of the total union membership in the
Cola Bottlers Phils., Inc., 512 SCRA 437 [2007]). bargaining unit concerned, obtained by secret ballot in
meetings or referenda called for that purpose.
b. The Union contended that assuming that the mass 4. In every case, the union shall furnish the Department of
leave will be considered as a strike, the same was Labor and Employment the voting at least seven days

UST BAR OPERATIONS


42
QUAMTO (1987-2016)
before the intended strike subject to the cooling-off c. Cause – The cause of a strike must be a labor or
period herein provided. industrial dispute. [Art. 212(o], Labor Code]
5. No labor organization shall declare a strike without
first having bargained collectively; without first having Compliance with all legal requirements are meant to be and
filed the notice required or without the necessary should be mandatory. (National Federation of Sugar
strike vote first having been obtained and reported to Workers v. Ovajera, 114 SCRA354 [1982])
the Department of Labor and Employment.
6. No strike shall be declared after assumption of Q: On the first day of collective bargaining
jurisdiction by the President or the Secretary or after negotiations between rank-and-file Union A and B Bus
certification or submission of the dispute to Company, the former proposed a P45/day increase.
compulsory or voluntary arbitration or during the The company insisted that ground rules for
pendency of cases involving the same grounds for the negotiations should first be established, to which the
strike. union agreed. After agreeing on ground rules on the
7. In a strike, no person engaged in picketing should second day, the union representatives reiterated their
commit any act of violence, coercion or intimidation or proposal for a wage increase. When company
obstruct the free ingress to or egress from the representatives suggested a discussion of political
employer’s premises for lawful purposes, or obstruct provisions in the Collective Bargaining Agreement as
public thoroughfares. stipulated in the ground rules, union members went
on mass leave the next day to participate in a whole-
Q: A division manager of a company taunted a union day prayer rally in front of the company building.
officer two days after the union submitted to the
Department of Labor and Employment (DOLE) the a. The company filed a petition for assumption of
result of the strike vote. The division manager said: jurisdiction with the Secretary of Labor and
“Your union threat of an unfair labor practice strike is Employment. The Union opposed the petition, arguing
phony or a bluff. Not even ten percent (10%) of your that it did not intend to stage a strike. Should the
members will join the strike.’' To prove union member petition be granted? Explain.
support for the strike, the union officer immediately
instructed its members to cease working and walk out. A. Yes. There was a strike. What the union engaged in was
Two hours after the walkout, the workers voluntarily actually a “work stoppage” in the guise of a protest rally.
returned to work.
Article 212(o) of the Labor Code defines strike as a
a. Was the walkout a strike? And if so, was it a valid temporary stoppage of work by the concerted action of
activity? employees as a result of an industrial or labor dispute. The
fact that the conventional term "strike” was not used by the
A: Yes, it was a strike because there was a work stoppage striking employees to describe their common course of
by concerted action and there is an existing labor dispute. action is inconsequential. What is controlling is the
It was not a valid activity because the requisites for a valid substance of the situation, and not its appearance. The
strike were not observed. [Art. 212, (o), (i) Labor Code]. term "strike” encompasses not only concerted work
stoppages, but also slowdowns, mass leaves, sit-downs,
b. Can the union officer who led the short walk-out, attempts to damage, destroy or sabotage plant equipment
but who likewise voluntarily led the workers back and facilities, and similar activities (Santa Rosa Coca- Cola
to work, be disciplined by the employer? (2000 Plant Employees Union, Donrico v. Sebastian, et al. v. Coca-
Bar) Cola Bottlers Phils., Inc., 512 SCRA 437 [2007]).
A: Yes, the employer may discipline the union officer. An b. The Union contended that assuming that the mass
Illegal strike is a cause for the union officer to be declared leave will be considered as a strike, the same was valid
to have lost his employment status. [Art. 263 (c), (d),( e)-(j); because of the refusal of the company to discuss the
Art. 264 (a), Labor Code]. economic provisions of the CBA. Rule on the contention.
(2 0 1 0 B a r )
Q: What are the statutory requisites for a valid strike by
the workers? Should these requisites be complied with A: The Union’s contention is wrong. A strike may be
substantially or strictly? (2004 Bar) declared only in cases of deadlock in collective bargaining
negotiations and unfair labor practice [Article 263(c),
A: Statutory Requirements for a Valid Strike Labor Code; Section 1, Rule V, NCMB Manual of Procedures]
a. Status of Striking Union – For a ULP strike or bargaining
The proposal of the company to discuss political provisions
deadlock strike, only a duly certified or recognized
pursuant to the ground rules agreed upon does not
bargaining representative may declare such strike.
automatically mean that the company refuses to discuss
b. Procedural Requirements:
the economic provisions of the CBA, or that the company
i. Notice of Intent. Filing of Notice of Intent to Strike was engaged in “surface bargaining” in violation of its duty
to bargain, absent any showing that such tend to show that
with NCMB.
the company did not want to reach an agreement with the
ii. Cooling off Period – Observance of Cooling-off
Union. In fact, there is no deadlock to speak of in this case.
Period.
(a) ULP - 15 days before intended date of strike
The duty to bargain does not compel either party to agree
(b) Bargaining Deadlock - 30 days before
to a proposal or require the making of a concession. The
intended date of strike.
parties’ failure to agree which to discuss first on the
bargaining table did not amount to ULP for violation of the
iii. Strike Vote and Filing of the same with the NCMB
duty to bargain.
and the observance of the seven (7) days strike
ban. [Art. 263 (c-f). Labor Code].

43
Labor Law and Social Legislation

Besides, the mass leave conducted by the union members for a valid cause? Was due process observed? (2004
failed to comply with the procedural requirements for a Bar)
valid strike under the Rules, without which, the strike
conducted taints of illegality. A: There is a valid cause for the dismissal of FX, but due
process was not observed.
Picket (2016, 2004, 2000, 1992, 1991 Bar)
Peaceful picketing is part of the constitutional freedom of
Q: Following a deadlock in collective bargaining, the AC- speech. The right to free speech, however, has its limits, and
AC Labor Union filed a notice of strike with the picketing as a concerted activity is subject to the same
Department of Labor and Employment and, thirty (30) limitations as a strike, particularly as to lawful purpose and
days later, went on strike and picketed the gates of the lawful means. But it does not have to comply with the
UP-UP Company, paralyzing its operations. The procedural requirements for a lawful strike, like the notice
company is engaged in telecommunications, including of strike or the strike vote. However in the problem given,
the supply of cellular phone equipment, with a picketing became illegal because of unlawful means, as
nationwide network of facilities. In a petition with the barricades blocked the employees' entry to the mill, and
DOLE, the company questioned the legality of the strike violence, ensued when FX threw stones at the guards. There
and asked for compulsory arbitration. The Secretary of was thus, valid cause for the dismissal of FX, however, due
the DOLE certified the dispute to the NLRC for process was not observed because SSI did not comply with
compulsory arbitration and ordered the company to the twin requirements of notice and hearing.
readmit the workers pending the arbitration. The
workers returned and were readmitted by the Q: The workers engaged in picketing activity in the
company but five (5) technicians were temporarily re- course of a strike.
assigned to the warehouse while five (5) others were
reinstated on payroll only. The company justified its a. Will picketing be legal if non-employees of the
strike-bound employer participate in the activity?
acts as an exercise of management prerogative.
A. Yes, the picketing is legal even though non-employees
During the strike, may the striking union picket the
join it. Picketing is a form of the exercise of freedom of
company's outside outlets although they are not
speech. Picketing, provided it is held peacefully, is a
company-owned but independent dealers? (1991 Bar)
constitutional right. The disputants in a legal dispute need
not be employer-employee of each other. [De Leon v.
A: Peaceful picketing conducted by employees in a strike National Labor Union, 100 Phil. 789 (1957); Cruz v. Cinema
area during any labor controversy is given protection by Stage, etc.101 Phil. 1259 (1957)].
the Labor Code.
b. Can picketing activity be curtailed when illegal acts
Thus, if the place being picketed is a strike area which is are committed by the picketing workers in the
defined by the Labor Code as “the establishment, course of the activity? (2000 Bar)
warehouses, depots, plants or offices, including the sites or
premises used as runaway shops, of the employer struck A: No, the picketing activity itself cannot be curtailed. What
against, as well as the immediate vicinity actually used by can be curtailed are the illegal acts being done in the course
picketing strikers in moving to and fro before all points of of the picket. However, if this is a “national interest" case
entrance to and exit from said establishment,” then the under Art. 263(g), the strike or work stoppage may be
picketing is protected, if it is peaceful. stopped by the power of assumption of jurisdiction or
certification of the case to the National Labor Relations
In the question given, however, since the striking union is Commission. [Nagkakaisang Mangagawa sa Cuison Hotel v.
picketing the company's outside outlets who are not Libron, 124 SCRA 448 (1983); Free telephone Workers Union
company owned but independent dealers, the picketing is u. PLOT. 113 SCRA 662 (1982)].
not in a strike area, thus the picketing is not protected by
the Code. BY EMPLOYER
Q: President FX, head of a newly formed labor union Lockout
composed of 1/3 of the total number of rank-and-file
employees in Super Stores, Inc., agitated his fellow Q: Fifty percent (50%) of the employees of Grandeur
employees to demand from management pay increases Company went on strike after negotiations for a
and overtime pay. His supervisor summoned him to collective bargaining agreement ended in a deadlock.
explain his tardiness and refusal to obey regulations. Grandeur Company, being a public utility, immediately
Feeling threatened, he gathered 20 of his members and petitioned the Secretary of Labor and Employment to
staged a 2-day picket in front of the shopping mall. assume Jurisdiction and certify the case to the NLRC. On
Security staff arrived and dismantled the placards and the fourth day of the strike and before the DOLE
barricades blocking the employees' entry to the mall. In Secretary could assume jurisdiction or certify the case
retaliation, FX threw stones at the guards, but the other to the NLRC, the strikers communicated in writing their
striking workers just stood by watching him. Seven offer to return to work. Grandeur Company refused to
days after the picket, FX who had gone absent without accept the offer of the strikers because it realized that
leave returned to the mall and announced that he had they were not at all capable of paralyzing the
filed a complaint for illegal dismissal and unfair labor operations of the company. The strikers accused
practice against SSI. Grandeur Company of illegal lockout.
SSI learned that FX's group was not registered. No Has Grandeur Company committed the act charged by
strike vote and strike notice were filed prior to the refusing to accept the offer of the strikers to return to
picket. The guards were told not to allow FX entry in the work? Discuss fully. (1995 Bar)
company premises as management considered him
effectively terminated. Other union members were A: There is no law that prohibits strikers to decide not to
accepted back to work by SSI. Was the dismissal of FX continue with a strike that they have started.

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44
QUAMTO (1987-2016)
incident of the labor dispute including the issue as to
Thus, the company committed an illegal lockout in refusing whether or not a strike is legal.
to accept the offer of the strikers to return to work. Under
the set of facts in the question, the Company did not give the Q: Employees of ABC declared a strike after filing a
required notice to lockout, much less did it observe the Notice of Strike with the DOLE. They barricaded
necessary waiting period, nor did it take a needed vote on company gates and damaged vehicles entering
the lockout. Thus, the lockout is illegal. company premises. On the second day of the strike,
ABC filed a petition with the DOLE Secretary to
ASSUMPTION OF JURISDICTION intervene through the issuance of an assumption of
jurisdiction order that the Secretary may issue when a
Nature (2004, 1998, 1997, 1996, 1994, 1992, 1991 Bar) strike or lock-out will adversely affect national
interest. ABC furnished the Secretary with evidence to
Q: Calabarzon Transportation Company (CTC) and the show that company vehicles had been damaged; that
Calabarzon Workers Union (CWU) are parties to a electric power had been cut off; and equipment and
collective bargaining agreement (CBA), which is materials were damaged because electric power was
effective until December 31, 1992. The CBA provides not immediately restored. ABC forecast that the
for among others, a bipartite committee composed of country’s supply of chlorine for water treatment
CTC and CWU representatives to evaluate all positions (which die company produces) would be affected
in the CTC and determine adjustment of wages and adversely if ABC’s operations were closed down by the
allowances. The Committee members having failed to strikers.
agree on the adjustments, the CWU filed a notice of
strike. Conciliation efforts by the National Conciliation Could the DOLE Secretary intervene, assume
and Mediation Board failed. The CWU then declared a jurisdiction and issue a TRO (Temporary Restraining
strike. The Secretary of Labor and Employment Order)? Briefly justify your answer. (2004 Bar)
assumed jurisdiction over the dispute and after
proceedings issued an order (a) awarding certain A: Yes, the Secretary of Labor and Employment can assume
monetary benefits to the strikers, (b) declaring the jurisdiction over the dispute because ABC could be
strike legal on the ground that CWU complied with all considered as an industry indispensable to the national
the requirements for a valid strike, and (c) restraining interest since it produces the country’s supply of chlorine
CTC from taking retaliatory actions against the officers for water treatment.
and members of CWU who were responsible for the
strike. The assumption of jurisdiction by the Secretary of Labor
and Employment has the effect of ending the strike. The
a. As lawyer for CTC what action should you take?
strikers will be subject to a return to work order by the
Secretary of Labor and Employment upon her assumption
A: As lawyer of CTC, I will first file with the Secretary of
of jurisdiction
Labor and Employment a Motion for Reconsideration. If
this Motion is denied, then I will file with the Supreme
Effects of assumption of jurisdiction (2010, 2008, 2003,
Court a petition for certiorari under Rule 65 of the Rules of 1998, 1997, 1991 Bar)
Court. I will assail the issuance by the Secretary of Labor of
his Order, and his refusal to reconsider said Order as a
Q: Following a deadlock in collective bargaining, the
grave abuse of discretion amounting to lack or excess of
AC-AC Labor Union filed a notice of strike with the
jurisdiction.
Department of Labor and Employment and, thirty (30)
b. Was the assumption of the labor dispute by the days later, went on strike and picketed the gates of the
Secretary of Labor and Employment valid? UP-UP Company, paralyzing its operations. The
company is engaged in telecommunications, including
A: It is valid. Under the Labor Code, [in Article 263 (g)] the the supply of cellular phone equipment, with a
Secretary of Labor has the power to assume jurisdiction nationwide network of facilities. In a petition with the
over a labor dispute causing or likely to cause a strike or DOLE, the company questioned the legality of the strike
lockout in an industry indispensable to the national and asked for compulsory arbitration. The Secretary of
interest. CTC, as a transportation Company, is in an the DOLE certified the dispute to the NLRC for
industry indispensable to the national interest. compulsory arbitration and ordered the company to
readmit the workers pending the arbitration. The
c. Was the Secretary’s order granting monetary workers returned and were readmitted by the
benefits, declaring the strike of CWU legal and company but five (5) technicians were temporarily re-
restraining the CTC from penalizing CWU assigned to the warehouse while five (5) others were
members valid? Reasons. (1992 Bar) reinstated on payroll only. The company justified its
acts as an exercise of management prerogative.
A: The Secretary's order declaring the strike of CWU legal
and restraining the CTC from penalizing CWU members on a. Was the certification of the dispute for compulsory
the basis of the finding of the Secretary that the strike is arbitration proper?
legal, is illegal. He is acting in excess of his jurisdiction. It is
a Labor Arbiter, not the Secretary of Labor that has the A: The certification of the dispute for compulsory
jurisdiction to determine the legality of a strike. (Article arbitration was proper.
217, Labor Code; Philippine Airlines, Inc. v. Secretary of
Labor and Employment et al., 193 SCRA 223) but in The dispute was causing a strike in an industry indis-
International Pharmaceuticals v. Secretary of Labor, 205 pensable to the national interest. The company was
SCRA 65, (Jan. 9, 1992), the Supreme Court that the engaged in telecommunication including the supply of
Secretary of Labor, when he assumes jurisdiction under cellular equipment, with a nationwide network of facilities.
Article 263(g) of the Labor Code could deal with all the

45
Labor Law and Social Legislation

All these activities are at present indispensable to the indispensable to the national interest. Moreover, the
national interest. grounds relied upon by SDS, to wit: “eyesore and disruptive
of its business”, betrays the weakness of its case.
b. Were the temporary reassignment and payroll
reinstatement valid? (1991 Bar) Q: Several employees and members of Union A were
terminated by Western Phone Co. on the ground of
A: No. The temporary re-assignment and payroll rein- redundancy. After complying with the necessary
statement are not valid. According to the Labor Code, requirements, the Union staged a strike and picketed
when the Secretary of Labor assumes Jurisdiction, such the premises of the company. The management then
assumption has the effect of automatically enjoining the filed a petition for the Secretary of Labor and
strike that is taking place and all striking employees shall Employment to assume jurisdiction over the dispute.
immediately return to work as the employer shall Without the benefit of a hearing, the Secretary issued
immediately resume operations and readmit all workers an Order to assume jurisdiction and for the parties to
under the same terms and conditions prevailing before the revert to the status quo ante litem.
strikes.
a. Was the order to assume jurisdiction legal? Explain.
Q: In a labor dispute, the Secretary of Labor issued an
"Assumption Order" Give the legal implications of A: Yes. The Secretary of Labor and Employment has
such an order. (2003 Bar) plenary power to assume jurisdiction under Article 263(g)
of the Labor Code. When in his opinion, there exists a labor
A: Under Art. 263(g) of the Labor Code, such assumption dispute causing or likely to cause a strike or lockout in an
shall have the effect of automatically enjoining the
industry indispensable to the national interest, the
intended or impending strike or lockout as specified in the
Secretary of Labor may assume jurisdiction over the
assumption order. If one had already taken place at the dispute and decide it or certify it to the NLRC for
time of assumption, all striking or lockout employees shall
compulsory arbitration (Art. 263[g], Labor Code). This
immediately return to work and the employer shall
extraordinary authority given to the Secretary of Labor is
immediately resume operations and re-admit all workers aimed at arriving at a peaceful and speedy solution to
under the same terms and conditions prevailing before the
labor disputes, without jeopardizing national interests
strike or lockout. The Secretary of Labor and Employment (Steel Corporation v. SCP Employees Union, 551 SCRA 594
may seek the assistance of law enforcement agencies to
[2008]). Such assumption shall have the effect of
ensure compliance with this provision as well as with such
automatically enjoining an impending strike or lockout, or
orders as he may issue to enforce the same. The mere an order directing immediate return to work and resume
issuance of an assumption order by the Secretary of Labor
operations, if a strike already took place, and for the
automatically carries with it a return-to-work order, even employer to re-admit all employees under the same terms
if the directive to return to work is not expressly stated in
and conditions prevailing before the strike or lockout [Art.
the assumption order. Those who violate the foregoing
263(g), Labor Code; Sec. 15, Rule XXII, Dept. Order No. 40-G-
shall be subject to disciplinary action or even criminal 03]
prosecution. Under Art. 264 of the Labor Code, no strike or
lockout shall be declared after the assumption of
b. Under the same set of facts the Secretary instead
jurisdiction by the Secretary.
issued an Order directing all striking workers to
return to work within 24 hours, except those who
Q: Savoy Department Store (SDS) adopted a policy of
were terminated due to redundancy. Was the
hiring salesladies on five-month cycles. At the end of a
Order legal? Explain. (2010 Bar)
saleslady’s five-month term, „ another person is hired
as replacement. Salesladies attend to store customers,
A: No. The Secretary of Labor’s order will be inconsistent
wear SDS uniforms, report at specified hours, and are
with the established policy of the State of enjoining the
subject to SDS workplace rules and regulations. Those parties from performing acts that undermine the
who refuse the 5-month employment contract are not
underlying principles embodied in Article 263(g) of the
hired.
Labor Code.
The day after the expiration of her 5-month
engagement, Lina wore her SDS white and blue In this case, excepting the employees terminated due to
uniform and reported for work but was denied entry redundancy from those who are required to return- to-
into the store premises. Agitated, she went on a hunger work, which was the very labor dispute that sparked the
strike and stationed herself in front of one of the gates union to strike, the Secretary of Labor comes short of his
of SDS. Soon thereafter, other employees whose 5- duty under Article 263(g) to maintain status quo or the
month term had also elapsed joined Lina’s hunger terms and conditions prevailing before the strike. In fact,
strike. the Secretary could be accused of disposing of the parties’
labor dispute without the benefit of a hearing, in clear
The owner of SDS considered the hunger strike staged derogation of due process of law.
by Lina, et al., an eyesore and disruptive of SDS’
business. He wrote the Secretary of Labor a letter
asking him to assume jurisdiction over the dispute and
enjoin the hunger “strike”. What answer will you give if Jurisdiction and Remedies
you were the Secretary of Labor? (2008 Bar)

A: I will deny the letter-request of SDS because its business LABOR ARBITER
is not indispensable to the national interest. Although the
Secretary of Labor has a wide latitude of discretion in Jurisdiction (2015, 2014, 2008, 2001, 1995, 1991, 1990
deciding whether or not to assume jurisdiction over a labor Bar)
dispute or certify the same to the NLRC for compulsory
arbitration, SDS’s business is clearly not one which is

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46
QUAMTO (1987-2016)
Q: Lincoln was in the business of trading broadcast After one year, the business is so successful that they
equipment used by television and radio networks. He were able to declare dividends. Mario is so happy with
employed Lionel as his agent. Subsequently, Lincoln set Carlo's work that he assigns 100 shares of stock to Carlo
up Liberty Communications to formally engage in the as part of the latter's bonus.
same business. He requested Lionel to be one of the
incorporators and assigned to him 100 Liberty shares. Much later on, it is discovered that Carlo had engaged
Lionel was also given the title Assistant Vice-President in unethical conduct which caused embarrassment to
for Sales and Head of Technical Coordination. After the company. Mario is forced to terminate Carlo but he
several months, there were allegations that Lionel was does so without giving Carlo the opportunity to explain.
engaged in “under the table dealings” and received Carlo filed a case against Mario and the company for
“confidential commissions” from Liberty’s clients and illegal dismissal. Mario objected on the ground that the
suppliers. He was, therefore, charged with serious Labor Arbiter had no jurisdiction over the case as it
misconduct and willful breach of trust, and was given would properly be considered as an intracorporate
48 hours to present his explanation on the charges. controversy cognizable by the RTC. Further, Mario
Lionel was unable to comply with the 48-hour deadline claimed that because Carlo's dismissal was a corporate
and was subsequently barred from entering company act, he cannot be held personally liable.
premises. Lionel then filed a complaint with the Labor
Arbiter claiming constructive dismissal. Among others, a. As the Labor Arbiter assigned to this case, how would
the company sought the dismissal of the complaint you resolve the jurisdiction question.
alleging that the case involved an intra-corporate
controversy which was within the jurisdiction of the A: The Labor Arbiter has jurisdiction over Carlo’s illegal
Regional Trial Court (RTC). If you were the Labor dismissal complaint as he was hired by Mario on a “salary
Arbiter assigned to the case, how would you rule on the and commission” basis. In Grepalife v. Judico (G.R. No. 73887,
company’s motion to dismiss? (2014 Bar) December 21, 1989) it was held that a worker who is paid on
a salary plus commission basis is an employee. While
A: I will deny the motion to dismiss. "Corporate officers" in regular courts have jurisdiction over Mario’s corporate act
the context of Presidential Decree No. 902-A are those of severing ties with Carlo, the Labor Arbiter, pursuant to
officers of the corporation who are given that character by Art. 217 A-(2) of the Labor Code, has jurisdiction over
the Corporation Code or by the corporation's by-laws. Carlo’s illegal dismissal complaint.
Section 25 of the Corporation Code enumerates three
specific officers that in law are considered as corporate ALTERNATIVE ANSWER:
officers – the president, secretary and the treasurer. Lincoln
is not one of them. There is likewise no showing that his Carlo is party to a joint-venture. Hence, he is not related to
position as Assistant Vice-President is a corporate officer in Mario as an employee. As a business organization, the
the company's by-laws. The Labor Arbiter therefore, has affairs of that joint-venture are not governed by Labor Law,
jurisdiction over the case. [Art. 217 (a) (2), Labor Code] except in relation to its employees. Any issue arising from
that affair, therefore, must be brought to the RTC. Thus, the
Q: Company A and Union B had a 3-year CBA that NLRC has no jurisdiction because the matter did not arise
expired on June 12, 1990. Negotiations proved futile so from employer-employee relationship and the issue
the unresolved issues were referred to an Arbiter who between the disputants is not resolvable solely through the
rendered a decision on March 15, 1992 retroactive to application of Labor Law.
December 14, 1990. Is the Arbiter's decision providing
for retroactivity tenable or not? Why? (2001 Bar) b. What is the rule on personal liability of corporate
officers for a corporate act declared to be unlawful?
A: The referral of the unresolved issues of the collective (2015 Bar)
bargaining negotiations to an Arbiter is not within the
jurisdiction of the Arbiter. But assuming that the A: Corporate officers are not, as a general rule, personally
unresolved issues in the collective bargaining negotiations liable for the corporate acts they performed in behalf of the
were properly referred to the Arbiter pursuant to the corporation they represent. They are, however, personally
provision of the Labor Code (Art. 262) that states that a liable for their corporate acts if they acted with malice or
Voluntary Arbitrator may hear and decide any labor dispute, bad faith (Girly Ico v. Systems Technology Institute, Inc., G.R.
including bargaining deadlocks, the Arbiter's decision No. 185100, July 9, 2014).
providing for retroactivity is tenable. Exercising his
compulsory arbitration power, the Arbiter could decide the NATIONAL LABOR RELATIONS COMMISSION (NLRC)
issue of retroactivity in any way which is not contrary to law,
morals, good customs, public order or public policy. But in Jurisdiction (2015, 2001, 1997, 1996, 1995 Bar)
the case Manila Electric Co vs. Secretary of Labor Leonardo
Quisumbing (G.R. No. 127598, February 22, 2000), the Q: Philippine News Network (PNN) engages the services
Supreme Court said that an arbitral award shall retroact to of Anya, a prominent news anchor from a rival station,
the first day after the six-month period following the National News Network (NNN). NNN objects to the
expiration of the last day of the CBA that was being re- transfer of Anya claiming that she is barred from
negotiated. working in a competing company for a period of three
years from the expiration of her contract. Anya
Q: Mario comes from a family of coffee bean growers. proceeds to sign with PNN which then asks her to
Deciding to incorporate his fledgling coffee venture, he anchor their nightly newscast. NNN sues Anya and PNN
invites his best friend, Carlo, to join him. Carlo is before the National Labor Relations Commission
hesitant because he does not have money to invest but (NLRC), asking for a labor injunction. Anya and PNN
Mario suggests a scheme where Carlo can be the Chief object claiming that it is a matter cognizable by a
Marketing Agent of the company, earning a salary and regular court and not the NLRC.
commissions. Carlo agrees and the venture is formed.

47
Labor Law and Social Legislation

a. Is NNN's remedy correct? Why or why not? forthwith may cause grave or irreparable damage
to any party;
A: The NLRC has no jurisdiction. As to PNN, there is no c. Injunction in strikes or lockouts under Art. 264 of
employer-employee relationship between itself and NNN; the Labor Code;
hence, the NLRC cannot hear and resolve their dispute d. Contempt cases;
(Reasonable Causal Connection Rule). As to Anya, the e. Claims arising out of an employer employee
injunctive power of the NLRC is ancillary in nature; hence, relationship or by virtue of any law or contract
it requires a principal case, which is absent. Besides, the involving Filipino workers for overseas
dispute between her and PNN is not resolvable solely deployment including claims for actual, moral,
through the application of Labor Code, other labor statutes, exemplary and other forms of damage.
CBA or employment contract. (Reference to Labor Law
Rule) 2. Exclusive Appellate Jurisdiction
a. All cases decided by the Labor Arbiters [Sec.
b. What are the grounds for a labor injunction to 217(b), Labor Code]
issue? b. Cases decided by the Regional Offices of DOLE in
the exercise of its adjudicatory function. (Art. 129,
A: The NLRC may issue an injunctive writ to enjoin an illegal Labor Code)
activity under Art. 264 (old) of the Labor Code; as an
ancillary remedy to avoid irreparable injury to the rights of BUREAU OF LABOR RELATIONS (BLR)
a party in an ordinary labor dispute pursuant to Rule X,
2011 NLRC Rules of Procedure, as amended; and to correct Jurisdiction (2001, 1998, 1996 Bar)
the Labor Arbiter’s grave abuse of discretion pursuant to
Rule XII of the 2011 NLRC Rules of Procedure, as amended. Q: Can the Bureau of Labor Relations certify a union as
Moreover, for labor injunction to issue, it must be proven the exclusive bargaining representative after showing
under Art. 218(e) Labor Code: proof of majority representation thru union
membership cards without conducting an election?
a. That the prohibited or unlawful acts have been (1998 Bar)
threatened and will be committed and will be
continued unless restrained; A: The Bureau of Labor Relations cannot certify a union as
b. That substantial and irreparable injury to the the exclusive collective bargaining representative after
complainant’s property will follow; showing of proof of majority representation thru union
c. That greater injury will be inflicted upon complainant membership cards without conducting a certification
by the denial of relief than will be inflicted upon election. The Labor Code (in Arts. 256, 257 and 258)
defendants by the granting of relief; provides only for a certification election as the mode for
d. That complainant has no adequate remedy at law; and determining the exclusive collective bargaining
e. That public officers charged with the duty to protect representative if there is a question of representation in an
complainant’s property are unable or unwilling to appropriate bargaining unit.
furnish adequate protection.
Q: Some disgruntled members of Bantay Labor Union
c. Distinguish the jurisdiction of a Labor Arbiter from filed with the Regional Office of the DOLE a written
that of the NLRC. (2015 Bar) complaint against their union officers for
mismanagement of union funds. The Regional Director
A: As to jurisdiction, the Labor Arbiter can hear and resolve did not rule in the complainants' favor. Not satisfied,
cases under Art. 217 (old) of the Labor Code, money claims the complainants elevated the Regional Director's
under Sec. 7 of R.A. 10022; and referred wage distortion decision to the NLRC. The union officers moved to
disputes in unorganized establishments, as well as the dismiss on the ground of lack of Jurisdiction. Are the
enforcement of compromise agreements pursuant to the union officers correct? Why? (2001 Bar).
2011 NLRC Rules of Procedure, as amended. On the other
hand, the NLRC reviews decisions rendered by the LA; A: Yes. NLRC has no jurisdiction over the appealed ruling
decisions or orders rendered by the RD under Art. 129 of since the appellate authority over decisions of the Regional
the Labor Code; and conducts compulsory arbitration in director involving examination of union accounts is
certified cases. expressly conferred upon the Bureau of Labor Relations of
DOLE by the Rule of Procedure on Mediation Arbitration.
As to the power to issue a labor injunction, the NLRC can (Barles vs. Bitonio, G.R. No. 120270, June 16, 1999).
issue an injunctive writ. On the other hand, the Labor
Arbiter cannot issue an injunctive writ. DOLE REGIONAL DIRECTORS (2009, 2008, 1996 BAR)

Recovery/Adjudicatory power
Q: What is the jurisdiction of the National Labor
Relations Commission? (1995 Bar) Q: Savoy Department Store (SDS) adopted a policy of
hiring salesladies on five-month cycles. At the end of a
A: saleslady’s five-month term, another person is hired as
1. Exclusive Original Jurisdiction: replacement. Salesladies attend to store customers,
a. Certified labor disputes causing or likely to cause a wear SDS uniforms, report at specified hours, and are
strike or lockout in an industry indispensable to subject to SDS workplace rules and regulations. Those
national interest, certified to it by the Secretary of who refuse the 5-month employment contract are not
Labor or the President for compulsory arbitration; hired.
b. Injunction in ordinary labor disputes to enjoin or
restrain any actual or threatened commission of The day after the expiration of her 5-month
any or all prohibited or unlawful acts or to require engagement, Lina wore her SDS white and blue uniform
the performance of a particular act in any labor and reported for work but was denied entry into the
dispute which, if not restrained or performed store premises. Agitated, she went on a hunger strike

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48
QUAMTO (1987-2016)
and stationed herself in front of one of the gates of SDS. others. On the basis of the complaint, the DOLE
Soon thereafter, other employees whose 5-month term conducted a plant level inspection.
had also elapsed joined Lina’s hunger strike.
The DOLE Regional Director issued an order ruling that
Assume that no fixed-term worker complained, yet in a Inggo is an employee of DJN Radio, and that Inggo is
routine inspection a labor inspector of the Regional entitled to his monetary claims in the total amount of
Office of the DOLE found the 5-month term policy of P30, 000.00. DJN Radio elevated the case to the
SDS violative of the Labor Code’s security of tenure Secretary of Labor who affirmed the order. The case
provisions and recommended to the Regional Director was brought to the Court of Appeals. The radio station
the issuance of a compliance order. The Regional contended that there is no employer-employee
Director adopted the recommendation and issued a relationship because it was the drama directors and
compliance order. Is the compliance order valid? producers who paid, supervised, and disciplined him.
Explain your answer. (2008 Bar) Moreover, it argued that the case falls under the
jurisdiction of the NLRC and not the DOLE because
A: No, the Compliance Order is not valid. The Regional Inggo’s claim exceeded P5, 000.00
Director only exercises both visitorial and enforcement
powers over labor standard cases, and empowered to a. May the DOLE make a prima facie determination of
adjudicate uncontested money claims of persons still the existence of an employer-employee
employed. The Regional Director has no jurisdiction to rule relationship in the exercise of its visitorial and
on SDS’ 5-month term policy. enforcement powers?

Q: AB, a non-resident American, seeks entry to the A: Yes. Pursuant to Art. 128(b) of the Labor Code, the DOLE
country to work as Vice-President of a local may do so where the prima facie determination of
telecommunications company. You are with the employer-employee relationship is for the exclusive
Department of Labor and Employment (DOLE). What purpose of securing compliance with labor standards
permit, if any, can the DOLE issue so that AB can assume provisions of said Code and other labor legislation.
as Vice-President in the telecommunications company?
Discuss fully. (1995, 2007 Bar) The DOLE, in the exercise of its visitorial and enforcement
powers, somehow has to make a determination of the
A: Art. 40 of the Labor Code states that “Any alien seeking existence of an employer-employee relationship. Such
admission to the Philippines for employment purposes and determination, however, cannot be co-extensive with the
any domestic or foreign employer who desires to engage an visitorial and enforcement power itself. Indeed, such
alien for employment in the Philippines shall obtain an determination is merely preliminary, incidental and
employment permit from the Department of Labor. The collateral to the DOLE’s primary function of enforcing labor
employment permit may be issued to a nonresident alien or standards provisions. (People’s Broadcasting Bombo Radyo
to the applicant employer after a determination of the non- Phils., Inc. v. Secretary of Labor, G.R. No. 179652, May 8, 2009)
availability of a person in the Philippines who is competent,
able and willing at the time of application to perform the b. If the DOLE finds that there is an employee-
services for which the alien is desired.” Thus, AB should be employer relationship, does the case fall under the
issued the abovementioned employment permit so that AB jurisdiction of the Labor Arbiter considering that
can assume as Vice President of the Telecommunication the claim of Inggo is more than P5, 000.00. Explain.
Company. (2016 Bar)

DOLE SECRETARY A: No. As held in the case of Meteoro v. Creative Creatures,


Inc., G.R. No. 171275, July 13, 2009, the visitorial and
Visitorial and enforcement powers (2016, 2008, 2001, enforcement powers of the Secretary, exercised through his
1999 Bar) representatives, encompass compliance with all labor
standards laws and other labor legislation, regardless of the
Q: Under what conditions may the Secretary of Labor or amount of the claims filed by workers; thus, even claims
his duly authorized representative inquire into the exceeding P5, 000.00
financial activities or legitimate labor organizations?
(2001 Bar). VOLUNTARY ARBITRATOR

A: The Labor Code authorizes the Secretary of Labor and Jurisdiction (2010, 2005, 1997, 1995 Bar)
Employment or his duly authorized representative to
Q: State the cases when a labor dispute would fall
inquire into the financial activities of any labor organization
under the jurisdiction of voluntary arbitrators or
on the basis of a complaint under oath, supported by 20%
panel of voluntary arbitrators. (1997 Bar)
of the membership in order to determine compliance or
noncompliance with the law and to aid in the prosecution of A: A labor dispute falls under the jurisdiction of a volun-
any violation thereof. (Art. 274, Labor Code) tary arbitrator or a panel of voluntary arbitrator if a
labor disputes arises from an unresolved grievance
Q: Inggo is a dram talent hired on a per drama which in turn arises from the Interpretation or
“participation basis” by DJN Radio Company. He implementation of a Collective Bargaining Agreement or
worked from 8:00am until 5:00pm, six days a week, on of company personnel policies. (Art. 261)
a gross rate of P80.00 per script, earning an average of
P20, 000.00 per month. Inggo filed a complaint before Upon agreement of parties, a voluntary arbitrator or
the Department of Labor and Employment (DOLE) panel of voluntary arbitrators may also hear and decide
against DJN Radio for illegal deduction, non-payment of all other labor disputes including unfair labor practices
service incentive leave, and 13 th month pay, among and bargaining deadlock. (Art. 262)

49
Labor Law and Social Legislation

Q: Company C, a toy manufacturer, decided to ban the fifth and the last step of the grievance machinery.
use of cell phones in the factory premises. In the
pertinent Memorandum, management explained that A filed an action for illegal dismissal with the
too much texting and phone-calling by employees Arbitration Branch of the NLRC on November 25, 1983.
disrupted company operations. Two employees- The Company immediately filed a Motion to Dismiss on
members of Union X were terminated from the ground of prescription, invoking Article 290 of the
employment due to violation of the memorandum- Labor Code. If you were the Labor Arbiter, how would
policy. The union countered with a prohibitory you resolve the Company’s Motion to Dismiss? (1994
injunction case (with prayer for the issuance of a Bar)
temporary restraining order) filed with the Regional
Trial Court, challenging the validity and A: As the Labor Arbiter. I will deny the Motion to Dismiss.
constitutionality of the cell phone ban. The company Where an employee was dismissed and the matter of his
filed a motion to dismiss, arguing that the case should dismissal was then referred to the grievance machinery
be referred to the grievance machinery pursuant to an pursuant to the provision in the existing collective
existing Collective Bargaining Agreement with Union X, bargaining agreement, and the grievance machinery had a
and eventually to Voluntary Arbitration. Is the final meeting after quite a long while thereafter, the
company correct? Explain. (2010 Bar) complaint for illegal dismissal was then filed, the action
was not barred by laches, as the pendency of the matter
A: Yes. Termination cases arising in or resulting from the before the grievance machinery affected the ripeness of the
interpretation and implementation of collective bargaining cause of action for illegal dismissal. [Radio Communications
agreements, and interpretation and enforcement of of the Philippines, Inc. (RCPI), v. National Labor Relations
company personnel policies which were initially processed Commission, et al. G.R No. 102958. 25 June 1993]
at the various steps of the plant-level Grievance Procedures
under the parties collective bargaining agreements, fall Alternative Answer:
within the original and exclusive jurisdiction of the
voluntary arbitrator pursuant to Article 217 (c) and Article If I were the Labor Arbiter, I will deny the motion to dismiss
261 of the Labor Code. because the action for illegal dismissal has not yet
prescribed. The prescriptive period for an action for illegal
PRESCRIPTION OF ACTIONS dismissal is four (4) years. (Callanta vs. Carnation, 145 SCRA
268)
Money claims (2013, 2010 Bar)
Q: The general manager of Junk Food Manufacturing
Q: A driver for a bus company, sued his employer for Corporation dismissed Andrew Tan, a rank-and-file
non-payment of commutable service incentive leave employee on the ground of insubordination. The
credits upon his resignation after five years of general manager served on Andrew Tan the letter of
employment. The bus company argued that A was not termination effective upon receipt which was on 08
entitled to service incentive leave since he was March 1992. Shocked by his unexpected dismissal.
considered a field personnel and was paid on Andrew Tan confronted the general manager and hit
commission basis and that, in any event, his claim had the latter on the head with a leap pipe.
prescribed. If you were the Labor Arbiter, how would
you rule? Explain. (2010 Bar) Junk Food Manufacturing filed a complaint in court
against Andrew Tan for less serious physical injuries.
A: The money claim as cause of action has prescribed Somehow, Andrew Tan was acquitted by the court
because the claim was filed after five (5) years from date of assigned to hear the criminal case. A few days following
negotiation. Art. 291 of the Labor Code provides that all his acquittal, or on 01 March 1996, Andrew Tan filed
money claims arising from employer-employee relations complaint against the company for illegal dismissal,
occurring during the effectivity of the Code shall be filed reinstatement and the payment of backwages and
within three (3) years from that time the cause of action has damages. Was the complaint filed by Andrew Tan for
accrued, otherwise, they shall be forever barred. illegal dismissal within the reglementary period
granted by law? (1997 Bar)
Q: Chito was illegally dismissed by DEF Corp. effective
A: Yes. The complaint was filed within four (4) years from
at the close of business hours of December 29, 2009. If
the date Andrew Tan was dismissed by his employer. Illegal
he has money claims against DEF Corp., he can make the
dismissal, as a cause of action, prescribes after four (4)
claim without any legal bar within _________. (2013 Bar)
years from the time the cause of action, namely, illegal
dismissal took place. This is pursuant to the Civil Code
A: three (3) years. [Basis: Article 297 (formerly 291) of the which provides that actions upon an injury to the rights of a
Labor Code] person should be initiated within four years from the time
the right of the action accrues. (Art. 1146 of the Civil Code)
Illegal dismissal (2002, 1997, 1994, 1991 Bar)
Q: State your agreement or disagreement with the
Q: On October 30, 1980, A, an employee, was served following statement and explain your answer briefly: A
notice of dismissal allegedly for gross dishonesty. criminal case filed against an employee does not have
Forthwith, the Union to which A was a member raised the effect of suspending or interrupting the running of
A’s dismissal with the grievance machinery as provided
the prescriptive period for the filing of an action for
for in its Collective Bargaining Agreement (CBA). At illegal dismissal. (2002 Bar)
that point, negotiations for a new CBA was in progress.
Hence, both the Union and the Company had very little A. I agree. The two (2) cases, namely: the criminal case
time to address A’s grievance. In fact, said grievance, as where the employee is the accused; and the case for illegal
it were, slept the sleep of the dead, being resolved only dismissal, where the employee would be the complainant,
with finality on November 23, 1983 when the General are two (2) separate and independent actions governed by
Manager of the Company affirmed A’s dismissal on the different rules, venues, and procedures. The criminal case is

UST BAR OPERATIONS


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QUAMTO (1987-2016)
within the jurisdiction of the regular courts of law and
governed by the rules of procedure in criminal cases. The
action for the administrative aspect of illegal dismissal
would be filed with the NLRC and governed by the
procedural rules of the Labor Code.

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