Labor 2

Part I : Definitions and Policies Labor Relations
Part I : Definitions and Policy

1.01 DEFINITIONS
1. EMPLOYER AND EMPLOYEE EMPLOYER Art. 212 (e) Employer INCLUDES any person acting in the interest of an employer, directly or indirectly. The term shall NOT include any labor organization or any of its officer or agents EXCEPT when acting as an employer. Note: By using the word includes and not mean, Congress did not intend to give a complete definition of employer. But rather such definition should be complementary to what is commonly understood as employers. The Statutory Definition: Not only includes a principal employer, BUT ALSO a person acting in behalf of an employer. IMPLICATION: the employer may NOT necessarily be the owner of the business. The Statutory Definition EXCLUDES the following: A labor organization, and One acting in behalf of a labor organization. Can a Labor Organization be considered an employer? Yes, but the only instance wherein a labor organization becomes an employer is when it is acting as an employer in relation to its own employees and not as a labor organization. Significance of this is that a Labor Organization can possibly commit an Unfair Labor Practice in two ways: As an Employer, if in relation to its own employees (Art. 248); or As a Labor Organization, in relation to the company(Art. 249).
entered between them was only one for lease of work. EMPLOYEES: one who is engaged in the service of another, who performs service for another, who works for salary or wages. NYK International Knitwear V. NLRC (2003) Anent petitioners assertion that they cannot be solidarily liable in this case as there was no malice or bad faith on their part has no leg to stand on. What the Court finds apropos is our disquisition in A.C. Ransom Labor Union-CCLU v. NLRC, which held that since a corporation is an artificial person, it must have an officer who can be presumed to be the employer, being the person acting in the interest of the employer. In other words the corporation, in the technical sense only, is the employer. In a subsequent case, we ordered the corporate officers of the employer corporation to pay jointly and solidarily the private respondents monetary award. More recently, a corporation and its president were directed by this Court to jointly and severally reinstate the illegally dismissed employees to their former positions and to pay the monetary awards. In this case Cathy Ng, admittedly, is the manager of NYK. Conformably with our ruling in A. C. Ransom, she falls within the meaning of an employer as contemplated by the Labor Code, who may be held jointly and severally liable for the obligations of the corporation to its dismissed employees. Pursuant to prevailing jurisprudence, Cathy Ng, in her capacity as manager and responsible officer of NYK, cannot be exonerated from her joint and several liability in the payment of monetary award to private respondent. Great Southern Etc. V. Acua (2005) A thorough scrutiny of the purported resignation letters reveals the true nature of these documents. In reality, they are waivers or quitclaims which are not sufficient to show valid separation from work or bar respondents from assailing their termination. The burden of proving that quitclaims were voluntarily entered into falls upon the employer. The reason for this rule was laid down in the landmark case of Cario vs. ACCFA. Acceptance of those benefits would not amount to estoppel. The reason is plain. Employer and employee, obviously, do not stand on the same footing. The employer drove the employee to the wall. The latter must have to get hold of money. Because, out of job, he had to face the harsh necessities of life. He thus found himself in no position to resist money proffered. His, then, is a case of adherence, not of choice. One thing sure, however, is that petitioners did not relent their claim. They pressed it. They are deemed not to have waived any of their rights. 2. LABOR ORGANIZATION LEGITIMATE LABOR ORGANIZATION
EMPLOYEE Art. 212 (f) Employee INCLUDES any person in the employ1 of an employer. The term shall NOT be limited to the employees of a particular employer, UNLESS this code so explicitly states. It shall include any individual whose work HAS CEASED as a result of or in connection with -- a) Any current labor dispute; or b) Because of any unfair labor practice -- If he has NOT obtained any other SUBSTANTIALLY EQUIVALENT and REGULAR employment. Feati University v. Bautista (1966) Feati University claims that teachers are not employees of the university and that the contract
LABOR ORGANIZATION Art. 212 (g) Labor organization means any: a) Union or Association of employees b) which exists in whole or in part
Employ: To make use of, the use the service of.
UP LAW BAROPS 2007 ONE UP

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c) for the purpose of: i. Collective bargaining concerning terms and conditions of employment, or ii. of Dealing with employers concerning terms and conditions of employment. LABOR ORGANIZATION COMPOSITION : Employees PURPOSE : Collective Bargaining or of dealing with employers concerning terms and conditions of employment. LEGITIMATE LABOR ORGANIZATION Art. 212 (h) Legitimate Labor Organization means any labor organization DULY REGISTERED with DOLE and includes any branch or local thereof. Is the local or branch required to be a legitimate labor organization, even though the national union or federation to which its is affiliated is already a legitimate labor organization? -- Yes. Lopez Sugar Corporation v. Secretary of Labor (1995) It is not enough that the national union or federation, but the local or branch should also be a legitimate labor union either by 1. Direct (independent) registration or 2. By submitting requirements as a local affiliate of a legitimate labor organization. REASON: In relation to the employer, the local is the principal and the national union is the agent. So if the principal is not legitimate, it does not matter whether the agent is legitimate or not because as agent it acts as an extension of the personality of the principal and not as itself. Can a legitimate labor organization be composed of both rank and file employees and supervisory employees? -- No. In this case the SC ruled that the infirmity in the membership of the respondent union cannot be remedied in "the pre-election conference thru the exclusion-inclusion proceedings wherein those employees who are occupying rank-and-file positions will be excluded from the list of eligible voters." The Secretary of Labor in this case gravely misappreciated the basic antipathy between the interest of supervisors and the interest of rankand-file employees when he ordered to proceed with the certification election despite the presence of both supervisors and rank and file employees in one union. 3. LABOR DISPUTES Art. 212 (l) LABOR DISPUTES: includes 1. Any controversy or matter 2. Concerning a. Terms or conditions of employment or b. The association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, 3. regardless of whether the disputants stand in proximate relation of employer and employee. Can a dispute between contractual employees (who are not regular employees of the company) and the company be considered a labor dispute, despite the absence of employee-employer relationship? Yes.
Toyota Motor Philippines v. Toyota Motors Philippines Corporation Labor Union Clearly, based on this provision [Article 245, Labor Code], a labor organization composed of both rank-and-file and supervisory employees is no labor organization at all. It cannot, for any guise or purpose, be a legitimate labor organization. Not being one, an organization which carries a mixture of rank-and-file and supervisory employees cannot possess any of the rights of a legitimate labor organization, including the right to file apetition for certification election for the purpose of collective bargaining. It becomes necessary, therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of any labor organization whenever the status of the labor organization is challenged on the basis of Article 245 of the Labor Code. Can a union composed of supervisors and rank and file employees of one company call for a certification election? No. Dunlop v. Secrtary of Labor (1998)
San Miguel Corp. Employees Union-PTGWO v. Bersamira (1990) A labor dispute can nevertheless exist regardless of whether the disputants stand in the proximate relationship of employer and employee, provided the controversy concerns, among others, the terms and conditions of employment or a change or arrangement thereof. The existence of a labor dispute is not negatived by the fact that the plaintiffs and defendants do not stand in the proximate relation of an employer and employee. Nestle Philippines, Inc. v. NLRC (1991) Nestles demand for payment of the private respondents amortizations on their car loans, or, in the alternative, the return of the cars to the company, is NOT A LABOR DISPUTE, but a civil dispute. It involves debtor-creditor relations, rather than employee-employer relations. Gold City Integrated Port Service, Inc. v. NLRC (1995) Note: A strike can only happen when there is a labor dispute. In this case a strike occurred. It was an illegal strike for not complying with formal requisites. a. A STRIKE, considered as the most effective weapon of labor is defined as any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.

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b. A labor dispute includes any controversy or matter concerning terms or conditions of employment of the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employers and employees. c. Private respondents and their co-workers stopped working and held the mass action to press for their wages and other benefits. What transpired then was clearly a strike, for the cessation of work by concerted action resulted from a labor dispute. ARTICLE 211. LABOR CODE. Declaration of policy. A. It is the policy of the State: a. To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes; b. To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development; c. To foster the free and voluntary organization of a strong and united labor movement; d. To promote the enlightenment of workers concerning their rights and obligations as union members and as employees; e. To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes; f. To ensure a stable but dynamic and just industrial peace; and g. To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. B. To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise provided under this Code. Exception to this is Article 263 g which discusses compulsory arbitration. 1. METHOD FOR DISPUTE SETTLEMENT
1.02 LABOR RELATIONS POLICY

SOURCES FOR THE POLICY Art. XIII Sec. 3 1987 Constitution Art. III Sec. 8 1987 Constitution Art. 211 Labor Code Art. XIII Sec. 3 (Labor) CONSTITUTION The STATE shall: 1. Afford FULL PROTECTION to labor, Local and overseas* Organized and unorganized,* 2. And PROMOTE FULL EMPLOYMENT and EQUALITY of employment opportunities for all. 3. It shall guarantee the RIGHTS OF ALL WORKERS to (7): (Labor relations) Self-organization, Collective bargaining and negotiations And peaceful concerted activities, including right to strike IN ACCORDANCE WITH LAW.* They shall be entitled to: (Labor standards) Security of Tenure Humane Conditions of Work, And a Living Wage.* They shall also: Participate in policy and decisionmaking processes affecting their (1) rights and (2) benefits as may be provided by law.* 4. The State promote: the principle of shared responsibility between workers and employers.* 5. The State shall promote the preferential use of VOLUNTARY modes in settling disputes, including conciliation, And shall enforce their mutual compliance therewith to foster INDUSTRIAL PEACE.* 6. The State shall regulate the relations between workersand employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.
TAKE NOTE: Those with (*) are the new amendments in the 1987 Constitution, they were not included in the 1973 Constitution.
KEY CONCEPT: Voluntary and Free ART. 211 (a) To promote and emphasize the PRIMACY of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes; ART 3 Declaration of basic policy. The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to selforganization, collective bargaining, security of tenure and just and humane conditions of work. Kiok Loy v. NLRC (1986) COLLECTIVE BARGAINING which is defined as negotiations towards a collective agreement is one of the democratic frameworks under the New Labor Code, designed: 1. To stabilize the relation between labor and management and 2. To create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a LEGAL OBLIGATION.

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2. TRADE UNIONISM Section 1. Labor education of workers and employees. - The Department shall develop, promote and implement appropriate labor education and research programs on the rights and responsibilities of workers and employers. It shall be the duty of every legitimate labor organization to implement a labor education program for its members on their rights and obligations as unionists and as employees. Section 2. Mandatory conduct of seminars. Subject to the provisions of Article 241, it shall be mandatory for every legitimate labor organization to conduct seminars and similar activities on existing labor laws, collective agreements, company rules and regulations and other relevant matters. The union seminars and similar activities may be conducted independently of or in cooperation with the Department and other labor education institutions. Section 3. Special fund for labor education and research. Every legitimate labor organization shall, for the above purpose, maintain a special fund for labor education and research. Existing strike funds may, in whole or in part, be transformed into labor education and research funds. The labor organization may also periodically assess and collect reasonable amounts from its members for such funds. 4. MACHINERY DISPUTE SETTLEMENT
ART. 211 b. To promote free trade unionism as an instrument For the enhancement of democracy and The promotion of social justice and development; c. To foster the free and voluntary organization of a strong and united labor movement; 3. WORKER ENLIGHTENMENT
ART. 211 (d) To promote the enlightenment of workers concerning their rights and obligations As union members and As employees; ART 277 Miscellaneous provisions. (a) All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings. (As amended by RA 6715) Victoria V. Inciong (1988) This is a matter of responsibility and of answerability. Petitioner as a union leader, must see to it that the policies and activities of the union in the conduct of labor relations are within the precepts of law and any deviation from the legal boundaries shall be imputable to the leader. He bears the responsibility of guiding the union along the path of law and to cause the union to demand what is not legally demandable, would foment anarchy which is a prelude to chaos. Petitioner should have known and it was his duty to impart this imputed knowledge to the members of the union that ernployees and laborers in non-profit organizations are not covered by the provisions of the Industrial Peace Act and the Court of Industrial Relations [in the case at bar, the CFI] has no jurisdiction to entertain petitions of labor unions or organizations of said non-profit organizations for certification as the exclusive bargaining representatives of said employees and laborers. As a strike is an economic weapon at war with the policy of the Constitution and the law at that time, a resort thereto by laborers shall be deemed to be a choice of remedy peculiarly their own, and outside of the statute, and as such, the strikers must accept all the risks attendant upon their choice. If they succeed and the employer succumbs, the law will not stand in their way in the enjoyment of the lawful fruits of their victory. But if they fail, they cannot thereafter invoke the protection of the law for the consequences of their conduct unless the right they wished vindicated is one which the law will, by all means, protect and enforce. DO No. 40-03 RULE XX LABOR EDUCATION AND RESEARCH
Art. 211e To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes; St. Martin Funeral Homes V. NLRC (1998) The Court is, therefore, of the considered opinion that ever since appeals from the NLRC to the Supreme Court were eliminated, the legislative intendment was that the special civil action of certiorari was and still is the proper vehicle for judicial review of decisions of the NLRC. The use of the word "appeal" in relation thereto and in the instances we have noted could have been a lapsus plumae because appeals by certiorari and the original action for certiorari are both modes of judicial review addressed to the appellate courts. The important distinction between them, however, and with which the Court is particularly concerned here is that the special civil action of certiorari is within the concurrent original jurisdiction of this Court and the Court of Appeals; 23 whereas to indulge in the assumption that appeals by certiorari to the Supreme Court are allowed would not subserve, but would subvert, the intention of Congress as expressed in the sponsorship speech on Senate Bill No. 1495. Incidentally, it was noted by the sponsor therein that some quarters were of the opinion that recourse from the NLRC to the Court of Appeals as an initial step in the process of judicial review would be circuitous and would prolong the proceedings. On the contrary, as he commendably and realistically emphasized, that procedure would be advantageous to the aggrieved party on this reasoning:

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On the other hand, Mr. President, to allow these cases to be appealed to the Court of Appeals would give litigants the advantage to have all the evidence on record be reexamined and reweighed after which the findings of facts and conclusions of said bodies are correspondingly affirmed, modified or reversed. Under such guarantee, the Supreme Court can then apply strictly the axiom that factual findings of the Court of Appeals are final and may not be reversed on appeal to the Supreme Court. A perusal of the records will reveal appeals which are factual in nature and may, therefore, be dismissed outright by minute resolutions. 24 Therefore, all references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should henceforth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. 5. INDUSTRIAL PEACE 6. WORKERS PARTICIPATION IN DECISION MAKING
Art. 211 (g) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties, and welfare. Art. 277 (g) The ministry shall help promote and gradually develop, with the agreement of labor organizations and employers, labor-management cooperation programs at appropriate levels of the enterprise based on shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions, and the quality of working life. DO No. 40-03 RULE XXI LABOR-MANAGEMENT AND OTHER COUNCILS Section 1. Creation of labor-management and other councils. - The Department shall promote the formation of labor-management councils in organized and unorganized establishments to enable the workers to participate in policy and decision-making processes in the establishment, insofar as said processes will directly affect their rights, benefits and welfare, except those which are covered by collective bargaining agreements or are traditional areas of bargaining. The Department shall promote other labormanagement cooperation schemes and, upon its own initiative or upon the request of both parties, may assist in the formulation and development of programs and projects on productivity, occupational safety and health, improvement of quality of work life, product quality improvement, and other similar scheme. In line with the foregoing, the Department shall render, among others, the following services: a. Conduct awareness campaigns; b. Assist the parties in setting up labormanagement structures, functions and procedures; c. Provide process facilitators upon request of the parties; and d. Monitor the activities of labor-management structures as may be necessary and conduct studies on best practices aimed at promoting harmonious labor-management relations. Section 2. Selection of representatives. - In organized establishments, the workers' representatives to the council shall be nominated by the exclusive bargaining representative. In establishments where no legitimate labor organization exists, the workers representative shall be elected directly by the employees at large. PAL V. NLRC (1993) Verily, a line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of the employees. In treating the latter, management should see to it that its employees are at least properly informed of its decisions or modes of action. PAL asserts that all its
Art. 211 (f) To ensure a stable but dynamic and just industrial peace; Art 273 STUDY OF LABOR MANAGEMENT RELATIONS. The Secretary of Labor shall have the power and it shall be his duty to inquire into: a. The existing relations between employers and employees in the Philippines; b. The growth of associations of employees and the effect of such associations upon employer-employee relations; c. The extent and results of the methods of collective bargaining in the determination of terms and conditions of employment; d. The methods which have been tried by employers and associations of employees for maintaining mutually satisfactorily relations; e. Desirable industrial practices which have been developed through collective bargaining for settling differences; f. The possibilities for the adoption of practical and effective methods of labormanagement cooperation; g. The possibilities for the adoption of practical and effective methods of labormanagement cooperation; h. Any other aspects of employer-employee relations concerning the promotion of harmony and understanding between the parties; and i. The relevance of labor laws and labor relations to national development. The Secretary of Labor shall also inquire into the causes of industrial unrest and take all the necessary steps within his power as may be prescribed by law to alleviate the same, and shall from time to time recommend the enactment of such remedial legislation as in his judgment may be desirable for the maintenance and promotion of industrial peace.

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employees have been furnished copies of the Code (Company Personnel Policies), Public respondents found to the contrary, which finding, to say the least is entitled to great respect. Indeed, industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights. Thus, even before Article 211 was amended by RA. 6715, it was already declared a policy of the State to promote the enlightenment of workers concerning their rights and obligations . . . as employees. This was, of course, amplified by RA 6715 when it decreed the "participation of workers in decision and policy making processes affecting their rights, duties and welfare." PAL's position that it cannot be saddled with the "obligation" of sharing management prerogatives as during the formulation of the Code, RA 6715 had not yet been enacted, cannot thus be sustained. While such "obligation" was not yet founded in law when the Code was formulated, the attainment of a harmonious labormanagement relationship and the then already existing state policy of enlightening workers concerning their rights as employees demand no less than the observance of transparency in managerial moves affecting employees' rights. Manila Electric Co. V. Quisumbing (2000) A line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of employees, and in treating the latter, the employer should see to it that its employees are at least properly informed of its decision or modes of action in order to attain a harmonious labor-management relationship and enlighten the workers concerning their rights. Contracting out of services is an exercise of business judgment or management prerogative. Absent proof that management acted in a malicious or arbitrary manner, the Court will not interfere with the exercise of judgment by an employer. 7. WAGE FIXING Sec. 2 Ra 6727 It is hereby declared the policy of the State to rationalize the fixing of minimum wages and to promote productivity-improvement and gainsharing measures to ensure a decent standard of living for workers and their families: to guarantee the rights of labor to its just share in the fruits of production: to enhance employment generation in the countryside through industry dispersal: and to allow business and industry reasonable returns on investments, expansion and growth. The State shall promote collective bargaining as the primary mode of settling wages and other terms and conditions of employment; and whenever necessary, the minimum wage rates shall be adjusted in fair and equitable manner, considering existing regional disparities in the cost of living and their socio-economic factors and the national economic and social development plans. 8. LABOR INJUNCTION
Art. 211B To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining, No court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise provided by this Code. Example of otherwise provided by this Code: i) Strikes in industries indispensable to the national interestCompulsory Arbitration. Art. 263g this article refers to strikes in industries indispensable to the national interest and compulsory arbitration. This provision allows the Secretary of Labor or the President to interfere by assuming jurisdiction or certifying the case to the NLRC. (See Code) ii) Fixing of minimum wage
Art. 254 INJUNCTION PROHIBITED No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Article 218 and 264 of this Code. EXCEPTIONS: Art. 218 e This article talks about the substantial and procedural rights from issuing an injunction. An injunction may be issued by the NLRC, not against the strike BUT it may be issued against an illegal act in a strike which may cause substantial and irreparable damage to the property of a person. (See Code) Art. 264 This provision talks about the prohibited activities in a strike, lock-out or picket which may be enjoined by an injunction. (See Code) RA8791. Section 22. Strikes and Lockouts. The banking industry is hereby declared as indispensable to the national interest and, notwithstanding the provisions of any law to the contrary, any strike or lockout involving banks, if unsettled after seven (7) calendar days shall be reported by the Bangko Sentral to the secretary of Labor who may assume jurisdiction over the dispute or decide it or certify the sane to the NLRC for compulsory arbitration. However, the President of the Philippines may at any time intervene and assume jurisdiction over such labor dispute in order to settle or terminate the same. Rationale for prohibition: Caltex Filipino Mgrs & Supervisors Assoc. v. CIR (1972) 1) It is well known that the scheme in Republic Act No. 875 for achieving industrial peace rests essentially on a FREE AND PRIVATE AGREEMENT between the employer and his employees as to the terms and conditions under which the employer is to give work and the employees are to furnish labor, unhampered as far as possible by judicial

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or administrative intervention. On this premise the lawmaking body has virtually prohibited the issuance of injunctive relief involving or growing out of labor disputes. 2) The prohibition to issue labor injunctions is designed to give labor a comparable bargaining power with capital and must be liberally construed to that end. 9. TRIPARTISM
Part II : RIGHT TO SELF-ORGANIZATION

2.01 BASIS OF RIGHT
The right to self-organization is granted to the employee by both the Constitution and by the Labor Code. Thus, it is both constitutionally guaranteed as well as statutorily guaranteed. Being a primordial Constitutional Right, it prevails most of the time over the right to property of the employer. 1. THE CONSTITUTION 1987 CONSTITUTION Art. III Sec. 8 The RIGHT of the people including the PUBLIC and PRIVATE sectors, To FORM UNIONS, ASSOCIATIONS, OR SOCIETIES For purposes NOT contrary to LAW2 Shall NOT be abridged. IMPLICATION of the phrase for purposes not contrary to law: The right is subject to legislative discretion, and may thus be regulated. 1935 Constitution Art. III sec. 6 The right to form associations or societies for purposes not contrary to law shall not be abridged. 1973 Constitution Art. IV Sec. 7 The right to form associations for purposes not contrary to law shall not be abridged. Notice that the word union is already included under the 1987 Constitution. The scope of the right has also been recognized to include everyone from the private and public sector. Art. XIII Sec. 3 (Labor) The STATE shall guarantee the RIGHTS OF ALL WORKERS to Self-organization 2. STATUTORY- LABOR CODE Art. 243 Coverage and Employees Right to SelfOrganization ALL persons employed in: Commercial, industrial and agricultural enterprises and In religious, charitable, medical, or educational institution whether operating for profit or not, shall have the RIGHT TO SELF-ORGANIZATION and to form, join, or assist labor organizations of their own choosing for purposes of COLLECTIVE BARGAINING. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their MUTUAL AID and PROTECTION.
Art. 275 a, b Tripartism in labor relations is hereby declared a state policy. Towards this end, workers and employees shall, as far as practicable, be represented in decision and policy-making bodies of the government.
Take note: this freedom is subject to legislative discretion.

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Part II : Right to Self -Organization Labor Relations

educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection.
Art. 243 is a grant of general right. It is divided into two groups. 1st group: ALL persons employed in: commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institution whether operating for profit or not; granted the right to self-organize for the purpose of collective bargaining. 2nd group: Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers . The second group is granted the right to form labor organizations for their MUTUAL AID and PROTECTION. Natl Union of Bank Employees v. Minister of Labor (1981) A healthy respect for the freedom of association demands that acts imputable to officers or members be not easily visited with capital punishments against the association itself. 3. ILO CONVENTION NO.48 Standard Chartered Bank Employees Union (Nube) V. Confesor (2004) Under the International Labor Organization Convention (ILO) No. 87 FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANIZE to which the Philippines is a signatory, workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to job organizations of their own choosing without previous authorization. Workers and employers organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom to organize their administration and activities and to formulate their programs. Article 2 of ILO Convention No. 98 pertaining to the Right to Organize and Collective Bargaining, provides:
Article 2 1. Workers and employers organizations shall enjoy adequate protection against any acts or interference by each other or each others agents or members in their establishment, functioning or administration. 2. In particular, acts which are designed to promote the establishment of workers organizations under the domination of employers or employers organizations or to support workers organizations by financial or other means, with the object of placing such organizations under the control of employers or employers organizations within the meaning of this Article.
and Articles 248 and 249 respecting ULP of employers and labor organizations. The said ILO Conventions were ratified on December 29, 1953. However, even as early as the 1935 Constitution, the State had already expressly bestowed protection to labor as part of the general provisions. The 1973 Constitution, on the other hand, declared it as a policy of the state to afford protection to labor, specifying that the workers rights to self-organization, collective bargaining, security of tenure, and just and humane conditions of work would be assured. For its part, the 1987 Constitution, aside from making it a policy to protect the rights of workers and promote their welfare, devotes an entire section, emphasizing its mandate to afford protection to labor, and highlights the principle of shared responsibility between workers and employers to promote industrial peace.
2.02 EXTENT AND SCOPE OF RIGHT

ART. 246 Non-abridgment of right to self-organization It shall be UNLAWFUL for any person To restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to selforganization. Such right shall include the right: To form, join or assist labor organizations For the purpose of collective bargaining Through representatives of their own choosing3 and To engage in lawful concerted activities For the same purpose or for their mutual aid and protection, Subject to the provisions of Art 264 of this Code. EXAMPLES OF APPLICATION/ EXERCISE OF THE RIGHT TO SELF-ORGANIZATION: The right of Self-Organization includes the right not to exercise it. BAR QUESTION (2000): Do workers have a right not to join a labor organization? MIDTERMS/ FINALS QUESTION: Is there a negative right of self-organization? - Yes
The aforcited ILO Conventions are incorporated in our Labor Code, particularly in Article 243 thereof, which provides:
ART. 243. COVERAGE AND EMPLOYEES RIGHT TO SELF-ORGANIZATION. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or
Reyes v. Trajano (92) Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign from a labor organization, is subsumed in the right
3
Take note: the italicized phrase is the policy behind certification of election

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to join, affiliate with, or assist any union, and to maintain membership therein. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. The fact that a person has opted to acquire membership in a labor union does not preclude his subsequently opting to renounce such membership. A right comprehends at least two broad notions, namely: 1. First, liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by law; 2. Second, power, whereby an employee may, as he pleases, join or refrain from joining an association. It is therefore the employee who should decide for himself whether he should join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. It is clear, therefore, that the right to join a union includes the right to abstain from joining any union The exercise of the right to self-organization includes the right to withdraw from the organization. Central Negros Electric Cooperative vs Sec of Labor (1991) In addition, membership in the cooperative is on a voluntary basis. Hence, withdrawal therefrom cannot be restricted unnecessarily. The right to join an organization necessarily includes the equivalent right not to join the same. The right of the employees to self-organization is a compelling reason why their withdrawal from the cooperative must be allowed. As pointed out by CURE, the resignation of the member-employees is an expression of their preference for union membership over that of membership in the cooperative. The right of self-organization includes the right to raise issues in behalf of the organization. Union of Supervisors v. Sec. Of Labor (1991) Moreover, Luna's remarks at the meeting of an official board are privileged in nature as a valid exercise of his constitutional freedom of expression. He addressed his remarks to the body that has jurisdiction over the question of management of the assets of the Provident Fund. Luna's remarks were intended to protect the interests of the members of the Provident Fund from what he honestly believed was a risky venture on the part of management. His protests could even be treated as union activity by the Industrial Peace Act, which assures the employees' right "to self-organization and to form, join or assist labor organizations of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection . . ." This is so because Luna's membership in the PF Board of Trustees was by virtue of his being president of the RB Union of Supervisors. The Provident Fund was itself created as a result of the union's collective bargaining agreement with the bank. His actuations as such should therefore be considered as legitimate exercise of the employees' right to self-organization and as an activity for their mutual aid and protection, aside from being privileged communication protected by the constitutional guarantee on free speech. His remarks were in defense of the interest of the Provident Fund, part of which comes from the contribution of the rank and file employees. The Certification Election is an example of the exercise of the right to self-organization.
2.03 WORKERS WITH RIGHT OF SELFORGANIZATION

Constitution, Art. III, Sec 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. 1. ALL EMPLOYEES, GENERALLY
Art. 243 Coverage and Employees Right to SelfOrganization All persons Employed in Commercial, industrial and agricultural enterprises and In religious, charitable, medical, or educational institution Whether operating for profit or not, shall have the right To self-organization and To form, join, or assist labor organizations Of their own choosing For purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. Take note: Ambulant -> Moving about, palipat-lipat Intermittent -> Temporary Itinerant -> Travels from place to place FEU-Dr. Nicanor Reyes Medical Foundation, Inc. v FEU-DNRMF Alliance of Fil Workers (1987) Under the Art. 244 LC, there is no doubt that rank and file employees of non-profit medical institutions are now permitted to form, organize or join labor unions of their choice for purposes of collective bargaining. MEMBERS OF RELIGIOUS GROUPS Kapatiran sa Meat and Canning Division v Calleja (1988)

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HELD: In Victoriano v Elizalde Rope Workers Union, the refusal of the members of the INC sect not to join a labor union for being contrary to their religious beliefs does not bar the members of the sect from forming their own union. The recognition of the tenets of the sect should not infringe on the basic right of self-organization granted by the Constitution to workers, regardless of religious affiliation. Supervisory employees are those who, in the interest of the employer, Effectively RECOMMENDS such managerial actions If the exercise of such authority is not merely routinary or clerical in nature But requires the use of INDEPENDENT JUDGMENT. All employees not falling within any of the above definitions are considered rank and file employees for purposes of this book (Book 5: Labor Relations). Paper Industries Corp v. Laguesma (2000) HELD: United Pepsi cola ruling was adopted here: Managerial employees are ranked as Top managers, Middle managers and First Line Managers. Top and Middle Managers have the authority to devise, implement and control strategic and operational policies while the task of First-Line Managers is simply to ensure that such policies are carried out by the rank-and-file employees of an organization. Under this distinction, managerial employees therefore fall in two (2) categories, namely,
1. The managers per se composed of Top and Middle Managers, and the 2. supervisors composed of First-Line Managers.
2.
GOVERNMENT CORPORATION EMPLOYEES
Art 244 Right of Employees in the Public Service Employees of government corporations ESTABLISHED UNDER THE CORPORATION CODE shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. The labor code is silent as to the right to strike of employees of GOCCs established under the corporation code. But it expressly grants the right to collectively bargain and to organize. The labor code is silent as to right to strike and bargain collectively of employees in the civil service. Anyway, the civil service employees are not under the coverage of the Labor Code. 3. SUPERVISORS
Art 245 Ineligibility of managerial employees to join any labor organization; right of supervisory employees Managerial employees are not eligible to join, assist or form any labor organization. Take note: labor organization is a term that is strictly defined it should be for the purpose of collective bargaining concerning terms and conditions or dealing with employment concerning terms and condition of employment. Take note the law did not say that they cannot form an association, what the law said is that they cannot form a labor organization Supervisory employees shall: NOT be eligible for membership in a labor organization of the rank and file employees but may join, assist or form SEPARATE labor organizations of their OWN. Art 212 m Managerial employee is one who is vested with powers or prerogatives: To lay down and execute management policies and/ or To hire , transfer, suspend, layoff, recall, discharge, assign, or discipline employees.
Thus, the mere fact that an employee is designated manager does not ipso facto make him one. Designation should be reconciled with the actual job description of the employee. In this case, a thorough dissection of the job description of the concerned supervisory employees and section heads indisputably show that they are NOT actually managerial employees BUT ONLY supervisory employees SINCE THEY DO NOT LAY DOWN COMPANY POLICIES. PICOPs contention that the subject section heads and managers exercise the authority to hire and fire is ambiguous and quiet misleading for the reason that any authority they exercise is NOT SUPREME but merely ADVISORY in character. Theirs is not a FINAL DETERMINATION of the company policies inasmuch as any action taken by them on matters relative to hiring, promotion, transfer, suspension and termination of employees is still subject to confirmation and approval by their respective superior. Thus, where such power, which is in effect RECOMMENDATORY in character, is SUBJECT TO EVALUATION, REVIEW, and FINAL ACTION by department heads and other higher executives of the company. The same, although present, is not effective and not an exercise of INDEPENDENT JUDGMENT as required by law. Samson v. NLRC (2000) Given the environmental circumstances of this case, the acts of petitioner clearly do not constitute serious misconduct as to justify dismissal. Neither is his dismissal justified o the ground of loss of confidence. As a ground for dismissal, the term trust and confidence is restricted to managerial employees. Petitioner is not a managerial employee. It is the nature of the employees function and not the nomenclature or title given to his job, which determines whether he has rank-and-file,

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supervisory or managerial status. Petitioners describes of his functions as District Sales Manager does not mention that petitioner possesses the power to lay down policies nor to hire, transfer, suspend, lay-off, recall, discharge. Etc. Absent this crucial element, petitioner cannot be considered a managerial employee despite his designation as District Sales Manager. CRUCIAL ELEMENT for one to be a managerial employee: To lay down policies or to hire, transfer, suspend, lay-off, recall, discharge. Etc. Fil-oil Refinery Corporation v. Fil-oil Supervisory & Confidential Employees Associaton (1972) ISSUE: WON supervisors form part of management and are not considered as employees entitled to bargain collectively? Indeed, it is well settled that IN RELATION TO HIS EMPLOYER,' a foreman or supervisor 'is an employee within the meaning of the Act' . . . For this reason, supervisors are entitled to engage in union activities and any discrimination against them by reason thereof constitutes an unfair labor practice." Supervisory Employees are managerial employees for the sake of Labor Standards, but they are a distinct breed from managerial employees in relation to Labor Relations. National Sugar Refineries Corp v NLRC (1993) It is the submission of petitioner that while the members of respondent union, as supervisors, may not be occupying managerial positions, they are clearly officers or members of the managerial staff because they meet all the conditions prescribed by law and, hence, they are not entitled to overtime, rest day and supervisory employees. Article 212 (m) should be made to apply only to the provisions on Labor Relations, while the right of said employees to the questioned benefits should be considered in the light of the meaning of a managerial employee and of the officers or members of the managerial staff, as contemplated under Article 82 of the Code and Section 2, Rule I Book III of the implementing rules. In other words, for purposes of forming and joining unions, certification elections, collective bargaining, and so forth, the union members are supervisory employees. In terms of working conditions and rest periods and entitlement to the questioned benefits, however, they are officers or members of the managerial staff, hence they are not entitled thereto. Dunlop vs. Secretary of Labor (1998) Supervisors can be an appropriate bargaining unit. The critical issue, however, is whether or not the respondent union can file a petition for certification election to represent the supervisory employees of the petitioner company. The resolution of this issue depends on whether the respondent union is composed solely of supervisory employees or of both supervisory and rank-and-file employees. Article 245 of the Labor Code clearly provides that "supervisory employees shall not be eligible for membership in a labor organization of the rankand-file employees . . . ." The TEST of supervisory status as we have repeatedly ruled is: Whether an employee possesses authority to act in the interest of his employer, Which authority should not be merely routinary or clerical in nature But requires the use of independent judgment. Corollary, what determines the nature of employment is not the employee's title, but his job description. It is not decisive that these employees are monthly paid employees. Their mode of compensation is usually a matter of convenience and does not necessarily determine the nature and character of their job. Public respondent gravely misappreciates the basic antipathy between the interest of supervisors and the interest of rank-and-file employees. Due to the irreconcilability of their interests, a labor organization composed of both rank-and-file and supervisory employees is no labor organization at all. Not being one, an organization which carries a mixture of rank-and-file and supervisory employees cannot possess any of the rights of a legitimate labor organization, including the right to file a petition for certification election for the purpose of collective bargaining. It becomes necessary, therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of any labor organization whenever the status of the labor organization is challenged on the basis of Article 245 of the Labor Code. Why cant supervisors join a union of rankand-file? The intent of the law is to avoid a situation where supervisors would merge with the rank and file, or where the supervisors' labor organization would represent conflicting interests, especially where, as in the case at bar, the supervisors will be commingling with those employees whom they directly supervise in their own bargaining unit. Members of the supervisory union might refuse to carry out disciplinary measures against their co-member rank and file employees. Supervisors have the right to form their own union or labor organization. What the law prohibits is a union whose membership comprises of supervisors merging with the rank and file employees because this is where conflict of interests may arise in the areas of discipline, collective bargaining and strikes.
United Pepsi Cola v. Laguesma (1998) Is Art, 245 Constitutional? When read in relation to this definition in Art. 212(m), it will be seen that Art. 245 faithfully carries out the intent of the Constitutional Commission in framing Art. III, 8 of the fundamental law. Nor is the guarantee of organizational right in Art. III, 8 infringed by a

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ban against managerial employees forming a union. The right guaranteed in Art. III, 8 is subject to the condition that its exercise should be for purposes "not contrary to law." In the case of Art. 245, there is a rational basis for prohibiting managerial employees from forming or joining labor organizations. As Justice Davide, Jr., himself a constitutional commissioner, said " the rationale for this inhibition has been stated to be, because if these managerial employees would belong to or be affiliated with a Union, The latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become companydominated with the presence of managerial employees in Union membership." NOTE: Art. 245 prohibit managerial employees to organize for purpose of collective bargaining. BUT it does not prevent them for organizing for other purpose such as for mutual aid and protection. The basis of this is the fiduciary and confidential relationship between manager and employer. 4. ALIENS
WITH EMPLOYERS REGARDING TERMS AND CONDITIONS OF EMPLOYMENT

1. MANAGERIAL EMPLOYEES AND CONFIDENTIAL
Managerial employees are NOT eligible to join, assist or form any labor organization. Note: The managers right to self-organize is NOT removed, but only limited. It cannot be a labor organization which has a technical meaning of its own, being composed of employees (which excludes managers, as managers are considered employers under labor relations) and for the purpose of collective bargaining. At the pain of being repetitive, it should be emphasized that the Managerial Employees may for any organization in accordance with law; however they are expressly prohibited from forming a labor organization. Is Art. 245 a violation of the right to selforganization of managerial employees? No, they are not deprived of the right to organize. Just like any right, the right to SO is not an absolute right. It is subject to the police power of the State, as well as to certain limitations. And in any case, the mangers are not deprived of the right to organize and form associations for their mutual aid and protection, as long as such is not a labor organization, as defined by law. Remember that the right to join, form, assist organization and associations should be exercised for purposes not contrary to law. Such right is subject to legislative discretion as to the imposition of a limitation. Art. 245 LC Ineligibility of managerial employees to join any labor organization; right of supervisory employees Managerial employees are not eligible to join assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank and file employees but may join, assist or form separate labor organizations of their own. Take note: As stated in National Sugar Refineries Corp v NLRC, The definition of a managerial employee in Labor relations (Art. 212) is NOT exactly the same as the definition under labor standards (Art. 82). Art. 82 is much broader in scope, while Art. 212 is much narrower in scope and much more strictly construed. Sugbuanon Rural Bank vs. Laguesma (2000) In Tabacalera, we sustained the classification of a credit and collection supervisor by management as a managerial/supervisory personnel. But in that case, the credit and collection supervisor "had the power to recommend the hiring and appointment of his subordinates, as well as the power to recommend any promotion and/or increase." For this reason he was deemed to be a managerial employee. In the present case, however, petitioner failed to show that the employees in question were vested with similar powers. At best they only had recommendatory powers subject to
Art 269 Prohibition Against Aliens; exceptions All aliens, natural or juridical, as well as foreign organizations are strictly PROHIBITED from engaging directly or indirectly in all forms of trade union activities Without prejudice to normal contacts between Philippine labor unions and recognized international labor centers; Provided, however, that aliens working in the country with VALID PERMITS issued the DOLE may exercise the right to selforganization and join or assist labor organizations of their own choosing for purposes of collective bargaining ; Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. Note: Aliens, generally, have no right to self organize for purpose of collective bargaining unless (the following must concur): a. They have valid permits b. Reciprocity: That said aliens are nationals of a country which grants the same or similar rights to Filipino workers 5. SECURITY GUARDS
Manila Electric vs. Secretary of Labor (1991) EO 111 has eliminated the disqualification of security guards from forming labor unions. They may now join a rank and file organization. The disqualification in article 245 with regards to supervisory employees does not include security guards. The implementing rules which disqualify security guards from joining rank and file organization are null and void for being not germane to the object and purposes of EO 111.
2.04 WORKERS WITHOUT RIGHT OF SELF-ORGANIZATION FOR PURPOSE OF COLECTIVE BARGAINING OR DEALING

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evaluation, review, and final decision by the bank's management. The job description forms submitted by petitioner clearly show that the union members in question may not transfer, suspend, lay-off, recall, discharge, assign, or discipline employees. Moreover, the forms also do not show that the Cashiers, Accountants, and Acting Chiefs of the Loans Department formulate and execute management policies which are normally expected of management officers. Now may the said bank personnel be deemed confidential employees? Confidential employees are those who a. Assist or act in a confidential capacity, in regard b. To persons who formulate, determine, and effectuate management policies [specifically in the field of labor relations]. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee that is, the confidential relationship must exist between the employee and his superior officer; and that officer must handle the prescribed responsibilities relating to labor relations. Art. 245 of the Labor Code does not directly prohibit confidential employees from engaging in union activities. However, under the doctrine of necessary implication, the disqualification of managerial employees equally applies to confidential employees. The confidential-employee rule justifies exclusion of confidential employees because in the normal course of their duties they become aware of management policies relating to labor relations. SMC Supervisors & Exempt Employees Union v. Laguesma (1997) Criteria to determine who are Confidential Employees:-1. Assist or act in a confidential capacity, (this means that the confidential nature of his job is not only incidental) 2. To persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee. RATIONALE: The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the confidential employee rule. The broad rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. Management should not be required to handle labor matters through employees who are represented by the union with which the company is required to deliver and who in the performance of their duties may obtain advance information of the companys position with regard to contract negotiations, the disposition of grievances, or other labor relations matter. An important element of the confidential employee rule is --- the employees need to use labor relations information. Thus, in determining the confidentiality of certain employees, a key question frequently considered is the employees necessary access to confidential labor relations information. It is evident that whatever confidential data the questioned employees may handle will have to relate to their functions. From the foregoing functions, it can be gleaned that the confidential information said employees have access to concerns the employers internal business operations. NOTE: An employee may not be excluded from appropriate bargaining unit merely because he has access to confidential information concerning employers internal business operations and which is NOT RELATED to the field of labor relations. If access is merely incidental, you cannot classify them as confidential employees. Thus a phone operator or driver cannot be classified as a confidential employee for the purpose of excluding them from joining a union. It is the policy of the law to encourage selforganization, thus the coverage of its application and scope must necessarily be broad. Thus if you have to limit it, the limitation must strictly be construed and well justified. PROHIBITION AND RATIONALE Pier 8 Arrastre & Stevedoring Services Vs. Roldan-Confesor (1995) As to the Foremen: Foremen are chief and often especially-trained workmen who work with and commonly are in charge of a group of employees in an industrial plant or in construction work. They are the persons designated by the employer-management to direct the work of employees and to superintend and oversee them. They are representatives of the employermanagement with authority over particular groups of workers, processes, operations, or sections of a plant or an entire organization. In the modern industrial plant, they are at once a link in the chain of command and the bridge between the management and labor. In the performance their work, foremen definitely use their independent judgment and are empowered to make recommendations for managerial action with respect to those employees under their control. Foremen fall squarely under the category of supervisory employees, and cannot be part of rank-and-file unions. As to legal secretaries: Legal secretaries are neither managers nor supervisors. Their work is basically routinary and clerical. However, they should be differentiated from rank-and-file employees because they, are tasked with, among others, the typing of legal documents, memoranda and correspondence, the keeping of records and files, the giving of and receiving notices and such other duties as required by the legal personnel of the corporation. Legal secretaries therefore fall under the category of confidential employees. The rationale: Because if these managerial employees would belong to or be affiliated with

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Union the latter might not, be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become companydominated with the presence of managerial employees in Union membership. This rationale holds true also for confidential employees who having access to confidential information, may become the source of undue advantage. Said employees may act as a spy or spies of either party to a collective bargaining agreement. . . As for the timekeepers and assitant timekeepers: They are, neither managerial nor supervisory employees. They are merely tasked to report those who commit infractions against company rules and regulations. This reportorial function is routinary and clerical. They do not determine the fate of those who violate company policy rules and regulations function. It follows that they cannot be excluded from the subject bargaining unit. Metrolab Industries, Inc. v. Roldan-Confesor (1996) Employees involved in the controversy include Executive Secretaries of the companys officers. Can they join the labor union? NO, they are confidential employees. By the very nature of their functions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. As such, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them. In the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representative, and to see to it that its interest are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. Moreover, unionization of confidential employees for the purpose of collective bargaining would mean the extension of the law to persons or individuals who are supposed to act in the interest of the employers. It is not far fetched that in the course of collective bargaining, they might jeopardize that interest which they are duty-bound to protect. Finally, confidential employees cannot be classified as rank and file. As previously discussed, the nature of employment is quite distinct from the rank and file, thus warranting a separate category. Therefore it is not discrimination to exclude them from bargaining unit of rank and file. Pepsi-Cola Proucts Phil. Inc. v. Sec. of Labor (1999) The confidential employees involved in this case are Credit & Collection Managers and Accounting Managers. 2. COOPERATIVE MEMBERS
4
Cooperative Rural Bank of Davao vs FerrerCalleja (1988) Under PD 175, a COOPERATIVE is an organization composed of small producers and of consumers who voluntarily join together to form business enterprises which they themselves, own, control and patronize. A cooperative is different from an ordinary business concern. Its owners or members are the ones who run and operate the business while the others are its employees. An employee of such a cooperative who is a member AND CO-OWNER cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his coowners. However, insofar as it involves cooperatives with employees who are NOT members or coowners thereof, certainly such employees are entitled to exercise the rights of all workers to organization, collective bargaining negotiations, and others as are enshrined in the Constitution and existing laws of the country. Benguet Electric Cooperative, Inc. v Calleja (1989) HELD: The employees of a cooperative may not join or form a labor organization for purposes of collective bargaining. As members of the cooperative, they are co-owners. An owner cannot bargain with himself or his co-owners. The fact the members-employees do not participate in the actual management of the cooperative does not make them eligible to form, assist or join a labor organization for the purposes of collective bargaining. It is the fact of ownership of the cooperative, not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative. 3. NON-EMPLOYEE
Rep. Planters Bank General Services Employees Union v. Laguesma (1996) HELD: If union members are not employees, no right to organize for the purpose of bargaining and to be certified as bargaining agent can be recognized4. Since the persons involved are not employees of the company, they are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining.
2.05 PARTY PROTECTED

Mactan Workers Union vs Aboitiz (1972) The labor union who won as sole bargaining agent of the employees does not act for its members alone. It represents all the employees in such a bargaining unit. Furthermore, what is entitled to protection is labor, not the labor The latter are merely organization. instrumentalities through which their welfare may be promoted and fostered.
Even if not employees, they still have the right to organize BUT not for the purpose of collective bargaining. Since the right to organize is constitutionally protected.

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2.06 SANCTIONS FOR VIOLATION OF RIGHT
Art. 246 Non-abridgment of the right to self-organization It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join or assist labor organizations for the purposes of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Art. 265 of this Code. Art. 248 Unfair labor practices of employers--It shall be unlawful for an employer to commit any of the following unfair labor practice: a. To interfere with, restrain or coerce employees in the exercise of their right to self-organization; b. To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;5 c. To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; d. To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization including giving of financial or other support to it or its organizers or supporters;6 e. To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective agreement: Provided, that the individual authorization required under Art. 242 paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; f. To dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; To violate the duty to bargain collectively as prescribed by this Code; To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or To violate a collective bargaining agreement.
g. h.
i.
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. Art. 249 Unfair labor practices of labor organization--It shall be unfair labor practice for a labor organization, its officers, agents or representatives: a. to restrain or coerce employees in the exercise of their rights to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; to cause or attempt to cause and employer to discriminate against an employee, including - discrimination against an employee with respect to whom membership in such organization has been denied or - to terminate an employee on any ground other that the usual terms and conditions under which membership or continuation of membership is made available to other members; to violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, I the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations to ask for or accept negotiations or attorneys fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or to violate a collective bargaining agreement.
b.
c. d.
e.
f.
The provisions of the preceding paragraph notwithstanding, ONLY the officers, members of governing boards representatives or agents or members of labor organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. Art. 288 Penalties Except as otherwise provided in this Code, or unless the acts complained of hinges on a
5 6
Yellow-dog contracting Company unionism

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question of interpretation or implementation of ambiguous provision of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less that P1,000.00 nor more than P10,000.00, or imprisonment of not less that three months nor more than three years, or both such fine and imprisonment at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any provision of law to the contrary notwithstanding any criminal offense punished in this Code shall be under the current jurisdiction of the Municipal or City Courts and the Courts of First Instance. Art. 289 Who are liable when committed by other than natural person--If the offense is committed by a corporation, trust, firm, partnership, association or any other entity the penalty shall be imposed upon the GUILTY officer or officers of such corporation, trust, firm, partnership, association or entity.
Part III : LABOR ORGANIZATIONS

3.01 POLICY AND CONTEXT
Art 211 Declaration of policyIt is the policy of the State: (b) To promote FREE Trade Unionism as an instrument for The enhancement of DEMOCRACY and The promotion of SOCIAL JUSTICE and development. (c) To foster the FREE and VOLUNTARY organization of a STRONG and UNITED labor movement If labor unions are to serve and protect the interest of the workers, then the unions themselves must be sufficiently strong and stable to be able to fulfill effectively their assigned role in society. It is also incontrovertible that in such a regime of collective bargaining it is essential that the negotiations be conducted between parties of relatively equal strength.
3.02 LABOR ORGANIZATION

Art. 211 Declaration of policy---It is the policy of the State: (g) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. Art. 212 (g) LABOR ORGANIZATION Means any union or association of employees which exists in whole or in part for the purpose of: Collective bargaining or of dealing with employers concerning terms and conditions of employment. LABOR ORGANIZATION ORGANIZATION LABOR ORGANIZATION Composition: Employees Purpose: collective bargaining or of dealing with employers concerning terms and conditions of employment. V. WORKERS
WORKERS ORGANIZATION Composition: Employees Purpose: organized for mutual aid and protection of its members or for any other legitimate purpose other than collective bargaining
Labor Organization is a technical definition; it is composed of two parts:
1. COMPOSITION: EMPLOYEES Art. 212 (f) Employee includes any person in the employ of an employer.

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Part III : Labor Organizations Labor Relations

The term shall not be limited to the employees of a particular employer, unless this Code explicitly states so. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. Cebu Seamens Assoc., Inc v (1992) Ferrer-Calleja
The unions registration with the bureau and not the SEC makes it a legitimate labor organization, with the rights and privileges granted by the Labor Code including the release or custody of union dues.
2. PURPOSE Collective bargaining or of dealing with employers concerning terms and conditions of employment. Airline Pilots Association of the Philippines v. CIR RA 875 defines labor organization as any union or association which exists, in whole or in part, for the purpose of collective bargaining. There is no condition to the statutory concept of a labor organization as being limited to the employees. Disini: Do not misinterpret the ruling in this case. In the case at bar the said employees were dismissed and were challenging their dismissal. The right to self-organization is still limited to employees. MIXED MEMBERSHIP Dunlop v. Sec. oF Labor (1998) A labor Organization composed of both rank and file and supervisory employees is no labor organization at all. It cannot posses the rights of a legitimate labor organization. Art 212 (g) Labor organization means any union or association of employees which exist in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. Legitimate labor union means any labor organization duly registered with the Dept. Of Labor and Employment and includes any branch or local thereof Progressive Devt v Sec. of Labor (1992) Art 212 defines a legitimate labor organization as any labor organization duly registered with the DOLE and includes any branch or local thereof. Ordinarily, a labor organization acquires legitimacy ONLY upon registration with the BLR. The requirements for registration are in Article 234.
a. The applicant labor organization shall acquire legal personality and shall be entitled to the rights and privileges granted by law to a legitimate labor organization UPON issuance of the certificate of registration based on the requirements in Article 234. i. P50 registration fee ii. The names of its officers their addresses, the principal address of the labor org, the minutes of the organizational meetings and the list of the workers who participated in such meetings iii. The names of all its members comprising at least 20% of all the Ees of the bargaining unit it seeks to operate iv. If the applicant union has been in existence for 1 or more years, copies of its annual financial reports; and v. Four (4) copies of the constitution and bylaws of the applicant union, minutes of its adoption or ratification and the list of the members participating in it. b. Moreover, section 4 of Rule II, Book V of the Implementing Rules requires: i. that the application should be signed by at least twenty percent (20%) of the employees in the appropriate bargaining unit and ii. be accompanied by a sworn statement of the applicant union that there is no certified bargaining agent or, where there is an existing collective agreement duly submitted to the DOLE, that the application is filed during the last sixty (60) days of the agreement.
(h)
Disini: A branch or local of a Legitimate Labor organization DOES NOT become a legitimate labor organization simply by affiliating itself. The rules require certain requirements to avoid fraud. (i) Company Union means any labor organization whose formation function or administration has been assisted by any act defined as unfair labor practice by this code.
RATIONALE: What is the purpose of the Law for requiring so many requirements? Registration is required to protect both labor and the public against abuses, fraud, or impostors who pose as organizers, although not truly accredited agents of the union they purport to represent. Are these registration requirements a curtailment of the freedom to associate? NO. These requirements are not restrictions on the freedom of assembly and of association. Rather they are merely conditions sine qua non for the acquisition of legal personality by a labor org and the possession of rights and privileges granted by law to a legit LO. The Constitution does not guarantee these rights and privileges much less personality, which are mere statutory creationsfor the
Disini: A company union is not really a union contemplated by law since it violates the provisions of Article 248. DOLE REGISTRATION AS BASIS

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possession and exercise of which, registration is required. Such requirement is valid exercise of police power because the activities in which Los are engaged in affect public interest which should be protected. BUT when an UNREGISTERED union becomes a branch, local or chapter of a federation, some of the aforementioned requirements for registration are no longer required. The provisions governing UNION AFFILIATION are found in Rule II, Section 3, Book V. Relevant portions are as follows: (Take note this part of the case is no longer seen in the amendments in the rules by DO. No. 9 which was promulgated on 1997, this case was decied on 1992) TAKE NOTE: Two types of union may become affiliated with a federation or a national union: 1) A local or chapter of a federation WHICH DID NOT undergo the rudiments of registration. 2) An independently registered union may also be an affiliate of a federation or national union. Implicit in the forgoing differentiation is the fact that a local or chapter need NOT BE independently registered. By force of law (Art. 212 h) such local or chapter becomes a legitimate labor organization upon compliance with the aforementioned provisions of Section 3 (Under DO. No. 9, its is now Rule IV Book V section 1 & section 3) What requirements imposed by Art. 234 for the registration of an independent union are OMTTED when it comes to registration of a local or chapter? i) The requirement that the application for registration must be signed by at least 20% of the employees in the appropriate bargaining unit; ii) The submission of officers addresses, principal address of the labor organization the minutes of the organizational meetings, list of the workers who participated in such meetings iii) The submission of the minutes of the adoption or ratification of the constitution and by laws and the list of the members who participated in it. legitimacy to the local or chapter? YES. It is a fatal defect. RATIONALE: The certification and attestation requirements are preventive measures against the commission of fraud. The rationale for requiring that the submitted documents and papers be certified under oath by the secretary or treasurer, as the case may be, and attested to by the president is apparent. Upon the approval of the application for registration, the LO acquires legal personality and thereby becomes entitled to all the rights and privileges granted by the law to a legit L.O. The employer would naturally need assurance that it is dealing with a bonafide organization, one which has not submitted false statements and misrepresentation to the BLR. a. The inclusion of the certification and attestation requirements will in a marked degree allay these apprehensions of management. Because the issuance of a false statement and misrepresentation is a ground for cancellation of registration and is also a ground for criminal charges of perjury. b. The certification and attestation requirements are preventive measures against the commission of fraud. c. They likewise afford a measure of protection to unsuspecting employees who may be lured into joining unscrupulous or fly-by-night unions whose sole purpose is to control union funds or to use the union for dubious ends. Since there are lesser requirements for a local or a chapter, there is greater reason to exact compliance with the certification and attestation requirements. The policy of the law in conferring greater bargaining power upon labor unions must be balanced with the policy of providing preventive measures against the commission of fraud. MAIN QUESTION of the case: When does a branch, local or affiliate of a federation become a legitimate labor organization?7 A local or chapter therefore becomes a legitimate LO only upon submission of the following to the BLR: 1. charter certificate within 30 days from its issuance by the national union; and 2. constitution and By-laws, statement of the set of officers and books of accounts all of which must be certified under oath by the secretary or treasurer of such local chapter and attested by its president. Absent compliance with these mandatory requirements, the local or chapter does not become a legitimate labor organization.
RATIONALE: Undoubtedly, the intent of the law is imposing lesser requirements in this case is to encourage the affiliation of a local union in order to increase the local unions bargaining powers respecting term and conditions of labor. Although there are few requirements , the requirements in A 235 regarding certification under oath still has to be complied with. In the case at bar, the constitution and by-laws and list of officers submitted to the BLR, while attested to by the chapters president, were not certified under oath by the secretary. Does such defect (the constitution and by-laws were not certified under oath) warrant the withholding of the status of
Take note: This is not in the law, but only in the implementing rules, these requirement were present in DO. No. 9, but the applicable rules now are DO No. 40-03 series of 2003. See footnotes for pertinent provisions.

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In case at bar, the failure of the secretary of PDEU-Kilusan to certify the required documents under oath is fatal to its acquisition of a legitimate status. Difference of an oath from an attestation is that in an oath, you are in effect saying that all that is contained therein is true and it makes you liable for perjury. While an attestation merely means that you have witnessed the fact of it. San Miguel Foods, Inc. V. Laguesma (1997) It is important to determine whether or not a particular labor organization is legitimate since legitimate labor organizations have exclusive rights under the law which cannot be exercised by nonlegitimate unions. ISSUE: Is a CHARTER CERTIFICATE defective if it NOT certified under oath and attested to by the organizations secretary and president? NO it is not defective. A charter certificate need NOT be certified under oath. What is required to be certified under oath by the secretary or treasurer and attested to by the locals president are: 1. the constitutions and by-laws 2. Statement of the set of officers 3. The books of accounts The charter certificate issued by the mother union need not be certified under oath by the secretary or treasurer and attested to by the locals president. When does a labor organization acquire legitimacy? Ordinarily a labor organization attains the status of legitimacy only upon the issuance in its name of a Certificate of Registration by DOLE. Furusawa v. Secretary of Labor(1997) The presentation of the Xerox copy of the certificate of registration to support its claim of being a duly registered labor organization instead of the submission of the original certificate is sufficient proof of its legitimacy, not a fatal defect. The issuance of the certificate of registration evidently shows that FEU-IND has complied with the requirements of Art. 234 of the Labor Code. Certification proceeding is non-adversarial, technical rules do not apply. Laguna Autoparts etc. v. DOLE Secretary (2005) Indeed, a local or chapter need not be independently registered to acquire legal personality. Sec3, Rule VI of the Implementing Rules of Book V, as amended by D.O. No. 9 clearly states
SEC. 3. Acquisition of legal personality by local/chapter. A local/chapter constituted in accordance with Section 1 of this Rule shall acquire legal personality from the date of filing of the complete documents enumerated therein. Upon compliance with all documentary requirements, the Regional Office or Bureau shall issue in favor of the local/chapter a certificate indicating that it is included in the roster of legitimate labor organizations.
the BLR, as the case may be. The records of the case show that the respondent union submitted the said documents to Regional Office No. IV and was subsequently issued the following certificate: Such legal personality may not be subject to a collateral attack but only through a separate action instituted particularly for the purpose of assailing it. This is categorically prescribed by Section 5, Rule V of the Implementing Rules of Book V, which states as follows:
SEC. 5. Effect of registration. The labor organization or workers association shall be deemed registered and vested with legal personality on the date of issuance of its Such legal certificate of registration. personality cannot thereafter be subject to collateral attack but may be questioned only in an independent petition for cancellation in accordance with these Rules.[21]
Hence, to raise the issue of the respondent unions legal personality is not proper in this case. The pronouncement of the Labor Relations Division Chief, that the respondent union acquired a legal personality with the submission of the complete documentary requirement, cannot be challenged in a petition for certification election.
3.03 RATIONALE FOR RIGHT

United Seamans Union v Davao Shipowners Assoc (1967) A labor organization is wholesome if it serves its legitimate purpose of promoting the interests of labor without unnecessary labor disputes. That is why it is given personality and recognition in concluding CBAs. But if it is made use of as a subterfuge, or as a means to subvert valid commitments, it defeats its own purpose, for it tends to undermine the harmonious relations between management and labor. Guijarno v. CIR (1973) The state has an obligation to afford protection to labor. xxx That is to carry out the purpose implicit in one of the five declared principles, namely the promotion of social justice to insure the well being and econmic security of the people It is then the individual employee, as a separate, finite human being, with his problems and his needs, who must be attended to. He is the beneficiary of the concerns thus made manifest by the fundamental law. RATIONALE: Where does that leave a labor union? Correctly understood, it is nothing but the means of assuring that such fundamental objectives would be achieved. It is the instrumentality through which an individual laborer who is helpless as against a powerful employer may, through concerted effort and activity achieve the goal of economic well-being. Workers unorganized are weak, workers organized are strong. Unions are merely instrumentalities through which their welfare may be protected and fostered. That is the raison dtre of labor unions.It is the instrumentality by which the weak laborer up against the strong employer, may, by concerted effort, achieve economic well-being. Heirs of Cruz v CIR (1969) In the case at bar, union officers entered into a compromise concerning backwages of
As gleaned from the said provision, the task of determining whether the local or chapter has submitted the complete documentary requirements is lodged with the Regional Office or

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member-employees with the employer. The union is but an agent of the individual workers and it has the duty to inform the members of the labor matters entrusted to it. The employer may rely on the authority of the union to bring the union members especially in collective bargaining where the matters to be discussed are still to be observed but this case is an exception. What is sought here are backwages and other benefits already earned. Authority for the union to waive this right to backwages must be express. In a compromise or settlement, the individual union members are the real judgment creditors and are the real parties in interest. Action of applicationThe bureau shall act on all applications for registration within 30 days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the org as the case may be and attested to by its president. (See Progressive case in preceding pages) Pagpalain Hauling Inc. v. Trajano (1999) The Labor Code DOES NOT require the submission of books of account in order for a labor organization to be registered as a legitimate labor organization. The requirement that books of account be submitted as a requisite for registration can be found only in Book V of the Omnibus Rules Implementing the Labor code, PRIOR to its amendment by DO No. 9 Series of 1997. Specifically, the old Section 3(e, Rule II, of Book V provided that the local or chapter of a labor federation or national union shall have and maintain a constitution and by-laws, set of officers and BOOKS OF ACCOUNTS. For reporting purposes, the procedure governing the reporting of independently registered union, federations or national unions shall be observed. Since Department Order No. 9 has done away with the submission of books of accounts as a requisite for registration, Pagpalains only recourse now is to have said order declared null and void. The controlling intention in requiring the submission of books of accounts is the protection of labor through the minimization of the risk of fraud and diversion in the handling of union funds. But this intention can still be realized through other provisions of the Labor Code. (Example Art. 241 b, g, h, I, j, l, m; Art. 274) Department Order No. 9 only dispenses with books of accounts as a requirement for registration of a local or chapter of a national union or federation. As provided by Article 241 h and 241 j, a labor organization must still maintain books of account, but it need not submit the same as a requirement for registration. EFFECT OF REGISTRATION ASSOCIATION
ON
3.04 LABOR UNION AND GOVERNMENT REGULATION

1. UNION REGISTRATION AND PROCEDURE REQUIREMENTS Art. 234 Requirements of Registration.Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of certificate of registration based on the ff requirements: a. P50 registration fee b. The names of its officers their addresses, the principal address of the labor org, the minutes of the organizational meetings and the list of the workers who participated in such meetings c. The names of all its members comprising at least 20% of all the Ees of the bargaining unit it seeks to operate d. If the applicant union has been in existence for 1 or more years, copies of its annual financial reports; and e. Four (4) copies of the constitution and bylaws of the applicant union, minutes of its adoption or ratification and the list of the members participating in it. Art. 237 Additional requirements for federations or national unionssubject to Art 238, if the applicant for registration is a federation or a national union it shall, in addition to the requirements of the preceding articles submit the ff: a. Proof of the affiliation of at least 10 locals or chapters -- each of which must be a duly recognized collective bargaining agent in the establishment or industry in which operates, supporting the registration of such applicant federation or national union; and b. the names and addresses of the companies where the locals or chapters operate and the list o fall the members of each company involved. Art 235
FREEDOM
OF
PAFLU v. Sec. Of LAbor The requirement of registration does NOT curtail the freedoms of assembly and association. Said freedoms may still be exercised with or without registration. The latter is merely a condition sine qua non for the acquisition of legal personality by labor unions and the possessions of rights and privileges granted by law. The constitution does not guarantee these rights and privileges, much less legal personality, which are mere statutory creations. 2. ACTIONS OR DENIAL OF APPLICATION AND REMEDY Art 235 Action of applicationThe bureau shall act on all applications for registration within 30 days from filing.

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All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the org as the case may be and attested to by its president. Art. 236 Denial of registration; appeal---The decision of the Labor Relations Division in the regional office denying registration may be appealed by the applicant union to the Bureau within 10 days from receipt of notice thereof. Vassar Industries EEs Union v Estrella (1951) As long as an applicant union complies with all of the legal requirements for registration, it becomes the BLRs ministerial duty to so register the union. Umali v Lovina (1978) There is no lVawful reason for the respondent labor official to refuse the registration of the application of the petitioners union and permission to operate as a legitimate labor org. It is the duty of the respondent to register the application and issue the permit upon payment of required fee, provided for in sec 3 of CA 213, the investigation to be conducted by him, as required by law, having been conducted and completed, as may be inferred from his official statements in connection therewith. Purposes, aims, or objectives of Independent union do not tend to undermine and destroy the constituted government or to violate any law or laws of the Philippines, which is the only ground or reason for refusing the registration and permission to operate as a legitimate labor organization. Secretary has neglected the performance of an act which the law specifically enjoins him to perform as a duty resulting from his office. 3. RIGHTS OF ORGANIZATION LEGITIMATE LABOR bargaining agreement, or during the collective bargaining negotiation; (d) To OWN PROPERTY, real or personal, for the use and benefit of the labor organization and its members. (e) To SUE AND BE SUED in its registered name; and (f) To undertake ALL activities designed to benefit the organization and its members including cooperative, housing welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income and the properties of a legitimate labor organization, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local and foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemption provided herein may be withdrawn only by a special law expressly repealing this provision. Acedera vs. Intl Container Terminal Services, Inc. (2003) A labor union is one such party authorized to represent its members under Article 242(a) of the Labor Code which provides that a union may act as the representative of its members for the purpose of collective bargaining. This authority includes the power to represent its members for the purpose of enforcing the provisions of the CBA. That APCWU acted in a representative capacity "for and in behalf of its Union members and other employees similarly situated," the title of the case filed by it at the Labor Arbiter's Office so expressly states. While a party acting in a representative capacity, such as a union, may be permitted to intervene in a case, ordinarily, a person whose interests are already represented will not be permitted to do the same except when there is a suggestion of fraud or collusion or that the representative will not act in good faith for the protection of all interests represented by him. Protection Technology v. Sec. Of Labor (1995) The statutory and regulatory provisions defining the requirements of registration of legitimate labor organizations are an exercise of the overriding police power of the state designed for the protection of workers against potential abuses by unions and federations of unions that recruit them. A union must comply with all the requirements of registration as a legitimate labor organization before it may enjoy the fruits of its certification election victory and before it may exercise rights of a legitimate labor organization. Sugbuanon Rural Bank,Inc. v. Laguesma (2000) One of the rights of a legitimate labor organization under Article 242(b) of the Labor Code is the right to be certified as the exclusive representative of all employees in an appropriate bargaining unit for purposes of collective bargaining.
Art. 242 A legitimate labor organization shall have the right: (a) To acts as the REPRESENTATIVE of its members for the purpose of COLLECTIVE BARGAINING.** (b) To be certified as the EXCLUSIVE REPRESENTATIVE of ALL THE EMPLOYEES (whether union member or not) in an appropriate collective bargaining unit for purposes of collective bargaining;** (c) (c) To be furnished by the employer, upon written request with the ANNUAL AUDITED FINANCIAL STATEMENTS, including the balance sheets and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representatives of the employees in the bargaining unit, or within 60 calendar days before the expiration of the existing collective

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Having complied with the requirements of Art. 234, it is our view that respondent union is a legitimate labor union. Article 257 of the Labor Code mandates that a certification election shall AUTOMATICALLY be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. Nothing is said therein that prohibits such automatic conduct of the certification election if the management appeals on the issue of the validity of the union's registration. Petitioner argues that giving due course to respondent union's petition for certification election would violate the separation of unions doctrine. Note that the petition was filed by APSOTEU-TUCP, a legitimate labor organization. It was not filed by ALU. Nor was it filed by TUCP, which is a national labor federation of with which respondent union is affiliated. Petitioner says that respondent union is a mere alter ego of ALU. The records show nothing to this effect. What the records instead reveal is that respondent union was initially assisted by ALU during its preliminary stages of organization. A local union maintains its separate personality despite affiliation with a larger national federation. 4. CANCELLATION OF REGISTRATION Art 238 The certificate of registration of any legitimate labor org whether national or local shall be Canceled by the bureau If it has reason to believe after due hearing that the said labor org no longer meets one or more of the requirements herein prescribed. Art. 239 Grounds for cancellation of union registrationthe following shall constitute grounds for cancellation of union registration: a. Misrepresentation, false statement or fraud - in connection with the adoption or ratification of the consti and by-laws or amendments thereto, the minutes of ratification, the list of members who took part in the ratification of the const. and by-laws or amendments thereto, the minutes of ratification, the list of members who took part in the ratification b. Failure to submit the documents mentioned in the preceding paragraph within 30 days from adoption and ratification of const. and by-laws or amendments thereto. c. Misrepresentation, false statements or fraud - in connection w/ the election of officers, minutes of the election of officers, the list of voters or failure to submit these documents together with/ the list of the newly elected/appointed officers and their postal addresses within 30 days from election. d. Failure to submit the annual financial report to the bureau within 30 days after the closing of every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report itself. Acting as a labor contractor or engaging in the Cabo system or otherwise engaging in any activity prohibited by law/ Entering into CBAs w/c provide terms and conditions of employment below minimum standards established by law. Asking for or accepting atty.s fees or negotiation fees from Ers. Other than for mandatory activities under this code checking of special assessments or any other fees without duly signed individual written authorizations of the members. Failure to submit list of individual members to the bureau once a year or whenever required by the bureau; and Failure to comply with requirements under Art 237 & 238.
e. f. g. h.
i. j.
Art 241 (j) Every income or revenue of the org shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the org. (as amended by Sec 16, RA 6715) DO No. 40-03 series of 2003 Rule I Sec. 1: (g) "Cancellation Proceedings" refer to the legal process leading to the revocation of the legitimate status of a union or workers' association. RULE XIV: CANCELLATION OF REGISTRATION OF LABOR ORGANIZATIONS Section 1. Where to file. Subject to the requirements of notice and due process, the registration of: 1) Any legitimate independent labor union, chartered local and workers' association may be cancelled by the Regional Director, or 2) In the case of federations, national or industry unions and trade union centers, by the Bureau Director, Upon the filing of an independent complaint or petition for cancellation. Section 2. Who may file. Any party-in-interest may commence a petition for cancellation of registration, except in actions involving violations of Article 241, which can only be commenced by members of the labor organization concerned. Section 3. Grounds for cancellation. The following shall constitute grounds for cancellation of registration of labor organizations: (a) Misrepresentation, false statement or fraud in connection with: The Adoption or ratification of the constitution and by-laws or amendments thereto, The minutes of ratification, The list of members, who took part in the ratification of the constitution and by-laws or amendments thereto,

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The minutes of ratification, The list of members who took part in the ratification; (b) Failure to submit the documents mentioned in the preceding paragraph Within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto; (c) Misrepresentation, false statements or fraud in connection with The election of officers, Minutes of the election of officers, The list of voters, Failure to submit these documents together with the list of the newly elected or appointed officers and their postal address within thirty (30) days from election; (d) Failure to submit the annual financial report to the Bureau within thirty (30) days after the close of every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report; (e) Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity prohibited by law; (f) Entering into collective bargaining agreements which provide for terms and conditions of employment Below minimum standards established by law; (g) Commission of any of the acts enumerated under Article 241 of the Labor Code; Provided that no petition for cancellation based on this ground may be granted unless supported by at least 30% of all the members of the respondent labor organization; (h) Asking for or accepting attorney's fees or negotiation fees from the employer; (i) Other than for mandatory activities under the Labor Code, checking off special assessments or any other fees without duly signed individual written authorizations of the members; (j) Failure to submit list of individual members to the Bureau once a year or whenever required by the Bureau; (k) Failure to comply with the requirements of registration prescribed under Rules III and IV. Section 4. Action on the petition. - The petition shall be resolved by the Regional Director in accordance with Rule XI, unless the petition is based on paragraphs (d) and (j) of the foregoing section or non-compliance with the labor organization's reportorial obligations, in which case the petition shall be acted upon pursuant to the following Rule. RULE XV: CANCELLATION OF REGISTRATION OF LABOR ORGANIZATIONS DUE TO NONCOMPLIANCE WITH THE REPORTORIAL REQUIREMENTS Section 1. When proper Where a registered labor organization in the private sector Failed to submit the reports required under Rule V For five (5) consecutive years Despite notices for compliance sent by the Labor Relations Division or the Bureau, The latter (LRD) may cause the institution of the administrative process for cancellation of its registration, upon its own initiative complaint filed by any party-in-interest. or upon
Section 5. Conditions for administrative cancellation of certificate of registration. No registration of labor organization shall be cancelled administratively by the Bureau due to noncompliance with the reportorial requirements unless: (a) Non-compliance is for a continuous period of five (5) years; (b) The procedures laid down in this Rule were complied with; and (c) The labor organization concerned has not responded to any of the notices sent by the Bureau, or its notices were returned unclaimed. PAFLU V. Sec Of Labor (1969) The obligation to submit FINANCIAL STATEMENTS, as a condition for the noncancellation of a certificate of registration is reasonable regulation for the benefit of the members of the organization, considering that the same generally solicits funds or membership, as well as oftentimes collects on behalf of its members, huge amounts of money due to them or to the organization. Tablante V. Noriel 845 SCRA 738 (1978) If the union is engaged in an illegal strike, is this a ground for cancellation of registration? No it is not. The phrase or otherwise engaged in any activity prohibited by law should be construed to mean such activity engaged into by a union that partakes of the nature of a labor contractor or Cabo system. Illegal strike per se is legal. Alliance of Democratic Labor Organization v. Laguesma ADFLO filed an application for registration as a national federation alleging, among others that it has 12 affiliates. Later, the Confederation of Labor and Allied Social Services (CLASS) filed a petition for the cancellation of the Registration Certificate issued to ADFLO. The First Issue: Due Process The most basic tenet of due process is the right to be heard, and as applied in administrative proceedings, an opportunity to explain one's side. Such opportunity was denied petitioner in this case. After petitioner submitted its objections to the admission of the documentary evidence of CLASS, the BLR director should have first ruled on their admissibility. However, without ruling on said offer and without setting the case for reception of petitioner's evidence, the said official proceeded to render judgment affirming its earlier decision to cancel the registration of ADFLO. This is a gross violation of petitioner's right to due process. Under Section 1, Article II of our Constitution, "no person shall be deprived of life, liberty or property without due process of law . . ." and under Article 238 of the Labor Code, "the certificate of registration of any legitimate labor organization, whether national or local, shall be cancelled by the Bureau if it has reason to believe, after due hearing, that the said labor

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organization no longer meets one or more of the requirements herein prescribed." The cancellation of a certificate of registration is the equivalent of snuffing out the life of a labor organization. For without such registration, it loses as a rule its rights under the Labor Code. A decision rendered without any hearing is null and void. The Second Issue: Substantial Basis It will be noted that the Director of the Bureau of Labor Relations never made any ruling on whether the exhibits submitted by CLASS were admissible in evidence. That being so, the said exhibits cannot be made use of in deciding the case. A decision with absolutely nothing to support it is a nullity. 5. COLLATERAL ATTACK Tagaytay Highlands International Golf Club, Inc. vs. Tagaytay Highlands Employees Union- (2003) After a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book IV of the "Rules to Implement the Labor Code" (Implementing Rules) which section reads:
Sec. 5. Effect of registration. The labor organization or workers' association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter be subject to collateral attack, but may be questioned only in an independent petition for cancellation in accordance with these Rules.
Provided, however, That aliens working in the country with valid PERMITS issued by the Dept of Labor and Employment, o may exercise the right to self-org and join or assist labor orgs of their own choosing for purposes of collective bargaining; o Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers.
Art. 270 Regulation of foreign assistance.
(a) No foreign individual, org or entity may give
The inclusion in a union of disqualified employees is not among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) and (c) of Article 239 of above-quoted Article 239 of the Labor Code. The union, having been validly issued a certificate of registration, should be considered to have already acquired juridical personality which may not be assailed collaterally.
any donations, grants or other forms of assistance, in cash or in kind, directly or indirectly, to any labor org, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Sec of Labor. Trade union activities shall mean: 4. organization, formation and administration of labor orgs; 5. negotiation and admin of collective bargaining agreements; 6. all forms of concerted union action; 7. organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins, seminars, conferences and institutes; 8. any form of participation or involvement in representation proceedings, representation elections, consent elections, union elections; and 9. other activities or actions analogous to foregoing. (b) This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash or in kind, given directly or indirectly to any Eer(s) org to support any activity or activities affecting trade unions. (c) The Sec of Labor shall promulgate rules and regulations to regulate and control the giving and receiving of such donations, grants, or other forms of assistance, including the mandatory reporting of the amounts of the donations or grants the specific recipients thereof, the projects or activities proposed to be supported, and their duration. Art. 271 Applicability to farm tenants and rural workers The provisions of this Title pertaining to foreign orgs and activities shall be deemed applicable likewise to all orgs of farm tenants, rural workers, and the like: Provided, That in appropriate cases the Sec of Agrarian Reform shall exercise the powers and responsibilities vested by this Title in the Sec of Labor.
3.05 INTERNATIONAL ACTIVITIES OF UNION PROHIBITION AND REGULATION

Art. 269 Prohibition against aliens; exceptionsAll aliens, natural or juridical, as well as foreign orgs are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts bet Phil labor unions and recognized international labor centers:
3.06 UNION-MEMBER RELATIONS

Art. 241

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Rights and conditions of membership in a labor orgThe following are the rights and conditions of membership in a labor org.: A. No arbitrary or excessive initiation fees shall be required of the members of a legit labor org nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed; B. The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions s provided for in the constitution and bylaws of the org; C. The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor org. The secretary or any other responsible union officer shall furnish the Sec of Labor and Employment with a list of the newlyelected officers, together with the appointive officers of agents who are entrusted with the handling of funds within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor org.( as amended by Sec 16, RA 6715) D. The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the org, unless the nature of the org or force majeure renders such secret ballot impractical, in which case the board of dir of the org may make the decision in behalf of the general membership; E. No labor org shall knowingly admit as members or continue in membership any individual who belongs to a subversive org or who is engaged directly or indirectly in any subversive activity; F. No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union; ****(Isnt this in conflict with second part of letter C) G. No officer, agent or member of a labor org shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its const. and by-laws; H. Every payment of fees, dues or other contributions by member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the org to be kept and maintained for the purpose; I. The funds of the org shall not be applied for any purpose or object other than those expressly provided by its consti and bylaws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose; Every income or revenue of the org shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the org. (as amended by Sec 16, RA 6715) Any action involving the funds of the org shall prescribe after three(3) years from the date of submission of the annual financial report to the Dept of Labor and Employt or from the date the same should have been submitted as required by law, whichever comes earlier: Provided, That this provision shall apply only to a legit labor org which has submitted the financial report requirements under this Code; Provided, further, that failure of any labor org to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor org. K. The officers of any labor org shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its const. and by-laws, or written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Sec of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the org; L. The treasurer of any labor org and every officer thereof who is responsible for the account of such org or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the org, shall render to the org and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the org entrusted to his custody or under his control. The rendering of such account shall be made: 1. At least once a year within thirty (30) days after the close of its fiscal year; 2. At such other times as may be required by a resolution of the majority of the members of the org; and 3. Upon vacating his office. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Sec of Labor. M. The books of accounts and other records of the financial activities of any labor org shall be open to inspection by any officer or member thereof during office hours; J.

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N. No special assessment or other extraordinary fees may be levied upon the members of a labor org -- unless authorized by a written resolution of a majority of all the members of a -- general membership meeting -- duly called for the purpose. -- The secretary of the org shall record the minutes of the meeting -- including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessments or fees. -- The record shall be attested to b the president. Other than for mandatory activities under the Code, -- no special assessments, atty.s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee -without an individual written authorization duly signed by the Ee. - - The authorization should specifically state the amount, purpose and beneficiary of the deduction; and It shall be the duty of any labor organization and its officers to inform its members on the provisions of its consti and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. For this purpose, registered labor orgs may assess reasonable dues to finance labor relations seminars and other labor education activities. 2. ISSUES ADMISSION AND DISCIPLINE OF MEMBERS Art. 249 (a) To restrain or coerce EEs in the exercise of their rights to self-org. However, a labor org shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; Art. 277 Any EE, whether employed for a definite period or not, shall, beginning on his first day of service, be considered an EE for purposes of membership in any labor union. UST Faculty Union v. Bitonio (1999) The point to be stressed is that the unions CBL is the fundamental law that governs the relationship between and among the members of the union. It is where the rights, duties and obligations, powers, functions and authority of the officers as well as the members are defined. It is the organic law that determines the validity of acts done by any officer or member of the union. Without respect for the CBL, a union as a democratic institution degenerates into nothing more than a group of individuals governed by mob rule. The importance of a unions constitution and by-laws cannot be overemphasized. They embody a covenant between a union and its members and constitute the fundamental law governing members rights and obligations. As such, the unions constitution and by-laws should be upheld, as long as they are not contrary to law, good morals, or public policy. Salunga v CIR (1967) GENERAL RULE: Court cannot compel voluntary associations to admit thereto a particular individual/s. Membership in such groups is a matter of privilege. EXCEPTION: However, this general rule does not apply to the case of LABOR UNIONS HOLDING MONOPOLY IN THE SUPPLY LABOR whether in a given locality, or as closed-shop agreement. The closed-shop or maintenance of membership conditions cause the admission and discipline requirements of the Union to become affected with public interest. Such unions are not entitled to arbitrarily exclude qualified applicants. Furthermore, Salunga is not guilty of disloyalty. The anomalies he brought out were all true. Company is not guilty of unfair labor practice. Salunga is entitled to reinstatement. If unions may be compelled to admit new members who have the requisite qualifications, with more reason may the courts exercise their coercive power when the employee involved is a long-standing union member, who owing to provocations of union officers, was impelled to tender his resignation, which he forthwith withdrew or revoked. DISINI: GENERAL RULE: Labor union is a PRIVATE and voluntary organization. EXCEPTION: When union has access to employment, example: closed-shop agreement.
O.
P.
Any violation of the above rights and conditions of membership shall be ground for cancellation of union registration or expulsion of officer from office, whichever is appropriate. At least thirty (30%) of all members of a union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide any reported violation to mete the appropriate penalty. Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts. 1. NATURE OF RELATIONSHIP Heirs of Cruz v CIR The union is but an AGENT of the individual workers and it has the duty to inform the members of the labor matters entrusted to it. The employer may rely on the authority of the union to bring the union members especially in collective bargaining where the matters to be discussed are still to be observed but this case is an exception.

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This converts union into one with a public character and thus the government will have a right to inquire into the rules or business of the union. RIGHT TO DISCIPLINE Villar v Inciong (1983) When a labor union affiliates with a mother union, it becomes bound by the laws and regulations of the parent organization. It becomes subject to the laws of the superior body under whose authority the local union functions. The constitution, by-laws and rules of the parent body, together with the charter it issues pursuant thereto to the subordinate union, constitute an enforceable contract between the parent body and the subordinate union. When members of a labor union sow the seeds of dissension and strife within the union. When they seek the disintegration and destruction of the very union to which they belong. They forfeit their rights to remain as members. PAFLU acted when, after proper investigation and finding of guilt, it decided to remove the oppositors from the list of members of the Amigo Employees Union-PAFLU. DUE PROCESS RULES Bugay v Kapisanan ng Manggagawa sa Manila Railrd (1962) The union claims that he cannot claim such, as the findings were based solely on procedural defects, there being indication of bad faith on the part of its officers. The Court rules otherwise, as he was subject to humiliation and mental anguish with the consequent loss of his good name and reputation. Such claims could not have been included in the case before the CIR as it was not within its jurisdiction. Case remanded. In this case, Bugay was charged by union officers of disloyalty and was terminated from union membership. Bugay was NOT present in ANY of the investigations. They failed to give notice or to summons Bugay. And yet the investigations pushed through. Case remanded. ELECTION OF OFFICERS---QUALIFICATIONS, OF ELECTION, TENURE AND COMPENSATION Art 241 (c) The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor org. The secretary or any other responsible union officer shall furnish the Sec of Labor and Employt with a list of the newly-elected officers, together with the appointive officers of agents who are entrusted with the handling of funds within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor org.( as amended by Sec 16, RA 6715) MANNER (f) No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union; (k) The officers of any labor org shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its consti and by-laws, or written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Sec of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the org; QUALIFICATON: Member in good standing Not convicted of crime of moral turpitude MANNER OF ELECTION: Secret Ballot, Direct election, Interval of 5 years TENURE: 5 years COMPENSATION: Generally none. But allowed if the constitution or by-laws allow it, or a written resolution by a majority of all the union members in a general membership meeting called for that purpose. VOTERS LIST Tancinco vs Calleja (1988) Submission of the employees names with the BLR as qualified members of the union is not a condition sine qua non to enable said members to vote in the election of unions officers. Under Article 242, only members of the union can participate in the election of union officers. The question of eligibility to vote may be determined through the use of the applicable payroll period and employees status during the applicable payroll period---the payroll of the month next preceding the labor dispute in case of regular employees and the payroll period at or near the peak of operations in case of employees in seasonal industries. Considering that none of the parties insisted on the use of the payroll period-list as voting list and considering that the 51 remaining employees were correctly ruled to be qualified for membership, their act of joining the election by casting their votes is a clear manifestation of their intention to join the union. They must be considered ipso facto members. UST Faculty v. Bitonio (1999) A union election is held pursuant to the unions constitution and by-laws and the right to vote in it is enjoyed ONLY BY UNION MEMBERS. A union election should be distinguished from a certification election, which is the process of determining, through secret ballot, the sole and exclusive bargaining agent of the employees in the appropriate bargaining unit, for purpose of collective bargaining.

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Specifically, the purpose of a certification election is to ascertain whether or not a majority of the employees wish to be represented by a labor organization and, in the affirmative case, by which particular labor organization. In a certification election, ALL employees belonging to the appropriate bargaining unit can vote. Therefore, a union member who likewise belongs to the appropriate bargaining unit is entitled to vote in said election. HOWEVER, the reverse is not always true; an employee belonging to an appropriate unit but who is not a member of the union cannot vote in the union election, UNLESS otherwise authorized by the constitution and by-laws. DISQUALIFICATION CANDIDATE Manalad vs Trajano (1989) Babula disqualified from running for certain reasons not mentioned in the case. Court will respect the will of the majority of the workers who voted Where the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. Lastly, even if the disqualification of Babula et al could be justified, the candidates of Manalad certainly cannot be declared as the winners in the disputed election. The mere fact that they obtained the second highest number of votes does not mean that they will thereby be considered as the elected officers. EXPULSION REMEDY Kapisanan vs Trajano (1985) If herein union officers were guilty of the alleged acts imputed, BLR pursuant to Article 242 should have meted out the appropriate penalty on them, i.e., to expel them from the Union, as prayed for, and not call for a referendum to decide the issue. The allegations of falsification and misrepresentation of union officers were not supported by substantial evidence. The expenditures appeared to have been made in good faith. Furthermore, holding of the referendum has become moot and academic. Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. ELECTION ISSUES Rodriguez vs Director (1988) General elections were attended by grave irregularities, rendering the elections invalid. The dates for provincial elections were set but they were in fact held on another date without prior notice to all voting members, and without ground rules duly prescribed. Undue haste, lack of adequate safeguards to ensure integrity of the voting, and absence of notice of the dates of balloting, thus attended the elections. A record-breaking voter turnout of 73%, cannot purge the elections of their grave infirmities. The elections were closely contested. Results would obviously have been affected by the ballots of the 2,056 voters who had been unable to cast their votes because of lack of notice of actual dates of the elections. Free and honest elections are indispensable to the enjoyment by employees and workers of their constitutionally protected right to self-organization. MAJOR POLICY MATTERS Art. 241 d The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the org, Unless the nature of the org or force majeure renders such secret ballot impractical, In which case the board of director of the org may make the decision in behalf of the general membership; Halili v CIR (1985) Retainers contract was not a contract with the general membership. This violates A242 (d) of the Labor Code which provides: The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case the board of directors of the organization may make the decision in behalf of the general membership. UNION FUNDS How are union funds protected?
Art. 241 Rights and conditions of membership in a labor org.The following are the rights and conditions of membership in a labor org. b. The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions is provided for in the constitution and by-laws of the org; g . No officer, agent or member of a labor org shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its consti and by-laws; h. Every payment of fees, dues or other contributions by member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the org to be kept and maintained for the purpose; i. The funds of the org shall not be applied for any purpose or object other than those expressly provided by its consti and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose; j. Every income or revenue of the org shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall

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state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the org. (as amended by Sec 16, RA 6715) l. The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made: 1. At least once a year within 30 days after the close of its fiscal year.; 2. At such other times as may be required by a resolution of the majority of the members of the organization; and 3. Upon vacating his office. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor. m. The books of accounts and other records of the financial activities of any labor org shall be open to inspection by any officer or member thereof during office hours; n. No special assessment or other extraordinary fees may be levied upon the members of a labor org unless authorized by a written resolution of a majority of all the members of a general membership meeting duly called for the purpose. The secretary of the org shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessments or fees. The record shall be attested to b the president. o. Other than for mandatory activities under the Code, no special assessments, atty.s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the Ee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; Art 274 Visitorial Power. The Sec of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor orgs upon filing of a complaint under oath and duly supported by the written consent of at least twenty (20%) per cent of the total membership of the labor org concerned an to examine their books of accounts and other records to determine compliance or noncompliance with the law and the union consti and by-laws; Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. SOURCE PAYMENT ATTORNEYS FEES Art. 222 Appearances and fees---a) Non-lawyers may appear before he Commission or any Labor Arbiter only: 1. If they represent themselves; or 2. If they represent their organization or members thereof. b) No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting union; Provided, however, That attorneys fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. [Cf. Art. 241 (n)] Pacific Banking v Clave (!984) Art 222 guarantees the protection of the Ee against unwarranted practices that would diminish his compensation without his knowledge and consent. There is no doubt that the lawyer is entitled to his fees but Art 222 ordains that such must come from the Union funds. The P14M constitutes the money of the Ees; it is not union funds. Thus, the atty.s fees should not be deducted from the P14M, but from the existing funds of the union. Furthermore, Presidential executive assistant had no jurisdiction to make such adjudication on the attorneys fees. Case was appealed to the OPRES with respect to the CBA terms and conditions. Although the attorneys fees were a mere incident, fixing of the same was outside Presidential executive assistants appellate jurisdiction. EXAMINATION OF BOOKS Duyag v Inciong (1980) Membership of Manalad and Puerto in another union is a sufficient ground for their removal under the constitution and by-laws of the union. His organization of a family-owned corporation competing with the union headed by him renders it untenable that he should remain as union president. Manalad, Puerto and Leao violated the rights and conditions of membership in the union within the meaning of article 242. Duyag et al are entitled to the refund of the union dues illegally collected from them. The Director of Labor Relations erred in holding that tenure of union officers, being a political question, is a matter outside his Bureaus jurisdiction and should be passed upon by the union members themselves. After hearing and even without submitting the matter to the union members, erring union officials may be removed by the Director of Labor Relations as clearly provided in article 242. The Director should apply the law and not make policy considerations. The labor officials should not hesitate to enforce strictly the law and regulations governing trade unions even if

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that course of action would curtail the so-called union autonomy and freedom from government interference. Labor officials should be vigilant and watchful in monitoring and checking the administration of union affairs. Director acted correctly in ordering an examination of the books and records of the union. UNION DUES Rodriguez v Director, BIR (1989) Old union officers increased union dues from P21-P50. The resolution was presented to the general membership for ratification at a referendum. Those who protested boycotted the referendum but nevertheless union officers declared the increase ratified by the referendum. The resolution increasing the union dues must be struck down, as illegal and void, arbitrary and oppressive. It must be discontinued. Resolution of the unions Legislative Council does not bear the signature of at least two-thirds (2/3) of the members of the Council. Proof is wanting of proper ratification of the resolution by a majority of the general union membership at a plebiscite called and conducted for that purpose. The dues improperly collected must be refunded. SOURCE PAYMENT SPECIAL ASSESSMENT Art. 241 n. No special assessment or other extraordinary fees may be levied upon the members of a labor org unless authorized by a written resolution of a majority of all the members of a general membership meeting duly called for the purpose. The secretary of the org shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessments or fees. The record shall be attested to b the president. o. Other than for mandatory activities under the Code, no special assessments, atty.s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the Ee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; Art. 222 Appearances and Fees. a. Non-lawyers may appear before the Commission or any Labor Arbiter only: 1. If they represent themselves; or 2. If they represent their organization or members thereof. b. No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining agreement shall be imposed on any individual member of the contracting union: Provided, However, that attorneys fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. Palacol v. Calleja (1990) HELD: Deduction of the 10% special assessment by the Union was not made in accordance with the requirements provided by law. Substantial compliance is not enough. Employees express consent is required, and must be obtained in accordance with the steps outlined by law. Under par (n), the Union must submit to the Company a written resolution of a majority of all the members at a general membership meeting duly called for the purpose. Secretary of the organization must record the minutes of the meeting which, in turn, must include the list of all the members present as well as the votes cast. Union held local membership meetings on separate occasions, on different dates and at various venues. It submitted only minutes of the local membership meetings when what is required is a written resolution adopted at the general meeting. Minutes of 3 of those local meetings held were recorded by a union director and not by the union secretary. The minutes contained no list of the members present and no record of the votes cast. Par. (o) requires an individual written authorization duly signed by every employee in order that a special assessment may be validly checked-off. There can be no valid check-off considering that the majority of the union members had already withdrawn their individual authorizations. A withdrawal of individual authorizations is equivalent to no authorization at all. Documents containing the disauthorizations have the signatures of the union members. There is nothing in the law which requires that the disauthorization must be in individual form. Only the collection of a special fund for labor and education research is mandated. The two other purposes, purchase of vehicles and other items for the benefit of the union officers and the general membership, and the payment of services rendered by union officers should be supported by the regular union dues, there being no showing that the latter are not sufficient to cover the same. The last stated purpose fall under Art. 222(b). Art. 222(b) prohibits attorneys fees, negotiations fees and similar charges arising out of the conclusion of a collective bargaining agreement from being imposed on any individual union member. The collection of the special assessment partly for the payment for services rendered by union officers, consultants and others may not be in the category of attorneys fees or negotiations fees. It is an exaction which falls within the category of a similar charge, and within the coverage of the prohibition. Gabriel v. Sec. Of Labor (2000) Art. 241 has three requisites for the validity of the special assessment for the unions incidental expenses: 1) Authorization by written resolution of majority of ALL the members at the general membership meeting called for that purpose 2) Secretarys record of the minutes of the meetings attested to by the president.

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3) Individual written authorization for checkoff duly signed by the employees concerned. authorization was declared invalid because majority of the Union members had withdrawn their individual authorizations. In this case, the majority of the Union members gave their individual written check-off authorizations for the 10% special assessment. And they have never withdraw their individual written authorizations for check-off. Premises studiedly considered, we are of the irresistable conclusion and, so find, that the ruling in BPIEU-ALU vs. NLRC that 1) the prohibition against attorney's fees in Art. 222, par (b) of the Labor Code applies only when the payment of attorney's fees is effected through forced contributions from the workers; and 2) that no deductions must be taken from the workers who did not sign the checkoff authorization, applies to the case under consideration. MANDATORY ACTIVITY Art 241(o) Other than for mandatory activities under the Code, no special assessments, attys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an EE w/o an individual written authorization duly signed by the EE. The authorization should specifically state the amount, purpose and beneficiary of the deduction; and
ABS-CBN Supervisors Employees Union Members V. ABS-CBN Broadcasting Corp (1999) After a thorough review of the records on hand, we find that the 3 requisites for the validity of the 10% special assessment for Union's incidental expenses, attorney's fees and representation expenses were met. It can be gleaned that on July 14, 1989, the Union held its general meeting, whereat it was agreed that a 10% special assessment from the total economic package due to every member would be checked-off to cover expenses for negotiation, other miscellaneous expenses and attorney's fees. The minutes of the said meeting were recorded by the Union's Secretary and noted by its President. On May 24, 1991, said Union held its General Membership Meeting, wherein majority of the members agreed that "in as much as the Union had already paid Atty. P. Pascual the amount of P500,000.00, the same must be shared by all the members until this is fully liquidated." 85 members of the same Union executed individual written authorizations for check-off. There is then, the presumption that such check-off authorizations were executed voluntarily by the signatories thereto. Petitioners further contend that Article 241 (n) of the Labor Code, as amended, on special assessments, contemplates a general meeting after the conclusion of the CBA. Subject Article does not state that the general membership meeting should be called after the conclusion of a CBA. In BPIEU-ALU, the petitioners, impugned the Order of the NLRC, holding that the validity of the five percent (5%) special assessment for attorney's fees is contrary to Art. 222, par(b) of the Labor Code, as amended. The court ratiocinated, thus:
"The Court reads the aforecited provision as prohibiting the payment of attorney's fees only when it is effected through forced contributions from the workers from their own funds a distinguished from the union funds. The purpose of the provision is to prevent imposition on the workers of the duty to individually contribute their respective shares in the fee to be paid the attorney for his services on behalf of the union in its negotiations with the management.
DEFINITION OF MANDATORY ACTIVITIES: Judicial process of settling disputes laid down by the law. Amicable settlements cannot be considered as a mandatory activity. Vengco v Trajano (1989) HELD: Attorneys fees may not be deducted or checked off from any amount due to an employee without his written consent except for mandatory activities under the Code. A mandatory activity has been defined as a judicial process of settling dispute laid down by the law. Amicable settlement entered into by the management and the union can not be considered as a mandatory activity. Union filed a claim for emergency cost of living allowance and other benefits however, case never reached its conclusion in view of the parties agreement. It is not also shown that Atty. Benjamin Sebastian was instrumental in forging the said agreement on behalf of the union members. This provision envisions a situation where there is a judicial or administrative proceedings for recovery of wages. Law allows a deduction for attorneys fees of 10% from the total amount due to a winning party. Fringe benefits received by the union members consist of back payments of their unpaid emergency cost of living allowances which are totally distinct from their wages. Allowances are benefits over and above the basic salaries of the employees. Such allowances are excluded from the concept of salaries or wages. Penalty of expulsion from the union presidency imposed upon Timbungco is justified.
However, the public respondent overlooked the fact that in the said case, the deduction of the stipulated 5% of the total economic benefits under the new CBA was applied only to workers who gave their individual signed authorizations. The Court explained:
And significantly, the authorized deduction affected only the workers who adopted and signed the resolution and who were the only ones from whose benefits the deductions were made by BPI. No similar deductions were taken from the other workers who did not sign the resolution and so were not bound by it."
The inapplicability of Palacol lies in the fact that it has a different factual milieu from the present case. In Palacol, the check-off

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CBA NEGOTIATIONS Galvadores v Trajano (1986) HELD: No check-offs from any amounts due employees may be effected without individual written authorizations duly signed by the employees specifically stating the amount, purpose and beneficiary of the deduction. The required individual authorizations are wanting. Employees are vigorously objecting. Benefits awarded to PLDT employees still formed part of the collective bargaining negotiations although placed already under compulsory arbitration. This is not the mandatory activity under the Code which dispenses with individual written authorizations for check-offs. It is a judicial process of settling disputes laid down by law. Besides, Article 222 (b) does not except a CBA, later placed under compulsory arbitration, from the ambit of its prohibition. UNION INFORMATION Art. 241(p) It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. Continental Cement Corp Labor Union v. Continental Cement Corp (1990) Company was engaged in the manufacture of cement which is a vital industry in which a strike or lockout is prohibited. The union members engaged in a lock-out and strike. Even assuming not engaged in a vital industry, the strike was illegal. It was not in connection with any unresolved economic issue in collective bargaining which is the only ground for which a lawful strike can be held as found in Section 7 of the Rules and Regulations implementing PD 823. The issue concerned merely the implementation of an arbitration award of the NLRC. Union had a remedy by applying for a writ of execution to enforce that award. The strikers did violate the nostrike policy. They repeatedly defied the orders of the Director of Labor Relations. Officers had the duty to guide their members to respect the law. Instead, they urged them to violate the law and defy the duly constituted authorities. Their responsibility is greater than that of the members. Their (the officers) dismissal from the service is a just penalty. It is within the power of the NLRC to order the removal of the officers. In Art. 242, it shall be the duty of any labor organization and its officers to inform its members on provisions of the constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. Any violation of the above rights and conditions shall be a ground for cancellation of union registration or expulsion of an officer from office. The officers misinformed the members and led them into staging an illegal strike. ENFORCEMENT AND REMEDIES PROCEDURE AND SANCTIONS Art. 241, last paragraph Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts. Department Order No. 40-03 Series of 2003 RULE XIII ADMINISTRATION OF TRADE UNION FUNDS AND ACTIONS ARISING THEREFROM Section 2. Visitorial power under Article 274. - The Regional or Bureau Director may inquire into The financial activities of any legitimate labor organization and Examine their books of accounts and Other records To determine compliance with the law and the organization's constitution and by-laws. Such examination shall be made upon the filing of a request or complaint for the conduct of an accounts examination by Any member of the labor organization, Supported by the written consent of at least twenty (20%) percent of its total membership. Section 3. Where to file. - A request for examination of books of accounts of independent labor unions, chartered locals and workers associations pursuant to Article 274 Shall be filed with the Regional Office that issued its certificate of registration or certificate of creation of chartered local. A request for examination of books of accounts of federations or national unions and trade union centers pursuant to Article 274 Shall be filed with the Bureau. Such request or complaint, in the absence of allegations pertaining to a violation of Article 241, Shall not be treated as an intra-union dispute and The appointment of an Audit Examiner by the Regional or Bureau Director shall not be appealable. Section 4. Actions arising from Article 241. Any complaint or petition with allegations of mishandling, misappropriation or non-accounting of funds in violation of Article 241 Shall be treated as an intra-union dispute. It shall be heard and resolved By the Med-Arbiter provisions of Rule XI. pursuant to the
Section 5. Prescription. - The complaint or petition for audit or examination of funds and book of accounts shall prescribe Within three (3) years from the date of submission of the annual financial report to the Department or

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From the date the same should have been submitted as required by law, whichever comes earlier.
3.07 UNION AFFILIATION: LOCAL AND PARENT UNION RELATIONS

DO No. 40-03 Series of 2003 RULE III REGISTRATION OF LABOR ORGANIZATIONS Section 7. Requirements of affiliation. - The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by the following documents: (a) resolution of the labor union's board of directors approving the affiliation; (b) minutes of the general membership meeting approving the affiliation; (c) the total number of members comprising the labor union and the names of members who approved the affiliation; (d) the certificate of affiliation issued by the federation in favor of the independently registered labor union; and (e) written notice to the employer concerned if the affiliating union is the incumbent bargaining agent. RULE IV PROVISIONS COMMON TO THE REGISTRATION OF LABOR ORGANIZATIONS AND WORKERS ASSOCIATION Section 1. Attestation requirements. - The application for registration of labor unions and workers' associations, notice for change of name, merger, consolidation and affiliation including all the accompanying documents, shall be certified under oath by its Secretary or Treasurer, as the case may be, and attested to by its President. Section 2. Payment of registration fee. - A labor union and workers' association shall be issued a certificate of registration upon payment of the prescribed registration fee. Section 8. Effect of registration. - The labor union or workers' association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration or certificate of creation of chartered local. Such legal personality may be questioned only through an independent petition for cancellation of union registration in accordance with Rule XIV of these Rules, and not by way of collateral attack in petition for certification election proceedings under Rule VIII. 1. AFFILIATION: PURPOSE OF; NATURE OF RELATIONS Filipino Pipe & Foundry Corporation v. NLRC (1999) The mother union, acting for and in behalf of its affiliate, had the status of an agent while the local remained the basic unit of the association, free to serve the common interest of all its members subject only to restraints imposed by the constitution and by the by-laws of the association.
JURISDICTION EXHAUSTION INTERNAL REMEDIES Villar v Inciong (1983) PAFLU had the authority to investigate Villar et al. When a labor union affiliates with a mother union, it becomes bound by the laws and regulations of the parent organization. It becomes subject to the laws of the superior body under whose authority the local union functions. The constitution, by-laws and rules of the parent body, together with the charter it issues pursuant thereto to the subordinate union, constitute an enforceable contract between the parent body and the subordinate union. When members of a labor union sow the seeds of dissension and strife within the union. When they seek the disintegration and destruction of the very union to which they belong. They forfeit their rights to remain as members. PAFLU acted when, after proper investigation and finding of guilt, it decided to remove the oppositors from the list of members of the Amigo Employees Union-PAFLU. REMEDY Relief within the union8 Generally, redress must first be sought within the union itself in accordance with the constitution and by-laws. (Kapisanan ng mga Manggagawa sa MRR v. Hernandez, 20 SCRA 109). Exception: 1) Futility of intra-union remedies 2) Improper expulsion procedure 3) Undue delay in appeal as to constitute substantial injutsice 4) When the action is for damages 5) Lack of jurisdiction of investigatin body 6) When the action of the administrative agency is patently illegal, arbitrary and oppresive 7) When the issue involved is purely a question of law 8) Where the administrative agtency has already prejudged the case 9) Where the administrative agency was practically given the oppurtunity to act on the case but did not. Kapisanan ng mga Manggagawa sa MRR v. Hernandez (20 SCRA 109) Where the exhaustion of remedies within the union itslef would practically amount to a denial of justice, or would be illusory or vain, it will not be insisted upon, as a condition to the right to invoke the aid of the court, aprticularly where the property rights of the members are involved. In the case at bar, the complaint was filed against the union and it incumbent officer, some of who were members of the board of directors. The constitution and by-laws of the union provide that charges for any violations thereof shall be filed before the said board. Exhaustion of remedies here would amount to denial of justice.
From Azucena vol. II page 157

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The same is true even if the local is not a legitimate labor organization. Sugbuanon Rural Bank v. Laguesma (2000) Locals are separate and distinct units primarily designed to secure and maintain an equality of bargaining power between the employer and their employee-members in the economic struggle for the fruits of the joint productive effort of labor and capital. Association of the locals into the national union was in furtherance of the same end. These associations are consensual entities capable of entering into such legal relations with their members. The essential purpose was the affiliation of the local unions into a common enterprise to increase by collective action the common bargaining power in respect of the terms and conditions of labor. Yet the locals remained the basic units of association. A local union maintains its separate personality despite affiliation with a larger national federation. Tropical Hut v. Tropical Hut (1990) The right of a local union to disaffiliate from its mother federaton is well-settled. A local union, being a SEPARATE and VOLUNTARY association, is free to serve the interest of all its mebers including the freedom to disaffiliate when circumstances warrant. The right is consistent with the constitutional guarantee of freedom of association. Alliance v. Samahan (1996) A local labor union is a separate and distinct unit primarily designed to secure and maintain an equality of bargaining power and their employeemembers. A local union does not owe its existence to the federation with which it is affiliated. It is a separate and distinct voluntary association owing its creation to the will of its members. The mere act of affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract fo agency where the former acts in representation of the latter. A local union of supervisory employees may be allowed to affiliate with a national federation of labor organizations of rank and file employees. What the law prohibits is that supervisory employees join a rank and file union. The national federation would be representing the respective interests of the 2 groups separately. RATIONALE: De la Salle Med v. Laguesma (1998) The affiliation of 2 local unions in a company with the same national federation is not by itself a negation of their independence since in relation to an employer, the local unions are considered as the principal, while the federation is deemed as the be merely an agent. Adamson v CIR (1984) Whether or not a supervisor's union may affiliate with a federation with which unions of rank-and-file employees of the same employer are also affiliated? Individuals employed as supervisors shall not be eligible for membership in a labor organization of employees under their supervision but may form separate organizations of their own. The supervisory employees of an employer cannot join any labor organization of employees under their supervision but may validly form a separate organization of their own. It cant be construed that personalities of the 3 unions are so merged with the mother federation that for one difference or another they cannot pursue their own ways, independently of the federation. Adamson and Adamson Supervisory Union and the Adamson and Adamson, Inc., Salesmen Association (FFW), have their own respective constitutions and by-laws. They are separately and independently registered of each other. Both sent their separate proposals for collective bargaining agreements with their employer. There is nothing in Industrial Peace Act which provides that a duly registered local union affiliating with a national union loses its legal personality, or its independence. Locals are separate and distinct units primarily designed to secure and maintain an equality of bargaining power between the employer and their employeemembers. Locals remain the basic units of association, free to serve their own and the common interest of all. Inclusion of FFW in the registration is merely to stress that they are its affiliates at the time of registrations. It does not mean that said local unions cannot stand on their own. 3. LOCAL UNION DISAFFILIATION NATURE RIGHT DISAFFILIATION Volkschel Labor Union v BLR (1985) HELD: Right of a local union to disaffiliate from its mother union is well-settled. A local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. This right is consistent with the
2. SUPERVISOR RANK AND FILE UNION AFFILIATION RULE-AFFILIATION Atlas Lithographic v Laguesma (1992) The definition of managerial employees is limited to those having authority to hire and fire while those who only recommend effectively the hiring and firing or transfers of personnel would be considered as closer to rank and file employees. The exclusion, therefor, of middle level executives from the category of management employees brought about a third classification, supervisory employees, who are allowed to form their own union but are not allowed to join the rank and file union due to conflicts in interest.

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constitutional guarantee of freedom of association. Valid reason for disaffiliation: The disaffiliation was not due to any opportunists motives but rather it was prompted by the federations deliberate and habitual dereliction of duties. Employees grievances were allegedly left unattended to the detriment of the employees rights and interests. The clear policy is to conjoin workers and worker groups, not to dismember them. Effect of disaffiliaion on right of the federation to receive dues: ALUMETAL is entitled to receive the dues from companies as long as union is affiliated with it and companies are authorized by their employees to deduct union dues. Without said affiliation, the employer has no link to the mother union. The obligation of an employee to pay union dues is coterminous with his affiliation or membership. A contract between an employer and the parent organization as bargaining agent for the employees is terminated by the disaffiliation of the local. Malayang Samahan v. Ramos (2000) A local union has the right to disaffiliate from its mother union or declare its autonomy. A local union, being a separate and voluntary association, is free to serve the interests of all its members including the freedom to disaffiliate or declare its autonomy from the federation to which it belongs when circumstances warrant, in accordance with the constitutional guarantee of freedom of association. The purpose of affiliation by a local union with a mother union or a federation is to increase by collective action the bargaining power in respect of the terms and conditions of labor. Yet the locals remained the basic units of association, free to serve their own and the common interest of all, subject to the restraints imposed by the Constitution and By-Laws of the Association, and free also to renounce the affiliation for mutual welfare upon the terms laid down in the agreement which brought it into existence. Thus, a local union which has affiliated itself with a federation is free to sever such affiliation anytime and such disaffiliation cannot be considered disloyalty. In the absence of specific provisions in the federation's constitution prohibiting disaffiliation or the declaration of autonomy of a local union, a local may dissociate with its parent union. Phil. Labor Alliance Council v. BLR (1977) HELD It is indisputable that the present controversy would not have arisen if there were no mass disaffiliation from petitioning union. Such a phenomenon is nothing new in the Philippine labor movement. Nor is it open to any legal objection. It is implicit in the freedom of association explicitly ordained by the Constitution. There is then the incontrovertible right of any individual to join an organization of his choice. That option belongs to him. A workingman is not to be denied that liberty. He may be, as a matter of fact, more in need of it if the institution of collective bargaining as an aspect of industrial democracy is to succeed. No obstacle that may possible thwart the desirable objective of militancy in labors struggle for better terms and conditions is then to be placed on his way. Once the fact of disaffiliation has been demonstrated beyond doubt, as in this case, a certification election is the most expeditious way of determining which labor organization is to be the exclusive bargaining representative. Parenthetically, it should be stated that a certification election can still be held even if the collective agreement were certified, considering the peculiar facts of the case. Good policy and equity demand that when an agreement is renegotiated before the appointed 60-day period, its certification must still give way to any representation issue that may be raised within 60day period so that the right of employees to choose a bargaining unit agent and the right of unions to be chosen shall be preserved. Alex Ferrer vs NLRC (1993) SAMAHAN and Occidental Foundry Corporation (OFC) entered into a CBA effective for 3 years. The CBA contained a union security clause. Due to union politics, a resolution was passed by SAMAHAN expelling Ferrer, et al. from the SAMAHAN. Pursuant to the union security clause, SAMAHAN asked OFC to expel Ferrer, et al. What actually happened in this case was that some members, including petitioners, tried to unseat the SAMAHAN leadership headed by Capitle due to the latters alleged inattention to members demands. The intra-union controversy was such that petitioners even requested the FFW to intervene to facilitate the enforcement of the said wage increase. Ferrer et al. sought the help of the FEDLU only after they had learned of the termination of their employment upon the recommendation of Capitle. Their alleged application with federations other than the FFW can hardly be considered as disloyalty to the SAMAHAN, nor may the filing of such applications denote that Ferrer et al. failed to maintain in good standing their membership in the SAMAHAN. The SAMAHAN is a different entity from FFW, the federation to which it belonged. Neither may it be inferred that Ferrer et al. sought disaffiliation from the FFW for petitioners had not formed a union distinct from that of the SAMAHAN. Parenthetically, the right of a local union to disaffiliate from a federation in the absence of any provision in the federations constitution preventing disaffiliation of a local union is legal Such right is consistent with the constitutional guarantee of freedom of association. Hence, while Ferrers act of holding a special election to oust Capitle, et al. may be considered as an act of sowing disunity among the SAMAHAN members, and, perhaps, disloyalty to the union officials, which could have been dealt with by the union as a disciplinary matter, it certainly cannot be considered as constituting disloyalty to the union. Faced with a SAMAHAN leadership which they had tried to remove as officials, it was but a natural act of self-preservation that Ferrer et al. fled to the arms of the FEDLU after the union and the OFC had tried to terminate their employment. Ferrer should not be made accountable for such an act.

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RULE LEGALITY ACT DISAFFILIATION Villar vs Inciong (1983) Although, as a matter of principle, an affiliate has the right to disaffiliate, this right must respect the terms of the affiliation agreement. Had petitioners merely disaffiliated from Amigo Employees Union-Paflu, there could be no legal objections thereto for it was there right to do so. (This means that individual employees may disaffiliate from a union where they belong.) But what petitioners did by the very clear terms of their Sama-Samang Kapasiayahn was to dissafiliate Amigo-Employees Union-PAFLU (local union) from PAFLU (federation or mother union),an act they could NOT have done with any effective consequence because they constituted the MINORITY in the amigo employees-union PAFLU. (By implication, this tells us that a local union can disaffiliate from its mother union if a majority of the local union decides to do so.) Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills (1975) Facts: A CBA was entered into by the company and the union who was represented by PAFLU (mother union). In the CBA a union security clause was agreed upon. 32 of the 36 members of the union disaffiliated from PAFLU. PAFLU asked the company to dismiss or terminate all 32 employees. HELD: In the CBA PAFLU has been recognized as the sole bargaining agent for all the employees of the Company. The PAFLU, acting for and in behalf of its affiliate, had the status of an agent while the local union remained the basic unit of the association free to serve the common interest of all its members including the freedom to disaffiliate when the circumstances warrant. This was clearly stated in its constitution and by-laws which provided that Liberty Cotton Mills Workers Union-PAFLU shall remain an affiliate as long as ten (10) or more of its members evidence their desire to continue the said local unions affiliation. Only 4 out of its members remained. The disaffiliation was valid under the locals Constitution and By-Laws. Hence, the dismissal from employment was unjustified. Philippine Skylanders, Inc. v. NLRC (2002) In November 1993 the PSEA, a local labor union affiliated with the PAFLU. In September, PAFLU won in the certification election conducted among the rank and file employees of PSI. Its rival union, Philippine Skylanders Employees Association-WATU (PSEA-WATU) immediately protested the result of the election before the Secretary of Labor. Several months later, pending settlement of the controversy, PSEA sent PAFLU a notice of disaffiliation citing as reason PAFLU's supposed deliberate and habitual dereliction of duty toward its members. PSEA subsequently affiliated itself with (NCW) and to maintain continuity within the organization, allowed the former officers of PSEA-PAFLU to continue occupying their positions as elected officers in the newly-forged PSEA-NCW. On 17 March 1994 PSEA-NCW entered into a collective bargaining agreement with PSI. Agitated by PSI's recognition of PSEA-NCW, PAFLU through Serafin Ayroso filed a complaint for unfair labor practice against PSI. May PSEA, which is an independent and separate local union, validly disaffiliate from PAFLU pending the settlement of an election protest questioning its status as the sole and exclusive bargaining agent of PSI's rank and file employees? Jurisdiction At the outset, let it be noted that the issue of disaffiliation is an inter-union conflict the jurisdiction of which properly lies with the Bureau of Labor Relations (BLR) and not with the Labor Arbiter. Nonetheless, with due recognition of this fact, we deem it proper to settle the controversy at this instance since to remand the case to the BLR would only mean intolerable delay for the parties. Right to disaffiliate In the landmark case of Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills, Inc. we upheld the right of local unions to separate from their mother federation on the ground that as separate and voluntary associations, local unions do not owe their creation and existence to the national federation to which they are affiliated but, instead, to the will of their members. There is nothing shown in the records nor is it claimed by PAFLU that the local union was expressly forbidden to disaffiliate from the federation nor were there any conditions imposed for a valid breakaway. Effect of pendency of election protest As such, the pendency of an election protest involving both the mother federation and the local union did not constitute a bar to a valid disaffiliation. Neither was it disputed by PAFLU that 92.5% of the total union membership supported the claim of disaffiliation and had in fact disauthorized PAFLU from instituting any complaint in their behalf. It was entirely reasonable then for PSI to enter into a CBA with PSEA-NCW. As PSEA had validly severed itself from PAFLU, there would be no restrictions which could validly hinder it from subsequently affiliating with NCW. Legal personality It stands unchallenged that PAFLU instituted the complaint for unfair labor practice against the wishes of workers whose interests it was supposedly protecting. The mere act of disaffiliation did not divest PSEA of its own personality; neither did it give PAFLU the license to act independently of the local union. PAFLU might have forgotten that as an agent it could only act in representation of and in accordance with the interests of the local union. The complaint then for unfair labor practice lodged by PAFLU against PSI, PSEA and their respective officers, having been filed by a party which has no legal personality to institute the complaint, should have been dismissed at the first instance for failure to state a cause of action. Policy considerations dictate that in weighing the claims of a local union as against those of a national federation, those of the former must be preferred.

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PERIOD Alliance of Nationalist Union v. Samahang Generally, a labor union may disaffiliate from the mother union to form a local or independent union ONLY during the 60 day freedom period immediately preceding expiration of CBA. EXCEPTION: Shift of allegiance of majority. When to disaffiliate? General rule: a labor union may disaffiliate from the mother union to form a local or independent union ONLY during the 60-day freedom period immediately preceding the expiration of the CBA. (Tanduay Distillery Labor Union v. NLRC 149 SCRA 470 (1987)) Exception: But even before the onset of the freedom disaffiliation may still be carried out, but such disaffiliation must be effected by a majority of the members of the bargaining unit. (AWU v. NLRC) This happens when there is a substantial shift in allegiance on the part of the majority of the members of the union. In such a case, however, the CBA continues to bind members of the new or disaffiliated and independent union up to the CBAs expiration date What is the effect of disaffiliation on union dues?
Closed Shop Hiring Union Shop Employees have access to labor market. Can be hired even if not union member. Continued Employment After some time, employee must become a member Ground for Termination If they employee does not join the union after a reasonable time, it will be grounds for termination After due process is observed If not a member at anytime, grounds for termination After due process is observed If disaffiliates from union, grounds for termination After due process is observed
Part IV : UNION SECURITY
Employee must become a member at the time of hiring
Must be a member all through-out
Maintenan ce shop
Already a member at the time of hiring
Must maintain membership, otherwise it shall be a ground for termination
A local union which has validly withdrawn from its affiliation with the parent association and which continues to represent the employees of an employer is entitled to the check-off dues under a collective bargaining contract. Disini: A local union in a general sense acquires its legitimacy by affiliating with a registered federation or national union. Will such local lose its legitimate status when it disaffiliates from the mother union? Suggested answer: No, as long as there is no express prohibition in the charter certificate issued by the National union or Federation. Right to associate includes right to disassociate.
4.01 STATUTORY BASIS

Art. 248(e) UNFAIR LABOR PRACTICE OF EMPLOYERS to discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, EXCEPT those employees who are already members of ANOTHER UNION at the time of signing of the collective bargaining agreement. Art. 243 Coverage and employees right to selforganization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection.
4.02 RATIONALE-EMPLOYEE ACTION

Juat v. CIR (1965)

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Part IV : Union Security Labor Relations

A closed shop agreement has been considered as one form of union security whereby only union members can be hired AND workers must remain union members as a condition of continued employment. RATIONALE CLOSED SHOP: The requirement for employees or workers to become members of a union as a condition for employment redounds to the benefit and advantage of said employees because by holding out to loyal members a promise of employment in the closed-shop the union wields group solidarity. In fact it is said that the closedshop contract is the most prized achievement of unionism.
4.03 VALIDITY OF AGREEMENT EFFECT ON FREEDOM OF CHOICE
AND
Tanduay Distillery Labor Union V. NLRC (1987) This Court speaking thru Mr. Justice Labrador, in Victorias Milling Co., Inc., v. Victorias-Manapla Workers Organization ruled:
"Another reason for enforcing the closedshop agreement is the principle of sanctity or inviolability of contracts guaranteed by the Constitution. As a matter of principle the provision of the industrial Peace Act granting freedom to employees to organize themselves and select their representative for entering into bargaining agreements, should be subordinated to the constitutional provision protecting the sanctity of contracts. We can not conceive how freedom to contract, which should be allowed to be exercised without limitation may be subordinated to the freedom of laborers to choose the organization they desire to represent them. And even if the legislature had intend ad to do so and made such freedom of the laborer paramount to the sanctity of obligation of contracts, such attempt to override the constitutional provision would necessarily and ipso facto be null and void
To whom is Closed-shop proviso of a CBA applicable? Closed-shop proviso of a collective bargaining agreement entered into between an employer and a duly authorized labor union is applicable not only to the employer and a duly authorized labor union is applicable NOT ONLY to the (1) Employees or laborers that are employed AFTER the collective bargaining agreement was entered into. (2) BUT ALSO to old employees who ARE NOT members of any labor union at the time the said collective bargaining agreement was entered into.
In other words, if an employee or laborer is already a member of a labor union different from the union that entered into a collective bargaining agreement with the employer providing for a closed-shop, said employee or worker cannot be obliged to become a member of that union which had entered into a CBA with the employer as a condition for his continued employment. Guijarno v. CIR (1973) GENERALLY: a state may NOT compel ordinary voluntary associations to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege. EXCEPTION: The rule is qualified in respect of labor unions holding a monopoly in the supply of labor, either in a given locality, or as regards a particular employer with which it has a closedshop agreement. Consequently, it is well settled that such unions are NOT entitled to arbitrarily excluded qualified applicants for membership, and a closedshop provision would not justify the employer in discharging, or a union in insisting upon the discharge of, an employee whom he union thus refuses to admit to membership, without any reasonable ground thereof. To further increase the effectiveness of labor organizations, a closed-shop has been allowed.
The action of the respondent company in enforcing the terms of the closed-shop agreement is a valid exercise of its rights and obligations under the contract. The dismissal by virtue thereof cannot constitute an unfair labor practice, as it was in pursuance of an agreement that has been found to be regular and of a closed-shop agreement which under our laws is valid and binding.
4.04 CONTRACT INTERPRETATION UNION SECURITY
DRAFTING AND OF PROVISION
Rizal Labor Union v. Rizal Cement Co. (1955) In order for an employer to be bound under a union security clause in the CBA, to dismiss an employer for lack of or loss of union membership, the stipulation must be so clear and unequivocal as to leave absolutely no room for doubt. There must be a provision that union members must be in good standing to keep their job. TAKE NOTE: Close shop and union shop provisions are in principle valid and allowed by law. BUT since their application necessarily involves the surrender of a portion of a workers individual freedom and could result in loss of his employment. The terms of specific union clauses should be construed strictly and doubts should be resolved against their existence. Manila Cordage Co. v. CIR (1977) The CBA provides:
IV MAINTENANCE OF MEMBERSHIP Both parties agree that all employees of the COMPANY who are already members of the UNION at the time of the signing of this AGREEMENT shall continue to remain members

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of the UNION AGREEMENT" for the duration of this
The foregoing stipulation, however, does not clearly state that maintenance of membership 'in the Manen Labor Union is a condition of continuous employment in the Manila Labor Cordage Company. In order that the Manila Cordage Company may be deemed bound to dismiss employees who do not maintain their membership in the Union, the stipulation to this effect must be so clear as to leave no room for doubt thereon An undertaking of this nature is so harsh that it must be strictly construed and doubts must be resolved against the existence of the right to dismiss. Apparently aware of the deficiency of the maintenance-of-membership clause, the petitioner urges that the same should be construed together with the "Whereas" provision of the contract which reads: "WHEREAS, the parties hereto nave decided to enter into an agreement relating to the terms and conditions of employment and reference to those employees to whom the provisions of this AGREEMENT apply." The said whereas' proviso neither refers to tenure or duration of employment which is the dispute in the case at bar but only to terms and conditions of employment such as working hours, wages, other benefits and privileges clearly specified therein. We need not stretch our imagination too far to know the difference between or duration of employment from terms and conditions of employment. Even with the conjunctive interpretation, these two provisions can not supplant the omission of said maintenance of membership clause, let alone cure the defect of the same. To construe the stipulations above-quoted as imposing as a condition to continued employment in the Manila Cordage Company the maintenance of membership in the Manco Labor Union is to violate the natural and constitutional right of the laborer to organize freely. Such interpretation would be inconsistent with the constitutional mandate that the State shall afford protection to labor.
accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;
Guijarno v. CIR (1973) The authoritative doctrine that a closed-shop provision in a collective bargaining agreement is not to be given a retroactive effect so as to preclude its being applied to employees already in the service is traceable to the leading case of Confederated Son of Labor vs. Anakan Lumber Co. A year later, in Freeman Shirt Manufacturing Co., Inc. vs. CIR, it was held that a closed-shop agreement applies only to persons to be hired or to employees who are not yet members of any labor organization. It is inapplicable to those already in the service who are members of another union. There is nothing unusual in this Court's adherence with remarkable consistency to the basic doctrine that a closed-shop provision should not be applied retroactively. The obligation was imposed on the State, under the 1935 Constitution, to "afford protection to labor, especially to working women and minors.
4.06 IMPLEMENTATIONOBLIGATION & LIABILITIES

Carino v. NLRC (1990) We believe that the Company should have given petitioner Cario an opportunity to explain his side of the controversy with the Union. Notwithstanding the Union's Security Clause in the CBA, the Company should have reasonably satisfied itself by its own inquiry that the Union had not been merely acting arbitrarily and capriciously in impeaching and expelling petitioner Cario. It is OUR considered view that respondent company is equally liable for the payment of backwages for having acted in bad faith in effecting the dismissal of the individual petitioners. Bad faith on the part of respondent company may be gleaned from the fact that the petitioner workers were dismissed hastily and summarily. At best, it was guilty of a tortious act, for which it must assume solidary liability, since it apparently chose to summarily dismiss the workers at the union's instance secure in the union's contractual undertaking that the union would hold it "free from any liability" arising from such dismissal. While respondent company, under the Maintenance of Membership provision of the Collective Bargaining Agreement, is bound to dismiss any employee expelled by PAFLU for disloyalty, upon its written request, this undertaking should not be done hastily and summarily. The company acted in bad faith in dismissing petitioner workers without giving them the benefit of a hearing. We conclude that the Company had failed to accord to petitioner Cario the latter's right to procedural due process. The right of an employee to be informed of the charges against him and to reasonable opportunity to present his
4.05 COVERAGE WORKER INCLUSION AND EXCLUSION

Art. 248 (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. o Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members

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side in a controversy with either the Company or his own Union, is not wiped away by a Union Security Clause or a Union Shop Clause in a CBA. An employee is entitled to be protected not only from a company which disregards his rights but also from his own Union the leadership of which could yield to the temptation of swift and arbitrary expulsion from membership and hence dismissal from his job. IMPLICATION: Even if may union security clause, due process is still necessary. Sanyo Phil. Workers Union v. Canizares (1992) In the instant case, however, We hold that the Labor Arbiter and not the Grievance Machinery provided for in the CBA has the jurisdiction to hear and decide the complaints of the private respondents. While it appears that the dismissal of the private respondents was made upon the recommendation of PSSLU pursuant to the union security clause provided in the CBA, We are of the opinion that these facts do not come within the phrase "grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies," the jurisdiction of which pertains to the Grievance Machinery or thereafter, to a voluntary arbitrator or panel of voluntary arbitrators. It need not be mentioned that the parties to a CBA are the union and the company. Hence, only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators. In the instant case, both the union and the company are united or have come to an agreement regarding the dismissal of private respondents. No grievance between them exists which could be brought to a grievance machinery. The problem or dispute in the present case is between the union and the company on the one hand and some union and non-union members who were dismissed, on the other hand. The dispute has to be settled before an impartial body. The grievance machinery with members designated by the union and the company cannot be expected to be impartial against the dismissed employees. Due process demands that the dismissed workers grievances be ventilated before an impartial body. Since there has already been an actual termination, the matter falls within the jurisdiction of the Labor Arbiter. 2) Extraordinary Fees, but can only be made when authorized by individual written authorization, duly signed by each employee concerned.
Art. 241 m,n,o m. The books of accounts and other records of the financial activities of any labor org shall be open to inspection by any officer or member thereof during office hours; n. No special assessment or other extraordinary fees may be levied upon the members of a labor org: unless authorized by a written resolution of a majority of all the members of a general membership meeting duly called for the purpose. The secretary of the org shall record: the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessments or fees. The record shall be attested to by the president. (No need to be under oath) o. Other than for mandatory activities under the Code, no special assessments, atty.s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction ABS-CBN Supervisors Employees Union V. ABS-CBN A check-off is a process or device whereby the employer, on agreement with the Union, recognized as the proper bargaining representative, OR on PRIOR authorization from its employees, deduct union dues or agency fees from the latters wages and remit them directly to the union. Its desirability in a labor organization is quite evident. It is assured thereby of CONTINOUS FUNDING. As this Court has acknowledge, the system of check-off is primarily for the benefit of the Union and only indirectly, for the individual employees. The legal basis of check-off is found in statutes or in contracts. The statutory limitation on checkoffs are found in Article 241 g : No officer, agent, or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws. etc. See also 241 m,n,o. BAR QUESTION (1997 XI) 5%: Atty. Facundo Veloso was retained by Welga Labor Union to represent it in the collective bargaining negotiations. It was agreed that Atty. Veloso would be paid the sum of P20,000.00 as
4.07 FINANCIAL SECURITY

CHECK-OFF Art. 113 b No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees except: for union dues, in cases where the right of the worker of his union to check-off has been recognized by the employer OR authorized in writing by the individual worker concerned. CHECK-OFF: 1) Ordinary Union dues

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attorneys fees for his assitance in the CBA negotiations. After the conclusion of the negotiations, Welga Labor Union collected from its individual members the sum of P100.00 each to pay for Atty. Velosos fees and another sum of P100.00 each for services rendered by the union officers. Several members of the Welga Labor Union approached you to seek advice on the following matters: (a) Whether or not the collection of the amount assessed on the individual members to answer for the attorneys fees was valid; and (b) Whether or not the assessment of P100.00 from the individual members of the Welga Laborn Union for services rendered by the union officers in the CBA negotiations was valid. Suggested Answer: (a) The assessment of P100.00 from each union member as attorneys fees for union negotiation is NOT valid. Basis Art. 222 b of the labor code. (b) The assessment of P100.00 as negotiation fees charged to each individual union member and payable to union officers is also not valid, for the same reason stated above. Alternative Answer: (a) The collection of the amount assessed on the individual members to answer for attorneys fees would be valid if it was authorized by a written resolution of a majority of all the members in a general membership meeting called for the purpose. (b) The assessment of P100.00 from the individual members of the Welga Labor Union for services rendered by the union officers in the CBA negotiations would be valid if it was authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. (Art. 241n) DISINI: Requisites so that special assessment for unions incidental expenses is valid Article 241 speaks of three (3) requisites that must be complied with in order that the special assessment for Unions incidental expenses, attorneys fees and representation expenses be valid and upheld: 1. Authorization by a written of the majority of all the members at the general meeting for that purpose. 2. Secretarys record of the meeting. 3. Individual written authorization for checkoff. National Brewery and Allied Industries Labor Union v. San Miguel Corporation (1963) In this case the SC cited different reasons why non-union members cannot be compelled to pay agency fees but this case is overturned by Art. 248 e. AGENCY FEE now has a statutory basis Art. 248 e 2nd paragraph: employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent mat be assessed a reasonable fee equivalent to the dues and other fees paid by members of a recognized collective bargaining agent, if such non-union member accepts the benefit under the CBA Take note: In the case of agency fee, individual authorization not applied, or not required. This is for practical reasons, because the law recognizes the extreme difficulty of imposing agency fee on non-union members, more especially to members of rival unions. DO No.40-03 Series of 2003 RULE XIII ADMINISTRATION OF TRADE UNION FUNDS AND ACTIONS ARISING THEREFROM Section 1. Right of union to collect dues and agency fees. - The incumbent bargaining agent shall continue to be entitled to check-off and collect dues and agency fees despite the pendency of a representation case, other inter/intra-union disputes or related labor relations disputes.

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Part V : Appropriate Bargaining Unit Labor Relations
Part V : APPROPRIATE BARGAINING UNIT

5.01 DEFINITION AND ROLE IN LAW
Art. 255 Exclusive bargaining representation and workers participation in policy and decision-making [sec. 22 of RA 6715] The labor organization designated or selected by the majority of the Employees in an appropriate collective bargaining unit Shall be the exclusive representative of the Employees in such unit For the purpose of collective bargaining. However, an individual EE or group of Employees shall have the right at any time to present grievances to their ER. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the SOLE may promulgate, to participate in policy and decision-making processes of the establishment where they are employed in so far as said processes will directly affect their RIGHTS, BENEFITS and WELFARE. For this purpose, workers and ERs may form LABOR MGT COUNCILS; Provided, that the representatives of the workers in such labor mgt councils shall be elected by at least the majority of all Employees in said establishment. DO No. 40-03 series of 2003 Rule I (d) "Bargaining Unit" refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. DISINI: What is the function of an appropriate bargaining unit? 1. To act as a SOVEREIGN in relation to the CE and CBA 2. It is an ELECTORAL DISTRICT. It marks the boundaries of those who may participate in a certification election. 3. It is an Economic Unit. From the reading of article 255: its function is to select or designate a labor organization to represent them in collective bargaining. Belyca Corp. vs Calleja (1988) A proper bargaining unit: is a group of employees of a given employer comprised of all or less than all of the entire body of employees, which the collective interests of all the employees, consistent with equity to the employer, indicate to be best suited to
serve reciprocal rights and duties of the parties. To determine consider, proper bargaining unit,
a) will of the employees (Globe doctrine), b) affinity and unity of employees interest such as similarity of work, duties and salary, c) prior collective bargaining history and d) employment status. The ultimate test of proper grouping substantiality of mutuality of interest. is
It must be determined whether or not such grouping will best assure to the employees the exercise of their collective bargaining rights. Thus, the employees of Belyca cannot be grouped together in one single union. They differ in working conditions, hours of work, rates of pay, ad employment status.
5.02 DETERMINATION OF APPROPRIATE BARGAINING UNIT

1. FACTORS IN GENERAL UP v. Ferrer-Calleja (1992) HELD: A bargaining unit is a group of Employees, comprised of all or less than all of the entire body of Employees, which the collective interest of all the Employees, consistent w/ equity to the ER, indicate to be the best suited to serve the reciprocal rights & duties of the parties under the CB provisions of the law. In Democratic Labor Assoc v. Cebu Stevedoring Co., there are factors w/c must be satisfied & considered in determining the PROPER UNIT. Rothenberg mentions: 1) Will of the Employees, 2) Affinity & unity of Employees interest, such as substantial similarity of works and duties or similarity of compensation & working conditions, 3) Prior CB history and 4) Employment status i.e. temporary, seasonal, & probationary Employees. The TEST of grouping is COMMUNITY or MUTUALITY of INTERESTS because the basic test of an asserted bargaining units ACCEPTABILITY is won it is fundamentally the combination w/c will best assure to all Employees the exercise of their CB rights. Note: This is related to the policy of the law in ensuring the right to collective bargain. DISINI:The law is looking only for what is PROPER OR APPROPRIATE. The law is NOT looking for the best. RATIONALE OF THE COMMUNITY OR MUTUALITY OF INTEREST TEST: Greater chance of success for the collective bargaining process.

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Illustration of Prof.: A group of rank and file of old employees can be separated from a rank and file of young employees, especially if the issues involve in the collective bargaining would be to choose between salary raise or a pension plan. The two groups do not have the same interest, thus it will be harder for them to bargain. An enlightening appraisal of the problem of defining an appropriate bargaining unit is given in the 10th Annual Report of the National Labor Relations Board wherein it is emphasized that the factors which said board may consider and weigh in fixing appropriate units are: 1. The history , extent and type of organization of employees. 2. The history of their collective bargaining 3. The history, extent and type of organization of employees in other plants of the same employer, or other employers in the same industry; 4. The skill, wages, work and working conditions of the employees; 5. The desires of the employees; 6. The eligibility of the employees for membership in the union or unions involved 7. The relationship between the units or units proposed and the employers organization, management, and operation. In said report, it is likewise emphasized that the basic test in determining the appropriate bargaining unit is that a unit, to be appropriate must affect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining. Example of application of community of mutual interest test: Casual employees were barred from joining union of the permanent and regular employees. Certainly, there is mutuality of interest among the employees of the sawmill division and the Logging Division. Their functions mesh with one another. One group needs the other in the same way that the company needs them both. There may be DIFFERENCE as to the nature of their individual assignments but the distinctions are not enough to warrant the formation of a separate bargaining unit. In CAB, the university Employees may be categorized into 2 GEN CLASSES: non-academic and academic Employees. Thus, there is an absence of community of interests w/c justifies the formation of a single CB unit. Teachers would find very little in common w/ the non-academic Employees as regards the responsibilities & functions, working conditions, compensation rates, social life and interests, the dissimilarity in the nature of the works & duties. Thus, SEPARATION of these 2 categories is needed for CB purposes. ELEMENTS OF AN APPROPRIATE BARGAINING UNIT: 1. COMPOSITION * All or less than all of the entire body of employees 2. EQUITY * Of employees: A.k.a = Collective interest of employees consistent with the equity of the employer. 3. PURPOSE * to serve the reciprocal rights & duties of the parties under the CB provisions of the law. HISTORY San Miguel Corp. v. Laguesma (1994) HELD: Prior collective bargaining history is not conclusive or determinative of what constitutes the appropriate bargaining unit. The test of grouping is mutuality or commonality of interest. The Employees sought to be represented by CB agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they perform. There is similarity of employment status for all sales personnel. They have the same duties, responsibilities, compensation and working conditions. SMA cant insist that each sales office should constitute one bargaining unit. There is meager number of sales personnel in each sales office. Even the whole bargaining unit sought to be represented only consists of 55 employees. It would not be for the best interest to fractionalize them further. It is not the convenience of the employer that constitutes the determinative factor in forming the bargaining unit. DISINI: Ratio of historical theory: if it worked well before in the past it will work well again now. Can you have a permanent bargaining unit? No. An appropriate bargaining unit depends on the factors that are influenced by the market place. The bargaining unit is designed to maintain the mutuality of interest among the employees in such unit. Thus a reason to dissolve, change or expand a certain bargaining unit is when THE INTEREST BETWEEN GROUPS HAS CHANGED OVER TIME. GEOGRAPHY LOCATION Benguet Consolidated Inc. and Balatok Mining Co. v. Bobok Lumberjack Assn. (1958) HELD: The court below is correct in concluding that the system of having one collective bargaining unit for each camp should be maintained and continued for the following reasons: Such system had operated satisfactorily. The prime element in determining whether a given group of employees constitute a proper bargaining unit is whether it will, without inequity to the employer, best serve all employees in the exercise of their bargaining rights. In the present case the separation between the camps and the different kinds of work in each all militate in favor of the present system of separate bargaining units since the problems and interest of the workers are peculiar in each camp or department. CORPORATE ENTITIES

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Indophil Textile Mills Workers Union v. Calica (1992) FACTS: The Indophil Textile Mills Workers Union and Indophil Textile executed a CBA which provided that the CBA shall apply to the companys extensions and expansions. Indophil Acrylic (WHICH IS ANOTHER COMPANY) was formed. Its workers unionized and another CBA was executed. Indophil Textile Mills Workers Union claimed that Acrylic should be considered an extension of Indophil textile and therefore the CBA executed by Indophil textile and the Union should cover Indophil Acrylic. ISSUE: WON the operation in INDOPHIL ACRYLIC are extension or expansion of Indophil Textile Mills. HELD: Indophil ACRYLIC is NOT an extension of INDOPHIL TEXTILE. Thus the CBA of Indophil textile, cannot apply to Indophil Acrylic. 1. The existence of a bonafide business relationship between Acrylic and Indophil Textile is not a proof of being a single corporate entity because the services which are supposedly provided by Textile to Acrylic are AUXILIARY SERVICES or activities which are NOT ESSENTIAL in the actual production of Acrylic. The essential services are discharged exclusively by Acrylic personnel under the control and supervision of Acrylic managers and supervisors. 2. Diatagon Labor Federation v. Ople GR L44493-94 (1980) : two corporations cannot be treated as single bargaining units even if their businesses are related. It submits that the fact that there are as many bargaining units as there are companies in a conglomeration of companies is a positive proof that a corporation is endowed with a legal personality DISTINCTLY ITS OWN, independent and separate from other corporations. 3. Unlike Indophil Textile, Indophil Acrylic cannot manufacture textile while Indophil Textile Cannot buy or import yarn. Thus this shows that Indophil Acrylic is not an alter ego or an adjunct or business conduit of Indophil Textile because it has a separate legitimate purpose. 4. Under the doctrine of piercing the corporate veil, when valid grounds exist, the legal fiction that a corporation is an entity with a juridical personality separate and distinct from another may be disregarded. Doctrine applies when the fiction defeats public convenience,, justifies wrong, protects fraud or defends crime. 5. The fact that the businesses are related, that some of the employees are the same persons working in the other company and the physical plants, offices and facilities are in the same compound arent sufficient to pierce the corporate veil of Acrylic. 6. In Umali vs CA, legal corporate entity is disregarded only if it is sought to hold the officers and stockholders directly liable for a corporate debt or obligation. The union in this case does not seek to impose a claim on the members of Acrylic. 7. Lastly it is grave abuse of discretion to treat 2 companies as a single bargaining unit when these 2 companies are indubitably distinct entities with separate juridical personalities. San Miguel ..Union v. Confesor (1996) San Miguel Corporation was originally one company composed of four operating divisions namely: 1. beer, 2. packaging, 3. magnolia, 4. feeds and livestock. San Miguel Corporation employees for ALL DIVSIONS were represented by San Miguel Corp employees union-PTGWO. San Miguel underwent a restructuring. As a consequence of this Magnolia and Feeds & livestock Division were spun-off and became two separate and distinct corporation. ISSUE: WON the employees of the two new corporations (Magnolia Corp & San Miguel Foods) should still remain in the same bargaining unit and be included I the old bargaining unit of the old SMC? HELD: No. Employees in the Magnolia Corporation and San Miguel Foods may form a separate bargaining unit. 1. The transformation of the companies was a management prerogative and business judgment which the courts cannot look into unless it is contrary to law, public policy or morals. Neither can we impute any bad faith on the part of SMC to justify the application of the doctrine of piercing the corporate veil. 2. Each of the companies are run by, supervised and controlled by different management terms including separate human resource/personnel managers. Each company enforces its own administrative and operational rules. Each entity maintains separate financial statements and are audited separately from each other. 3. No mutuality of interest anymore between corporations: Considering the spin-offs, the companies would consequently have their respective and distinctive concerns in terms of the nature of work, wages, hours of work and other conditions of employment. Interests of employees in the different companies perforce differ. SMC is engaged in the business of beer manufacturing. Magnolia is involved in the manufacturing and processing of dairy products while SMFI is involved in the production of feeds and processing chicken. 4. The nature of their products and scales of business may require different skills which must necessarily be commensurate by different compensation packages. The different companies may have different volumes of work and different working conditions. For such reason, the employees of the different companies see the need to group themselves together and organized themselves into distinctive and different groups. Take note: The fact that their businesses are related and that the 236 employees of Georgia Pacific International Corporation were originally

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employees of Lianga Bay Logging Co. Inc. is not a justification for disregarding their separate personalities. Hence, the 236 employees, who are now attached to Georgia Pacific International Corporation, should not be allowed to vote in the certification election at the Lianga Bay Logging Corporation, Inc. They should vote at a separate certification election to determine the collective bargaining representative of the employees of Georgia Pacific International Corporation. MANAGEMENT Phil. Scouts Veterans v. Torres (1993) This case involved three companies (PSVSIA, GVM, & ASDA) and only one union (UFW). ISSUE: Whether or not a SINGLE petition for certification election or for recognition as the SOLE and EXCLUSIVE bargaining agent can validly or legally be filed by a labor union in three (3) corporations each of which has a separate and distinct legal personality instead of filing three (3) separate petitions? HELD: Yes. 1. The securities agencies concerned (PSVSIA, GVM, & ASDA) do not exist and operate separately and distinctly from each other with different corporate directions and goals. All the cross-linking of the three agencies command, control and communication systems indicate their unitary corporate personality. a. The security agencies are managed through the Utilities Management Corporation with all of their employees drawing their salaries and wages from said entity. b. Agencies have common and interlocking incorporators and officers. c. PSVSIA, GVM and ASDA employees have a single Mutual Benefit System and followed a single system of compulsory retirement. d. No explanation was given why the security guards of one agency could easily transfer from one agency to another and then back again by simply filling-up a common pro forma slip called "Request for Transfer". e. PSVSIA, GVM and ASDA always hold joint yearly ceremonies such as the "PGA Annual Awards Ceremony". f. In emergencies, all PSVSIA Detachment Commanders were instructed in a memorandum to get in touch with the officers not only of PSVSIA but also of GVM and ASDA. 2. Veil of corporate fiction should be lifted for the purpose of allowing the employees of the three agencies to form a single labor union. Employees need not file three separate petitions for certification election. All of these could be covered in a single petition. San Miguel Corp. v. Laguesma (1994) HELD: Prior collective bargaining history is not conclusive or determinative of what constitutes the appropriate bargaining unit. The test of grouping is mutuality or commonality of interest. The Employees sought to be represented by CB agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they perform. There is similarity of employment status for all sales personnel. They have the same duties, responsibilities, compensation and working conditions. 2. UNIT SEVERANCE DOCTRINE INDUSTRIAL/CRAFTS UNION Kapisanan ng mga Manggagawa sa Manila Road Co. v. Yard Crew Union (1960) HELD: Because of modern complexities of relations b/w employer & union structure, it becomes difficult to determine from the evidence alone which of the several claimant groups forms proper bargaining unit. It becomes necessary to give considerations of the express desire or will of the Employees. called the GLOBE DOCTRINE. This is the practice of the courts to hold a series of elections not for the purpose of granting the right of representation to the group garnering the majority vote but to let employees select on several units to represent them. (Remember: this is different from a certification election) Factors which may be considered are history, extent and type of organization of employees, the history of CB, etc.. This is keeping with the courts right to investigate fully in matters concerning certification elections. Plebiscite is not to be conducted by the DOLE but by the Court itself. Since this is an interlocutory order, certiorari is not proper. The claim raised by Kapisanan would only be entertained on appeal and only after the CIR has ruled on the matter. Mechanical Dept Labor Union v CIR (1968) In view of its findings and the history of union representation in the railway company, indicating that bargaining units had been formed through separation of new units from existing ones whenever plebiscites had shown the workers desires to have their own representatives, and relying on the globe doctrine the employees in the Caloocan shop should be given a chance to vote on whether their group should be separated from that represented by the mechanical department labor union, and ordered a plebiscite held for that purpose. Technically, the appeal was premature since the result of the ordered plebiscite may be adverse to the creation of a separate bargaining unit-- however, MDLU seems to have conceded that the results would favor separation. Plebiscite may be held to determine WON the Employees w/in the dept do want a separate bargaining agent. The CIR found basic differences b/w those in the Rolling Stocks (i.e. Caloocan shops) and those of the others. Those in the Caloocan shops have a community of interests and working conditions. They also perform major repairs of railway rolling stock; the other units do only minor repairs. Also, the workers in Caloocan require special skills in the operation of heavy equipment, the others do not. Hence, the GLOBE DOCTRINE properly applies. Bargaining units had been formed through separation of new units from existing ones AND THE GLOBE

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whenever plebiscites had shown the workers desire to have their own representatives. DISINI: A brief explanation of the GLOBE DOCTRINE It is best explained in the context of a market place and the demand of employment on such market place. The GLOBE DOCTRINE usually applies to employees with rare skills or highly technical ones. Example given: Case of Pilots and Stewardess. If ,originally, pilots and stewardesses belong to ONE bargaining unit (unit A) for the purpose of collective bargaining, with the use of the GLOBE DOCTRINE a plebiscite can be held to determine if the pilot employees would want to form a separate bargaining unit (unit B). Illustration: Unit A (original bargaining unit) : 100 Pilots + 200 Stewardesses = 300 employees Unit B (proposed new unit): Pilots = 100 employees. Those in unit B (100 pilots) will vote in a plebiscite. Their choices will be (1) To vote for Unit A: this would mean that they do not wish to separate from the original bargaining unit. (2) To vote for Unit B: This would mean that they would want to form their OWN bargaining unit, composed of pilots only. (3) Neither: They do not want the choices If you have one BIG bargaining unit, most probably you are grouping together DIFFERENT SKILLED workers. Rationale of the Globe Doctrine: highly skilled workers have to separate to increase their market value. Under the Globe Doctrine, will of the employees is the determinative factor. 3. SIZE OF UNIT AND EFFECT ON RIGHT TO SELF-ORGANIZATION Filoil Refinery Corp. v Filoil Supervisory and Confidential Employees Union (1972) ISSUE: The right of supervisors and confidential employees to organize a labor association and to bargain collectively with their employer. HELD: Since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis--vis the rank and file employees, such identity of interest has allowed their inclusion in the bargaining of supervisors for purposes of collective bargaining in turn as employees in relation to the company as their employer. This identity of interest logically calls for their inclusion in the same bargaining unit and at the same time fulfills the laws objective of insuring to them the full benefit of their right to selforganization and to collective bargaining, which could hardly be accomplished if the respondent associations membership were to be broken up into five separate ineffective tiny units. Creating fragmentary units would not serve the interest of industrial peace. The breaking up of bargaining units into tiny units will greatly impair their organizational value. Since the confidential employees are very few and are identified with the supervisors in their role as representatives of management vis-a-vis the rank and file employees, such identity of interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes of collective bargaining. Industrial court enjoys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representations by employees. Action in deciding upon an appropriate unit for collective bargaining purposes is discretionary. Its judgment is entitled to finality, unless its action is arbitrary or capricious. SUPERVISOR UNIT Dunlop Slazenger v. NLRC (1998) Supervisors can be an appropriate bargaining unit.
4. EFFECT OF PRIOR AGREEMENT General Rubber & Footwear Corp. v BLR, (1987) HELD: Monthly paid Employees are not managerial. The supervisory power of such Employees consists merely in recommending as to what managerial actions to take in disciplinary cases. They DO NOT FIT into the definition of managerial Employees laid down in Bulletin Publishing Corp v. Sanchez. Thus, they are NOT PROHIBITED from forming a union. It hasnt been shown that their responsibilities require the exercise of discretion and independent judgment or that they possess power and authority to lay down or exercise management policies. The proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to self-organization for purposes of collective bargaining. This case does not fall squarely within the exception. Monthlies who are rank-and-file have been historically excluded from the bargaining unit composed of daily-paid rank-and-filers. It is unusual to have to deal with 2 collective bargaining unions but there is no one to blame for creating the situation. General had sought to indiscriminately suppress the members right to self-organization. Exclusion of the members from the bargaining union of the rank-and-file or from forming their own union was agreed upon by corporation with the previous bargaining representatives. However, it can never bind subsequent federations and unions because it is a curtailment of the right to self-organization guaranteed by the labor laws. Monthly-paid rank-and-file employees should be allowed to join the union of the daily-paid-rank-and-file employees so

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that they can also avail of the CBA benefits or to form their own rank-and-file union, without prejudice to the certification election that has been ordered. DLSU v. DLSUEA (2000) The University's arguments on the first issue fail to impress us. The Court agrees with the Solicitor General that the express exclusion of the computer operators and discipline officers from the bargaining unit of rank-and-file employees in the 1986 collective bargaining agreement does not bar any re-negotiation for the future inclusion of the said employees in the bargaining unit. During the freedom period, the parties may not only renew the existing collective bargaining agreement but may also propose and discuss modifications or amendments thereto. With regard to the alleged confidential nature of the said employees' functions, after a careful consideration of the pleadings filed before this Court, we rule that the said computer operators and discipline officers are not confidential employees. As carefully examined by the Solicitor General, the service record of a computer operator reveals that his duties are basically clerical and non-confidential in nature. As to the discipline officers, we agree with the voluntary arbitrator that based on the nature of their duties, they are not confidential employees and should therefore be included in the bargaining unit of rank-and-file employees. The Court also affirms the findings of the voluntary arbitrator that the employees of the College of St. Benilde should be excluded from the bargaining unit of the rank-and-file employees of Dela Salle University, because the two educational institutions have their own separate juridical personality and no sufficient evidence was shown to justify the piercing of the veil of corporate fiction. judgment is entitled to finality, unless its action is arbitrary or capricious.
5.04 EXCLUSIVE REPRESENTATIVE AND UNION MEMBER
BARGAINING INDIVIDUAL
Art. 255 Exclusive bargaining representation and workers participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decisionmaking processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labormanagement councils: Provided, That the representatives of the workers in such labormanagement councils shall be elected by at least the majority of all employees in said establishment.
5.03 DETERMINING AGENCY

Art. 232 Prohibition on Certification Election [sec. 15 of RA 6715] The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties EXCEPT under Art. 253, 253A and 256 of this Code (60 day freedom period) AGENCY AND FINALITY ORDER Filoil Refinery Corp. v Filoil Supervisory and Confidential Employees Union (1972) Industrial court enjoys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representations by employees, and that its action in deciding upon an appropriate unit for collective bargaining purpose is discretionary and that its judgment in this respect is entitled to almost complete finality, unless its action is arbitrary or capricious and that absent any grave abuse of discretion as to justify the Courts intervention. Action in deciding upon an appropriate unit for collective bargaining purposes is discretionary. Its

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Part VI : Union Representation Establishing Union Majority Status Labor Relations
Part VI : UNION REPRESENTATION ESTABLISHING UNION MAJORITY STATUS

What are the difference between consent election, certification election and run-off election?
Department Order No. 40-03 Series of 2003 Rule I (h) "Certification Election" or "Consent Election" refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election Is ordered by the Department, While a consent election Is voluntarily agreed upon by the parties, with or without the intervention by the Department. (ss) "Run-off Election" refers to An election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, Where such a certified or consent results in none of the three (3) or more choices receiving the majority of the valid votes cast; Provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. Warren Manufacturing Workers Union vs. The Bureau Of Labor Relations (1988) Petitioner: The holding of a certification election at the bargaining unit is patently premature and illegal because of the one-year no certification election rule and the principle of the Contract Bar Rule. This contention is untenable. The records show that petitioner admitted that what was held on August 25,1985 at the Company's premises and which became the root of this controversy, was a consent election and not a certification election. Distinguish Consent Election and Certification Election As correctly distinguished by private respondent, a consent election: Is an agreed one, Its purpose being merely to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit While a certification election Is aimed at determining the sole and exclusive bargaining agent of all the employees in an appropriate bargaining unit for the purpose of collective bargaining. From the very nature of consent election,
It is a separate and distinct process and has nothing to do with the import and effect of a certification election. Neither does it shorten the terms of an existing CBA nor entitle the participants thereof to immediately renegotiate an existing CBA although it does not preclude the workers from exercising their right to choose their sole and exclusive bargaining representative after the expiration of the sixty (60) day freedom period.
It is clearly understood that the certified union in the said projected election shall respect and administer the existing CBA at the company until its expiry date on July 31, 1986. It is, therefore, unmistakable that the election thus held on August 25, 1985 was not for the purpose of determining which labor union should be the bargaining representative in the negotiation for a collective contract, there being an existing collective bargaining agreement yet to expire on July 31, 1986; but only to determine which labor union shag administer the said existing contract. CERTIFICATION ELECTION What is the PURPOSE of a certification election?
It is a means of determining the workers choice of: 1) Whether the want a union to represent them for collective bargaining OR they want NO union to represent them at all. 2) And if they choose to have a union represent them, they will choose WHICH among the contending union will be the SOLE and EXCLUSIVE bargaining representative of the employees in the appropriate bargaining unit. 1st Level of Choice: Yes Union or No Union 2nd Level of Choice: If Yes Union wins, WHICH union. UST Faculty Union v. Bitonio (1999) Specifically, the purpose of a certification election is to ascertain whether or not a majority of the employees (1) wish to be represented by a labor organization and (2) by which particular labor organization. BACKGROUND POLICIES AND CHARACTERISTICS BEHIND A CERTIFICATION ELECTION 1. 2. It is not litigation, but a mere investigation of a non-adversary character It is most DEMOCRATIC and most efficacious/ effective way (Samahang manggagawa sa permex case) and it is a STATUTORY POLICY (Belyca Corp. v. Ferrer-Calleja) There can be no direct certification There can be no voluntary recognition
3. 4.
It is NOT a litigation, but a mere investigation of a non-adversary character No determination asserted. of rights violated or

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Determination of workers choice only. Technical rules and objections should not hamper the correct ascertainment of the labor union that has the support and confidence of the majority of the workers and is thus entitled to represent them in bargaining for the terms and conditions of their employment. (Port Workers Union v. DOLE) The BLR cannot certify a union as the exclusive collective bargaining representative after showing proof of majority representation thru union membership cards without conducting a certification election. The Labor Code (in Arts. 256, 257 and 258) provides only for a certification election as the mode for determining the exclusive collective bargaining representative if there is a question of representation in an appropriate bargaining unit. Another Suggested Answer: No, the bureau of labor relations CANNOT certify a union as the exclusive bargaining representative without conducting a certification election. (Refer to doctrine of Colgate Palmolive) There can be NO VOLUNTARY RECOGNITION This has been a debatable topic. Even after the Supreme Court made the ruling, the DOLE still included provisions o Voluntary Recoginition in DO No. 40-03 series of 2003. So the issue now is which should prevail? Azucena in his book recognizes Voluntary Recognition as valid and welcomes it as a new development to the law.
IMPLICATION:
It is most DEMOCRATIC and most efficacious/ effective way and it is a STATUTORY POLICY IMPLICATION: Thus it should not be circumvented (George & Peter Lines, Inc. v. Associated Labor Union, 134 SCRA 82, 1985). There should be no obstacle in conducting the Certificate election.
There can be NO DIRECT certification Colgate Palmolive Philippines v. Ople(1988) ISSUE: WON the secretary of labor can directly certify a union as the sole and exclusive bargaining agent? HELD: NO! He cannot directly certify. The main purpose of the procedure in Art. 257 - 260 is to aid in ascertaining the majority representation. The implementing rules pertinent to these provision are all calculated to ensure that the certified bargaining rep is the TRUE CHOICE OF THE EMPLOYEES against all contender. The constitutional mandate that the State shall assure the rights of the workers to selforganization, collective bargaining, security of tenure and just and humane conditions of work, should be achieved under a system of law such as the aforementioned provisions of the pertinent statute. When an overzealous official by-passes the law on the pre-text of retaining a laudable objective, the intendment or purpose of the law will lose its meaning as the law itself is disregarded. When respondent minister (Sec. Of Labor) DIRECTLY certified the union, he in fact DISREGARDED THE PROCEDURE AND ITS LEGAL REQUIREMENT. There was therefore FAILURE TO DETERMINE with legal certainty whether the union indeed enjoyed majority representation. The holding of a certification election at the proper time IS NOT NECESSARILY A MERE FORMALITY. Even in a case where a union has filed a petition for certification elections, the mere fact that no opposition is made does NOT warrant a certification election. BAR QUESTION (1998, XVIII) Can the Bureau of Labor Relations certify a union as the exclusive bargaining representative after showing proof of majority representation thru union membership cards without conducting an election? SUGGESTED ANSWER:
Rule I: (bbb) "Voluntary Recognition" refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance with Rule VII, Section 2 of these Rules. Rule VI Section 2. Determination of The representation status; modes. determination of an exclusive bargaining agent shall be through voluntary recognition in cases where there is only one legitimate labor organization operating within the bargaining unit, or through certification, run-off or consent election as provided in these Rules. RULE VII VOLUNTARY RECOGNITION Section 1. When and where to file. - In unorganized establishments with only one legitimate labor organization, the employer may voluntarily recognize the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office which issued the recognized labor union's certificate of registration or certificate of creation of a chartered local. Section 2. Requirements for voluntary recognition. - The notice of voluntary recognition shall be accompanied by the original copy and two (2) duplicate copies of the following documents: (a) a joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition; (b) certificate of posting of the joint statement of voluntary recognition for fifteen (15) consecutive days in at least two (2) conspicuous places in the establishment or bargaining unit where the union seeks to operate;

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(c) the approximate number of employees in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit; and (d) a statement that the labor union is the only legitimate labor organization operating within the bargaining unit. All accompanying documents of the notice for voluntary recognition shall be certified under oath by the employer representative and president of the recognized labor union. Section 3. Action on the Notice. - Where the notice of voluntary recognition is sufficient in form, number and substance and where there is no other registered labor union operating within the bargaining unit concerned, the Regional Office, through the Labor Relations Division shall, within ten (10) days from receipt of the notice, record the fact of voluntary recognition in its roster of legitimate labor unions and notify the labor union concerned. Where the notice of voluntary recognition is insufficient in form, number and substance, the Regional Office shall, within the same period, notify the labor union of its findings and advise it to comply with the necessary requirements. Where neither the employer nor the labor union failed to complete the requirements for voluntary recognition under Section 2 of this Rule within thirty (30) days from receipt of the advisory, the Regional Office shall return the notice for voluntary recognition together with all its accompanying documents without prejudice to its re-submission. Section 4. Effect of recording of fact of voluntary recognition. - From the time of recording of voluntary recognition, the recognized labor union shall enjoy the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit. Entry of voluntary recognition shall bar the filing of a petition for certification election by any labor organization for a period of one (1) year from the date of entry of voluntary recognition. Upon expiration of this one-year period, any legitimate labor organization may file a petition for certification election in the same bargaining unit represented by the voluntarily recognized union, unless a collective bargaining agreement between the employer and voluntarily recognized labor union was executed and registered with the Regional Office in accordance with Rule XVII of these Rules. Samahang Manggagawa sa Permex v. Sec of Labor (1998) Can an employer voluntarily recognize a union as the bargaining representative of the employees? HELD: NO! It cannot. The employer (permex) should not have given its voluntary recognition to the union when the latter asked for recognition as exclusive collective bargaining agent of the employees of the company. The company did not have the power to declare the union as the exclusive representative of the workers for the purpose of collective bargaining. Certification election is the most effective and the most democratic way of determining which labor organization can truly represent the working force in the ABU of the company. What is the effect if in a certificate election, there is only one union and that there are no contending union? Certification election is the best and most appropriate means of ascertaining the will of the employees as to their choice of an exclusive bargaining representative. That there are no competing unions involved should not alter that principle, the freedom of choice by the employer being the primordial consideration, besides the fact that the employees can choose between ALU, the union, and NO union. (George & Peter Lines, Inc. v. ALU, L-51602, 1985; 134 SCRA 82 @ page 86) Why is an employer-employee relationship a PRE-CONDITION before a petition for certification election can be entertained? An employer employee relationship is a precondition since without such relationship, there will be no duty to bargain on the part of either the employer or employee. Thus it will be senseless to go on with a certification election to choose their bargaining representative when there is no duty to collectively bargain anyway. (Allied Free Workers Union v. Cia Maritima, 19 SCRA 258, 1967) Reyes v. Trajano (1992) First issue: Voting No Union The right of self-organization includes the right to . determine which of two or more unions in an establishment to join, and to engage in concerted activities with co-workers for purposes of collective bargaining through representatives of their own choosing, or for their mutual aid and protection, i.e., the protection, promotion, or enhancement of their rights and interests. Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign from a labor organization, is subsumed in the right to join, affiliate with, or assist any union, and to maintain membership therein. The right to refuse to join or be represented by any labor organization is recognized not only by law but also in the rules drawn up for implementation thereof. The original Rules on Certification promulgated by the defunct Court of Industrial Relations required that the ballots to be used at a certification election to determine which of two or more competing labor unions would represent the employees in the appropriate bargaining unit should contain: Aside from the names of each union, An alternative choice of the employee voting, to the effect that he desires not to be represented by any union. (A vote for none, NO UNION)

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The purpose of a certification election is precisely the ascertainment of the wishes of the majority of the employees in the appropriate bargaining unit: To be or not to be represented by a labor organization, And in the affirmative case, by which particular labor organization. If the results of the election should disclose that the majority of the workers do not wish to be represented by any union, then their wishes must be respected, and no union may properly be certified as the exclusive representative of the workers in the bargaining unit in dealing with the employer regarding wages, hours and other terms and conditions of employment. That the INK employees, as employees in the same bargaining unit in the true sense of the term, do have the right of self-organization, is also in truth beyond question, as well as the fact that when they voted that the employees in their bargaining unit should be represented by "NO UNION," they were simply exercising that right of self-organization, albeit in its negative aspect. Second issue: Non-union members are not excluded from voting in CE On argument that the petitioners are disqualified to vote because they "are not constituted into a duly organized labor union" "but members of the INK which prohibits its followers, on religious grounds, from joining or forming any labor organization" and "hence, not one of the unions which vied for certification as sole and exclusive bargaining representative," is specious. Neither law, administrative rule nor jurisprudence requires that only employees affiliated with any labor organization may take part in a certification election. On the contrary, the plainly discernible intendment of the law is to grant the right to vote to all bona fide employees in the bargaining unit, whether they are members of a labor organization or not. From the above case it can be derived that in a certification election there are two stages of voting: First stage: Whether or not the employees wants to be represented by a labor organization? Answerable by Yes or No. If No wins , then the Certification Election ends. If Yes wins, then proceed to the Second Stage. Second Stage: Which particular labor organization would you like to represent the bargaining unit? What is effect of Receipt of Benefits of people outside the bargaining unit to the petition for CE? employees. It is not equivalent to and does not compensate for the denial of the right of the excluded employees to self-organization and collective bargaining. The Supreme Court in previous cases ruled that the employees excluded from the coverage of the CBA, who not being excluded by law, have the right to bargain collectively. The allegation that some benefits under the existing CBA were extended to the monthly paid employees, even if true will not preclude them from entering into a CBA of their own. Neither is the inconvenience that may befall petitioner for having to administer two CBAs an excuse for depriving the monthly paid employees of their constitutionally guaranteed right to collective bargaining. VENUE OF PETITION: WHERE TO FILE? Cruz Valle Inc. v. Laguesma (1994) Petitioner: the petition for certification election should have been filed with the regional office which has jurisdiction over the principal office of the employer in accordance with the IRR of the Labor Code. Where to file. A petition for certification election shall be filed with the Regional Office which has jurisdiction over the principal office of the Employer. The petition shall be in writing and under oath. The word "jurisdiction" as used in said provision refers to the venue where the petition for certification must be filed. Unlike jurisdiction, which implies the power of the court to decide a case, venue merely refers to the place where the action shall be brought. Venue touches more the convenience of the parties rather than the substance of the case Section 1, Rule V, Book V of the Omnibus Rules Implementing the Labor Code refers only to cases where the place of work of the employees and the place of the principal office of the employer are within the same territorial jurisdiction of the Regional Office where the petition for certification election is filed. It does not apply to the filing of petitions for certification election where the place of work of the employees and the place of principal office of the employer are located within the territorial jurisdictions of different regional offices. We assume that in the drafting of the Omnibus Rules, the Secretary of Labor and Employment took into consideration the fact that there are many companies with factories located in places different from places where the corporate offices are located. The worker, being the economically-disadvantaged party whether as complainant, petitioner or respondent, as the case may be, the nearest governmental machinery to settle a labor dispute must be placed at his immediate disposal and the employer must in no case be allowed a choice in favor of another competent agency sitting in another place to the inconvenience of the worker For purposes of venue, workplace shall be understood as the place or locality where the employee is regularly assigned when the cause of action arose. It shall include the place where the employee is supposed to report back after a temporary detail, assignment or travel. . . .
Barbizon v. Nagkakaisang Supervisor (1996) The receipt by petitioner's "supervisor" employees of certain benefits under the CBA between BUKLOD and petitioner is not sufficient to deny the petition for certification election filed by the labor organization formed by the excluded

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Department Order No. 40-03 Series of 2003 RULE VIII CERTIFICATION ELECTION Section 2. Where to file. - A petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local. The petition shall be heard and resolved by the Med-Arbiter. Where two or more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be automatically consolidated with the Med-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. Art. 256 ORGANIZED ESTABLISHMENT: It is an establishment with: a. An existing CBA; or b. Duly certified bargaining agent. Take note: In relation to the one-year bar rule, a duly certified bargaining agent is allowed oneyear to negotiate for the signing of a CBA, that is why no CE can be filed at this time. An organized establishment is best distinguished from an unorganized establishment by the presence of a bargaining representative since according to Art. 257, an unorganized establishment is an establishment without a bargaining representative. Organized Establishment v. Establishment (The distinctions are important requirements are different.)
Art. 256: ORGANIZED
Unorganized because the
Art. 257: UNORGANIZED None No need to verified Not applicable. be
STATUTORY FRAME-WORK AND POLICY TAKE NOTE: Certification election implements the policy of right to self-organization and collective bargaining. The right of self-organization includes the right of the workers to have a bargaining representative OF THEIR OWN CHOOSING for the purpose of collective bargaining. Statutory Frame-work
Bargaining agent Petition filed Freedom Period
Existing, has one Has to be a VERFIED petition No petition for Certification election EXCEPT within 60 days before the expiration of the collective bargaining agreement (See Art. 253 & 253-A) Take note how SC interpreted the term WITHIN. What is the rationale of freedom period in organized establishments, why is there none in unorganized establishments? It has something to do with industrial peace
No freedom period. Can file petition anytime.
The different entry points to a certification election Art. 256: Art. 257: Art. 258: Election Note: Organized Establishments Unorganized Establishments Employer-Initiated Certificate The mechanics of the three entry-points are similar and the same.
The BARS to a CE: Prevents the happening of a CE. a. Contract bar rule (Art. 232) b. Deadlock-bar rule c. One year bar rule Note: among all the bar rules, only the contract bar is actually in the labor code, the other two are in the implementing rules.
Suspension of CE: Prejudicial question rule
Detailed Discussion of the Framework Different Entry Points To A Certification Election

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Substantial support rule Must be duly supported by 25% of ALL THE MEMBERS OF THE APPROPRIATE BARGAINING UNIT. Percentage all base: members of an appropriate bargaining unit. What is intent and purpose of law for requiring the substantial support rule? Law wants to know the intention of the employees. If they really want a CE, since they already have a bargaining agent. NO substantial support rule. WHY? Intention of law is to bring in the union, to implement policy behind Art. 211a.
DISCUSSIONS ON THE FREEDOM PERIOD Atlantic Gulf and Pacific Co. Manila, Inc. v. Laguesma (1992) The Labor Code provides:
Art. 232. Prohibition on Certification Election. The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties except under Articles 253, 253-A and 256 of this Code.
concluded in defiance of the order of the medarbiter enjoining the parties from entering into a CBA until the issue on representation is finally resolved? Article 256 is clear and leaves no room for interpretation. The mere filing of a petition for certification election within the freedom period is sufficient basis for the respondent Director to order the holding of a certification election. The petition for certification election in this case was filed within the freedom period but the petitioner and PASAR hastily concluded a CBA despite the order of the Med-Arbiter enjoining them from doing so until the issue of representation is finally resolved. As pointed out by public respondent in its comment, the parties were in bad faith when they concluded the CBA. Their act was clearly intended to bar the petition for certification election filed by NAFLU. A CBA which was prematurely renewed is not a bar to the holding of a certification election. Such indecent haste in renewing the CBA despite an order enjoining them from doing so is designed to frustrate the constitutional right of the employees to self-organization. Moreover, We cannot countenance the actuation of the petitioner and the management in this case which is not conducive to industrial peace. The renewed CBA cannot constitute a bar to the instant petition for certification election for the very reason that the same was not yet in existence when the said petition was filed. The holding of a certification election is a statutory policy that should not be circumvented. DISCUSSION ON THE SUBSTANTIAL SUPPORT RULE IN ORGANIZED ESTABLISHMENTS TAKE NOTE: A union that is merely filing a MOTION FOR INTERVENTION in a CE filed by another union need NOT present substantial support. The substantial support is only needed when filing for a petition for certification election. When should the substantial support be shown or complied with? It need not be shown at the time of filing of the petition, may be shown within a reasonable time thereafter but should be before the election. Port Workers Union of the Philippines v. Laguesma The holding of a certification election is a statutory policy that should not be circumvented. In line with this policy the SC holds that the administrative rule requiring the SIMULTANEOUS submission of the 25% consent signatures UPON the filing of petition for CE should NOT BE STRICTLY applied to frustrate the determination of the legitimate representatives of the workers. Significantly the rule is not found in article 256, the law it seeks to implement. Accordingly, the SC holds that the MERE filing of a petition for certification election within the freedom period is sufficient basis for the holding of a certification election, subject to the submission of the consent signatures WITHIN A REASONABLE PERIOD FROM SUCH FILING.
Consequently, the existence of a duly registered Collective Bargaining Agreement between the petitioner and URFA, which is the sole and exclusive bargaining representative of all the regular rank-and-file employees of the petitioner including the regular project employees with more than one year of service, bars any other labor organization from filing a petition for certification election except within the 60-day period prior to the expiration of the CBA. To rule otherwise would negate the legislative intent in the enactment of Article 232 of the Labor Code which was designed to ensure industrial peace between the employer and its employees during the existence of the collective bargaining agreement. Republic Planters Bank Unionv. Laguesma (1996) We start with the restatement of the rule that no petition for certification election may be entertained if filed outside the sixty-day period immediately before the expiration of the collective bargaining agreement. PURPOSE: The purpose of the prohibition against the filing of a petition for certification election outside the socalled freedom period is to ensure industrial peace between the employer and its employees during the existence of the CBA.
Associated Labor Union v. Calleja (1989) Is the contract bar rule applicable where a collective bargaining agreement was hastily

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Is the substantial support rule a mandatory requirement? If you strictly follow the letter of the law it would seem to be mandatory. If the petition for certification of election complied with the requirements of the law including the substantial support requirement, then it becomes the ministerial duty of the BLR to conduct a certification election. However, if the petition does not comply with the substantial support requirement, the BLR may exercise its discretion in determining whether or not a certification election must be conducted. Scout Albano Memorial College v. Noriel (1978) The BLR in the exercise of sound discretion, may order a certification election notwithstanding the failure to meet the 30% requirement. Once that requisite is complied with, however, the Code makes clear that "it shall be mandatory for the Bureau to conduct a certification election for the purpose of determining the representative of the employees in the appropriate bargaining unit and certify the winner as the exclusive collective bargaining representative of all the employees in the unit. Does a RIVAL union have authority to VERIFY the signatures in the substantial support requirement? No a rival union may not. Only the department of labor has authority to verify. There is no basis for the contention that a duty is cast on respondent director (secretary of labor) to allow a rival labor organization to verify the authenticity of such signatures. The duty to ascertain whether there was compliance was on the director of labor. (Todays Knitting Free Workers Union v. Noriel, 75 SCRA 450, 1977) What is the effect on a petition of certification election of the withdrawal from union membership filed by that union? Once the required percentage requirement has been reached, the employees withdrawal from union membership taking place after the filing of the petition for certification election will not affect the petition. On the contrary the presumption arises that the withdrawal was not free but was procured through duress, coercion, or for a valuable consideration. Hence, the subsequent disaffiliation of the six (6) employees from the union will not be counted against or deducted from the previous number who had signed up for the CE. (Oriental Tin Can Labor Union v. Secretary of Labor and Employment 294 SCRA 640, 1998) Art. 257 UNORGANIZED ESTABLISHMENTS When will Art. 257 apply or come into operation? When an establishments is unorganized, meaning that it has no existing bargaining agent. Who shall file the petition under Art. 257? A LEGITIMATE labor organization. It cannot be an unregistered labor organization. This is best read in relation to Art. 242 which enumerates the rights granted to a legitimate labor organization and one of those rights is the right to be chosen as the exclusive bargaining representative. This is one way the law encourages union registration. VENUE: Where to file? BLR region where union is. The one nearer to the employees.
Art. 258 EMPLOYER-INITIATED PETITION When can an employer file a petition? Only when it is requested to bargain collectively. TAKE NOTE: Employer is a TOTAL STRANGER in the process of Certification Election. Employer has NO STANDING to file a MOTION TO DISMISS (Phil. Telephone Telegraph v. SOL) A companys interference in the CE creates a suspicion that it intends to establish a company union (Oriental Tin Can Labor Union v. Secretary of Labor). CONDUCTING AGENCY Art. 226 Bureau of Labor Relations- The BLR and the Labor Rels Div in the regional offices of the DOLE shall have original and exclusive authority to act at their own initiative and upon request of either or both parties in all intra-union and inter-union conflicts, and all disputes grievances or problems arising from or affecting labor management rels in all workplaces whether agricultural or non- agri, except those arising from the implementation or interpretation of CBAs which shall be the subject of grievance procedure and voluntary arbitration. The bureau shall have 15 working days to act on labor cases before it subject to extension by agreement of the parties. Art. 232 Prohibition on CE - The Bureau shall not entertain any petition on CE or any other action which may disturb the administration of duly existing CBAs affecting the parties except under 253, 253-A and 256 of this Code. Art. 258 When the ER may file a petition - When requested to bargain collectively, an ER may petition the Bureau for an election. If there is no existing certified CBA in the unit, the Bureau shall, after hearing, order a certification election.

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All certification cases shall be decided within 20 days. The Bureau shall conduct a certification election within 20 days in accordance with the rules and regulations prescribed by Sec. of Labor. Art. 259 Appeal from CE orders - any party to an election may appeal the order or results of the election as determined by the med arbiter directly to the SOLE on the ground that the rules and regulations or parts thereof established by the SOLE for the conduct of the election have been violated. Such appeal shall be decided within 15 calendar days. Ilaw at Buklod ng Manggagawa v. Dir. Of Labor Relations. 91 SCRA 482 HELD: Referral of the appeal to the Trade Union Congress of the Philippines (TUCP), a federation of labor unions is glaringly illegal and void. The Labor Code never intended that the Director of Labor Relations should abdicate, delegate and relinquish his arbitrational prerogatives in favor of a private person or entity or to a federation of trade unions. Article 226, 259, 260 are mandatory and should be strictly adhered to. They are part and parcel of the adequate administrative machinery established by the Labor Code for the expeditious settlement of labor disputes. The Director's act of referring the appeal is patent nullification of the policy of the Labor Code to avoid delay in the adjudication of labor controversies. Labor Code never intended that the original record of a labor case, an official public record, should be removed from the legitimate custodian and entrusted to a private person. Delivery of an official public record to a private person is fraught with mischievous consequences. Director placed himself in ridiculous situation of having to beg the TUCP for the return of the record. Director could have reconstituted the record and the Director could have decided the appeal on the basis of the reconstituted record. Plum v. Noriel (1982) HELD: Employees are deprived of the benefits of a CBA, for management refused to bargain with the union. A certification election is warranted. Workers' welfare can be promoted through the bargaining process. Certification election is the fairest and most effective way of determining which labor organization can truly represent the working force. Will of the majority is controlling. Director is still empowered to call for a certification election. Instead of ordering an election, Director dismissed the appeal of PLUM based on the decision of the TUCP. This is frowned upon by the Court. REQUISITES FOR VALIDITY OF ELECTION Art. 256 Representation issue in organized establishments To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for 3 or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the 2 highest number of votes. Provided, that total number of votes for all contending unions is at least 50% of the number of votes cast.
TEST Benguet Electric Cooperative, Inc. v Calleja(1989) The employees of a cooperative may not join or form a labor organization for purposes of collective bargaining. As members of the cooperative, they are co-owners. An owner cannot bargain with himself or his co-owners. The fact the members-employees do not participate in the actual management of the cooperative does not make them eligible to form, assist or join a labor organization for the purposes of collective bargaining. It is the fact of ownership of the cooperative, not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative. Only 37 employees are not members of the cooperative and who are the only employees eligible to form or join a labor union. However, the minutes of the certification election show that a total of 83 employees were allowed to vote. The certification election is still null and void. It cannot be determined whether or not union was duly elected by the eligible voters of the bargaining unit since even employees who are ineligible to join a labor union within the cooperative because of their membership therein were allowed to vote in the certification election. NATURE OF PROCEEDINGS 1. 2. 3. Non-adversalrial Not a litigation Administrative proceedings determine workers choice.
to
Young Men Labor Union Stevedores v CIR (1965) Certification proceedings are investigatory in nature. Object of the proceedings is not the decision of any alleged commission of wrong nor asserted deprivation of right, but is merely the determination of proper bargaining units and the ascertainment of the will and choice and choice of the employees in respect of the selection of the bargaining representative. The determination of the proceeding does not entail the entry of remedial orders or redress of rights, but culmination solely in an official designation of bargaining units and an affirmation of the employees expressed choice of bargaining agent. Port Workers Union of the Phils. v Laguesma (1992) HELD: There has been substantial compliance with the requirements of law when they submitted the required consent signatures several days after the filing of petition. Article 256 should be liberally interpreted.

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Furthermore, CE is a statutory policy that should not be circumvented and that the CE is the most democratic and expeditious method by which the laborers can freely determine the union that shall act as their representative: The administrative rule in Bk V, Rule V, Section 6 requiring the simultaneous submission of the 25 % consent signatures should not be strictly applied so as to frustrate the determination of the workers legit representative. Article 256 is merely directory. Filing of the petition for CE within the freedom period is sufficient for the issuance of an order to conduct the CE. As to the petition for intervention filed, the percentage requirement does not apply. It was viable considering that the principal petitions for CE were valid. Certification ElectionProcess and Procedure DO No. 40-03
WHO file? Sec. 1 may 1) Any legitimate labor organization may file a petition for certification election. 2) When requested to bargain collectively, an employer may file a petition for certification election with the Regional Office. 3) If there is no existing registered collective bargaining agreement in the bargaining unit, the Regional Office shall, after hearing, order the conduct of a certification election. A petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local. The petition shall be heard and resolved by the Med-Arbiter. Where two or more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be automatically consolidated with the MedArbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. A petition for certification election may be filed anytime, except: (a) when a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within one (1) year prior to the filing of the petition for certification election. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the one year period shall be suspended until the decision on the appeal has become final and executory; (b) when the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the Labor Code within the one year period referred to in the immediately preceding paragraph; (c) when a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout; (d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the Labor Code. Where such collective bargaining agreement is registered, the petition may be filed only within sixty (60) days prior to its expiry.
What is a forced intervenor?
Section 7. Forced Intervenor. - The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor. POSTING OF NOTICE Jisscor Independent Union v Torres (1993) Grounds of a protest may be filed on the spot or in writing with the representation officer and shall be contained in the minutes of the proceedings. Protests not so raised are deemed waived. The minutes of the certification election show that JIU only protested against the use of emblem, visor, pin. Other protests not so raised are deemed waived. There is no merit in the argument that the non-posting of the notice of the certification election as prescribed misled and confused the workers regarding the mechanics of the election. JIU is estopped from raising that issue for it signed an agreement with JISSCOR to waive the mandatory 5 days posting of election notices. The doctrine of estoppel is based on grounds of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon. The results of the certification election belie the allegation that the workers were misinformed about the election out of 104 eligible voters, 99 were able to cast their votes and only 3 were spoiled ballots. Nothing in the records shows that the alleged wearing of sunvisors and pins, the posting of huge streamers, as well as the alleged escorting of voters by SMJALU have unduly pressured, influenced, vitiated, or in any manner affected the choice of the workers. VOTING LIST AND VOTERS Acoje Workers Union v NAMAWU (1963) Labor unions concerned agreed, not only to the holding of election, but also to the use of the Company payroll as the basis for determining who are qualified to vote subject to the approval of the lower court. Company presented payroll to said court. Said labor unions were given an opportunity to make their comments and observations on the list of workers contained in the payroll. Court issued order for the holding of the election and made its ruling on the question as to who were qualified to vote. Acoje did not move for a reconsideration. EFFECT NON-PARTICIPATION PREVIOUS ELECTION Reyes v. Trajano (1992) Furthermore, failure to take part in previous elections is no bar to the right to participate in future elections. No law, administrative rule or
WHERE file? Sec. 2
to
WHEN file? Sec. 3
to

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precedent prescribes forfeiture of the right to vote by reason of neglect to exercise the right in past cases. ALL EMPLOYEES ENTITLED TO VOTE Airtime Specialists, Inc. v Director of BLR (1990) In a certification election, all rank and file employees in the appropriate bargaining unit are entitled to vote. Collective bargaining covers all aspects of the employment relation and the resultant CBA binds all employees in the bargaining unit. All rank and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The code makes no distinction as to their employment status. The law refers to all the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the bargaining unit. Barerra v. CIR (1981) If it were a labor organization objecting to the participation in a certification election of a company-dominated union, as a result of which a complaint for an unfair labor practice case against the employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could take place. The reason that justifies the postponement of a certification election pending an inquiry, as to the bona fides of a labor union does not apply in this case. If management is allowed to have its way, the result might be to dilute strength of an organization bent on a more zealous defense of labor's prerogatives. This is not to say that management is to be precluded from filing an unfair labor practice case. It is merely to stress that such a suit should not be allowed to lend itself as a means, whether intended or not, to prevent a truly free expression of the will of the labor group as to the organization that will represent it. It is not only the loss of time involved but also the fear engendered in the mind of an ordinary employee that management has many weapons in its arsenal to bring the full force of its undeniable power against those of its employees dissatisfied with things as they are. This is one instance that calls for the application of the maxim, lex dilationes semper exhorret. Even on the assumption that the vigorous condemnation of the strike and the picketing were attended by violence, it does not automatically follow that thereby the strikers are no longer entitled to participate in the certification election for having automatically lost their jobs. Philippine Fruits v Torres (211 SCRA 95) Employees who have been improperly laid off but who have a present, unabandoned right to or expectation of reemployment, are eligible to vote in certification elections. If the dismissal is under question, employees concerned could still qualify to vote in the elections. Certification election is the sole concern of the workers and the employer is regarded as nothing more than a bystander with no right to interfere at all in the election. The only exception here is where the employer has to file a petition for certification election pursuant to Article 258. R. Transport Corp. v Laguesma (227 SCRA 827) Company argues that the employment status of the members of CLOP who joined the strike must first be resolved before a certification election can be conducted. This is untenable. In Philippine Fruits v. Torres, employees who have been improperly laid off but who have a present, unabandoned right to or expectation of reemployment, are eligible to vote in certification elections. Employees who participated in the strike, legally remain as such, until either the motion to declare their employment status legally terminated or their complaint for illegal dismissal is resolved by the NLRC. CHALLENGE VOTER Phil. Telephone & Telegraph Co. v Laguesma (1993) PT&T did not possess the legal personality to file a motion to dismiss. An employer has no standing to question a certification election since this is the sole concern of the workers. What PT&T should have done was to question the inclusion of any disqualified employee in the certification election during the exclusion-inclusion proceedings before the representation officer. Indeed, this is precisely the purpose of the exclusion-inclusion proceedings, to determine who among the employees are entitled to vote and be part of the bargaining unit sought to be certified. Evidence presented failed to sufficiently show that the supervisory employees were in fact performing managerial functions. While these supervisory employees did exercise independent judgment which is not routinary or clerical, their authority was merely recommendatory in character. VOTING DAY Asian Design & Manufacturing Corp v. Calleja (1989) Question involving the legality of the strike which was conducted against ADMACOR is an independent issue, the resolution of which pertains to the Labor Arbiter. Issue of the validity of the certification election pertains solely to BLR. Resolutions of Director confined itself to the issue of the validity of the certification election. There was nothing in the resolutions which contain any conclusion or ruling by the Bureau that the alleged strike was legal or illegal. What was resolved was whether or not there was compliance with the procedural requirement set by Section 2, Rule VI, Book VI of the Rules to Implement the Labor Code that the election shall be set during a regular business day. The contending parties agreed that the election should be conducted on that time, a determined regular business day. This was in accordance with Section 2, Rule VI Book V, of the Implementing Rules. The alleged strike and/or picketing of some employees at the company's premises which coincided with the actual conduct of certification election might, perhaps have affected the actual performance of works by some employees, but did not necessarily make said date an irregular business day of the company.

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ELECTION CONDUCT Hercules Industries Inc. v Secretary (1992) Notice of the certification election had been issued. Copies of said notice were given and posted in conspicuous places. Payroll was used as the basis of the voters' list. Only 15 out of the 98 voters signed their names showing that they actually voted. These were shown by the minutes of the pre-election conference. Neither the records of the case nor the minutes of the certification election show that Hercules protested the conduct of the certification election. Protests not so raised are deemed waived. PROTEST Timbungco v. Castro (1990) Pajares was arguing that the elections where Timbungco won was invalid because there was no COMELEC and no tally sheet was prepared which set out the number of votes that each candidate got. However, it does not appear that the dispensing by the membership of the Kapisanan with certain technical requirements or formalities in relation to the election had resulted in the deprivation of any substantial right or prerogative of anyone, or caused the perpetration of a fraud or other serious anomaly, or precluded the expression and ascertainment of the popular will in the choice of officers. Objections to the elections have come too late, and they must be deemed in the premises to have forfeited their right to impugn. Protests against elections should be formalized before the med-arbiter within (5) days from the close of the election proceedings. Protest was presented only after the lapse of 2 years after it was held. No informal protest, oral or written, was ever presented against the election. There was tacit acceptance of the regularity of the elections and the results for during that period of 2 years, certain significant events took place without demur or objection of any sort. Timbungco officially made known to the BLR the Kapisanan's disaffiliation from the Federacion FOITAF and obtained a new certificate of registration for the union. He and the other officers of the Kapisanan negotiated with the AAATC management and succeeded in bringing about the execution of a new CBA. Jisscor Independent Union v Torres (1993) Grounds of a protest may be filed on the spot or in writing with the representation officer and shall be contained in the minutes of the proceedings. Protests not so raised are deemed waived. The minutes of the certification election show that JIU only protested against the use of emblem, visor, pin. Other protests not so raised are deemed waived. There is no merit in the argument that the non-posting of the notice of the certification election as prescribed misled and confused the workers regarding the mechanics of the election. JIU is estopped from raising that issue for it signed an agreement with JISSCOR to waive the mandatory 5 days posting of election notices. The results of the certification election belie the allegation that the workers were misinformed about the election out of 104 eligible voters, 99 were able to cast their votes and only 3 were spoiled ballots. Nothing in the records shows that the alleged wearing of sunvisors and pins, the posting of huge streamers, as well as the alleged escorting of voters by SMJ-ALU have unduly pressured, influenced, vitiated, or in any manner affected the choice of the workers. APPEAL Philippine Fruits and Vegetables Industries v. Torres (1992) Requirements in order that a protest filed would prosper: (1) The protest must be filed with the representation officer and made of record in the minutes of the proceedings before the close of election proceedings, and (2) The protest must be formalized before the Med-Arbiter within five (5) days after the close of the election proceedings. Phil. Fruits after filing a manifestation of protest on election day, only formalized more than two months after the close of election proceedings. ANNULMENT United Employees Union of Gelmart Inv. v. Noriel (1975) General allegation of duress is not sufficient to invalidate a certification election; it must be shown by competent and credible proof. Slightest doubt cannot be entertained that what possesses significance in a petition for certification is that through such a device the employees are given the opportunity to make known who shall have the right to represent them. Confederation of Citizens Labor Union v. Noriel (1982) Certification election is invalid because of certain irregularities. Workers on the night shift and some of those in the afternoon shift were not able to vote. Out of 1,010 voters only 692 voted and about 318 failed to vote. Secrecy of the ballot was not safeguarded. Election supervisors were remiss in their duties and were apparently "intimidated" by a union representative. Participating unions were overzealous in wooing the employees to vote in their favor by resorting to such tactics as giving free tricycle rides and Tshirts. Certification election give the employees "true representation in their collective bargaining with an employer". ALU's written protest was based on the same founds invoked by CCLU in its protest. That fact alone should have alerted Noriel to disregard the technicality that CCLU's protest was not filed on time.
CERTIFICATION OF DESIGNATED MAJORITY UNION Art. 255 Exclusive bargaining representation and workers participation in policy and decision-making [sec. 22 of RA 6715] -- The labor organization designated or selected by the majority of the EEs in an appropriate collective bargaining unit

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shall be the exclusive representative of the EEs in such unit for the purpose of collective bargaining. However, an individual EE or group of EEs shall have the right at any time to present grievances to their ER. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed in so far as said processes will directly affect their RIGHTS, BENEFITS and WELFARE. For this purpose, workers and ERs may form Labor Management Councils; Provided, that the representatives of the workers in such labor mgt councils shall be elected by at least the majority of all EEs in said establishment. Art. 256 Representation issue in organized establishments - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the DOLE within the 60 day period before the expiration of the CBA, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least 25% of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for 3 or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the 2 highest number of votes. Provided, that total number of votes for all contending unions is at least 50% of the number of votes cast. At the expiration of the freedom period, the ER shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election has been filed. Benguet Electric Cooperative, Inc. v Calleja (1989) To have a valid certification elecdtion, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. In this case, the election is invalid. Only 37 employees are not members of the cooperative and who are the only employees eligible to form or join a labor union. However, the minutes of the certification election show that a total of 83 employees were allowed to vote. The certification election is still null and void. It cannot be determined whether or not union was duly elected by the eligible voters of the bargaining unit since even employees who are ineligible to join a labor union within the cooperative because of their membership therein were allowed to vote in the certification election. BARS TO THE CERTIFICATION ELECTION 1) 2) 3) Contract bar rule (Art. 253-A/ Art. 233) Deadlock Bar-Rule One-Year Bar rule a a
Bars to a certification election: PREVENTS Certification Election Suspension Rule: merely POSTPONES Certification Election THE CONTRACT BAR RULE (Art. 232) GENERAL RULE:
The bureau shall NOT entertain any petition for certification election. (Freedom period)Art. 253, 253-A, 256: Within 60 days before expiration of the five year term of the CBA. The contract bar rule can be validly invoked only if the existing CBA contains substantially those materials that should be included in the CBA.
EXCEPT:
TAKE NOTE:
Buklod ng Saulog Transit v. Casalla (1956) The provisions of the law contemplates a situation: 1) NOT ONLY when there had been NO AGREEMENT entered into by and between employees or laborers and employer or management as to the terms and condition of employment. 2) BUT ALSO where there had been an agreement that leaves out many or the same matters on which the parties should have stipulated. In the present case, the collective bargaining agreement entered into by and between the petitioners and company does not touch in substantial terms, the rate of pay, wages, hours of employment and other conditions of employment of all the employees in the company but seeks to establish merely a grievance procedure for drivers, conductors, and inspectors who are members of the Buklod Saulog. The agreement being incomplete is no bar to a certification election. TAKE NOTE: CBA should be complete AT THE TIME OF FILING of petition for certification election, even if amended CBA is submitted wherein the terms and conditions are complete, it will not bar a petition for CE already filed. What if a CBA is not registered but validly entered into by the parties, will it bar a petition for CE? My opinion is it will, but I am not sure. I am only applying by analogy Trade Union of Philippines v. Laguesma which says that none compliance with a procedural requirement (in this case it was a late filing of the CBA) should not adversely affect the substantive validity of the CBA.

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What is the effect of an expired CBA on the contract bar rule? No petition for CE may be filed after the lapse of the 60 day freedom period. The old CBA is extended until a new one is filed. The purpose is to ensure stability in the relationship of the workers and the company by preventing frequent modifications of any CBA earlier entered into by them in good faith and for the stipulated original period. What if the CBA was suspended? Under Art. 253-A the representation limit for the exclusive bargaining agent applies only when there is an extant CBA in full force and effect. In the instant case, the parties agreed to suspend the CBA and put in abeyance the limit on the representation period. (Rivera v. Espiritu GR no. 135547 January 23, 2002) DEADLOCK-BAR RULE 1) faith. 2) Parties must have negotiated in good Deadlock must have been submitted to voluntary arbitration or a valid subject of a valid notice of strike or lock-out. Such charge of company domination is a prejudicial question that until decided, shall suspend or bar proceedings for certification election. If it were a labor organization objecting to the participation in a certification election of a company-dominated union, as a result of which a complaint for an unfair labor practice case against the employer was filed, the status of the latter union must be first cleared in such a proceeding before such voting could take place. The reason is that the certification election may lead to the selection of an employerdominated or company union as the employees' bargaining representative, and when the court finds that said union is employer-dominated in the unfair labor practice case, the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory.' There would be an impairment of the integrity of the collective bargaining process if a companydominated union were allowed to participate in a certification election. The timid, the timorous, and the faint-hearted in the ranks of labor could easily be tempted to cast their votes in favor of the choice of management. Should it emerge victorious, and it becomes the exclusive representative of labor at the conference table, there is a frustration of the statutory scheme. It takes two to bargain. There would be instead a unilateral imposition by the employer. There is need therefore to inquire as to whether a labor organization that aspires to be the exclusive bargaining representative is company-dominated before the certification election." WHAT SUSPENDS: Formal charge of ULP against the employer for establishing a company union. WHO MAY ASK FOR SUSPENSION: Only a union. CE cannot be suspended based on a pendency of a formal charge of ULP against a labor organization.
ONE-YEAR BAR RULE From time of valid certification election. Not from time of final resolution of appeal. DATE OF ELECTION -- DATE ELECTION IS CERTIFIED -- IF APPEALED, DATE WHEN FINALLY RESOLVED SUSPENSION PREJUDICIAL QUESTION RULE Should be read in relation to Art. 248d: ULP: It shall be unlawful for an employer to commit any of the following unfair labor practice. (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters. United CMC Textile Workers Union v. BLR (1984) The ULP Case herein was filed on August 31, 1978, or anterior to the Certification Case, which was presented on September 5, 1978. The pendency of the charge was known to respondent public official by virtue of the Motion to Dismiss filed by petitioner as intervenor in the Certification Case. No allegation has been made that said ULP Case was instituted in bad faith to forestall the Certification Case. RATIONALE for suspension the reason being, in the words of Mr. Justice Montemayor, `if there is a union dominated by the company, to which some of the workers belong, an election among workers and employees of the company would not reflect the true sentiment and wishes of the said workers and employees because the votes of the members of the dominated union would not be free.

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Part VII : Collective Bargaining Labor Relations
Part VII BARGAINING
COLLECTIVE
of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party. " 2. NATURE AND PURPOSE United Employees Union of Gelmart Industries v. Noriel (1975) The institution of collective bargaining is a prime manifestation of industrial democracy at work. The two parties to the relationship, labor and management, make their own rules by coming to terms. That is to govern themselves in matters that really count. As labor, however, is composed of a number of individuals, it is indispensable that they be represented by a labor organization of their choice. Thus may be discerned how crucial is a certification election. 3. WAIVER
IMPLEMENTING PROVISIONS 1. PROCEDURE Art. 250 Art. 251 Cf. Art. 233
2. DUTY TO BARGAIN Art. 252 COLLECTIVELY Art. 253 3. TERMS Art. 253-A
7.01 GENERAL CONCEPTS

1. POLICY DECLARATION 1987 Constitution. Art. XIII, Sec. 3 The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to selforganizations, COLLECTIVE BARGAINING AND NEGOTIATIONS, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law. The State shall promote the PRINCIPLE OF SHARED RESPONSIBILITIES between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. Labor Code, Art 211 (a) To promote and emphasize the primacy of FREE COLLECTIVE BARGAINING and negotiations, including voluntary arbitration, mediation and conciliation, as modes of setting labor or industrial disputes; Kiok Loy v. NLRC (1986) Collective bargaining which is defined as negotiations towards a collective agreement,6 is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. So much so that Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions
Rivera v. Espiritu (2000) A CBA is a contract executed upon request of either the employer or the exclusive bargaining representative incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement. The primary purpose of a CBA is the stabilization of labor-management relations in order to create a climate of a sound and stable industrial peace. In construing a CBA, the courts must be practical and realistic and give due consideration to the context in which it is negotiated and the purpose which it is intended to serve. The assailed PAL-PALEA agreement was the result of voluntary collective bargaining negotiations undertaken in the light of the severe financial situation faced by the employer, with the peculiar and unique intention of not merely promoting industrial peace at PAL, but preventing the latters closure. We find no conflict between said agreement and Article 253-A of the Labor Code. Article 253-A has a two-fold purpose. One is to promote industrial stability and predictability. Inasmuch as the agreement sought to promote industrial peace at PAL during its rehabilitation, said agreement satisfies the first purpose of Article 253-A. The other is to assign specific timetables wherein negotiations become a matter of right and requirement. Nothing in Article 253-A, prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same. In the instant case, it was PALEA, as the exclusive bargaining agent of PALs ground employees, that voluntarily entered into the CBA with PAL. It was also PALEA that voluntarily opted for the 10-year suspension of the CBA. Either case was the unions exercise of its right to collective bargaining. The right to free collective bargaining, after all, includes the right to suspend it. The acts of public respondents in sanctioning the 10-year suspension of the PAL-PALEA CBA did not contravene the protection to labor policy of the Constitution. The agreement afforded full protection to labor; promoted the shared responsibility between workers and employers;

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and the exercised voluntary modes in settling disputes, including conciliation to foster industrial peace." e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator.
7.02 BARGAINING PROCEDURE

1. PRIVATE PROCEDURE Art. 251 Duty to bargain collectively in the absence of collective bargaining agreements. In the ABSCENCE of an agreement or other VOLUNTARY ARRANGEMENT providing for a MORE EXPEDITIOUS manner of collective bargaining, it shall be the duty of the employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code.
Art. 251 Duty to bargain collectively in the absence of collective bargaining agreements---In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of the employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. Natl Union of Restaurant Workers v. CIR (1964) In a letter sent by the union containing its demands, there appears marks, opposite each demand, such as a check for those demands to which Mrs. Felisa Herrera was agreeable, a cross signifying the disapproval of Mrs. Herrera, and a circle regarding those demands which were left open for discussion on some future occasion that the parties may deem convenient. Such markings were made during the discussion of the demands in the meeting. That Herrera had agreed to some of the demands shows that she did not refuse to bargain collectively. Tres did not refuse to bargain collectively because they accepted some of the demands while they refused the others even leaving open other demands for future discussion. Those demands were discussed at a meeting. Under Section 14 of Republic Act 875 whenever a party serves a written notice upon the employer making some demands the latter shall reply not later than 10 days from receipt, but this condition is merely procedural. Its non- compliance cannot be deemed to be an act of unfair labor practice. Tres did not ignore the letter. While Tres denied the capacity of the complaining union to bargain collectively, this is because they were of the impression that before a union could have that capacity it must first be certified by CIR. This is what they stated in their answer to the petition for certification filed by said union. Furthermore, another union also claimed to represent the majority of the employees of restaurant. Art. 250 in summary: 1) All proposal and counter-proposal must be in writing. No verbal proposal or counterproposal. 2) Time periods are provided for by law. Reply: not later than 10 calendar days from receipt of notice. Request for a conference shall begin 10 days after making such request. TAKE NOTE: These procedures are DIRECTORY in nature and not mandatory, failure to comply with the prescribed time periods will not amount to an unfair labor practice. 3. CONCILIATION PROCEDURE Art. 250 Procedure in collective bargaining. c. If the dispute is not settled, the Board shall intervene upon request of either or both
IMPLICATION: Provisions of this code are only supplementary not mandatory with regards to the process of collective bargaining. Because it is the policy of the state to promote the primacy of FREE collective bargaining. (211a). The Labor Code authorizes parties to provide for their own procedures in Collective Bargaining but it must be more EXPEDITIOUS that that provided in Art. 250. If they are unable to agree they must follow procedure in the labor code (Art. 250). 2. CODE PROCEDURE Art. 250 Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: a. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request; If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and
c.
d.

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parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. Art. 233 Privileged communication. Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. Art. 250e says that : The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. How does the law encourage the parties to go into conciliation? Privileged Communication (Art. 233) a. Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. NEGOTIABLE ISSUES: Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession.
Duty to bargain in good faith (Art. 252): Can be broken down into two components: The positive statement and the Negative Statement. 1. POSITIVE STATEMENT NATURE of duty to bargain: Obligation HOW: Mutual
to meet and convene promptly and expeditiously in good faith. for the purpose negotiating agreement(CBA) of an
PURPOSE:
b.
with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement
The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; (Art. 250 c). This power to subpoenas merely to force the parties to participate. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; (Art. 250d)
2. NEGATIVE STATEMENT DUTY: but such duty does not compel any party to agree to a proposal or to make any concession. 3. EXECUTION OF A CONTRACT: Art. 252 also states that it is part of the duty to bargain to execute a contract incorporating such agreements if requested by either party.
7.03 DUTY TO BARGAIN

Art. 251 Duty to bargain collectively in the absence of collective bargaining agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of the employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. Art. 252
Art. 253 Duty to bargain collectively when there exists a collective bargaining agreement. 1. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate or modify such agreement during its lifetime. 2. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the term and
3.

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conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Art. 242 Rights of legitimate labor organizations. A legitimate labor organization shall have the right: c. To be furnished by the employer, upon written request, with his annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; DO No.40-03 Seriies of 2003 RULE XVI COLLECTIVE BARGAINING Section 2. Disclosure of information. - In collective bargaining, the parties shall, at the request of either of them, make available such upto-date financial information on the economic situation of the undertaking, which is normally submitted to relevant government agencies, as is material and necessary for meaningful negotiations. Where the disclosure of some of this information could be prejudicial to the undertaking, its communication may be made condition upon a commitment that it would be regarded as confidential to the extent required. The information to be made available may be agreed upon between the parties to collective bargaining. MEANING OF DUTY Colegio de San Juan de Letran v. Assn. of Employees (2000) Noteworthy in Art. 252 of the Labor Code is the requirement on both parties of the performance of the mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. Undoubtedly, the union lived up to this requisite when it presented its proposals for the CBA to petitioner on February 7, 1996. On the other hand, petitioner devised ways and means in order to prevent the negotiation. Petitioner's utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to the proposals presented by the latter. More than a month after the proposals were submitted by the union, petitioner still had not made any counter-proposals. This inaction on the part of petitioner prompted the union to file its second notice of strike on March 13, 1996. Petitioner could only offer a feeble explanation that the Board of Trustees had not yet convened to discuss the matter as its excuse for failing to file its reply. This is a clear violation of Article 250 of the Labor Code governing the procedure in collective bargaining, to wit:
Art. 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: (b) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice.
Kiok Loy v NLRC (1986) Collective bargaining are negotiations towards a collective agreement designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a MUTUAL RESPONSIBILITY of the employer and the Union and is characterized as a LEGAL OBLIGATION. Article 249, par. (g) makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement. While it is a mutual obligation, the employer is not under any legal duty to initiate contract negotiation. The mechanics of collective bargaining is set in motion when the following are present: (1) possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the Labor Code, (2) proof of majority representation and (3) a demand to bargain under Article 251, par. (a) of the New Labor Code. In this case, Union has a valid cause to complain against its Company's attitude. Union made a definite request to bargain, accompanied with a copy of the proposed CBA to the Company not only once but twice. Company made no counter proposal. Even during the period of compulsory arbitration before the NLRC, Company stalled the negotiation. Unfair labor practice is committed when it is shown that employer, after having been served with a written bargaining proposal by Union, did not even bother to submit an answer or reply to the said proposal. Republic Savings Bank v. CIR (1967) Collective bargaining does not end with the execution of an agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation "to meet and confer promptly and expeditiously and in good faith . . . for the purpose of adjusting any grievances or question arising under such agreement" and a violation of this obligation is an unfair labor practice. DEADLOCK San Miguel Corporation v. NLRC (1999) Rule XXII, Section I, of the Rules and Regulations Implementing Book V the Labor Code,10 reads:
"Section 1. Grounds for strike and lockout. -- A strike or lockout may be declared in cases of

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bargaining deadlocks and unfair labor practices. Violations of the collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable. No strike or lockout may be declared on grounds involving inter-union and intra-union disputes or on issues brought to voluntary or compulsory arbitration."
redeployed. In AOC, out of the 17 original excess, 15 were redeployed. In the Magnolia - Manila Buying Station, out of 18 employees, 6 were redeployed and only 12 were terminated. MINUTES OF NEGOTIATION Samahang Manggagawa sa Top Form v. NLRC (1998) The CBA is the law between the contracting parties the collective bargaining representative and the employer-company. Compliance with a CBA is mandated by the expressed policy to give protection to labor. In the same vein, CBA provisions should be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve. This is founded on the dictum that a CBA is not an ordinary contract but one impressed with public interest. It goes without saying, however, that only provisions embodied in the CBA should be so interpreted and complied with. Where a proposal raised by a contracting party does not find print in the CBA, it is not a part thereof and the proponent has no claim whatsoever to its implementation. Hence, petitioner unions contention that the Minutes of the collective bargaining negotiation meeting forms part of the entire agreement is pointless. The Minutes reflects the proceedings and discussions undertaken in the process of bargaining for worker benefits in the same way that the minutes of court proceedings show what transpired therein. At the negotiations, it is but natural for both management and labor to adopt positions or make demands and offer proposals and counter-proposals. However, nothing is considered final until the parties have reached an agreement. In fact, one of managements usual negotiation strategies is to x x x agree tentatively as you go along with the understanding that nothing is binding until the entire agreement is reached. If indeed private respondent promised to continue with the practice of granting across-theboard salary increases ordered by the government, such promise could only be demandable in law if incorporated in the CBA. SUSPENSION OF BARGAINING Colegio de San Juan de Letran v. Assn. of Employees (2000) Petitioner, likewise, claims that the suspension of negotiation was proper since by the filing of the petition for certification election the issue on majority representation of the employees has arose. According to petitioner, the authority of the union to negotiate on behalf of the employees was challenged when a rival union filed a petition for certification election. Citing the case of Lakas Ng Manggagawang Makabayan v. Marcelo Enterprises, petitioner asserts that in view of the pendency of the petition for certification election, it had no duty to bargain collectively with the union. We disagree. In order to allow the employer to validly suspend the bargaining process there must be a valid petition for certification election raising a legitimate representation issue. Hence, the mere filing of a petition for certification
In the case under consideration, the grounds relied upon by the private respondent union are non-strikeable. The issues which may lend substance to the notice of strike filed by the private respondent union are: collective bargaining deadlock and petitioner's alleged violation of the collective bargaining agreement. These grounds, however, appear more illusory than real. Collective Bargaining Deadlock is defined as "the situation between the labor and the management of the company where there is failure in the collective bargaining negotiations resulting in a stalemate" This situation, is non-existent in the present case since there is a Board assigned on the third level (Step 3) of the grievance machinery to resolve the conflicting views of the parties. Instead of asking the Conciliation Board composed of five representatives each from the company and the union, to decide the conflict, petitioner declared a deadlock, and thereafter, filed a notice of strike. For failing to exhaust all the steps in the grievance machinery and arbitration proceedings provided in the Collective Bargaining Agreement, the notice of strike should have been dismissed by the NLRC and private respondent union ordered to proceed with the grievance and arbitration proceedings. In the case of Liberal Labor Union vs. Phil. Can Co., the court declared as illegal the strike staged by the union for not complying with the grievance procedure provided in the collective bargaining agreement, ruling that:
"x x x the main purpose of the parties in adopting a procedure in the settlement of their disputes is to prevent a strike. This procedure must be followed in its entirety if it is to achieve its objective. x x x strikes held in violation of the terms contained in the collective bargaining agreement are illegal, specially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their ends have to be achieved. x x x"
As regards the alleged violation of the CBA, we hold that such a violation is chargeable against the private respondent union. In abandoning the grievance proceedings and stubbornly refusing to avail of the remedies under the CBA, private respondent violated the mandatory provisions of the collective bargaining agreement. Abolition of departments or positions in the company is one of the recognized management prerogatives. Noteworthy is the fact that the private respondent does not question the validity of the business move of petitioner. In the absence of proof that the act of petitioner was illmotivated, it is presumed that petitioner San Miguel Corporation acted in good faith. In fact, petitioner acceded to the demands of the private respondent union by redeploying most of the employees involved; such that from an original 17 excess employees in BLD, 15 were successfully

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election does not ipso facto justify the suspension of negotiation by the employer. The petition must first comply with the provisions of the Labor Code and its Implementing Rules. Foremost is that a petition for certification election must be filed during the sixty-day freedom period. The "Contract Bar Rule" under Section 3, Rule XI, Book V, of the Omnibus Rules Implementing the Labor Code, provides that: " . If a collective bargaining agreement has been duly registered in accordance with Article 231 of the Code, a petition for certification election or a motion for intervention can only be entertained within sixty (60) days prior to the expiry date of such agreement." The rule is based on Article 232, in relation to Articles 253, 253-A and 256 of the Labor Code. No petition for certification election for any representation issue may be filed after the lapse of the sixty-day freedom period. The old CBA is extended until a new one is signed. The rule is that despite the lapse of the formal effectivity of the CBA the law still considers the same as continuing in force and effect until a new CBA shall have been validly executed. Hence, the contract bar rule still applies. The purpose is to ensure stability in the relationship of the workers and the company by preventing frequent modifications of any CBA earlier entered into by them in good faith and for the stipulated original period. In the case at bar, the lifetime of the previous CBA was from 1989-1994. The petition for certification election by ACEC, allegedly a legitimate labor organization, was filed with the Department of Labor and Employment (DOLE) only on May 26, 1996. Clearly, the petition was filed outside the sixty-day freedom period. Hence, the filing thereof was barred by the existence of a valid and existing collective bargaining agreement. Consequently, there is no legitimate representation issue and, as such, the filing of the petition for certification election did not constitute a bar to the ongoing negotiation. Reliance, therefore, by petitioner of the ruling in Lakas Ng Manggagawang Makabayan v. Marcelo Enterprises is misplaced since that case involved a legitimate representation issue which is not present in the case at bar. o o The consequences are different for the refusal to bargain. If mandatory issue, refusal to bargain could lead to: A case of Unfair Labor Practice May be a valid ground for a strike or lockIf permissive issue, refusal to bargain will NOT produce a case for ULP, NOR will it allow that economic weapons be used. Cannot strike or lock-out.
out o
Phil American Mgt Co. v. Phil. American Mgt Employees (1973) Even then, there is an area placed beyond the sphere of bargaining between the parties. Included therein is the question of minimum wages. It is understandable why it should be so. For legislation of that character proceeds on the premise that there is a floor below which the amount paid labor should not fall. That is to assure decent living conditions. Such an enactment is compulsory in nature; not even the consent of the employees themselves suffices to defeat its operation. More plainly put, the question of minimum wage is not negotiable. What the law decrees must be obeyed. It is as simple as that. There is to be sure no thought of deviating from the basic concept that the area of free play of bargaining between management and labor is not to be constricted. What cannot be denied, however, is that neither party in this particular case is at liberty to agree to an amount lower than that the law requires as to the wages to be paid. To that extent, there is no room for offer and counter offer. The employer has an obligation to meet. His duty is plain. He must pay what he has to. Nestle Phil. V NLRC (1991) Retirement plan is negotiable. Inclusion of the retirement plan in the CBA as part of the package of economic benefits extended by the company to its employees to provide them a measure of financial security after they shall have ceased to be employed in the company, reward their loyalty, boost their morale and efficiency and promote industrial peace, gives "a consensual character" to the plan so that it may not be terminated or modified at will by either party. The fact that the retirement plan is noncontributory does not make it a non-issue in the CBA negotiations. Almost all of the benefits granted to its employees under the CBA are noncontributory benefits. Since the retirement plan has been an integral part of the CBA since 1972, demand to increase the benefits due the employees is a valid CBA issue. Employees have a vested or demandable right to a non-contributory retirement plan. It is an existing benefit voluntarily granted to them by their employer. Samahang Manggagawa sa Top Form v. NLRC (1998) Indeed, the adamant insistence on a bargaining position to the point where the negotiations reach an impasse does not establish bad faith. Neither can bad faith be inferred from a party's insistence on the inclusion of a particular substantive provision unless it
7.04 BARGAINABLE ISSUES

BARGAINABLE ISSUES: wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement What do we mean by all other terms and conditions of employment? The other terms and conditions of employment to become a mandatory bargainable issue must have a connection between the proposal and the nature of the work. Example of what falls under this statement: Stewardess bargains for better uniforms. Example of what does not fall under this statement: A company janitor asks for a car. Importance of determining whether an issue is a mandatory bargaining issue or only a permissive bargaining issue:

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concerns trivial matters or is obviously intolerable. "The question as to what are mandatory and what are merely permissive subjects of collective bargaining is of significance on the right of a party to insist on his position to the point of stalemate. A party may refuse to enter into a collective bargaining contract unless it includes a desired provision as to a matter which is a mandatory subject of collective bargaining; but a refusal to contract unless the agreement covers a matter which is not a mandatory subject is in substance a refusal to bargain about matters which are mandatory subjects of collective bargaining; and it is no answer to the charge of refusal to bargain in good faith that the insistence on the disputed clause was not the sole cause of the failure to agree or that agreement was not reached with respect to other disputed clauses." On account of the importance of the economic issue proposed by petitioner union, it could have refused to bargain and to enter into a CBA with private respondent. On the other hand, private respondent's firm stand against the proposal did not mean that it was bargaining in bad faith. It had the right "to insist on (its) position to the point of stalemate." On the part of petitioner union, the importance of its proposal dawned on it only after the wage orders were issued after the CBA had been entered into. Section 7. Term of representation status; contract bar rule. - The representation status of the incumbent exclusive bargaining agent which is a party to a duly registered collective bargaining agreement Shall be for a term of five (5) years from the date of the effectivity of the collective bargaining agreement. No petition questioning the majority status of the incumbent exclusive bargaining agent or petition for certification election filed outside of the sixty-day period immediately preceding the expiry date of such five-year term shall be entertained by the Department. The five-year representation status acquired by an incumbent bargaining agent either through single enterprise collective bargaining or multi-employer bargaining Shall not be affected by a subsequent collective bargaining agreement executed between the same bargaining agent and the employer during the same five-year period. Section 8. Re-negotiation of collective bargaining agreements. - All provisions of a collective bargaining agreement, except the representation status of the incumbent bargaining agent shall, As a matter of right, be renegotiated not later than three (3) years after its execution. The re-negotiated collective bargaining agreement shall be ratified and registered with the same Regional Office where the preceding agreement was registered. The same requirements and procedure in the registration of collective bargaining agreements prescribed in the preceding rules shall be applied. DEFINITION Davao Integrated Port Stevedoring Services v. Abrquez (93) A CBA as used in Art. 252 of the Labor Code, refers to a contract executed upon request of either the employer or the exclusive bargaining representative incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement. While the terms and conditions of a CBA constitute the law between the parties, it is not, however, an ordinary contract to which is applied the principles of law governing ordinary contracts. A CBA, as a labor contract within the contemplation of Article 1700 Civil Code which governs the relations between labor and capital, is not merely contractual in nature but impressed with public interest, thus, it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve. University of the Immaculate Concepcion v. Sec. of Labor (2002) A CBA refers to the negotiated contract between a legitimate labor organization and the
7.05 THE COLLECTIVE AGREEMENT
BARGAINING
Art. 253-A Terms of a collective bargaining agreement. POLITICAL ASPECT: Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the DOLE outside of the sixty-day period immediately before the date of the expiry of such five year term of the Collective Bargaining Agreement. ECONOMIC ASPECT: All other provisions of the CBA shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the CBA entered into within six months from the expiry of the term of such other provisions as fixed in such CBA, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of the retroactivity thereof, In case of a deadlock in the renegotiation of the CBA, the parties may exercise their rights under this Code. DO No. 40-03 series of 2003 Book V Rule XVII

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employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries. As in all other contracts, there must be clear indications that the parties reached a meeting of the minds. In this case, no CBA could be concluded because of what the union perceived as illegal deductions from the 70% employees' share in the tuition fee increase from which the salary increases shall be charged. Also, the manner of computing the net incremental proceeds was yet to be agreed upon by the parties. Petitioner insisted that a new CBA was concluded through the conciliation proceeding before the NCMB on all issues specified in the notice of strike. Although it is true that the university and the union may have reached an agreement on the issues raised during the collective bargaining negotiations, still no agreement was concluded by them because, among other reasons, the DOLE Secretary, who assumed jurisdiction on January 23, 1995 only was set to resolve the distribution of the salary increase of the covered employees. The Court of Appeals found that "there are many items in the draft-CBA that were not even mentioned in the minutes of the July 20, 1994 conference." Considering the parties failed to reach an agreement regarding certain items of the CBA, they still have the duty to negotiate a new collective bargaining agreement in good faith, pursuant to the applicable provisions of the Labor Code.
of violation of any provision of this Agreement or any complaint that any employee may have against the COMPANY shall constitute a grievance
The instant case is not a grievance that must be submitted to the grievance machinery. What are subject of the grievance procedure for adjustment and resolution are grievances arising from the interpretation or implementation of the collective bargaining agreement. The acts of petitioner involved a violation of the Code of Employee Discipline, particularly the provision penalizing the immoral conduct of employees. Consequently, there was no justification for petitioner to invoke the grievance machinery provisions of the Collective Bargaining Agreement. REGISTRATION ACTIONS PERIOD, REQUIREMENTS
AND
CONTENTS Effect Sub-standard Contract Art. 239 Grounds for cancellation of union registration. The following shall constitute grounds for cancellation of union registration: (f) Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standards established by law; Duration and Re-negotiation Grievance Procedure Navarro III v. Damasco (1995) Petitioner was dismissed by the company for violating the Company Code of Conduct. Petitioner contends that the grievance procedure provided for in the CBA was not followed; hence, the Voluntary Arbitrator exceeded his authority when he took cognizance of the labor case.
Section 2, Article X of the CBA specifies the instances when the grievance machinery may be availed of, thus: Any protest or misunderstanding concerning any ruling, practice or working conditions in the Company, or any dispute arising as to the meaning, application or claim
Art. 231. Registry of unions and file of collective bargaining agreements. The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements and records of settlement of labor disputes and copies of orders and decisions of voluntary arbitrators. o The file shall be open and accessible to interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation, or when public interest or national security so requires. Within 30 days from the execution of a CBA, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the DOLE for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. o The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within 5 calendar days from receipt thereof. o The Regional Offices shall furnish the Bureau with a copy of the CBA within 5 days from its submission. The Bureau or Regional Office shall assess the employer for every CBA a registration fee of not less than P1,000.00 or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. o Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund. The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the

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Secretary of Labor and Employment, Regional Directors and the Commission. CONTRACT BENEFICIARIES Who are the beneficiaries to a CBA? All workers in an appropriate bargaining unit
month for employees who will be transferred from Bauan to Makati. For employees who will be transferred from Makati to Bauan, the relocation assistance shall be ONE THOUSAND FIVE HUNDRED PESOS (P1,500.00). Section 2. Employees can avail this provision provided their transfer is on a permanent basis or for a duration exceeding one (1) month.
New Pacific Timber and Supply v. NLRC (2000) Petitioner Company insists that the rank-andfile employees hired after the term of the CBA inspite of their subsequent membership in the bargaining unit, are not parties to the agreement, and certainly may not claim the benefits thereunder. We do not agree. In a long line of cases, this Court has held that when a collective bargaining contract is entered into by the union representing the employees and the employer, even the nonmember employees are entitled to the benefits of the contract. To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against nonmembers. It is even conceded, that a laborer can claim benefits from a CBA entered into between the company and the union of which he is a member at the time of the conclusion of the agreement, after he has resigned from said union. In the same vein, the benefits under the CBA in the instant case should be extended to those employees who only became such after the year 1984. To exclude them would constitute undue discrimination and deprive them of monetary benefits they would otherwise be entitled to under a new collective bargaining contract to which they would have been parties. Since in this particular case, no new agreement had been entered into after the CBA's stipulated term, it is only fair and just that the employees hired thereafter be included in the existing CBA. This is in consonance with our ruling that the terms and conditions of a collective bargaining agreement continue to have force and effect beyond the stipulated term when no new agreement is executed by and between the parties to avoid or prevent the situation where no collective bargaining agreement at all would govern between the employer company and its employees. CONTRACT ADMINISTRATION AND ENFORCEMENT Nature of the Contract Babcock-Hitachi (Phils.) V. Babcock-Hitachi (2005) The basic issue for our resolution is whether union members are entitled to relocation allowance in light of the CBA between the parties. To begin with, any doubt or ambiguity in the contract between management and the union members should be resolved in favor of the latter. This is pursuant to Article 1702 of the Civil Code which provides: (I)n case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. Pertinent are Sections 1 and 2, Article XXI of the CBA which provide:
Section 1. The COMPANY shall provide a relocation allowance of ONE THOUSAND EIGHT HUNDRED PESOS (P1,800.00) per
The above provisions state that employees transferred from Makati City to Bauan, Batangas are entitled to a monthly relocation allowance of P1,500.00, provided their transfer is permanent or for a period exceeding one month. Such provisions need no interpretation for they are clear. Contracts which are not ambiguous are to be interpreted according to their literal meaning and not beyond their obvious intendment. In Mactan Workers Union vs. Aboitiz, we held that the terms and conditions of a collective bargaining contract constitute the law between the parties. Those who are entitled to its benefits can invoke its provisions. In the event that an obligation therein imposed is not fulfilled, the aggrieved party has the right to go to court for redress. Kimberly Clark Phils. V. Lorredo (1993) A collective bargaining agreement, just like any other contract, is respected as the law between the contracting parties and compliance therewith in good faith is mandated. Similarly, the rules embodied in the Civil Code on the proper interpretation of contracts can very well govern. The intention of the parties is primodial; if the terms of the contract are clear, the literal meaning of the stipulations shall control, but if the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. GRIEVANCE PROCEDURE; Individual Grievance Dispute issues and
Art. 260 Grievance Machinery and Voluntary Arbitration. The parties to a CBA shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from (1) the interpretation or implementation of their CBA and (2) those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the CBA. For this purpose, parties to a CBA shall 1) name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators preferably from the listing of qualified Voluntary

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2) Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the CBA, which shall act with the same force and effect as if the Voluntary Arbitrator or panel of Arbitrators has been selected by the parties as described above. demonstrated its lack of intent to abide by the terms of the CBA. Caltex Refinery Employees Association v. Brilliantes (1997) No particular setup for a grievance machinery is mandated by law. Rather, Article 260 of the Labor Code, as incorporated by RA 6715, provides for only a single grievance machinery in the company to settle problems arising from "interpretation or implementation of their collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies.". We believe that the procedure described by public respondent sufficiently complies with the minimum requirement of the law. Public respondent even provided for two steps in hearing grievances prior to their referral to arbitration. The parties will decide on the number of arbitrators who may hear a dispute only when the need for it arises. Even the law itself does not specify the number of arbitrators. Their alternatives whether to have one or three arbitrators have their respective advantages and disadvantages. In this matter, cost is not the only consideration; full deliberation on the issues is another, and it is best accomplished in a hearing conducted by three arbitrators. In effect, the parties are afforded the latitude to decide for themselves the composition of the grievance machinery as they find appropriate to a particular situation. At bottom, we cannot really impute grave abuse of discretion to public respondent on this issue. PAL v. Santos (1993) It is clear that the grievance was filed with Mr. Abad's secretary during his absence. Under Section 2 of the CBA aforequoted, the division head shall act on the grievance within five (5) days from the date of presentation thereof, otherwise "the grievance must be resolved in favor of the aggrieved party." It is not disputed that the grievants knew that division head Abad was then "on leave" when they filed their grievance which was received by Abad's secretary. This knowledge, however, should not prevent the application of the CBA. Contrary to petitioner's submission, the grievance of employees is not a matter which requires the personal act of Mr. Abad and thus could not be delegated. Petitioner could at least have assigned an officer-in-charge to look into the grievance and possibly make his recommendation to Mr. Abad. It is of no moment that Mr. Abad immediately looked into the grievance upon returning to work, for it must be remembered that the grievants are workingmen who suffered salary deductions and who rely so much on their meager income for their daily subsistence and survival. As respondent NLRC has pointed out, Abad's failure to act on the matter may have been due to petitioner's inadvertence, but it is clearly too much of an injustice if the employees be made to bear the dire effects thereof. Much as the latter were willing to discuss their grievance with their employer, the latter closed the door to this possibility by not assigning someone else to look into the matter during Abad's absence. Thus, private respondents should not be faulted for
Art. 255 Exclusive bargaining representation and workers participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. o However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Republic Savings Bank v. CIR Grievance procedure is a part of the continuous process of collective bargaining. It is intended to promote a friendly dialogue. Master Iron Labor Union v. NLRC (1993) The Corporation's insistence that the hiring of casual employees is a management prerogative betrays its attempt to coat with legality the illicit curtailment of its employees' rights to work under the terms of the contract of employment and to a fair implementation of the CBA. While it is true that an employer's exercise of management prerogatives, with or without reason, does not per se constitute unjust discrimination, such exercise, if clearly shown to be in grave abuse of discretion, may be looked into by the courts. Indeed, the hiring, firing, transfer, demotion, and promotion of employees are traditionally identified as management prerogatives. However, they are not absolute prerogatives. They are subject to limitations found in law, a collective bargaining agreement, or general principles of fair play and justice The Corporation's assertion that it was exercising a management prerogative in hiring outside workers being contrary to the contract of employment which, of necessity, states the expected wages of the workers, as well as the CBA, is therefore untenable. Private respondent's failure to traverse petitioners' allegations that the NLRC abused its discretion in holding that the provision on grievance procedure had not been exhausted clearly sustains such allegation and upholds the petitioners' contention that the Corporation refused to undergo said procedure. It should be remembered that a grievance procedure is part of the continuous process of collective bargaining It is intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace. The Corporation's refusal to heed petitioners' request to undergo the grievance procedure clearly

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believing that the effects of the CBA in their favor had already stepped into the controversy. Contract Infirmity Associated Labor Unions v. Calleja (1989) Petitioner, however, contends that since the new CBA had already been ratified overwhelmingly by the members of the bargaining unit and that said CBA had already been consummated and the members of the bargaining unit have been continuously enjoying the benefits under the said CBA, no certification election may be conducted. The reliance on Foamtex case weakens rather than strengthens petitioner's stand. In Foamtex the SC affirmed the order of the Med-Arbiter calling for a certification election on the ground that although a new CBA was concluded between the petitioner and the management, only a certified CBA would serve as a bar to the holding of a certification election, citing Article 232 of the Labor Code. Here, as in Foamtex the CBA was not yet certified and yet the Court affirmed the order of the Director of the BLR which dismissed the petition for certification election filed by the labor union. The petition for certification election in this case was filed within the freedom period but the petitioner and PASAR hastily concluded a CBA despite the order of the Med-Arbiter enjoining them from doing so until the issue of representation is finally resolved. The parties were in bad faith when they concluded the CBA. A CBA which was prematurely renewed is not a bar to the holding of a certification election. Contract Duration And Renewals Art. 253-A Terms of a collective bargaining agreement. Any CBA that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of 5 years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than 3 years after its execution. Any agreement on such other provisions of the CBA entered into within 6 months from the date of expiry of the term of such other provisions as fixed in such CBA shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the CBA, the parties may exercise their rights under this Code. Manila Electric Co. V. Quisumbing (1999) In this petition for certiorari, the MERALCO seeks to annul the orders of the Secretary of Labor wherein the Secretary required MERALCO and its rank and file union (MEWA) to execute a CBA for the remainder of the parties' 1992-1997 CBA cycle, and to incorporate in this new CBA the Secretary's dispositions on the disputed economic and noneconomic issues. The court reviewed the Secretarys order and made the following list of economic and noneconomic issues. a) ECONOMIC ISSUES: 1) CHRISTMAS BONUS 2) RICE SUBSIDY and RETIREMENT BENEFITS for RETIREES - The question squarely brought in this petition is whether the Secretary can issue an order that binds the retirement fund. The company alleges that a separate and independent trust fund is the source of retirement benefits for MERALCO retirees, while the union maintains that MERALCO controls these funds and may therefore be compelled to improve this benefit in an arbitral award. - The issue requires a finding of fact on the legal personality of the retirement fund. In the absence of any evidence on record indicating the nature of the retirement fund's legal personality, we rule that the issue should be remanded to the Secretary for reception of evidence as whether or not the MERALCO retirement fund is a 4separate and independent trust fund. - The existence of a separate and independent juridical entity which controls an irrevocable retirement trust fund means that these retirement funds are beyond the scope of collective bargaining: they are administered by an entity not a party to the collective bargaining and the funds may not be touched without the trustee's conformity. - On the other hand, MERALCO control over these funds means that MERALCO may be compelled in the compulsory arbitration of a CBA deadlock where it is the employer, to improve retirement benefits since retirement is a term or condition of employment that is a mandatory subject of bargaining. HMP BENEFITS FOR 3) GHSIP, DEPENDENTS and HOUSING EQUITY LOAN Moreover, MERALCO have long been extending these benefits to the employees and their dependents that they now become part of the terms and conditions of employment. In fact, MERALCO even pledged to continue giving these benefits. Hence, these benefits should be incorporated in the new CBA. 4) SIGNING BONUS In contractual terms, a signing bonus is justified by and is the consideration paid for the goodwill that existed in the negotiations that culminated in the signing of a CBA. Without the goodwill, the payment of a signing bonus cannot be justified and any order for such payment, to our mind, constitutes grave abuse of discretion. 5) SICK LEAVE RESERVE OF 15 DAYS

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6) b) 1) 2) 3) 40-DAY UNION LEAVE anybody else the discretion to fix the effectivity of the agreement. Significantly, the law does not specifically cover the situation where 6 months have elapsed but no agreement has been reached with respect to effectivity. In this eventuality, we hold that any provision of law should then apply for the law abhors a vacuum. One such provision is the principle of hold over, i.e., that in the absence of a new CBA, the parties must maintain the status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new agreement is reached. In this manner, the law prevents the existence of a gap in the relationship between the collective bargaining parties. Another legal principle that should apply is that in the absence of an agreement between the parties, then, an arbitrated CBA takes on the nature of any judicial or quasi-judicial award; it operates and may be executed only respectively unless there are legal justifications for its retroactive application.
NON-ECONOMIC ISSUES SCOPE OF THE BARGAINING UNIT ISSUE OF UNION SECURITY THE CONTRACTING OUT ISSUE This issue is limited to the validity of the requirement that the union be consulted before the implementation of any contracting out that would last for 6 months or more. Court declared that such consultation requirement will go against principle of mgt prerogative. 4) UNION REPRESENTATION IN COMMITTEES is worthwhile to note that all the Union demands and what the Secretary's order granted is that the Union be allowed to participate in policy formulation and decision-making process on matters affecting the Union members' rights, duties and welfare as required in Article 211 (A) (g) of the Labor Code. And this can only be done when the Union is allowed to have representatives in the Safety Committee, Uniform Committee and other committees of a similar nature. Certainly, such participation by the Union in the said committees is not in the nature of a co-management control of the business of MERALCO. What is granted by the Secretary is participation and representation. Thus, there is no impairment of management prerogatives. 5) INCLUSION OF ALL TERMS AND CONDITIONS IN THE CBA 6) RETROACTIVITY OF THE CBA Art. 253-A serves as the guide in determining when the effectivity of the CBA at bar is to take effect. It provides that the representation aspect of the CBA is to be for a term of 5 years, while . . . [A]ll other provisions of the Collective Bargaining Agreement shall be re-negotiated not later than 3 years after its execution. Any agreement on such other provision of the Collective Bargaining Agreement entered into within 6 months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement shall retroact to the day immediately following such date. If such agreement is entered into beyond 6 months, the parties shall agree on the duration of the effectivity thereof. . . . . Under these terms, it is clear that the 5year term requirement is specific to the representation aspect. What the law additionally requires is that a CBA must be re-negotiated within 3 years "after its execution." It is in this re-negotiation that gives rise to the present CBA deadlock. If no agreement is reached within 6 months from the expiry date of the 3 years that follow the CBA execution, the law expressly gives the parties not
Manila Central Line Corp. v. Manila Central Line Free Workers Union (1998) Facts: This case arose out of a collective bargaining deadlock between petitioner and private respondent union. The parties CBA had expired on March 15, 1989. As the parties failed to reach new agreement, private respondent sought the aid of the NCMB on October 30, 1989, but the deadlock remained unresolved. On February 9, 1990, private respondent filed a Petition for Compulsory Arbitration in the Arbitration Branch for the National Capital Region of the National Labor Relations Commission. A. On September 28, 1990, the labor arbiter rendered a decision embodying provisions for a new CBA. Petitioner also contends that in ordering a new CBA to be effective on March 15, 1989, the expiry date of the old CBA, the labor arbiter acted contrary to Art. 253-A of the Labor Code. Held: Art. 253-A refers to CBAs entered into by the parties as a result of their mutual agreement. The CBA in this case, on the other hand, is part of an arbitral award. As such, it may be made retroactive to the date of expiration of the previous agreement. Therefore, in the absence of a specific provision of law prohibiting retroactivity of the effectivity of arbitral awards issued by the Secretary of Labor pursuant to Article 263(g) of the Labor Code, such as herein involved, public respondent is deemed vested with plenary and discretionary powers to determine the effectivity thereof. Indeed, petitioner has not shown that the question of effectivity was not included in the general agreement of the parties to submit their dispute for arbitration. To the contrary, as to the order of the labor arbiter states, this question was among those submitted for arbitration by the parties: Rivera v. Espiritu (2002) Petitioners further allege that the 10-year suspension of the CBA under the PAL-PALEA

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agreement virtually installed PALEA as a company union for said period, amounting to unfair labor practice, in violation of Article 253-A of the Labor Code mandating that an exclusive bargaining agent serves for five years only. The questioned proviso of the agreement reads:
a. PAL shall continue recognizing PALEA as the duly certified-bargaining agent of the regular rank-and-file ground employees of the Company;
Said proviso cannot be construed alone. In construing an instrument with several provisions, a construction must be adopted as will give effect to all. The aforesaid provision must be read within the context of the next clause, which provides:
b. The union shop/maintenance of membership provision under the PAL-PALEA CBA shall be respected.
The aforesaid provisions, taken together, clearly show the intent of the parties to maintain union security during the period of the suspension of the CBA. Its objective is to assure the continued existence of PALEA during the said period. We are unable to declare the objective of union security an unfair labor practice. It is State policy to promote unionism to enable workers to negotiate with management on an even playing field and with more persuasiveness than if they were to individually and separately bargain with the employer. For this reason, the law has allowed stipulations for union shop and closed shop as means of encouraging workers to join and support the union of their choice in the protection of their rights and interests vis--vis the employer. Petitioners contention that the agreement installs PALEA as a virtual company union is also untenable. Under Article 248 (d) of the Labor Code, a company union exists when the employer acts [t]o initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters. The case records are bare of any showing of such acts by PAL. We also do not agree that the agreement violates the five-year representation limit mandated by Article 253-A. Under said article, the representation limit for the exclusive bargaining agent applies only when there is an extant CBA in full force and effect. In the instant case, the parties agreed to suspend the CBA and put in abeyance the limit on the representation period. San Miguel Corp Employees Union v. Confesor (1996) Article 253-A is a new provision. This was incorporated by Section 21 of Republic Act No. 6715 (the Herrera-Veloso Law) which took effect on March 21, 1989. This new provision states that the CBA has a term of five (5) years instead of three years, before the amendment of the law as far as the representation aspect is concerned. All other provisions of the CBA shall be negotiated not later than three (3) years after its execution. The "representation aspect": refers to the identity and majority status of the union that negotiated the CBA as the exclusive bargaining representative of the appropriate bargaining unit concerned. "All other provisions"
simply refers to the rest of the CBA, economic as well as non-economic provisions, except representation. Obviously, the framers of the law wanted to maintain INDUSTRIAL PEACE and stability by having both management and labor work harmoniously together without any disturbance. Thus, no outside union can enter the establishment within five (5) years and challenge the status of the incumbent union as the exclusive bargaining agent. Likewise, the terms and conditions of employment (economic and non-economic) can not be questioned by the employers or employees during the period of effectivity of the CBA. The CBA is a contract between the parties and the parties must respect the terms and conditions of the agreement. Notably, the framers of the law did not give a fixed term as to the effectivity of the terms and conditions of employment. It can be gleaned from their discussions that it was left to the parties to fix the period. In the instant case, it is not difficult to determine the period of effectivity for the nonrepresentation provisions of the CBA. Taking it from the history of their CBAs, SMC intended to have the terms of the CBA effective for three (3) years reckoned from the expiration of the old or previous CBA which was on June 30, 1989. CBA and 3rd Party Applicability Rule Sundowner Devt. Corp. v Drilon (1989) HELD: Labor contracts such as employment contracts and CBAs are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. A labor contract merely creates and action in personam and does not create any real right which should be respected by third parties. This conclusion draws its force from the rights of an employer to select his employees and to decide when to engage them. The same can only be restricted by law through the exercise of police power. There is no law requiring a bona fide purchaser of assets of an on-going concern to absorb in its employ the employees of the latter. However, although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the employers of the seller of such assets or enterprise, the parties are liable to the employees if the transaction between the parties is colored or clothed with bad faith. In the CAB, it is undisputed that when Mabuhay surrendered the leased premises to Syjuco and asked Syjuco to offer same to other lessees it was Syjuco who found Sundowner and persuaded to lease said premises. Mabuhay had nothing to do with the negotiations and consummation of the lease contract bet Sundowner and Syjuco. Manlimos v. NLRC (1995) A change of ownership in a business concern is not proscribed by law. In Central Azaucarera del Danao vs. Court of Appeals, this court stated:
There can be no controversy for it is a principle well-recognized, that it is within the employer's legitimate sphere of management control of the business to adopt economic policies or make

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some changes or adjustments in their organization or operations that would insure profit to itself or protect the investment of its stockholders. As in the exercise of such management prerogative, the employer may merge or consolidate its business with another, or sell or dispose all or substantially all of its assets and properties which may bring about the dismissal or termination of its employees in the process. Such dismissal or termination should not however be interpreted in such a manner as to permit the employer to escape payment of termination pay. For such a situation is not envisioned in the law. It strikes at the very concept of social justice.
In a number of cases on this point, the rule has been laid down that the sale or disposition must be motivated by good faith as an element of exemption from liability. Indeed, an innocent transferee of a business establishment has no liability to the employees of the transferor to continue employing them. Nor is the transferee liable for past unfair labor practices of the previous owner, except, when the liability therefor is assumed by the new employer under the contract of sale, or when liability arises because of the new owner's participation in thwarting or defeating the rights of the employees. Where such transfer of ownership is in good faith, the transferee is under no legal duty to absorb the transferor's employees as there is no law compelling such absorption. The most that the transferee may do, for reasons of public policy and social justice, is to give preference to the qualified separated employees in the filling of vacancies in the facilities of the purchaser. Disaffiliation: Doctrine of Substitution Benguet Consolidated, Inc. v BCI Employees and Workers UnionPAFLU (1968) It is unquestionable that the seeking of the union's help by one of its members in connection with the latter's correct wages constitutes proper union activity. Consequently, the refusal of the employer to implement the proper salary scale to respondent Andrada because he sought the help of his union in pursuing what he believed was his right to a salary adjustment, is unfair labor practice. Where there occurs a shift in employees union allegiance after the execution of a collective bargaining contract with their employer, the employees can change their agent the labor union, but the CBA continues to exist. Elisco-Elirol Labor Union v. Noriel (1977) HELD: Union-NAFLU, consisting of employees and members of the local union was the principal party to the agreement. NAFLU as the mother union" in participating in the execution of the bargaining agreement acted merely as agent of the local union freely to serve the common interest of all its members, including the freedom to disaffiliate when the circumstances so warranted. Locals are separate and distinct units primarily designed to secure and maintain an equality of bargaining power between the employer and their employee-members in the economic struggle for the fruits of the joint productive effort of labor and
capital. Association of the locals into the national union was in furtherance of the same end. These associations are consensual entities capable of entering into such legal relations with their members. The essential purpose was the affiliation of the local unions into a common enterprise to increase by collective action the common bargaining power in respect of the terms and conditions of labor. Yet the locals remained the basic units of association. Union to whom the employees owe their allegiance has from the beginning expressly avowed that it "does not intend to change and/or amend the provisions of the present collective bargaining agreement but only to be given the chance to enforce the same since there is a shift of allegiance in the majority of the employees at respondent company. During the effectivity of a collective bargaining agreement executed between employer and employees thru their agent, the employees can change said agent but the contract continues to bind them up to its expiration date. Effect f Expiry New Pacific Timber and Supply Co. Inc v. NLRC (2000) WON the terms of an existing CBA particularly as to the economic provisions, can be extended beyond the three year period prescribed by law in the absence of a new agreement? Until a new CBA has been executed by and between the parties, they are duty bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreements. The law does not provide for an exception nor qualification as to which of the economic provisions of the existing agreements are to retain force and effect, therefore it encompasses all provisions. The New CBA is given PROSPECTIVE effect generally since 253 and 253-A provides for an automatic renewal clause in existing CBAs. PURPOSE: To avoid creating a gap during which no agreement would govern. Better for industrial peace if effectivity of the CBA is longer.

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Part VIII : Unfair Labor Practice Labor Relations
Part VIII : UNFAIR LABOR PRACTICE

8.01 INTRODUCTORY CONCEPTS
1. DEFINITION AND GENERAL CONCEPT Art. 212 (k) Unfair labor practice" means any unfair labor practice as expressly defined by the Code. Art. 247 Concept of unfair labor practice and procedure for prosecution thereof. Unfair labor practices violate the constitutional right of workers and employees to selforganization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labormanagement relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management o but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, o the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. o The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. o During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: o Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. Sterling Products Inc. v. Sol (1963)
The next point at issue is whether or not the petitioners herein are guilty of unfair labor practice. Petitioners claim that as respondent Sol was merely an employee and was not connected with any labor union, the company cannot be considered as having committed acts constituting unfair labor practice as defined in the Industrial Peace Act, Rep. Act 875. We find this contention to be well-founded. The term unfair labor practice has been defined as any of those acts listed in Sec. 4 of the Act. The respondent Sol has never been found to commit any of the acts mentioned in paragraph (a) of Sec. 4. Respondent Sol was not connected with any labor organization, nor has she ever attempted to join a labor organization, or to assist, or contribute to a labor organization. The company, cannot therefore, be considered as having committed an unfair labor practice.
DISINI: Purpose of the rules on unfair labor practice: protection of right to selforganization and/or collective bargaining The employee is not only protected from the employer but also from labor organization Employer is also protected from ULP committed by a labor organization The public is also protected because it has an interest in continuing industrial peace. Note the difference between the wordings of Art. 248(a) and Art. 249(a). Art. 248 (a) interfere, restraint, coerce Art. 249(a) restraint, coerce interfere not included in Art. 249 because any act of a labor organization amounts to interference to a right to selforganization Art. 248(a) and Art. 249(a) are the general grant of protection. all other cases of ULP enumerated under the said provisions are derivatives of Art. 248(a) and Art. 249(a)
2. CONSTRUCTION HSBC Employee Union V. NLRC (1997) Necessarily, a determination of the validity of the Batik's unilateral Implementation of the JE Program or the Union's act of engaging in concerted activities involves all appraisal of their motives. In cases of this nature, motivations are seldom expressly avowed, and avowals are not always candid. There must thus he a measure of reliance in the administrative agency. It was incumbent upon the labor arbiter, in the first instance, to weigh such expressed motives in determining the effect of an otherwise equivocal act. The Labor Code does not undertake the impossible task of specifying in precise and unmistakable language each incident which constitute, an unfair labor practice. Rather, it leaves to the court the work of applying the law's general prohibitory language in light of infinite combinations of events which may be charged as violative of its terms.

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3. LAW NOMENCLATURE AND RELATIONS OF ACTS OF ULP INTERThe aforecited ILO Conventions are incorporated in our Labor Code, particularly in Article 243 thereof, which provides:
ART. 243. COVERAGE AND EMPLOYEES RIGHT TO SELF-ORGANIZATION. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection.
Art. 212 (k) Unfair labor practice" means any unfair labor practice as expressly defined by the Code. Art. 248 Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: a. To interfere with, restrain or coerce employees in the exercise of their right to selforganization; Art. 249 Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its officers, agents or representatives: a. To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;
and Articles 248 and 249 respecting ULP of employers and labor organizations.
Article 248(a) of the Labor Code, considers it an unfair labor practice when an employer interferes, restrains or coerces employees in the exercise of their right to self-organization or the right to form association. The right to self-organization necessarily includes the right to collective bargaining.
Standard Chartered Bank, etc. v. Confessor (2004) "Interference" under Article 248 (a) of the Labor Code The petitioner asserts that the private respondent committed ULP, i.e., interference in the selection of the Unions negotiating panel, when Diokno, the Banks HR Manager, suggested to the Union President that Umali, Jr., President of the NUBE, be excluded from the Unions negotiating panel. The Union claims that interference in the choice of the Unions bargaining panel is tantamount to ULP. Under the International Labor Organization Convention (ILO) No. 87 FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANIZE to which the Philippines is a signatory, "workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to job organizations of their own choosing without previous authorization." Workers and employers organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom to organize their administration and activities and to formulate their programs.43 Article 2 of ILO Convention No. 98 pertaining to the Right to Organize and Collective Bargaining, provides:
Article 2 (1) Workers and employers organizations shall enjoy adequate protection against any acts or interference by each other or each others agents or members in their establishment, functioning or administration. (2) In particular, acts which are designed to promote the establishment of workers organizations under the domination of employers or employers organizations or to support workers organizations by financial or other means, with the object of placing such organizations under the control of employers or employers organizations within the meaning of this Article.
Parenthetically, if an employer interferes in the selection of its negotiators or coerces the Union to exclude from its panel of negotiators a representative of the Union, and if it can be inferred that the employer adopted the said act to yield adverse effects on the free exercise to right to self-organization or on the right to collective bargaining of the employees, ULP under Article 248(a) in connection with Article 243 of the Labor Code is committed. In order to show that the employer committed ULP under the Labor Code, substantial evidence is required to support the claim. In the case at bar, the Union bases its claim of interference on the alleged suggestions of Diokno to exclude Umali from the Unions negotiating panel. The circumstances that occurred during the negotiation do not show that the suggestion made by Diokno to Divinagracia is an anti-union conduct from which it can be inferred that the Bank consciously adopted such act to yield adverse effects on the free exercise of the right to selforganization and collective bargaining of the employees, especially considering that such was undertaken previous to the commencement of the negotiation and simultaneously with Divinagracias suggestion that the bank lawyers be excluded from its negotiating panel. The records show that after the initiation of the collective bargaining process, with the inclusion of Umali in the Unions negotiating panel, the negotiations pushed through. The complaint was made only on August 16, 1993 after a deadlock was declared by the Union. It is clear that such ULP charge was merely an afterthought. The accusation occurred after the arguments and differences over the economic provisions became heated and the parties had become frustrated. It happened after the parties started to involve personalities.
8.02 UNFAIR LABOR PRACTICE: EMPLOYER AND LABOR ORGANIZATION ACTS VIOLATING RIGHT OF SELFORGANZATION
ULP AND MANAGEMENT FUNCTIONS

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Royal InterOcean Lines v. CIR (1960) "The statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer. "The protection of workers' right to selforganization in no way interfere with employer's freedom to enforce such rules and orders as are necessary to proper conduct of his business, so long as employer's supervision is not for the purpose of intimidating or coercing his employees with respect to their self-organization and representation. "It is the function of the court to see that the rights of self- organization and collective bargaining guaranteed by the Act are amply secured to the employee, but in its effort to prevent the prescribed unfair labor practices, the court must be mindful of the welfare of the honest employer. Despite the employees' right to selforganization, the employer therefore still retains his inherent right to discipline his employees, his normal prerogative to hire or dismiss them. The prohibition is directed only against the use of the right to employ or discharge as an instrument of discrimination, interference or oppression because of one's labor or union activities. Great Pacific Life Employees Union v. Great Pacific Life Assurance Corp. (1999) While an act or decision of an employer may be unfair, certainly not every unfair act or decision constitutes unfair labor practice (ULP) as defined and enumerated under Art. 248 of the Labor Code.18 There should be no dispute that all the prohibited acts constituting unfair labor practice in essence relate to the workers' right to selforganization. Thus, an employer may be held liable under this provision if his conduct affects in whatever manner the right of an employee to selforganize. The decision of respondent GREPALIFE to consider the top officers of petitioner UNION as unfit for reinstatement is not essentially discriminatory and constitutive of an unlawful labor practice of employers under the above-cited provision. Discriminating in the context of the Code involves either encouraging membership in any labor organization or is made on account of the employee's having given or being about to give testimony under the Labor Code. These have not been proved in the case at bar. 1. INTERFERENCE, COERCION RESTRAINT AND management cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and the quality of working life. In establishments where no legitimate labor organization exists, labor-management committees may be formed voluntarily by workers and employers for the purpose of promoting industrial peace. The Department of Labor and Employment shall endeavor to enlighten and educate the workers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code. c.f. Art. 249 Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its officers, agents or representatives: a. To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; 2. NON-UNION MEMBERSHIP WITHDRAWAL FROM MEMBERSHIP CONDITION EMPLOYMENT OR AS
Art. 248 Unfair labor practices of employers. (b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; 3. CONTRACTING UNIONISM OUT TO DISCOURAGE
Art. 248 Unfair labor practices of employers. (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; 4. COMPANY DOMINATION UNION Art. 248 Unfair labor practices of employers. (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters; 5. DISCRIMINATION ENCOURAGE/DISCOURAGE UNIONISM Art. 248 Unfair labor practices of employers. (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective
Art. 248 Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: a. To interfere with, restrain or coerce employees in the exercise of their right to selforganization; Art. 277 g. The Ministry shall help promote and gradually develop, with the agreement of labor organizations and employers, labor-

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bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; cases that may be resorted to where been found guilty of unfair labor practice under similar circumstances and was given the corresponding sanction. One of such cases, which in our opinion is on all fours with the present, is NLRB vs. HarrisWoodson Co. where the following was held:
As to the Board's finding of interference, there is abundant evidence of the questioning of employees as to membership in the union and of anti-union expressions by the company's superintendent made in such away as to discourage union membership. The rule with respect thereto is well settled and was stated by us recently in the case of NLRB vs. Norfolf-Southern Bus Corpn. 159 Fed 2d 518, where we said: "Questioning of employees concerning union membership and activities and disparaging remarks by supervisory employees made in such away as to hamper the exercise of free choice on the part of the employees, have been uniformly condemned as a violation of the Act. As to the discharge of the president of the union, it appears that she was discharged in the Spring of 1945 at the time when question of union representation was becoming acute. The Company contends that the ground of the discharge was insubordinate language and conduct, and evidence of a controversy between the employer and the superintendent was not the true reason for the discharge, but only a pretext. It was shown that Mrs. Edler was a competent and efficient employee with a long record of faithful service, and by the controversies and even quarrels between the employees and the superintendent had not therefore led to discharge. According to Mrs. Edler's testimony, which was accepted by the Board, the controversy was a very minor character and furnished to sufficient justification for the peremptory discharge of an efficient employee with a long record of service. Under such circumstances, the Board may very well have concluded that the true reason for the discharge was other than the union and her activity in its behalf.
Art. 249 Unfair labor practices of labor organizations. (b) To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members; 6. RETALIATION EMPLOYER TESTIMONY AGAINST
Art. 248 Unfair labor practices of employers. (f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; 7. EXACTION- FEATHERBEDDING Art. 249 Unfair labor practices of labor organizations. (b) To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members; NATURE OF ACT Interrogation Scotys Department Store v. Micaller (1956) We are afraid that we cannot now look into points 1 and 2 for they involve questions of fact. The industrial court has made a careful analysis of the evidence and has found the petitioners have really subjected complaint and her co-employees to a series of questioning regarding their membership in the union or their union activities which in contemplation of law are deemed acts constituting unfair labor practice Our law on this point is of recent enactment and so we may find difficulty in determining what acts or circumstances may institute unfair labor practice within its purview for lack of appropriate precedents. However, there are many American
This is all the more reasonable in view of the manifest anti-union bias of the company's officers and superintendent and for the controversy with regard to the recognition of the union which had just been revived Phil. Steam Navigation Co. v. Phil. Marine Officers Guild (1965) The acts found by respondent court constituting the foregoing ULP are (1) the interrogation and investigation by PHILSTEAM's supervisory officials of its captains, deck officers and engineers, to determine whether they had authorized PMOG to act as their bargaining agent; (2) the subjection of PMOG to vilification; and (3) the participation of PHILSTEAM's pier superintendent in soliciting membership for a competing union. PHILSTEAM admits that it initiated and carried out an investigation of its officers as to their membership in PMOG and whether they had given PMOG authority to represent them in collective bargaining. o Reason for this according to PHILSTEAM, was merely to ascertain for itself the existence of a duty to bargain collectively with PMOG, a step allegedly justified by PMOG's refusal to furnish proof of majority representation. The asserted reason for the investigation cannot be sustained. The record discloses that such investigation was started even before it received PMOG's reply stating a refusal to submit proof of majority representation.

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An employer is not denied the privilege of interrogating its employees as to their union affiliation, provided the same is for a legitimate purpose and assurance is given by the employer that no reprisals would be taken against unionists. Nonetheless, any employer who engages in interrogation does so with notice that he risks a finding of unfair labor practice if the circumstances are such that his interrogation restrains or interferes with employees in the exercise of their rights to self-organization. (Blue Flash Express Co., Inc., 109 NLRB 591.) BLUE FLASH DOCTRINE The respondent court had found that PHILSTEAM's interrogation of its employees had in fact interfered with, restrained and coerced the employees in the exercise of their rights to selforganization Such finding being upon questions of fact, the same cannot be reversed herein, because it is fully supported by substantial evidence. The rule in this jurisdiction is that subjection by the company of its employees to a series of questioning regarding their membership in the union or their union activities, in such a way as to hamper the exercise of free choice on their part, constitutes unfair labor practice (Scoty's Department Store vs. Micaller). PHILSTEAM's afore-stated interrogation squarely falls under this rule. Polling Speech Insular Life Assurance Co. Employees Assn. v. Insular Life Assurance Co. Ltd (1971) The respondents contend that the sending of the letters, exhibits A and B, constituted a legitimate exercise of their freedom of speech. We do not agree. The said letters were directed to the striking employees individually - by registered special delivery mail at that - without being coursed through the Unions which were representing the employees in the collective bargaining. "The act of an employer in notifying absent employees individually during a strike following unproductive efforts at collective bargaining that the plant would be operated the next day and that their jobs were open for them should they want to come in has been held to be an unfair labor practice, as an active interference with the right of collective bargaining through dealing with the employees individually instead of through their collective bargaining representatives." (31 Am. Jur. 563, citing NLRB v. Montgomery Ward & Co. [CA 9th] 133 F2d 676, 146 ALR 1045) Indeed, it is an unfair labor practice for an employer operating under a collective bargaining agreement to negotiate or to attempt to negotiate with his employees individually in connection with changes in the agreement. And the basis of the prohibition regarding individual bargaining with the strikers is that although the union is on strike, the employer is still under obligation to bargain with the union as the employees' bargaining representative Indeed, some such similar actions are illegal as constituting unwarranted acts of interference. Thus, the act of a company president in writing letters to the strikers, urging their return to work on terms inconsistent with their union membership, was adjudged as constituting interference with the exercise of his employees' right to collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621). Moreover, since exhibit A is a letter containing promises of benefits to the employees in order to entice them to return to work, it is not protected by the free speech provisions of the Constitution (NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70). The letters, exhibits A and B, should not be considered by themselves alone but should be read in the light of the preceding and subsequent circumstances surrounding them. The letters should be interpreted according to the "totality of conduct doctrine," o whereby the culpability of an employer's remarks were to be evaluated not only on the basis of their implicit implications, but were to be appraised against the background of and in conjunction with collateral circumstances. o Under this 'doctrine' expressions of opinion by an employer which, though innocent in themselves, frequently were held to be culpable because of the circumstances under which they were uttered, the history of the particular employer's labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference." (Rothenberg on Relations, p. 374, and cases cited therein.) Espionage Insular Life Assurance Co. Employees Assn. v. Insular Life Assurance Co. Ltd (1971) The lower Court justified the constructive dismissal of Ibarra allegedly because he committed acts inimical to the interest of the respondents when, as president of the union, he advised the strikers that they could use force and violence to have a successful picket and that picketing was precisely intended to prevent the non-strikers and company clients and customers from entering the Companies' buildings. Even if this were true, the record discloses that the picket line had been generally peaceful, and that incidents happened only when management men made incursions into and tried to break the picket line. At any rate, with or without the advice of Ibarra, picketing is inherently explosive. The picket line being the natural result of the respondents' ULP, Ibarra's misconduct is at most a misdemeanor which is not a bar to reinstatement. Besides, the only evidence presented by the Companies regarding Ibarra's participation in the strike was the testimony of one Rodolfo Encarnacion, a former member of the board of directors of the petitioner union, who became a "turncoat" and who likewise testified as to the union activities of Atty. Lacsina, Ricardo Villaruel and others - another matter which emphasizes the respondents' unfair labor practice. o For under the circumstances, there is good ground to believe that Encarnacion was made to spy on the activities of the union members. This

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act of the respondents is considered unjustifiable interference in the union activities of the petitioners and is unfair labor practice. "It has been held in a great number of decisions that espionage by an employer of union activities, or surveillance thereof, are such instances of interference, restraint or coercion of employees in connection with their right to organize, form and join unions as to constitute unfair labor practice . . . o 'Nothing is more calculated to interfere with, restrain and coerce employees in the exercise of their right to selforganization than such activity even where no discharges result. The information obtained by means of espionage is invaluable to the employer and can be used in a variety of cases to break a union.' o The unfair labor practice is committed whether the espionage is carried on by a professional labor spy or detective, by officials or supervisory employees of the employer, or by fellow employees acting at the request or direction of the employer, or an ex-employee . . ." Economic Coercion And Inducement Insular Life Assurance Co. Employees Assn. v. Insular Life Assurance Co. Ltd (1971) Indeed, when the respondents offered reinstatement and attempted to "bribe" the strikers with "comfortable cots," "free coffee and occasional movies," "overtime" pay for "work performed in excess of eight hours," and "arrangements" for their families, so they would abandon the strike and return to work, they were guilty of strike-breaking and/or union-busting and, consequently, of unfair labor practice. It is equivalent to an attempt to break a strike for an employer to offer reinstatement to striking employees individually, when they are represented by a union, since the employees thus offered reinstatement are unable to determine what the consequences of returning to work would be. Likewise violative of the right to organize, form and join labor organizations are the following acts: o the offer of a Christmas bonus to all "loyal" employees of a company shortly after the making of a request by the union to bargain; wage increases given for the purpose of mollifying employees after the employer has refused to bargain with the union, or for the purpose of inducing striking employees to return to work; the employer's promises of benefits in return for the strikers' abandonment of their strike in support of their union; and the employer's statement, made about 6 weeks after the strike started, to a group of strikers in a restaurant to the effect that if the strikers returned to work, they would receive new benefits in the form of hospitalization, accident insurance, profitsharing, and a new building to work in. "The test of whether an employer has interfered with and coerced employees within the meaning of subsection (a) (1) is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of employees' rights under section 3 of the Act, and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining." Union Solicitation And Distribution Of Literature And Materials Lechmere, Inc. v. NLRB L. Ed. 2d 79 (1992) Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. (a) By its plain terms, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property. (b) At least as applied to nonemployee union organizers, Jean Country is inconsistent with this Court's past interpretation of 7. Babcock's teaching is straightforward: 7 simply does not protect nonemployee union organizers except in the rare case where "the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels." It is only when reasonable access to employees is infeasible that it becomes appropriate to balance 7 and private property rights. (c) The facts in this case do not justify application of Babcock's inaccessibility exception. Because Lechmere's employees do not reside on its property, they are presumptively not "beyond the reach" of the union's message. Nor does the fact that they live in a large metropolitan area render them "inaccessible." Because the union failed to establish the existence of any "unique obstacles" that frustrated access to Lechmere's employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property. Republic Aviation Corp. v. NLRB 324 US 793 (1945) The employer, military aircraft manufacturer, adopted, well before any union activity at the plant, a general rule against soliciting which read as follows: 'Soliciting of any type cannot be permitted in the factory or offices.' An employee persisted after being warned of the rule in soliciting union membership in the plant by passing out application cards to employees on his own time during lunch periods. The employee was discharged. 3 other employees were discharged for wearing union steward buttons in the plant after being requested to remove the insignia. The union was at that time active in seeking to organize the plant. Held: the Supreme Court held that it was permissible for the Board to strike the balance in

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favor of employees challenging an employer's nosolicitation policy. The Court affirmed the Board's conclusion that employees have a presumptive right to wear union insignia, a right that cannot be abridged unless the employer is able to establish that a special circumstance exists, which justifies banning such insignia. NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). The Babcock & Wilcox Co. operated a manufacturing plant on a 100-acre tract about one mile from a community of 21,000 people. The plant buildings were enclosed within a fence, employee access being through several gates. Approximately 90% of the employees drove to work in private cars, and the company maintained a parking lot for the employees. Only employees and deliverymen normally used the parking lot. The company had a rule forbidding the distribution of literature on company property. The Board found that the company's parking lot and the walkway leading from it to the plant entrance were the only "safe and practicable" places in the vicinity of the plant for distribution of union literature, and held the company guilty of an unfair labor practice for enforcing the nodistribution rule and thereby denying union organizers limited access to company property. The Board ordered the company to rescind its nodistribution rule insofar as it related to nonemployee union representatives seeking to distribute union literature on the parking lot and walk-way area. The CA refused enforcement of the Board's order on the ground that the Act did not authorize the Board to impose a servitude on an employer's property where no employee was involved. SC affirmed on the ground that the availability of alternative channels of communication made the intrusion on the employer's property rights ordered by the Board unwarranted. Guiding principle for adjusting conflicts between Sec. 7 rights and property rights: "Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize." Discrimination Wise and Co. Inc. v. Wise and Co. inc. Employees Union, NATU (1989) The center of controversy in this petition is whether the grant by management of profit sharing benefits to its non-union member employees is discriminatory against its workers who are union members? a. Respondent union can not claim that there is grave abuse of discretion by the petitioner in extending the benefits of profit sharing to the non-union employees as they are two (2) groups not similarly situated. These nonunion employees are not covered by the CBA. They do not derive and enjoy the benefits under the CBA. b. The Court holds that it is the prerogative of management to regulate, according to its discretion and judgment, all aspects of employment. This flows from the established rule that labor law does not authorize the substitution of the judgment of the employer in the conduct of its business. c. The grant by petitioner of profit sharing benefits to the employees outside the "bargaining unit" falls under the ambit of its managerial prerogative. It appears to have been done hi good faith and without ulterior motive. More so when as in this case there is a clause in the CBA where the employees are classified into those who are members of the union and those who are not. In the case of the union members, they derive their benefits from the terms and conditions of the CBA contract which constitute the law between the contracting parties. Both the employer and the union members are bound by such agreement. d. However, the court serves notice that it will not hesitate to strike down any act of the employer that tends to be discriminatory against union members. It is only because of the peculiar circumstances of this case showing there is no such intention that this court ruled otherwise. Run-Away Shop Complex Electronics Employees Association v. NLRC (1999) The Union anchors its position on the fact that Lawrence Qua is both the president of Complex and Ionics and that both companies have the same set of Board of Directors. It claims that business has not ceased at Complex but was merely transferred to Ionics, a runaway shop. Held: The Union's contentions are untenable. A runaway shop is defined as one wherein the employer moves its business to another location or it temporarily closes its business for anti-union purposes. A runaway shop in this sense, is a relocation motivated by anti-union animus rather than for business reasons. In this case, however, Ionics was not set up merely for the purpose of transferring the business of Complex. At the time the labor dispute arose at Complex, Ionics was already existing as an independent company. The mere fact that one or more corporations are owned or controlled by the same or single stockholder is not a sufficient ground for disregarding separate corporate personalities. Ionics may be engaged in the same business as that of Complex, but this fact alone is not enough reason to pierce the veil of corporate fiction of the corporation.

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Well-settled is the rule that a corporation has a personality separate and distinct from that of its officers and stockholders. This fiction of corporate entity can only be disregarded in certain cases such as when it is used to defeat public convenience, justify wrong, protect fraud, or defend crime. As very clearly established, the closure was triggered by the customers' pull-out of their equipment, machinery and materials, who were alarmed by the pending labor dispute and the imminent strike by the union, and as a protection to their interest pulled-out of business from Complex who had no recourse but to cease operation to prevent further losses. The indiscretion committed by the Union in filing the notice of strike, which to our mind is not the proper remedy to question the amount of benefits due the complainants who will be retrenched at the closure of the Lite-On Line, gave a wrong signal to customers of Complex, which consequently resulted in the loss of employment of not only a few but to all the of the workers. It may be worth saying that the right to strike should only be a remedy of last resort and must not be used as a show of force against the employer. d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator.
e.
Art. 251 Duty to bargain collectively in the absence of collective bargaining agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. Art. 252 Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation o to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect o to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. Art. 253 Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, o the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. o However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. o It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. General Milling Corp. v. Court of Appeals (2004) GMCs failure to make a timely reply to the proposals presented by the union is indicative of its utter lack of interest in bargaining with the union. Its excuse that it felt the union no longer represented the workers, was mainly dilatory as it turned out to be utterly baseless. We hold that GMCs refusal to make a counterproposal to the unions proposal for CBA negotiation is an indication of its bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively.
8.03 UNFAIR LABOR PRACTICE; EMPLOYER AND LABOR ORGANIZATION ACTS VIOLATIVE OF RIGHT TO COLLECTIVE BARGAINING
1. VIOLATE DUTY TO BARGAIN Art. 248 Unfair labor practices of employers. (g) To violate the duty to bargain collectively as prescribed by this Code; Art. 249 Unfair labor practices of labor organizations (c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; Art. 250 Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: a. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;

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Failing to comply with the mandatory obligation to submit a reply to the unions proposals, GMC violated its duty to bargain collectively, making it liable for unfair labor practice. Perforce, the Court of Appeals did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in finding that GMC is, under the circumstances, guilty of unfair labor practice. 2. NEGOTIATION OR ATTORNEYS FEES Art. 248 Unfair labor practices of employers. (h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or 3. VIOLATE COLLECTIVE AGREEMENT BARGAINING Jurisdiction over such violations was withdrawn from the Labor Arbiters and vested in the voluntary arbitrator, the former (including the Commission itself, its Regional Offices, and the Regional Directors of the Department of Labor and Employment) being in fact enjoined not to "entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrators or panel of Voluntary Arbitrators and *** (instead) immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement." PAL may not be regarded as precluded from impugning the jurisdiction of the Arbiter and the Commission because, at the time that the proceedings were initiated before the former, adjudged by him, and thereafter appealed to and resolved by the latter adversely to PAL, the law amending their jurisdiction (R.A. 6715) had not come into effect. As already observed, it was only after PAL's motion for reconsideration of November 21,1988 had been filed and was awaiting resolution before the NLRC that said law became effective, on March 21, 1989. Under the circumstances, no estoppel of the right to question jurisdiction can be ascribed to PAL.
Art. 248 Unfair labor practices of employers (g) To violate the duty to bargain collectively as prescribed by this Code; Art. 249 Unfair labor practices of labor organizations (f) To violate a collective bargaining agreement Art. 261 Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. x x x. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. x x x Singapore Airlines Employees Association v. NLRC (1984) Despite a finding of petitioner's entitlement to her claim for reimbursement, we are not prepared to pronounce respondent SIA guilty of unfair labor practice. SIA's refusal to grant benefits was not a willful evasion of its obligations under the CBA but was due to an honest mistake in the belief that the same is not covered by the aforementioned CBA provision. An error in interpretation without malice or bad faith does not constitute unfair labor practice. We take judicial notice of the fact that honest differences in construction may arise in the actual application of contractual provisions. PAL V. NLRC (1997) Thus, as of March 21, 1989, violations of collective bargaining agreements were no longer deemed unfair labor practices - except those gross in character - and were considered mere grievances resolvable through the appropriate grievance machinery, or voluntary arbitration provided in the CBA.
8.04 EMPLOYER FUNCTIONS AND ULP

San Miguel Corp. Employees Union v. Bersamira (1990) A "labor dispute" as defined in Article 212 (1) of the Labor Code includes "any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." While it is SanMig's submission that no employer-employee relationship exists between itself, on the one hand, and the contractual workers of Lipercon and D'Rite on the other, o a labor dispute can nevertheless exist "regardless of whether the disputants stand in the proximate relationship of employer and employee" (Article 212 [1], Labor Code, supra) provided the controversy concerns, among others, the terms and conditions of employment or a "change" or "arrangement" thereof (ibid). o Put differently, and as defined by law, the existence of a labor dispute is not negatived by the fact that the plaintiffs and defendants do not stand in the proximate relation of employer and employee. That a labor dispute, as defined by the law, does exist herein is evident. At bottom, what the Union seeks is to regularize the status of the employees contracted by Lipercon and D'Rite and, in effect, that they be absorbed into the working unit of SanMig. This matter definitely dwells on the working relationship between said employees visa-vis SanMig. o Terms, tenure and conditions of their employment and the arrangement of those terms are thus involved bringing

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the matter within the purview of a labor dispute. o Further, the Union also seeks to represent those workers, who have signed up for Union membership, for the purpose of collective bargaining. Obvious then is that representation and association, for the purpose of negotiating the conditions of employment are also involved. In fact, the injunction sought by SanMig was precisely also to prevent such representation. o Again, the matter of representation falls within the scope of a labor dispute. Neither can it be denied that the controversy below is directly connected with the labor dispute already taken cognizance of by the NCMB-DOLE (NCMBNCR-NS-O1-021-89; NCMB NCR NS-01093-83). As the case is indisputably linked with a labor dispute, jurisdiction belongs to the labor tribunals. As explicitly provided for in Article 217 of the Labor Code, prior to its amendment by R.A. No. 6715 on 21 March 1989, since the suit below was instituted on 6 March 1989, o Labor Arbiters have original and exclusive jurisdiction to hear and decide the following cases involving all workers including " 1. unfair labor practice cases; 2. those that workers may file involving wages, hours of work and other terms and conditions of employment; and 3. cases arising from any violation of Article 265 of this Code, including questions involving the legality of striker and lockouts. The claim of SanMig that the action below is for damages under Articles 19, 20 and 21 of the Civil Code would not suffice to keep the case within the jurisdictional boundaries of regular Courts. o That claim for damages is interwoven with a labor dispute existing between the parties and would have to be ventilated before the administrative machinery established for the expeditious settlement of those disputes. o To allow the action filed below to prosper would bring about "split jurisdiction" which is obnoxious to the orderly administration of justice We recognize the proprietary right of SanMig to exercise an inherent management prerogative and its best business judgment to determine whether it should contract out the performance of some of its work to independent contractors, o However, the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law (Section 3, Article XIII, 1987 Constitution) equally call for recognition and protection. Those contending interests must be placed in proper perspective and equilibrium. Republic Savings Bank v. CIR (1967) It is for the Court of Industrial Relations, in the first instance, to make the determination, "to weigh the employer's expressed motive in determining the effect on the employees of management's otherwise equivocal act" (NLRB vs. Stowe Spinning Co., 336 U.S. 226). For the Industrial Peace Act does not undertake the impossible task of specifying in precise and unmistakable language each incident which constitutes an unfair labor practice, rather, it leaves to the court the work of applying the Act's general prohibitory language in the light of infinite combinations of events which may be charged as violative of its terms
8.05 MOTIVE, CONDUCT AND PROOF

1. EMPLOYER MOTIVE AND PROOF Visayan Bicycle Manuf. Co. v. National Labor Union (1965) The findings of the CIR to the foregoing effect are supported by substantial evidence. No reason obtains to alter the conclusion that Besana and Rodiel were in reality dismissed because of their union activities and not because of their violation of a company rule against fight in the premises or during working hours. Furthermore, the so-called violation of company rules having been brought about by the company itself, thru the recent employment of Saturnino Reyes and Silvestre Pacia who provoked the fight as above indicated, the same cannot be regarded as a ground to punish the aforementioned employees. Such being the case, the dismissal of Besana and Rodiel constituted unfair labor practice under Section 4(a) (1) and (4) of Republic Act 875:
Sec. 4. Unfair Labor Practices.(a) It shall be unfair labor practice for an employer: 1) To interfere with, restrain ,or coerce employees in the exercise of their rights guaranteed in section three;" 4) To discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: . . ."
Rothenberg has this to say:

". . . it can be established that the true and basic inspiration for the employer's act is derived from the employee's union affiliations or activities, the assignment by the employer of another reason, whatever its semblance or validity, is unavailing.
Thus, it has been held that the facts disclosed that the employer's acts in discharging employees were actually prompted by the employer's improper interest in the affected employee's union affiliations and activities, even though the employer urged that his acts were predicated on economic necessity, desire to give employment to more needy persons, lack of work, cessation of operations, refusal to work overtime, refusal of non-union employees to work with union employees, seasonal lay-off, libelous remarks against management, violation of company rules." Since the only reason or basis for Besana and Rodiel's dismissal was in fact their actuation as officers of VIBEMWU, the dismissal is clearly discriminatory.

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It is this inconsiderate act of power that makes a subordinate a rebel, it is this malicious tactic that forces labor to dislike management; this unjustifiable conduct that creates a gap between management and labor; and this attitude that makes the laborer hate the officials of the company to the detriment of all efforts to harmonize management and labor for the benefit of both as envisioned by the Industrial Peace Act. So plain from the record is the bad faith that attended the company's deliberate and calculated act of unfair labor practice that we find in the present appeal an obvious attempt to delay and carry on a pretense which this Court can ill afford to let go without stern disapproval. Me-Shurn Corp. v. Me-Shurn Workers Union (2005) All these factors strongly give credence to the contention of respondents that the real reason behind the shutdown of the corporation was the formation of their union. Note that, to constitute an unfair labor practice, the dismissal need not entirely and exclusively be motivated by the unions activities or affiliations. It is enough that the discrimination was a contributing factor. If the basic inspiration for the act of the employer is derived from the affiliation or activities of the union, the formers assignment of another reason, no matter how seemingly valid, is unavailing. Concededly, the determination to cease operations is a management prerogative that the State does not usually interfere in. Indeed, no business can be required to continue operating at a loss, simply to maintain the workers in employment. That would be a taking of property without due process of law. But where it is manifest that the closure is motivated not by a desire to avoid further losses, but to discourage the workers from organizing themselves into a union for more effective negotiations with management, the State is bound to intervene. 2. TOTALITY OF CONDUCT RULE AND EFFECT OF FAILURE OF ACT Insular Life Assurance Co. Ltd. Employees v. Insular Life Assurance Co. (1971) Totality of Conduct Rule The letters, exhibits A and B, should not be considered by themselves alone but should be read in the light of the preceding and subsequent circumstances surrounding them. The letters should be interpreted according to the "totality of conduct doctrine,
"...whereby the culpability of an employer's remarks were to be evaluated not only on the basis of their implicit implications, but were to be appraised against the background of and in conjunction with collateral circumstances. Under this 'doctrine' expressions of opinion by an employer which, though innocent in themselves, frequently were held to be culpable because of the circumstances under which they were uttered, the history of the particular employer's labor relations or antiunion bias or because of their connection with an established collateral plan of coercion or interference." (Rothenberg on Relations, p. 374, and cases cited therein.)
Effect of Failure of the Act Interference constituting unfair labor practice will not cease to be such simply because it was susceptible of being thwarted or resisted, or that it did not proximately cause the result intended. For success of purpose is not, and should not, be the criterion in determining whether or not a prohibited act constitutes unfair labor practice. "The test of whether an employer has interfered with and coerced employees within the meaning of subsection (a) (1) is o whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of employees' rights under section 3 of the Act, o and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining." (Francisco, Labor Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A., 1948, 170 F2d 735).
8.06 ENFORCEMENT, SANCTIONS

1. PARTIES AGAINST COMMITTED
REMEDIES
AND
WHOM
ULP
Art. 212 (e) "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. (f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. (g) "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. 2. PARTIES LIABLE FOR ACTS EMPLOYER Art. 248 Unfair labor practices of employers. The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.

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o LABOR ORGANIZATION Art. 249 Unfair labor practices of labor organizations. The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. 3. PROSECUTION PERIOD CIVIL ASPECT Art. 247 Concept of unfair labor practice and procedure for prosecution xxx Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, o the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. o The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. AND PRESCRIPTIVE Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth.
Gochangco Workers Union v. NLRC (1988) Before Batas Blg. 7029 was enacted into law, unfair labor practices were considered administrative offenses, and have been held akin to tort, wherein damages are payable. We therefore not only order herein the reinstatement of the petitioner and the payment of backwages (including cost-of-living allowances) to them, but impose as well moral and exemplary damages. With respect to backwages, we hold the respondent E.G. Gochangco, Inc. liable, in line with the recommendation of the Solicitor General and in accordance with accepted practice, for backwages equivalent to 3 years without qualification or deduction. 4. COMPROMISE Gochangco Workers Union v. NLRC (1988) In any event, we have held that unfair labor practice cases are not, in view of the public interest involved, subject to compromises. AFP Mutual Benefit Association Inc. v. FP MBAI-EU (1980) In labor jurisprudence, it is well-established that quitclaims and/or complete releases executed by the employees do not estop them from pursuing their claims arising from the unfair labor practice of the employer. The basic reason for this is that such quitclaims and/or complete releases are against public policy and, therefore, null and void. The acceptance of termination pay does not divest a laborer of the right to prosecute his employer for unfair labor practice acts. In the Cario case, supra, the Supreme Court, speaking thru Justice Sanchez, said:
"Acceptance of those benefits would not amount to estoppel. The reason is plain. Employer and employee, obviously, do not stand on the same footing. The employer drove the employee to the wall. The latter must have to get hold of money Because, out of job, he had to face the harsh necessities of life. He thus found himself in no position to resist money proffered. His then, is a case of adherence, not of choice. One thing sure, however, is that petitioners did not relent their claim. They pressed it. They are deemed not to have waived any of their rights. Renuntiatio non praesumitur."
CRIMINAL ASPECT Art. 247 Concept of unfair labor practice and procedure for prosecution xxx No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. o During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted:
Reformist Union of R.B. Liner, Inc. v. NLRC (1997) The agreement entered into by the company and the union, was in the nature of a compromise agreement, i.e., "an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing."

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Thus, in the agreement, each party made concessions in favor of the other to avoid a protracted litigation. While we do not abandon the rule that "unfair labor practice acts are beyond and outside the sphere of compromises," the agreement herein was voluntarily entered into and represents a reasonable settlement, thus it binds the parties. On this score, the Labor Code bestows finality to unvitiated compromise agreements. The private respondents' cause likewise fails in light of Article 2037 of the Civil Code, which gives compromise agreements "the effect and authority of res judicata" upon the parties to the same, even when effected without judicial approval. The Labor Arbiter and the NLRC therefore erroneously reviewed an issue which had already been laid to rest by the parties themselves and which, applying the principle of res judicata, they could no longer relitigate. DISINI: Did the Reformist case abandon the doctrine laid down by the court in Gochanco and AFP Mutual Benefit Association? Note that the Reformist case involved a compulsory arbitration. Implication: One may argue that it is only applicable to a case where the issue on ULP was to be resolved in a compulsory arbitration and the parties entered into a compromise agreement. 5. REMEDIES AND SANCTIONS CIVIL REMEDIES Art. 247 Concept of unfair labor practice and procedure for prosecution xxx Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. xx Nueva Ecija I. Electric Coop. Inc. v. NLRC (2000) Indisputable is the legal doctrine that the appeal of a decision involving a monetary award in labor cases may be perfected "only upon the posting of a cash or surety bond." The Labor Code, as amended by Republic Act No. 6715, clearly provides:
"Art. 223. Appeal - Decisions, awards or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. . . xxx In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.x x x
We relaxed the requirement of posting a supersedeas bond for the perfection of an appeal, when there was substantial compliance with the rule, so that on balance, we made technical considerations to give way to equity and justice. Unfair labor practices violate the constitutional rights of workers and employees to selforganization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect; and disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. For this reason, we find it proper in this case to impose moral and exemplary damages on private respondent. However, the damages awarded by the labor arbiter, to our mind, are excessive. In determining the amount of damages recoverable, the business, social and financial position of the offended parties and the business and financial position of the offender are taken into account. It is our view that herein private respondents had not fully acted in good faith. However, we are cognizant that a cooperative promotes the welfare of its own members. The economic benefits filter to the cooperative members. Either equally or proportionally, they are distributed among members in correlation with the resources of the association utilized. Cooperatives help promote economic democracy and support community development. PENAL REMEDIES Art. 247 Concept of unfair labor practice and procedure for prosecution xxx Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph.
Also, the perfection of an appeal within the reglementary period and in the manner prescribed by law is jurisdictional, and noncompliance with such legal requirement is fatal and effectively renders the judgment final and executory. However, in a number of cases, this Court relaxed the rule to resolve controversies on the merits, specifically, when there are special meritorious circumstances and issues.

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Part IX : Concerted Activities Labor Relations
Part IX : CONCERTED ACTIVITIES

9.01 BASIS OF RIGHT TO ENGAGE IN CONCERTED ACTIVITIES
1. CONSTITUTION Art. XIII. Section 3 It shall guarantee the rights of all workers to self- organization, collective bargaining and negotiations, o and peaceful concerted activities, including the RIGHT TO STRIKE in accordance with law. PURPOSE AND MEANS TEST Purpose: For purpose of enforcing right to: 1. Self-Organization (Strikes against ULP) and 2. Collective bargaining and negotiations (economic strikes based on bargaining deadlock) Means: Peaceful and in accordance with law
Luzon Marine Dept. Union v. Roldan (1950) The law does not look with favor upon strikes and lockouts because of their disturbing and pernicious effects upon the social order and the public interests; to prevent or avert them and to implement section 6, Article XIV of the Constitution, the law has created several agencies, namely: the Bureau of Labor, the Department of Labor, the Labor-Management Advisory Board, and the Court of Industrial Relations. Stamford Marketing Corp v. Julian (2004) Indeed, the right to strike, while constitutionally recognized, is not without legal restrictions. The Labor Code regulates the exercise of said right by balancing the interests of labor and management in the light of the overarching public interest. Thus, paragraphs (c) and (f) of Article 263 mandate the following procedural steps to be followed before a strike may be staged: filing of notice of strike, taking of strike vote, and reporting of the strike vote result to the Department of Labor and Employment. It bears stressing that these requirements are mandatory, meaning, non-compliance therewith makes the strike illegal. The evident intention of the law in requiring the strike notice and strike-vote report is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law. Ilaw at Buklod ng Manggagawa (IBM) v. NLRC (1991) Article 263 of the Labor Code, as amended, declares that in line with "the policy of the State to encourage free trade unionism and free collective bargaining, xx Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection." A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recognized in respect of employers.
The more common of these concerted activities as far as employees are concerned are: strikes-the temporary stoppage of work as a result of an industrial or labor dispute; picketing-the marching to and fro at the employer's premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute; and boycotts-the concerted refusal to patronize an employer's goods or services and to persuade others to a like refusal. On the other hand, the counterpart activity that management may licitly undertake is the lockout-the temporary refusal to furnish work on account of a labor dispute. In this connection, the same Article 263 provides that the "right of legitimate labor organizations to strike and picket and of employer to lockout, consistent with the national interest, shall continue to be recognized and respected." The legality of these activities is usually dependent on the legality of the purposes sought to be attained and the means employed therefor. It goes without saying that these joint or coordinated activities may be forbidden or restricted by law or contract.
2. STATUTORY Art. 263 Strikes, picketing and lockouts. (b) Workers shall have the right to engage in concerted activities o for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, o consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout o on grounds involving inter-union and intra-union disputes. The Constitution and the law set limitation for the exercise of the right to strike or lock-out. It is the most regulated activity. Constitution Labor Code In accordance with law Consistent with National Interest
3. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Article 8 1. The States Parties to the present Covenant undertake to ensure: (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. 4. LIMITATIONS Bisig ng Manggagawa, etc. v. NLRC (1993) For the first time in our constitutional history, the fundamental law of our land mandated the State to ". . . guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities,

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including the right to strike in accordance with law." This constitutional imprimatur given to the right to strike constitutes signal victory for labor. Our Constitutions of 1935 and 1973 did not accord constitutional status to the right to strike. Even the liberal US Federal Constitution did not elevate the right to strike to a constitutional level. With a constitutional matrix, enactment of a law implementing the right to strike was an inevitability. RA 6715 came into being on March 21, 1989, an intentional replication of RA 875. In light of the genesis of the right to strike, it ought to be obvious that the right should be read with a libertarian latitude in favor of labor. Father Joaquin G. Bernas, S.J.: the constitutional recognition of the right to strike does serve as a reminder that injunctions, should be reduced to the barest minimum." Article 218 (e) of the Labor Code provides both the procedural and substantive requirements which must strictly be complied with before a temporary or permanent injunction can issue in a labor dispute. To be sure, the issuance of an ex parte temporary restraining order in a labor dispute is not per se prohibited. Its issuance, however, should be characterized by care and caution for the law requires that it be clearly justified by considerations of extreme necessity, i.e., when the commission of unlawful acts is causing substantial and irreparable injury to company properties and the company is, for the moment, bereft of an adequate remedy at law. This is as it ought to be, for imprudently issued temporary restraining orders can break the back of employees engaged in a legal strike. Often times, they unduly tilt the balance of a labor warfare in favor of capital. When that happens, the deleterious effects of a wrongfully issued, ex parte temporary restraining order on the rights of striking employees can no longer be repaired for they defy simple monetization. The immediate need to hear and resolve these ex parte applications does not provide any excuse to lower our vigilance in protecting labor against the issuance of indiscriminate injunctions. Stated otherwise, it behooves hearing officer receiving evidence in support of ex parte injunctions against employees in strike to take a more active stance in seeing to it that their right to social justice is in no way violated despite their absence. This equalizing stance was not taken in the case at bar by the public respondent. Lapanday Workers Union v. NLRC (1995) Some of the limitations on the exercise of the right of strike are provided for in paragraphs (c) and (f) of Article 263 of the Labor Code, as amended, supra. They provide for the procedural steps to be followed before staging a strike filing of notice of strike, taking of strike vote, and reporting of the strike vote result to the Department of Labor and Employment, In National Federation of Sugar Workers (NFSW) vs. Overseas, et al., we ruled that these steps are mandatory in character, thus: If only the filing of the strike notice and the strike-vote report would be deemed mandatory, but not the waiting periods so specifically and emphatically prescribed by law, the purposes for which the filing of the strike notice and strike-vote report is required cannot be achieved....
9.02 STRIKE ACTIVITY

1. DEFINITION Art. 212(o) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. Bukluran ng Manggagawa sa Clothman Knitting Corporation-Solidarity Unions in the Phil v. CA (2005) A strike is any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. A labor dispute includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. The members and the supporters of the petitioner union, headed by petitioner Tomaroy, thru concerted action, caused a temporary stoppage of work as a result of an industrial dispute. The allegation that there can be no work stoppage because the operation in the Dyeing and Finishing Division had been shutdown is of no consequence. It bears stressing that the other divisions were fully operational. There is nothing on record showing that the union members and the supporters who formed a picket line in front of the respondents compound were assigned to the finishing department. As can be clearly inferred from the spot reports, employees from the knitting department also joined in picket. The blockade of the delivery of trucks and the attendance of employees from the other departments of the respondent meant work stoppage. The placards that the picketers caused to be displayed arose from matters concerning terms or conditions of employment as well as the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment. Enriquez v. Zamora (1986) The pilots' mass action was not a strike because employees who go on strike do not quit their employment. Ordinarily, the relationship of employer and employee continues until one or the other of the parties acts to sever the relationship or they mutually act to accomplish that purpose

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As they did not assume the status of strikers, their "protest retirement/resignation" was not a concerted activity which was protected by law [First National Bank of Omaha vs. N.L.R.B., 413 F. 2d 921]. Petitioners cannot, therefore, validly claim that PAL committed an unfair labor practice because, having voluntarily terminated their employment relationship with PAL, they were not dismissed. Moreover, the issue of whether the retirement/resignation of ALPAP members on December 12, 1970 was a concerted activity protected by law was put to rest in Chavez vs. Martinez, L-35206 which was decided by this Court on April 15, 1977 together with Air Line Pilots Association of the Philippines vs. Court of Industrial Relations, L-33705. We pronounced therein that: "Parenthetically, contrary to ALPAP [Gaston's] argument that the pilots' retirement/resignation was a legitimate concerted activity, citing Section 2[1] of the Industrial Peace Act which defines 'Strike' as 'any temporary stoppage of work by the concerted action of employees as a result of an industrial dispute', it is worthwhile to observe that as the law defines it, a strike means only a `temporary stoppage of work'. What the mentioned pilots did, however, cannot be considered in the opinion of this Court, as mere 'temporary stoppage of work'. What they contemplated was evidently a permanent cut-off of employment relationship with their erstwhile employer, the Philippine Air Lines. In any event, the dispute below having been certified as existing in an industry indispensable to the national interest, the said pilots' rank disregard for the compulsory orders of the industrial court and their daring and calculating venture to disengage themselves from that court's jurisdiction, for the obvious purpose of satisfying their narrow economic demands to the prejudice of the public interest, are evident badges of bad faith. A legitimate concerted activity is a matter that cannot be used to circumvent judicial orders or be tossed around like a plaything. Definitely, neither employers nor employees should be allowed to make of judicial authority a now-you've-got-it-now-you-don't affair. The courts cannot hopefully effectuate and vindicate the sound policies of the Industrial Peace Act and all our labor laws if employees, particularly those who on account of their highly advanced technical background and relatively better life status are far above the general working class spectrum, will be permitted to defy and invoke the jurisdiction of the courts whenever the alternative chosen will serve to feather their pure and simple economic demands." Phil. Blooming Mills v. PBM Employees Organization (1973) We repeat that the obvious purpose of the mass demonstration staged by the workers of the respondent firm on March 4, 1969, was for their mutual aid and protection against alleged police abuses, denial of which was interference with or restraint on the right of the employees to engage in such a common action to better shield themselves against such alleged police indignities. The insistence on the part of the respondent firm that the workers for the morning and regular shifts should not participate in the mass demonstration, under pain of dismissal, was as heretofore stated, "a potent means of inhibiting speech." Such a concerted action for their mutual help and protection, deserves at least equal protection as the concerted action of employees in giving publicity to a letter complaint charging a bank president with immorality, nepotism, favoritism and discrimination in the appointment and promotion of bank employees. We further ruled in the Republic Savings Bank case, supra, that for the employees to come within the protective mantle of Section 3 in relation to Section 4(a- 1) of Republic Act No. 875, "it is not necessary that union activity be involved or that collective bargaining be contemplated," as long as the concerted activity is for the furtherance of their interests. The collective bargaining agreement which fixes the working shifts of the employees, according to the respondent CIR, in effect imposes on the workers the "duty x x x to observe regular working hours." The strained construction of the CIR that such stipulated working shifts deny the workers the right to stage a mass demonstration against police abuses during working hours, constitutes a virtual tyranny over the mind and life of the workers and deserves severe condemnation. Renunciation of the freedom should not be predicated on such a slender ground. The respondent firm claims that there was no need for all its employees to participate in the demonstration and that they suggested to the Union that only the first and regular shift from 6:00 A.M. to 2:00 P.M. should report for work in order that loss or damage to the firm will be averted. This stand failed to appreciate the sine qua non of an effective demonstration especially by a labor union, namely the complete unity of the Union members as well as their total presence at the demonstration site in order to generate the maximum persuasive force that will gain for them not only public sympathy for the validity of their cause but also immediate action on the part of the corresponding government agencies with jurisdiction over the issues they raised against the local police. The more the participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a substantial indication of disunity in their ranks which will enervate their position and abet continued alleged police persecution. Samahang Manggagawa v. Sulpicio Lines (2004) A strike, as defined in Article 212 (o) of the Labor Code, as amended, means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. The term strike shall comprise not

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only concerted work stoppages, but also slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage plant equipment and facilities, and similar activities. Basic Concepts: 1. Initiating Party: Employer: Lock-out Union: Strike 2. Cause: Labor dispute An inter-union and intra-union dispute cannot be a valid ground for a strike or lock-out since a labor dispute is technically defined under Art. 212. Welga ng Bayan (Political Strike) is not a valid strike under the Labor Code since no labor dispute is involved. A welga ng bayan for purpose of lowering oil price is not a valid strike under the Labor Code but it may be upheld as a valid exercise of right of speech. However, the employee may suffer the consequence of abandonment of work Phil. Blooming Mills case does not involve a right to strike but freedom of speech/expression. Wage distortion are not also a valid ground for a strike since the law provides for a procedure to settle wage distortion problems (see Ilaw at Buklod case) 3. Temporary in Nature Employee-Employer relationship continues to exist. Mere participation in a strike is not a ground for termination interests so require or when the court cannot promptly decide the case, the strikers are ordered back to work. 3. EFFECT WORK RELATIONSHIP Elizalde Rope Factory, Inc. v. SSS (1972) Although during a strike the worker renders no work or service and receives no compensation, yet his relationship as an employee with his employer is not severed or dissolved. Strike is the workers' means of expressing their grievances to employers and enforcing compliance with their demands made upon them. And when laborers go on strike, it cannot be said that, they intend to cut off or terminate their relationship with their employer. On the contrary, a strike may improve the employer-employee relationship by bringing about better working conditions and more efficient services. Hence, the petitioner's contention that Edilberto Tupas ceased to be an employee from 17 September 1957 to the middle of February 1958 when he was on strike, cannot be sustained. 4. TYPES, CHANGES AND CONVERSION TYPES a. Unfair Labor Practice Art. 263 Strikes, picketing and lockouts. (c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. b. Bargaining Deadlock Economic Consolidated Labor Assoc. of the Phil. V. Marsman and Co. (1984) An economic strike is defined as one which is to forge wage or other concessions from the employer which he is not required by law to grant. CHANGE IN TYPE Consolidated Labor Assoc. of the Phil. V. Marsman and Co. (1984) Initially the strike staged by the Union was meant to compel the Company to grant it certain economic benefits set forth in its proposal for collective bargaining. The strike was an economic one, and the striking employees would
2. NATURE AND PURPOSE Phil. Can Co. v. CIR (1950) Ordinarily, a strike is a coercive measure resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less, paralyzed. Any interruption or stoppage of production spells loss, even disaster. The capital invested in machinery, factory and other properties connected with the business would be unproductive during a strike or the stoppage of the business. On the other hand, the overhead expenses consisting of salaries of its officials, including real estate taxes and license fees continue. Knowing this, the strikers by going on strike seek to interrupt and paralyze the business and production of the company. The employer company is on the defensive. It almost invariably wants the strike stopped and the strikers back to work so as to resume and continue production. Because of this threat or danger of loss to the company, it not infrequently gives in to the demands of the strikers, just so it can maintain the continuity of its production. Or, if the strikers refuse to return to work, the employer company seeks permission from the court to employ other laborers to take their places. In such cases, pending determination of the conflict, especially where public

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have a right to be reinstated if, in the interim, the employer had not hired other permanent workers to replace them. For it is recognized that during the pendency of an economic strike an employer may take steps to continue and protect his business by supplying places left vacant by the strikers, and is not bound to discharge those hired for that purpose upon election of the strikers to resume their employment. But the strike changed its character from the time the Company refused to reinstate complainants because of their union activities after it had offered to admit all the strikers and in fact did readmit the others. It was then converted into an unfair labor practice strike. The Union began the strike because it believed in good faith that settlement of their demands was at an impasse and that further negotiations would only come to naught. It stopped the strike upon the belief they could go back to work. Then it renewed the strike (or it started a new strike) as a protest against the discrimination practiced by the Company. Both are valid grounds for going on a strike. In an economic strike, the strikers are not entitled to backpay, since the employer should get the equivalent day's work for what he pays his employees. During the time that the strike was an economic one, complainants had no right to back pay. The Industrial Court could not have made a finding of unfair labor practice with respect to such time, as none had so far been committed. This being an unfair labor practice case, it cannot, therefore, order reinstatement much less back pay for that period. On the other hand, even after the court has made a finding of unfair labor practice, it still has the discretion to determine whether or not to grant back pay. Such discretion was not abused when it denied back wages to complainants, considering the climate of violence which attended the strike and picket that the complainants conducted. While the complainants ordered reinstated did not actively take part in the acts of violence, their minatory attitude towards the Company may be gathered from the fact that from the very first day of the strike policemen had to patrol the strike zone in order to preserve peace. NON-CONVERSION STRIKE TO LOCKOUT Rizal Cement Workers Union v. CIR (1962) It becomes, therefore, manifest that the issues raised the by the petitioner center on whether or not its members, are entitled to back wages. Petitioner principally based its claim for back wages on the theory that there was a lock-out or "virtual lock-out", which prevented them to work. The law (Act No. 875), provides:
"SEC.15. Violation of Duty to Bargain Collectively.-It shall be unlawful for any employer to refuse to bargain collectively with the representative of his employees, or to declare a lockout without having first bargained collectively with the representative of its employees, in accordance with the provisions of this Act. Any employee whose work has stopped as a consequence of such lockout shall be entitled to backpay. * * *"
It will thus be seen that under the above provision, the lock-out referred to is that which is committed by the employer, if it refused to give work to its workers. No finding was made by the CIR on the question of lockout. That there was no lockout is clear from the observations of the respondent court, when it said: "the striking union decided on this question of strike which was carried out and maintained by picketing the respondent's cement plant at Binagonan, Rizal". The offer to return to work made by the members of the petitioner, did not make the refusal to accept the same, a lockout. This is so because the case on the legality or not of the strike was then pending decision by the CIR and said Court did not issue any order in connection with said offer. The strike which was open and publicly declared by the petitioner union on May 27, 1956, can riot be converted into a pure and simple lockout, by the mere expedient of filing before the trial court a notice of offer to return to work, during the pendency of the labor dispute. Petitioner alleges that said refusal to accept them, constituted a "virtual lockout". T The law does not provide for a virtual lockout. But assuming, that the nonacceptance of the unconditional offer to return to work was virtual lockout, still the circumstances of the case would not justify the demand that the strikers are entitled ipso, jure to back wages. This is so because the respondent court found that the strike was attended by isolated acts of violence committed by the strikers, and stated, in the same breath, that certain degree of reason and fairness be accorded. 5. GROUNDS ALLOWABLE STRIKES Art. 263 Strikes, picketing and lockouts. (c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members.

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However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same. Art. 264 Prohibited activities. (a)No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. Art. 265 Improved offer balloting. In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout.
PROHIBITED STRIKES Art. 263 (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-towork and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or lockingout employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration.

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When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. are enjoined or if one has already taken place, all strikers shall immediately return to work: The respondents claim of good faith is not a valid excuse to dispense with the procedural steps for a lawful strike. NO STRIKE CLAUSE Panay Electric Co. v. NLRC (1995) It has heretofore been held that a "no strike, no lock-out" provision in the Collective Bargaining Agreement ("CBA") is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on unfair labor practice. In this situation, it is not essential that the unfair labor practice act has, in fact, been committed; it suffices that the striking workers are shown to have acted honestly on an impression that the company has committed such unfair labor practice and the surrounding circumstances could wan-ant such a belief in good faith. Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos (2000) Another reason why the Labor Arbiter declared the strike illegal is due to the existence of a no strike no lockout provision in the CBA. Again, such a ruling is erroneous. A no strike, no lock out provision can only be invoked when the strike is economic in nature, i.e. to force wage or other concessions from the employer which he is not required by law to grant. Such a provision cannot be used to assail the legality of a strike which is grounded on unfair labor practice, as was the honest belief of herein petitioners. Again, whether or not there was indeed unfair labor practice does not affect the strike. 6. STRIKING PARTY Art. 263. Strikes, picketing and lockouts. (b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intraunion disputes. (c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate
Ilaw at Buklod ng Manggagawa (IBM) v. NLRC (1991) WAGE DISTORTION cannot be a ground for strike. In the particular instance of "distortions of the wage structure within an establishment" resulting from "the application of any prescribed wage increase by virtue of a law or wage order," Section 3 of Republic Act No. 6727 prescribes a specific, detailed and comprehensive procedure for the correction thereof, thereby implicitly excluding, strikes, lockouts or other concerted activities as modes of settlement of the issue. The legislative intent that solution of the problem of wage distortions shall be sought by voluntary negotiation or abitration, and not by strikes, lockouts, or other concerted activities of the employees or management, is made clear in the rules implementing RA 6727 issued by the Secretary of Labor and Employment" pursuant to the authority granted by Section 13 of the Act. 13 Section 16, Chapter I of these implementing rules, after reiterating the policy that wage distortions be first settled voluntarily by the parties and eventually by compulsory arbitration, declares that, "Any issue involving wage distortion shall not be a ground for a strike /lockout. " Grand Boulevard Hotel v. Grand Labor Organization (2003) Under Art. 263, the requisites for a valid strike are as follows: (a) a notice of strike filed with the DOLE thirty days before the intended date thereof or fifteen days in case of ULP; (b) strike vote approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose; (c) notice given to the DOLE of the results of the voting at least seven days before the intended strike. The requisite seven-day period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the approval of the majority of the union members. The notice of strike and the cooling-off period were intended to provide an opportunity for mediation and conciliation. The requirements are mandatory and failure of a union to comply therewith renders the strike illegal. A strike simultaneously with or immediately after a notice of strike will render the requisite periods nugatory. Moreover, a strike that is undertaken, despite the issuance by the SOLE of an assumption or certification order, becomes a prohibited activity and, thus, illegal pursuant to Article 264 of the Labor Code of the Philippines, as amended. As this Court ruled in Union of Filipro Employees v. Nestle Philippines, Inc., under Article 264(a) of the said code, once an assumption certification order is issued by the SOLE, strikes

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labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. FILING OF NOTICE OF INTENTION Art. 263(c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (d) The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate. (e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. OBSERVANCE COOLING-OFF PERIOD Art. 263(c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement.
7. PROCEDURAL REQUIREMENTS EFFORT TO BARGAIN Art. 264 Prohibited activities. (a)No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book x x x. Art. 250 Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: f. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; g. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. h. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; i. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and j. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. Art. 251 Duty to bargain collectively in the absence of collective bargaining agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. Art. 252 Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages,

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Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, o the labor union may strike or the employer may declare a lockout. knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. The Court notes that petitioner Piero turned 60 years old and retired on March 1, 1996 after 29 years of service, rendering his dismissal from service moot and academic. However, in view of the propriety of his termination as a consequence of the illegal strike, he is no longer entitled to payment of retirement benefits because he lost his employment status effective as of the date of the decision of the Labor Arbiter October 28, 1994. An employee who is dismissed for cause is generally not entitled to any financial assistance. Equity considerations, however, provide an exception. Although meriting termination of employment, Pieros infraction is not so reprehensible nor unscrupulous as to warrant complete disregard of his long years of service. Moreover, he has no previous derogatory records. Under the circumstances, social and compassionate justice dictate that petitioner Piero be awarded financial assistance equivalent to onehalf (1/2) months pay for every year of service computed from his date of employment up to October 28, 1994 when he was declared to have lost his employment status. Indeed, equities of this case should be accorded due weight because labor law determinations are not only secundum rationem but also secundum caritatem Samahang Manggagawa etc. v. Sulpicio Lines, Inc. (2004) The basic issue for our determination is whether the strike staged by petitioners officers and members is illegal. Articles 263 and 264 of the Labor Code, as amended, provide:
ART. 263. STRIKES, PICKETING AND LOCKOUTS. (c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike x x x with the Ministry (now Department) at least 30 days before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. xxx
VOTE, CONDUCT OF AND PERIOD OF VALIDITY Art. 263 (f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. Art. 264 Prohibited activities. (a)No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. x x x Piero v. NLRC (2004) There is no doubt that the strike staged by DUCACOFSA-NAFTEU is illegal for non-compliance with the strike-vote requirements. Under Art. 263, the requisites for a valid strike are as follows: a. a notice of strike filed with the DOLE thirty days before the intended date thereof or fifteen days in case of unfair labor practice b. strike vote approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose; c. notice given to the DOLE of the results of the voting at least seven days before the intended strike. These requirements are mandatory and failure of a union to comply therewith renders the strike illegal. Pursuant to Article 264 of the Labor Code, any union officer who knowingly participates in an illegal strike and any worker or union officer who
(f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. x x x. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry (now Department) may at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union x x x shall furnish the Ministry (now Department) the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein

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provided. x x x. ART. 264. PROHIBITED ACTIVITIES. (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry (now Department). x x x. of the Board and notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings as well as the results of the voting at least seven (7) days before the intended strike or lockout, subject to the cooling-off period provided in this Rule.
Following are the Implementing Guidelines of the above provisions issued by the Department of Labor and Employment: 1. A strike shall be filed with the Department of Labor and Employment at least 15 days if the issues raised are unfair labor practice or at least 30 days if the issue involved bargaining deadlock. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately; 2. The strike shall be supported by a majority vote of the members of the union obtained by secret ballot in a meeting called for the purpose; and 3. A strike vote shall be reported to the Department of Labor and Employment at least seven (7) days before the intended strike. There is no showing that the petitioner union observed the 7-day strike ban; and that the results of the strike vote were submitted by petitioners to the Department of Labor and Employment at least seven (7) days before the strike. We thus hold that for failing to comply with the mandatory requirements of Article 263 (c) and (f) of the Labor Code, the strike mounted by petitioner union on May 20, 1994 is illegal. In Gold City Integrated Port Service, Inc. vs. NLRC, we stressed that the language of the law leaves no room for doubt that the cooling-off period and the seven-day strike ban after the strike-vote report were intended to be mandatory. Capitol Medical Center, Inc. v. NLRC (2005) We agree with the petitioner that the respondent Union failed to comply with the second paragraph of Section 10, Rule XXII of the Omnibus Rules of the NLRC which reads:
Section 10. Strike or lockout vote. A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in meetings or referenda called for the purpose. A decision to declare a lockout must be approved by a majority of the Board of Directors of the employer, corporation or association or the partners obtained by a secret ballot in a meeting called for the purpose. The regional branch of the Board may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the regional branch
Although the second paragraph of Section 10 of the said Rule is not provided in the Labor Code of the Philippines, nevertheless, the same was incorporated in the Omnibus Rules Implementing the Labor Code and has the force and effect of law. Aside from the mandatory notices embedded in Article 263, paragraphs (c) and (f) of the Labor Code, a union intending to stage a strike is mandated to notify the NCMB of the meeting for the conduct of strike vote, at least twenty-four (24) hours prior to such meeting. Unless the NCMB is notified of the date, place and time of the meeting of the union members for the conduct of a strike vote, the NCMB would be unable to supervise the holding of the same, if and when it decides to exercise its power of supervision. In National Federation of Labor v. NLRC, the Court enumerated the notices required by Article 263 of the Labor Code and the Implementing Rules, which include the 24-hour prior notice to the NCMB: 1) A notice of strike, with the required contents, should be filed with the DOLE, specifically the Regional Branch of the NCMB, copy furnished the employer of the union; 2) A cooling-off period must be observed between the filing of notice and the actual execution of the strike thirty (30) days in case of bargaining deadlock and fifteen (15) days in case of unfair labor practice. However, in the case of union busting where the unions existence is threatened, the cooling-off period need not be observed. Before a strike is actually 4) commenced, a strike vote should be taken by secret balloting, with a 24-hour prior notice to NCMB. The decision to declare a strike requires the secretballot approval of majority of the total union membership in the bargaining unit concerned. 5) The result of the strike vote should be reported to the NCMB at least seven (7) days before the intended strike or lockout, subject to the coolingoff period. A union is mandated to notify the NCMB of an impending dispute in a particular bargaining unit via a notice of strike. Thereafter, the NCMB, through its conciliator-mediators, shall call the parties to a conference at the soonest possible time in order to actively assist them in exploring all possibilities for amicable settlement. In the event of the failure in the conciliation/mediation proceedings, the parties shall be encouraged to submit their dispute for voluntary arbitration. However, if the parties refuse, the union may hold a strike vote, and if the requisite number of votes is obtained, a strike may ensue. The purpose of the strike vote is to ensure that the decision to strike broadly rests with the majority of the union members in general and not with a mere

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minority, and at the same time, discourage wildcat strikes, union bossism and even corruption. A strike vote report submitted to the NCMB at least seven days prior to the intended date of strike ensures that a strike vote was, indeed, taken. In the event that the report is false, the sevenday period affords the members an opportunity to take the appropriate remedy before it is too late. The 15 to 30 day cooling-off period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB conciliator/mediator, while the seven-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union member. The requirement of giving notice of the conduct of a strike vote to the NCMB at least 24 hours before the meeting for the said purpose is designed to (a) inform the NCMB of the intent of the union to conduct a strike vote; (b) give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence and/or irregularities attendant thereto; and (c) should the NCMB decide on its own initiative or upon the request of an interested party including the employer, to supervise the strike vote, to give it ample time to prepare for the deployment of the requisite personnel, including peace officers if need be. Unless and until the NCMB is notified at least 24 hours of the unions decision to conduct a strike vote, and the date, place, and time thereof, the NCMB cannot determine for itself whether to supervise a strike vote meeting or not and insure its peaceful and regular conduct. The failure of a union to comply with the requirement of the giving of notice to the NCMB at least 24 hours prior to the holding of a strike vote meeting will render the subsequent strike staged by the union illegal. In this case, the respondent Union failed to comply with the 24-hour prior notice requirement to the NCMB before it conducted the alleged strike vote meeting on November 10, 1997. As a result, the petitioner complained that no strike vote meeting ever took place and averred that the strike staged by the respondent union was illegal. Conformably to Article 264 of the Labor Code and Section 7, Rule XXII of the Omnibus Rules Implementing the Labor Code, no labor organization shall declare a strike unless supported by a majority vote of the members of the union obtained by secret ballot in a meeting called for that purpose. The requirement is mandatory and the failure of a union to comply therewith renders the strike illegal. The union is thus mandated to allege and prove compliance with the requirements of the law. Bukluran ng Manggagawa sa Clothman Knitting Corporation- Solidarity Unions in the Phil. For Employment and Reforms v. CA (2005) Clearly, the petitioner union, its officers, members and supporters staged a strike. In order for a strike to be valid, the following requirements laid down in paragraphs (c) and (f) of Article 263 of the Labor Code must be complied with: (a) a notice of strike must be filed; (b) a strike-vote must be taken; and (c) the results of the strikevote must be reported to the DOLE. It bears stressing that these requirements are mandatory, meaning, non-compliance therewith makes the strike illegal. The evident intention of the law in requiring the strike notice and strikevote report is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law. Considering that the petitioner union failed to comply with the aforesaid requirements, the strike staged on June 11 to 18, 2001 is illegal. Consequently, the officers of the union who participated therein are deemed to have lost their employment status. 8. TEST OF LEGALITY LEGAL STRIKES Purpose and Means Test Luzon Marine Dept Union v. Roldan (1950) In the case of Rex Taxicab Company vs. Court of Industrial Relations (70 Phil., 621), wherein this Supreme Court held that "the employee, tenant or laborer is inhibited from striking or walking out of his employment only when so enjoined by the Court of Industrial Relations," it was also held that "in cases not falling within the prohibition, the legality or illegality of a strike depends, first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on." Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable or unjust, or if in carrying on the strike the strikers should commit violence or cause injuries to persons or damage to property o the strike, although not prohibited by injunction, may be declared by the court illegal, with the adverse consequences to the strikers. Caltex Phil. Inc. v. Phil Labor Org. Caltex Chapter (1953) Needless to say, Courts are not permitted to render judgments solely upon the basis of sympathies and inclinations. Neither are they authorized, in the guise of affording protection to labor, to distribute charities at the expense of natural or juridicial persons, because our constitutional government assures the latter against deprivation of their property except in accordance with the statutes or supplementary equitable principles.

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Philippine Marine Officers Guild v. Cia. Maritima (1968) Acts of violence in this jurisdiction, when committed in carrying on a strike are not to be overlooked in determining its legality or illegality. To overlook these acts of violence would encourage abuses and terrorism and subvert the purpose of the law which provides for arbitration and peaceful settlement of disputes. If a strike is unjustified as when it is declared for trivial, unjust or unreasonable purpose, the employer may not be compelled to reinstate the strikers to their employment. More so, when the strike is carried on illegally. San Miguel Corp. v. NLRC (2003) Pursuant to Article 218 (e), the coercive measure of injunction may be used to restrain an actual or threatened unlawful strike. In the case at bar, petitioner sought a permanent injunction to enjoin the respondents strike. A strike is considered as the most effective weapon in protecting the rights of the employees to improve the terms and conditions of their employment. However, to be valid, a strike must be pursued within legal bounds. One of the procedural requisites that Article 263 of the Labor Code and its Implementing Rules prescribe is the filing of a valid notice of strike with the NCMB. Imposed for the purpose of encouraging the voluntary settlement of disputes, this requirement has been held to be mandatory, the lack of which shall render a strike illegal. Clearly, therefore, applying the aforecited ruling to the case at bar, when the NCMB ordered the preventive mediation on May 2, 1994, respondent had thereupon lost the notices of strike it had filed. Subsequently, however, it still defiantly proceeded with the strike while mediation was ongoing, and notwithstanding the letteradvisories of NCMB warning it of its lack of notice of strike. Such disregard of the mediation proceedings was a blatant violation of the Implementing Rules, which explicitly oblige the parties to bargain collectively in good faith and prohibit them from impeding or disrupting the proceedings. Moreover, it bears stressing that Article 264(a) of the Labor Code explicitly states that a declaration of strike without first having filed the required notice is a prohibited activity, which may be prevented through an injunction in accordance with Article 254. Clearly, public respondent should have granted the injunctive relief to prevent the grave damage brought about by the unlawful strike. Petitioner herein evinced its willingness to negotiate with the union by seeking for an order from the NLRC to compel observance of the grievance and arbitration proceedings. Respondent however resorted to force without exhausting all available means within its reach. Such infringement of the aforecited CBA provisions constitutes further justification for the issuance of an injunction against the strike. As we said long ago: Strikes held in violation of the terms contained in a collective bargaining agreement are illegal especially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their ends have to be achieved. We cannot sanction the respondent-unions brazen disregard of legal requirements imposed purposely to carry out the state policy of promoting voluntary modes of settling disputes. The states commitment to enforce mutual compliance therewith to foster industrial peace is affirmed by no less than our Constitution. Trade unionism and strikes are legitimate weapons of labor granted by our statutes. But misuse of these instruments can be the subject of judicial intervention to forestall grave injury to a business enterprise. Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos (2000) With regard to the issue of the legality or illegality of the strike, the Labor Arbiter held that the strike was illegal for the following reasons: (1) it was based on an intra-union dispute which cannot properly be the subject of a strike, the right to strike being limited to cases of bargaining deadlocks and unfair labor practice (2) it was made in violation of the "no strike, no lock-out" clause in the CBA, and (3) it was attended with violence, force and intimidation upon the persons of the company officials, other employees reporting for work and third persons having legitimate business with the company, resulting to serious physical injuries to several employees and damage to company property. On the submission that the strike was illegal for being grounded on a non-strikeable issue, that is, the intra-union conflict between the federation and the local union, it bears reiterating that when respondent company dismissed the union officers, the issue was transformed into a termination dispute and brought respondent company into the picture. Petitioners believed in good faith that in dismissing them upon request by the federation, respondent company was guilty of unfair labor pratice in that it violated the petitioners right to self-organization. The strike was staged to protest respondent companys act of dismissing the union officers. Even if the allegations of unfair labor practice are subsequently found out to be untrue, the presumption of legality of the strike prevails. Guidelines and Balancing of Interest Shell Oil Workers Union v. Shell Co. of the Phils (1971) A strike otherwise valid, if violent in character, maybe placed beyond the pale. Care is to be taken, however, especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike, responsibility in such a case should be individual and not collective. A different conclusion would be called for, of course, if the existence of force while the strike lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal because of the means employed'.

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This is not by any means to condone the utilization of force by labor to attain its objectives. It is only to show awareness that in labor conflicts, the tension that fills the air as well as the feeling of frustration and bitterness could break out in sporadic acts of violence. If there be in this case a weighing of interests in the balance, the ban the law imposes on unfair labor practices by management that could provoke a strike and its requirement that it be conducted peaceably, it would be, to repeat, unjustified, considering all the facts disclosed, to stamp the strike with illegality. It is enough that individual liability be incurred by those guilty of such acts of violence that call for loss of employee status. Such an approach is reflected in our recent decisions. Almira v. B.F. Goodrich, Phils, Inc. (1974) Due to the refusal of the management to consider petitioners' union as the exclusive bargaining representative, petitioners staged a strike and picketed the company's premises. In the course of the mass picketing, illegal and unlawful acts were committed by the petitioners. Respondent CIR declared petitioners to have committed an illegal strike and dismissed the petitioners. REASON FOR PENALTY LESS PUNITIVE THAN DISMISSAL Where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. it is not only because of the law's concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all the circumstances of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what had been done by them, For all this while, since private respondent considered them separated from the service, they had not been paid. SECURITY OF TENURE FORTIFIES PROTECTION TO LABOR The conclusion that the dismissal of petitioners in view of their unlawful acts during the strike is uncalled for is fortified by the stress on the security of tenure that is a notable feature of the present Constitution. ATTENDANT RESPONSIBILITY ON THE WORKING FORCE AND MANAGEMENT The basic doctrine underlying the provisions of the Constitution so solicitous of labor as well as the applicable statutory norms is that both the working force and management are necessary components of the economy. The rights of labor have been expanded. Concern is evident for its welfare. The advantages thus conferred, however, call for attendant responsibilities. The ways of the law are not to be ignored. Those who seek comfort from the shelter that it affords should be the last to engage in activities which negates the very concept of a legal order as antithetical to force and coercion. What is equally important is that in the steps to be taken by it in the pursuit of what it believes to be its rights, the advice of those conversant with the requirements of legal norms should be sought and should not be ignored. It is even more important that reason and not violence should be its milieu.
DEFENSES GOOD FAITH - ULP Interwood Employees Assoc. v. Intl Hardwood (1956) Generally, a strike based on a "non-strikeable" ground is an illegal strike: corollarily, a strike grounded on ULP is illegal if no such acts actually exist. As an exception, even if no ULP acts are committed by the employer, if the employees believe in good faith that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to such belief may be legal. As a general rule, therefore, where the union believed that the employer committed ULP and the circumstances warranted such belief in good faith, the resulting strike may be considered legal although, subsequently, such allegations of unfair labor practices were found to be groundless. An established caveat, however, is that a mere claim of good faith would not justify the holding of a strike under the aforesaid exception as, in addition thereto, the circumstances must have warranted such belief. It is, therefore, not enough that the union believed that the employer committed acts of ULP when the circumstances clearly negate even a prima facie showing to sustain such belief. PNOC Dockyard v. NLRC (1998) In resolving that the strike was legal, the labor tribunal took note of the following facts: (1) the notice of strike was filed only after the union members lost hope for the redress of their grievance arising from their exclusion from the P2,500 salary increase; (2) the union members honestly believed that they were discriminated against, since the company practice in the past was to grant salary increases to all employees regardless of whether they were MPTs (managerial, professional, and technical employees) or NMPTs (non-managerial, professional, and technical employees); (3) such discriminatory grant appeared to be an unfair labor practice intended to discourage union membership, since MPTs were non-union members; and (4) the labor unions complied with the legal requirements before going on strike, such as the members' strike vote by secret ballot, the submission of the results thereof to the National Conciliation and Meditation Board (NCMB), the filing of a notice to strike and the observance of the 15-ay cooling-off period. Respondent Commission opined that the unions had a reason to regard the salary discrimination, believed to discourage membership in the labor organization, as an unfair labor practice prohibited by Article 248 (e) of the Labor Code. Thus, although rejecting that PNOC and its subsidiaries were guilty of discrimination, the NLRC reiterated the policy enunciated in several labor cases "that a strike does not automatically carry the stigma of illegality even if no unfair labor

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practice were committed by the employer. It suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a strike." Indeed, the presumption of legality prevails even if the allegation of unfair labor practice is subsequently found to be untrue, provided that the union and its members believed in good faith in the truth of such averment. ILLEGAL STRIKES Basis Illegality Art. 263 Strikes, picketing and lockouts. (b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intraunion disputes. (c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. o However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. Art. 264 Prohibited activities. (a)No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. Art. 265 Improved offer balloting. In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. Effect of Illegality Art. 264 (a) Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. San Juan de Dios etc. v. San Juan de Dios (2004) Despite the receipt of an order from then SOLE to return to their respective jobs, the Union officers and members refused to do so and defied the same. Consequently, then, the strike staged by the Union is a prohibited activity under Article 264 of the Labor Code. Hence, the dismissal of its officers is in order. The respondent Foundation was, thus, justified in terminating

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the employment of the petitioner Unions officers. Stamford Marketing Corp. v. Julian (2004) Article 264 of the Labor Code, in providing for the consequences of an illegal strike, makes a distinction between union officers and members who participated thereon. Thus, knowingly participating in an illegal strike is a valid ground for termination from employment of a union officer. The law, however, treats differently mere union members. Mere participation in an illegal strike is not a sufficient ground for termination of the services of the union members. The Labor Code protects an ordinary, rank-and-file union member who participated in such a strike from losing his job, provided that he did not commit an illegal act during the strike. Thus, absent any clear, substantial and convincing proof of illegal acts committed during an illegal strike, an ordinary striking worker or employee may not be terminated from work. With respect to union officers, however, there is no dispute they could be dismissed for participating in an illegal strike. Union officers are duty- bound to guide their members to respect the law. Nonetheless, as in other termination cases, union officers must be given the required notices for terminating an employment, i.e., notice of hearing to enable them to present their side, and notice of termination, should their explanation prove unsatisfactory. Nothing in Article 264 of the Labor Code authorizes an immediate dismissal of a union officer for participating in an illegal strike. The act of dismissal is not intended to happen ipso facto but rather as an option that can be exercised by the employer and after compliance with the notice requirements for terminating an employee. In this case, petitioners did not give the required notices to the union officers. Employment of Strike Breakers Art. 246 (c) No employer shall use or employ any strikebreaker, nor shall any person be employed as a strike-breaker. Art. 212(r) "Strike-breaker" means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of selforganization or collective bargaining. Run-Away Shop Complex Electronics Employees Assoc v. NLRC (1999) The Union anchors its position on the fact that Lawrence Qua is both the president of Complex and Ionics and that both companies have the same set of Board of Directors. It claims that business has not ceased at Complex but was merely transferred to Ionics, a runaway shop. Held: The Union's contentions are untenable. A runaway shop is defined as one wherein the employer moves its business to another location or it temporarily closes its business for anti-union purposes. A runaway shop in this sense, is a relocation motivated by anti-union animus rather than for business reasons. In this case, however, Ionics was not set up merely for the purpose of transferring the business of Complex. At the time the labor dispute arose at Complex, Ionics was already existing as an independent company. The mere fact that one or more corporations are owned or controlled by the same or single stockholder is not a sufficient ground for disregarding separate corporate personalities. Ionics may be engaged in the same business as that of Complex, but this fact alone is not enough reason to pierce the veil of corporate fiction of the corporation. Well-settled is the rule that a corporation has a personality separate and distinct from that of its officers and stockholders. This fiction of corporate entity can only be disregarded in certain cases such as when it is used to defeat public convenience, justify wrong, protect fraud, or defend crime. As very clearly established, the closure was triggered by the customers' pull-out of their equipment, machinery and materials, who were alarmed by the pending labor dispute and the imminent strike by the union, and as a protection to their interest pulled-out of business from Complex who had no recourse but to cease operation to prevent further losses. The indiscretion committed by the Union in filing the notice of strike, which to our mind is not the proper remedy to question the amount of benefits due the complainants who will be retrenched at the closure of the Lite-On Line, gave a wrong signal to customers of Complex, which consequently resulted in the loss of employment of not only a few but to all the of the workers. It may be worth saying that the right to strike should only be a remedy of last resort and must not be used as a show of force against the employer. Burden of Economic Loss Crownwell Commercial Employees & Laborers Union v. CIR (1964) At the outset, two types of employees involved in this case must be distinguished, namely, those who were discriminatorily dismissed for union activities and those who voluntarily went on strike. To the first class belong Francisco Gaddi and Cresenciano Andrada, both of whom, as earlier shown, had been dismissed for union activities, and the five salesmen who were virtually locked out by the company when they were ordered to put their trucks in the garage. To the second class belong those who declared a strike on March 11, 1957, following the failure of the company-union conference to settle their dispute. Both types of employees are entitled to reinstatement. Indeed, it is said that striking employees are entitled to reinstatement whether or not the strike was the consequence of the employer's unfair labor practice, unless, where the strike was not due to any unfair labor practice, the employer has hired others to take the place

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of the strikers and has promised them continued employment, From this rule, however, must be excepted those who, although discriminatorily discharged, must nevertheless be denied reinstatement because of (1) unlawful conduct or (2) because of violence. For while the Court of Industrial Relations has indeed discretion in determining the remedy in case of unfair labor practice, its discretion is not unbounded. It cannot exercise its right beyond the point which the object of "effectuation" of the Act requires. It can not order the reinstatement of those convicted of violence upon the employer's property. The same thing may be said of the denial of reinstatement to those who might have found substantial employment elsewhere. We agree with the union that under the ruling of Phelps Dodge Corp. vs. NLRB, 313 U.S. 177, 85 L, ed. 1271 the mere fact that strikers or dismissed employees have found such employment elsewhere is not necessarily a bar to their reinstatement. Coming now to the question of backpay, the decision under review directs the company "to reinstate all the strikers listed in Annex 'A' of the complaint, without back wages, in view of the circumstances, as explained on the subject of the strike, unless they have found substantial employment elsewhere during the pendency of this case." We believe that the denial of backpay may be justified, although on a different ground. For this purpose, We shall advert again to the distinction earlier made between discriminatorily dismissed employees and those who struck, albeit in protest against the company's unfair labor practice. Discriminatorily dismissed employees receive back pay from the date of the act of discrimination, that is from the day of their discharge. On this score, the pay from the date of the act of discrimination, that is from the day of their discharge. On this score, the award of backpay to Gaddi, Andrada and the salesmen may be justified. The salesmen, as already stated, were practically locked out when they were ordered to put their trucks in the garage; they did not voluntarily strike. Hence, the award of backwages. In contrast, the rest of the employees struck as a voluntary act of protest against what they considered unfair labor practices of the company. The stoppage of their work was not the direct consequence of the company's unfair labor practice. Hence their economic loss should not be shifted to the employer. As explained by the NLRB in the case of American Manufacturing Co., 5 NLRB 443, "When employees voluntarily go on strike, even if in protest against unfair labor practices, it has been our policy not to award them back pay during the strike. However, when the strikers abandon the practices and the employer either refuses to reinstate them or imposes upon their reinstatement new conditions that constitute unfair labor practices, We are of the opinion that the considerations impelling our refusal to award back pay are no longer controlling. Accordingly, We hold that where, as in this case, an employer refuses to reinstate strikers except upon their acceptance of new conditions that discriminate against them because of their union membership or activities, the strikers who refuse to accept the conditions and are consequently refused reinstatement are entitled to be made whole for any losses of pay the suffered by reason of the respondent's discriminatory acts." While it is true that the strikers in this case offered to return to work on March 14, 1957, We find that their offer was conditional. Their offer was predicated on the company's observance of the provisions of the collective bargaining agreement-the very bone of contention between the parties by reason of which the union walked out To be effective so as to entitle the strikers to backpay, the offer must have been unconditional. The strikers must have offered to return to work under the same conditions under which they worked just before their strike so that the company's refusal would have placed on the latter the blame for their economic loss. But that is not the case here. Indeed the offer of the company to accept the strikers under the conditions obtaining before the strike (without prejudice of course to taking up the grievances of the strikers) can be considered in its favor in denying backwages to strikers. Nor may it be said that the strikers could not have offered to return to work because the company dismissed them upon their failure to return to work on March 14, 1957. For the notice given by the company was merely a "tactical" threat designed to break the strike and not really to discharge the striking employees.
Consolidated Labor Assoc. v. Marsman & Co. (1964) We now come to the question of backpay. In an economic strike, the strikers are not entitled to backpay, since the employer should get the equivalent day's work for what he pays his employees. During the time that the strike was an economic one, complainants had no right to back pay. The Industrial Court could not have made a finding of unfair labor practice with respect to such time, as none had so far been committed. This being an unfair labor practice case, it cannot, therefore, order reinstatement much less back pay for that period. On the other hand, even after the court has made a finding of unfair labor practice, it still has the discretion to determine whether or not to grant back pay. Such discretion was not abused when it denied back wages to complainants, considering the climate of violence which attended the strike and picket that the complainants conducted. While the complainants ordered reinstated did not actively take part in the acts of violence, their minatory attitude towards the Company may be gathered from the fact that from the very first day of the strike policemen had to patrol the strike zone in order to preserve peace.

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SSS v. SSS Supervisors Union (1982) We find for the petitioner based on the equitable tenet of a "fair day's wage for a fair day's labor." "The age-old rule governing the relation between labor and capital or management and employee is that of a 'fair day's age for a fair day's labor.' If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but "as illegally locked out, dismissed or suspended. It is hardly fair or just for an employee or laborer to fight or litigate against his employer on the employer's time." In this case, the failure to work on the part of the members of respondent Union was due to circumstances not attributable to themselves. But neither should the burden of the economic loss suffered by them be shifted to their employer, the SSS, which was equally faultless, considering that the situation was not a direct consequence of the employer's lockout or unfair labor practice. Under the circumstances, it is but fair that each party must bear his own loss. "Considering, therefore, that the parties had no hand or participation in the situation they were in, and that the stoppage of the work was not the direct consequence of the company's lockout or unfair labor practice, 'the economic loss should not be shifted to the employer.' Justice and equity demand that each must have to bear its own loss, thus placing the parties in equal footing where none should profit front the other there being no fault of either." Phil. Interfashion v. NLRC (1982) The finding of illegal strike was not disputed. Therefore, the 114 strikers employees who participated therein are liable for termination. On the other hand, the finding of illegal lockout was likewise not disputed. Therefore, the 114 employees affected by the lockout are also subject to reinstatement. Petitioner, however, contends that the application for readmission to work by the 150 strikers constitutes condonation of the lockout which should likewise bind the 114 remaining strikers. Suffice it to say that the 150 strikers acted for themselves, not in behalf of the 114 remaining strikers, and therefore the latter could not be deemed to have condoned petitioner's lockout. The findings show that both petitioner and the 114 strikers are in pari delicto, a situation which warrants the maintenance of the status quo. This means that the contending parties must be brought back to their respective positions before the controversy; that is, before the strike. Therefore, the order reinstating the 114 employees is proper." With such restoration of the status quo ante it necessarily follows, as likewise submitted by the Solicitor General, that the petition must be granted insofar as it seeks the setting aside of the award of three months' backwages to the 114 employees ordered reinstated on the basis of the general rule that strikers are not entitled to backwages (with some exceptions not herein applicable, such as where the employer is guilty of oppression and union-busting activities and strikers ordered reinstated are denied such reinstatement and therefore are declared entitled to backwages from the date of such denial). More so, is the principle of "no work, no pay" applicable to the case at bar, in view of the undisputed finding of illegality of the strike. Improved Offer Balloting and Strikes Art. 265 Improved offer balloting. In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement
9.03 PICKETING
1. NATURE AND PURPOSE OF PICKET LINE Insular Life Assurance Co. Ltd. Employees v. Insular Life Assurance Co. Ltd. (1971) The heated altercations and occasional blows exchanged on the picket line do not affect or diminish the right to strike. Persuasive on this point is the following commentary:
"We think it must be conceded that some disorder is unfortunately quite usual in any extensive or long drawn out strike. A strike is essentially a battle waged with economic weapons. Engaged in it are human beings whose feelings are stirred to the depths. Rising passions call forth hot words. Hot words lead to blows on the picket line. The transformation from economic to physical combat by those engaged in the contest is difficult to prevent even when cool heads direct the fight. Violence of this nature, however much it is to be regretted, must have been in the contemplation of the Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing therein should be construed so as to interfere with or impede or diminish in any way the right to strike. If this were not co, the rights afforded to employees by the Act would indeed be illusory. We accordingly recently held that it was not intended by the Act that minor disorders of this nature would deprive a striker of the possibility of reinstatement." Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews, Labor Relations and the Law, p. 378)
Security Bank Employees Union v. Security Bank and Trust Co. (1968)

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Moreover, this Court, in Caltex Refinery Association vs. Lucero, made explicit its disapproval of an injunction against strikes, holding that "no Court can issue a restraining order against union members who plan to hold a strike even if the same may appear to be illegal." That is so in view of the unmistakable language employed in the Industrial Peace Act, with reference to strikes. The statutory command on picketing likewise calls for a similar declaration. The obstacle that bars respondent Bank from attaining its objective to bar all picketing is indeed too formidable to surmount. Also, even without such a categorical mandate expressed in the Act, the recognition of peaceful picketing as a constitutional right embraced in the freedom of expression dating from the 1947 decision of Mortera vs. Court of Industrial Relations, precludes the issuance of such a blanket prohibition as that imposed in the challenged order of respondent Judge of January 3, 1968. This is not to say that picketing, like freedom of expression in general, has no limits. Certainly, to the extent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. Equally so, there can be no indiscriminate ban on the freedom to disseminate the facts of a labor dispute and to appeal for public sympathy, which is the aim of peaceful picketing, without a transgression of the Constitution, sufficient to oust a court of jurisdiction, even on the assumption that it was originally possessed of such a competence, which was not so in this case as had been earlier made clear. Mortera v. CIR (1947) The prohibition in the order of February 21, 1947, against picketing in any guise or form, should be understood to cover only illegal picketing, that is, picketing through the use of illegal means. Peaceful picketing cannot be prohibited. It is part of the freedom of speech guaranteed by the Constitution. PAFLU V. Cloribel (1969) The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution.6 If peacefully carried out, it can not be curtailed even in the absence of employeremployee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus the right may be regulated at the instance of third parties or "innocent bystanders" if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. In one case decided by this Court, we upheld a trial court's injunction prohibiting the union from blocking the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found between the two mills owned by two different corporations other than their being situated in the same premises. It is to be noted that in the instances cited, peaceful picketing has not been totally banned but merely regulated. And in one American case, a picket by a labor union in front of a motion picture theater with which the union had a labor dispute was enjoined by the court from being extended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located. The present case squarely fits into the foregoing legal setting. Wellington and Galang are mere "innocent bystanders." They are entitled to seek protection of their rights from the courts and the courts may, accordingly, legally extend the same. Moreover, PAFLU's right to peacefully picket METBANK is not curtailed by the injunctions issued by respondent judge. The picket is merely regulated to protect the rights of third parties. And the reason for I his is not farfetched. If the law fails to afford said protection, men will endeavor to safeguard their rights by their own might, take the law in their own hands, and commit acts which lead to breaches of peace, bloodshed, and ultimately the final subversion of the law. This should not be allowed to happen. 2. PICKETING AND LIBEL LAWS PCIB V. Philnabank Employees (1981) There is a unique aspect to this action for libel against the Philippine National Bank Employees' Association. It was filed by plaintiff PCIB as a result of placards and signboards along the PNB building in Escolta, Manila, containing the following: "PCIB BAD ACCOUNTS TRANSFERRED TO PNB-NIDC?" There was a labor controversy resulting in a strike, fortunately lasting only for one day. The labor union made use of its constitutional right to picket. From the time of Mortera vs. CIR, a 1947 decision this Court has been committed to the view that' peaceful picketing is part of the freedom of speech guarantee of the Constitution. The latest case in point where such a principle was reaffirmed expressly is Associated Labor Union v. Gomez, a 1980 decision. There is no mention of the other placards but it is not unlikely that to bolster its claim, mention was likewise made and in bold letters at that of such alleged failing of its management. That was the aim and intent as found by the lower court. That could not very well be disputed by plaintiffappellant. Unfortunately, the offending imputation, but in the form of a question, was included. It was due to a former official of plaintiff appellant's bank who was thereafter named as President of the Philippine National Bank. Should there be an automatic attitude of condemnation for such incident? If the realistic observation of Justice Frankfurter in Milk Wagon Drivers Union of Chicago v. Meadowmoor Dairies be heeded that labor disputes give rise to strong emotional response,

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then the decision reached by the lower court becomes even more acceptable. It is a fact of industrial life, both in the Philippines as in the United States, that in the continuing confrontation between labor and management, it is far from likely that the language employed would be both courteous and polite. Such being the case, there is no affront either to reason or to the law in the complaint for libel being dismissed. In placing reliance on the constitutional right of freedom of expression, this Court once again makes manifest its adherence to the principle first announced by Justice Malcolm as ponente in the leading case of United States v. Bustos. In no uncertain terms, it made clear that the judiciary, in deciding suits for libel, must ascertain whether or not the alleged offending words may be embraced by the guarantees of free speech and free press. It cannot be too often said that Bustos was promulgated as far back as March 8, 1918. A doctrine analogous in character. 3. EMPLOYER-EMPLOYEE RELATIONSHIP De Leon v. National Labor Union (1957) PICKETING; ABSENCE OF EMPLOYEREMPLOYEE RELATIONSHIP DOES NOT MAKE PICKETING ILLEGAL.-Picketing peacefully carried out is not illegal even in the absence of employeremployee relationship, for peaceful picketing is a part of the freedom of speech guaranteed by the Constitution. 4. CURTAILMENT Free Telephone Workers Union v. PLDT Co. (1982) However, with respect to the first error assigned, petitioner injects a constitutional issue in that the respondent CIR's order of July 16, 1965 violates the constitutional guarantee of freedom of speech because it called for the lifting of peaceful picket lines. Indeed, it is now well-settled that peaceful picketing cannot be restrained because the same is part of the freedom of speech But petitioner fails to realize that the questioned July 16, 1965 order of the Court of Industrial Relations did not refer to peaceful picketing. In Mortera, supra, where the therein questioned order partly declared that ". . . picketing under any guise and form is hereby prohibited . . .," this Court ruled that the "order of the Court of Industrial Relations prohibiting picketing must be understood to refer only to illegal picketing, that is, picketing through the use of illegal means. Peaceful picketing cannot be prohibited. It is part of the freedom of speech guaranteed by the Constitution. Therefore, the order of the Court of Industrial Relations must be understood to refer only to illegal picketing, that is, picketing through the use of illegal means" In this case, the questioned order should also be taken as limited to the lifting of the picket lines which constituted illegal picketing especially so because it expressly stated that the petitioner union and its officers, agents or symphatizers "are hereby directed to call off the strike declared on July 17, 1965, and to lift the picket lines established in and around the premises of respondent company's various offices and installations . . . . The persons manning the picket lines in these places are hereby enjoined from impeding and interfering with implementation of this Order as well as from interfering in any manner with the operations of respondent. Nagkakaisang Manggagawa sa Cuizon Hotel v. Libron (1983) The above restraining order had to be issued because as contended in the petition, the order of the labor arbiter certainly cannot be declared final and executory upon the mere issuance thereof. That is manifestly in contravention of the law. Article 223 of the Labor Code is quite explicit on the matter, a period of 10 days being granted either or both to the parties involved from receipt of any order to appeal to the National Labor Relations Commission. Moreover, the wholesale condemnation of peaceful picketing is likewise clearly bereft of support in law. As pointed out in a very recent decision decided this year, PAFLU v. CFI of Rizal: "It need not be stressed that peaceful picketing is embraced in freedom of expression. As emphatically declared in Philippine Commercial & Industrial Bank v. Philnabank Employees' Association: 'From the time of Mortera v. Court of Industrial Relations, a 1947 decision this Court has been committed to the view that peaceful picketing is part of the freedom of speech guarantee of the Constitution.' Reference was made in such opinion to Associated Labor Union v. Gomez. In the answer, reference was made to the alleged commission of acts of violence against nonstriking employees and even against the eightyyear old "sickly and paralytic President" of respondent. It is to be understood, of course, that the peaceful picketing authorized cannot certainly countenance acts of illegality. The interim Batasang Pambansa has spoken on the subject thus: "(e) No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer's premises for lawful purposes, or obstruct public thoroughfares. 5. RESTRICTIONS, INNOCENT THIRD PARTY RULE AND LIABILITIES Liwayway Publishing Co. v. Permanent Concrete Workers Union (1981) The first question that strikes Us to be of determinative significance is whether or not this case involves or has arisen out of a labor dispute. If it does, then with certainty, Section 9 of Republic Act 875, the "Industrial Peace Act," would apply. if it does not, then the Rules of Court will govern the issuance of the writ of preliminary injunction because it will not partake the nature of a labor injunction which the lower court has no jurisdiction to issue. The record before Us reveals that appellant union and its members picketed the gate leading to appellee's bodega. This gate is about 200 meters from the gate leading to the premises of the employer of the appellants.

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Appellee is not in any way related to the striking union except for the fact that it is the sublessee of a bodega in the company's compound. The picketers belonging to the appellant union had stopped and prohibited the truck of the appellee from entering the compound to load newsprint from its bodega, the union members intimidating and threatening with bodily harm the employees of the appellee who were in the truck. In such a factual situation, the query to be resolved is whether the appellee is a third party or an "innocent by-stander" whose right has been invaded and, therefore, entitled to protection by the regular courts. At this juncture, it is well to cite and stress the pronouncements of the Supreme Court on the right to picket. Thus, in the case of PAFLU vs. Cloribel, the SC said:
"The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third parties or 'innocent bystanders' if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. In one case decided by this Court, we upheld a trial court's injunction prohibiting the union from blocking the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found other than their being situated in the same premises. It is to be noted that in the instances cited, peaceful picketing has not been totally banned but merely regulated. And in one American case, a picket by a labor union in front of a motion picture theater with which the union had a labor dispute was enjoined by the court from being extended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located." their own hands, and commit acts which lead to breaches of the law. This should not be allowed to happen."
The same case state clearly and succinctly the rationalization for the court's regulation of the right to picket in the following wise and manner:
"Wellington and Galang are mere 'innocent bystanders'. They are entitled to seek protection of their rights from the courts and the courts may, accordingly, legally extend the same. Moreover, PAFLU's right to peacefully picket METBANK is not curtailed by the injunctions issued by respondent judge. The picket is merely regulated to protect the rights of third parties. And the reason for this is not farfetched. If the law fails to afford said protection, men will endeavor to safeguard their rights by their own might, take the law in
We cannot agree that the above rules cited by the appellants are controlling in the instant case for as We said in Phil. Association of Free Labor Unions (PAFLU), et al. vs. Tan, 99 Phil. 854, that "with regard to activities that may be enjoined, in order to ascertain what court has jurisdiction to issue the injunction, it is necessary to determine the nature of the controversy," We find and hold that there is no connection between the appellee Liwayway Publications, Inc. and the striking Union, nor with the company against whom the strikers staged the strike, and neither are the acts of the driver of the appellee, its general manager, personnel manager, the man incharge of the bodega and other employees of the appellee in reaching the bodega to obtain newsprint therefrom to feed and supply its publishing business interwoven with the labor dispute between the striking Union and the Permanent Concrete Products company. If there is a connection between appellee publishing company and the Permanent Concrete Products company, it is that both are situated in the same premises, which can hardly be considered as interwoven with the labor dispute pending in the Court of Industrial Relations between the strikers and their employer. The contention of appellants that the court erred in denying their motion to dismiss on the ground that the complaint states no cause of action, is likewise without merit. Article 1654 of the New Civil Code cited by the appellants in support of their motion to dismiss, which obliges the lessor, among others, to maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract, and therefore, the appellee publishing company should have brought its complaint against the first sublessee, Don Ramon Roces, and not against the appellant Union, is not in point. The acts complained of against the striking union members are properly called mere acts of trespass (perturbacion de mero hecho) such that following the doctrine laid down in Goldstein vs. Roces, 34 Phil. 562, the lessor shall not be obliged to answer for the mere fact of a trespass (perturbacion de mero hecho) made by a third person in the use of the estate leased but the lessee shall have a direct action against the trespasser. The instant case falls squarely under the provisions of Article 1664of the New Civil Code which provides as follows: "Art. 1664. The lessor is not obliged to answer for a mere act of trespass which a third person may cause on the use of the thing leased; but the lessee shall have a direct action against the intruder. There is a mere act of trespass when the third person claims no right whatever.

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MSF Tire and Rubber Inc. v. CA (1999) Thus, an "innocent bystander," who seeks to enjoin a labor strike, must satisfy the court that aside from the grounds specified in Rule 58 of the Rules of Court, it is entirely different from, without any connection whatsoever to, either party to the dispute and, therefore, its interests are totally foreign to the context thereof. In the case at bar, petitioner cannot be said not to have such connection to the dispute. As correctly observed by the appellate court: Coming now to the case before us, we find that the "negotiation, contract of sale, and the post transaction" between Philtread, as vendor, and Siam Tyre, as vendee, reveals a legal relation between them which, in the interest of petitioner, we cannot ignore. To be sure, the transaction between Philtread and Siam Tyre, was not a simple sale whereby Philtread ceased to have any proprietary rights over its sold assets. On the contrary, Philtread remains as 20% owner of private respondent and 60% owner of Sucat Land Corporation which was likewise incorporated in accordance with the terms of the Memorandum of Agreement with Siam Tyre, and which now owns the land were subject plant is located. This, together with the fact that private respondent uses the same plant or factory; similar or substantially the same working conditions; same machinery, tools, and equipment; and manufacture the same products as Philtread, lead us to safely conclude that private respondent's personality is so closely linked to Philtread as to bar its entitlement to an injunctive writ. Stated differently, given its close links with Philtread as to bar its entitlement to an injunctive writ. Stated differently, given its close links with Philtread, we find no clear and unmistakable right on the part of private respondent to entitle it to the writ of preliminary injunction it prayed for below. We stress that that in so ruling, we have not touched on the issue of . . . whether or not private respondent is a mere dummy or continuation of Philtread. Although, as petitioner contends, the corporate fiction may be disregarded where it is used to defeat public convenience, justify wrong, protect fraud, defend crime, or where the corporation is used as a mere alter-ego or business conduit, it is not these standards but those of the "innocent bystander" rule which govern whether or not petitioner is entitled to an injunctive writ. 6. PROHIBITED PICKETING ACTIVITIESPEACEFUL bargaining, or shall aid or abet such obstruction or interference.
9.04 ROLE OF PEACE OFFICERS DURING STRIKES AND PICKETING

1. ESCORTING Art. 264 (d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. 2. ARREST AND VIOLATORS DETENTION OF LAW
Art. 266 Requirement for arrest and detention. Except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor.
Art. 264 (b) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective

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Part X : Labor Injunction Labor Relations
Part X : LABOR INJUNCTION

10.01 DEFINITION AND NATURE
INJUNCTION: An injunction is available as a remedy for harm for which there is no adequate remedy at law. Thus it is used to prevent a future harmful action rather than to compensate for an injury that has already been occurred, or to provide relief from harm for which an award of money damages is not a satisfactory solution or for which a monetary value is impossible to calculate. A defendant who violates an injunction is subject to penalty for contempt. (Webster) Philippine Airlines, Inc. v. NLRC (1998) GENERALLY, injunction is a preservative remedy for the protection of one's substantive rights or interest. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. It is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. The application of the injunctive writ rests upon the existence of an emergency or of a special reason before the main case be regularly heard. The essential conditions for granting such temporary injunctive relief are: 1) that the complaint alleges facts which appear to be sufficient to constitute a proper basis for injunction and 2) that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. Injunction is also a special equitable relief granted only in cases where there is no plain, adequate and complete remedy at law. Article 218 of the Labor Code empowers the NLRC:
e. To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party
ONLY as an INCIDENT to the cases pending before them in order to preserve the rights of the parties during the pendency of the case, BUT excluding labor disputes involving strikes or lockout. From the foregoing provisions of law, the power of the NLRC to issue an injunctive writ originates from "any labor dispute" upon application by a party thereof, which application if not granted "may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party." The term "LABOR DISPUTE" is defined as "any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment regardless of whether or not the disputants stand in the proximate relation of employers and employees." The term "CONTROVERSY is likewise defined as "a litigated question; adversary proceeding in a court of law; a civil action or suit, either at law or in equity; a justiciable dispute." A "justiciable controversy" is "one involving an active antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical question or issue." Taking into account the foregoing definitions, it is an ESSENTIAL REQUIREMENT that: there must first be a LABOR DISPUTE between the contending parties before the labor arbiter. Why does injunction not apply to the facts of this case? In the present case, there is no labor dispute between the petitioner and private respondents as there has yet been no complaint for illegal dismissal filed with the labor arbiter by the private respondents against the petitioner. Furthermore, an examination of private respondents' petition for injunction reveals that it has no basis since there is no showing of any urgency or irreparable injury which the private respondents might suffer. When is an injury considered irreparable? An injury is considered irreparable if it is of such constant and frequent recurrence that no fair and reasonable redress can be had therefor in a court of law, or where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation. It is considered irreparable injury when it cannot be adequately compensated in damages due to the nature of the injury itself or the nature of the right or property injured or when there exists no certain pecuniary standard for the measurement of damages. In the case at bar, the alleged injury which private respondents stand to suffer by reason of their alleged illegal dismissal can be adequately compensated and therefore, there exists no "irreparable injury," as defined above which would necessitate the issuance of the injunction sought for. Article 279 of the Labor Code provides that an employee who is unjustly dismissed from employment shall be
Complementing the above-quoted provision, Sec. 1, Rule XI of the New Rules of Procedure of the NLRC, pertinently provides as follows:
Section 1. Injunction in Ordinary Labor Dispute. - A preliminary injunction or a restraining order may be granted by the Commission through its divisions pursuant to the provisions of paragraph (e) of Article 218 of the Labor Code, as amended, when it is established on the bases of the sworn allegations in the petition that the acts complained of, a) involving or arising from any labor dispute before the Commission, which, b) if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party.
The foregoing ancillary power exercised by the Labor Arbiters:
may
be

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entitled to reinstatement, without loss of seniority rights and other privileges, and to the payment of full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. POLICY BEHIND PROHIBITION OF ISSUANCE OF INJUNCTION: It has been the policy of the State to encourage the parties to use the non-judicial process of negotiation and compromise, mediation and arbitration. Thus, injunctions may be issued only in cases of extreme necessity based on legal grounds clearly established, after due consultations or hearing and when all efforts at conciliation are exhausted which factors, however, are clearly absent in the present case. continued unless restrained but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; 2) That substantial and irreparable injury to complainants property will follow; That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; That complainant has no adequate remedy at law; and"
3)
10.02 GENERAL RULE PROHIBITION

Art. 254 No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this code. Art. 212 (l) LABOR DISPUTE includes any controversy or matters: concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
4)
(5) That the public officers charged with the duty to protect complainants property are unable or unwilling to furnish adequate protection. "Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful have been threatened or committed charged with the duty to protect complainant's property: Provided, however, a) the complainant "shall also allege that, unless a temporary restraining order shall be issued without notice, a SUBSTANTIAL and IRREPARABLE INJURY to complainant's PROPERTY will be unavoidable;" b) there is "TESTIMONY under OATH, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice;" c) the "temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days." d) No such temporary restraining order or temporary injunction shall be issued except
ART. 218 Powers of the Commission. The Commission shall have the power and authority: (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the commission, to the effect: (1) That prohibited or unlawful acts have been threatened and will be committed and will be

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on condition that "complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission;" The UNDERTAKING herein mentioned shall be understood to constitute an agreement into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety upon a hearing to assess damages, of which hearing complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission. Caltex Filipino Managers and Supervisors Assoc. v. CIR (72) RATIONALE for prohibition: 1) It is well known that the scheme in Republic Act No. 875 for achieving industrial peace rests essentially on a FREE AND PRIVATE AGREEMENT between the employer and his employees as to the terms and conditions under which the employer is to give work and the employees are to furnish labor, unhampered as far as possible by judicial or administrative intervention. On this premise the lawmaking body has virtually prohibited the issuance of injunctive relief involving or growing out of labor disputes. 2) The prohibition to issue labor injunctions is designed to give labor a comparable bargaining power with capital and must be liberally construed to that end. GENERAL RULE: there can be no injunction issued against any strike. EXCEPT in only one instance, that is, when a labor dispute arises in an INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST and such dispute is CERTIFIED BY THE PRESIDENT of the Philippines to the Court of Industrial Relations in compliance with Sec. 10 of Republic Act No. 875. Purpose of an injunction in an UNCERTIFIED case: As a corollary to this, an injunction in an uncertified case must be based on the strict requirements of Sec. 9(d) of Republic Act No. 875; the purpose of such an injunction is not to enjoin the strike itself, but only unlawful activities. In this case Judge Tabigne cautioned the parties to maintain the status quo; he specifically advised the employees NOT TO GO ON strike. Will disobedience to the judges advice constitute contempt of court? No. According to SC what Judge Tabigne stated during said hearing should be construed what actually it was an advice. To say that it was an order would be to concede that respondent court could validly enjoin a strike, especially one which is not certified in accordance with Sec. 10 of Republic Act No. 875. To adopt the view of respondent court would not only set at naught the policy of the law as embodied in the said statute against issuance of injunctions, but also remove from the hands of labor unions and aggrieved employees an effective lawful weapon to either secure favorable action on their economic demands or to stop unfair labor practices on the part of their employer. National Mines and Allied Workers v. Vera (1984) An injunction is a proper remedy to prevent a sheriff from selling the property of one person for the purpose of paying the debts of another." Petitioners' reliance on the provision of Art. 254 of the New Labor Code which prohibits injunctions or restraining orders in any case involving or growing out of a 'labor dispute' is not well-taken. This has no application to the case at bar. Civil Case No. 2749 is one which neither "involves" nor "grows out" of a labor dispute. What 'involves' or 'grow out' of a labor dispute is the NLRC case between petitioners and the judgment debtor, Philippine Iron Mines. The private respondents are not parties to the said NLRC case. Civil Case. No. 2749 does not put in issue either the fact or validity of the proceeding in the NLRC case nor the decision therein rendered, much less the writ of execution issued thereunder. It does not seek to enjoin the execution of the decision against the properties of the judgment debtor. What is sought to be tried in Civil Case No. 2749 is whether the NLRC's decision and writ of execution, above-mentioned, shall be permitted to be satisfied against properties of private respondents, and not of the judgment debtor named in the NLRC decision and writ of execution. Such a recourse is allowed under the provisions of Section 17, Rule 39 of the Rules of Court. To sustain petitioners' theory will inevitably lead to disastrous consequences and lend judicial imprimatur to deprivation of property without due process of law. Simply because a writ of execution was issued by the NLRC does not authorize the sheriff implementing the same to levy on anybody's property. To deny the victim of the wrongful levy, the recourse such as that availed of by the herein private respondents, under the pretext that no court of general jurisdiction can interfere with the writ of execution issued in a labor dispute, will be sanctioning a greater evil than that sought to be avoided by the Labor Code provision in

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question. Certainly, that could not have been the intendment of the law creating the NLRC. For wellsettled is the rule that the power of a court to execute its judgment extends only over properties unquestionably belonging to the judgment debtor. Ravago v. Eastern Marine Ltd (2005) Facts: Petitioner is a seafarer who was hired on a contractual basis. Shortly after the termination of his latest contract, he was granted a vacation leave. During that time, he was hit by a stray bullet on his left leg which caused permanent injury. Eastern Marine refused to re-hire him. Petitioner filed a case for illegal dismissal. The Labor Arbiter found that Petitioner was not illegally dismissed. NLRC reversed. On appeal, CA issued a preliminary injunction. The petitioner asserts that the CA violated Article 254 of the Labor Code when it issued a temporary restraining order, and thereafter a writ of preliminary injunction, to derail the enforcement of the final and executory judgment of the Labor Arbiter as affirmed by the NLRC. On the other hand, the respondents contend that the issue has become academic since the CA had already decided the case on its merits. Held: The petitioners reliance on Article 25 [of the Labor Code is misplaced. The law proscribes the issuance of injunctive relief only in those cases involving or growing out of a labor dispute. The case before the NLRC neither involves nor grows out of a labor dispute. It did not involve the fixing of terms or conditions of employment or representation of persons with respect thereto. In fact, the petitioners complaint revolves around the issue of his alleged dismissal from service and his claim for backwages, damages and attorneys fees. Moreover, Article 254 of the Labor Code specifically provides that the NLRC may grant injunctive relief under Article 218 thereof. Besides, the anti-injunction policy of the Labor Code, basically, is freedom at the workplace. It is more appropriate in the promotion of the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor and industrial disputes. Generally, an injunction is a preservative remedy for the protection of a persons substantive rights or interests. It is not a cause of action in itself but a mere provisional remedy, an appendage to the main suit. Pressing necessity requires that it should be resorted to only to avoid injurious consequences which cannot be remedied under any measure of consideration. The application of an injunctive writ rests upon the presence of an exigency or of an exceptional reason before the main case can be regularly heard. The indispensable conditions for granting such temporary injunctive relief are: (a) that the complaint alleges facts which appear to be satisfactory to establish a proper basis for injunction, and (b) that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. It bears stressing that in the present case, the respondents petition contains facts sufficient to warrant the issuance of an injunction under Article 218, paragraph (e) of the Labor Code of the Philippines. Further, respondents had already posted a surety bond more than adequate to cover the judgment award.
10.03 EXCEPTIONS WHEN INJUCTION ALLOWED

See Arts. 254, 218(e); 264 Ilaw at Buklod ng Manggagawa v. NLRC (1991) HELD: Also untenable is the Union's other argument that the respondent NLRC Division had no jurisdiction to issue the temporary restraining order or otherwise grant the preliminary injunction prayed for by SMC and that, even assuming the contrary, the restraining order had been improperly issued. The Court finds that the respondent Commission had acted entirely in accord with applicable provisions of the Labor Code. GENERAL RULE: Article 254 of the Code provides that: "No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 . . . EXCEPTIONS: Article 264 lists down specific "prohibited activities" which may be forbidden or stopped by a restraining order or injunction. Article 218 inter alia enumerates the powers of the National Labor Relations Commission and lays down the conditions under which a restraining order or preliminary injunction may issue, and the procedure to be followed in issuing the same. Among the powers expressly conferred on the Commission by Article 218 is the power to "enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which,: if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party . . . ."
10.04 ISSUING AGENCY

1. NATIONAL LABOR RELATIONS COMMISSION AND ROLE OF THE LABOR ARBITER See Art. 218 (e) Above ROLE OF THE LABOR ARBITER ( Book V Rule XXI sec. 13) The reception of evidence for the application of the writ of injunction may be delegated by the Commission to any Labor Arbiter who shall submit his recommendations to the

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Commissions for its consideration and resolution. Nestle Phils. Inc. V. NLRC (1991) The power of the NLRC to issue writs of injunction is found in Article 218 of the Labor Code, which provides: The Commission shall have the power and authority: (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: . . ." MAIN POINT OF THE CASE: That power, as the statute provides, can only be exercised in a LABOR DISPUTE. Paragraph (1) of Article 212 of the Labor Code defines a labor dispute as follows: "(1) LABOR DISPUTE includes any controversy or matters: - concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, - regardless of whether the disputants stand in the proximate relation of employer and employee." Nestls demand for payment of the private respondents' amortizations on their car loans, or, in the alternative, the return of the cars to the company, is not a labor, but a civil, dispute. It involves debtor-creditor relations, rather than employee-employer relations. As noted, the options given to the private respondents are civil in nature arising from contractual obligations. There is no labor aspect involved in the enforcement of those obligations. The NLRC gravely abused its discretion and exceeded its jurisdiction by issuing the writ of injunction to stop the company from enforcing the civil obligation of the private respondents under the car loan agreements and from protecting its interest in the cars which, by the terms of those agreements, belong to it (the company) until their purchase price shall have been fully paid by the employee. The terms of the car loan agreements are not in issue in the labor case. The rights and obligations of the parties under those contracts may be enforced by a separate civil action in the regular courts, not in the NLRC. Ilaw at Buklod ng Manggagawa (IBM) v. NLRC (1991) GENERAL RULE: Cannot issue EX PARTE As a rule such restraining orders or injunctions do not issue ex parte, but only after compliance with the following requisites, to wit: a. a HEARING held "after due and PERSONAL NOTICE thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant's property b. reception at the hearing of "testimony of witnesses, with opportunity for crossexamination, in support of the allegations of a complaint made under oath," as well as "testimony in opposition thereto, if offered . . .; "a finding of fact by the Commission, to the effect: 1) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or making the organization threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; 2) That substantial and irreparable injury to complainant's property will follow; 3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be indicted upon defendants by the granting of relief; 4) That complainant has no adequate remedy at law; and 5) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection."
c.
EXCEPTION: When it can issue ex parte. However, a temporary restraining order may be issued ex parte under the following conditions: a. the complainant "shall also allege that, unless a temporary restraining order shall be issued without notice, a SUBSTANTIAL and IRREPARABLE INJURY to complainant's PROPERTY will be unavoidable;" b. there is "TESTIMONY under OATH, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice;" c. the "complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and

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subsequently denied by the Commission;" and d. the "temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days." The reception of evidence "for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission." The record reveals that the Commission exercised the power directly and plainly granted to it by sub-paragraph (e) Article 217 in relation to Article 254 of the Code, and that it faithfully observed the procedure and complied with the conditions for the exercise of that power prescribed in said sub-paragraph (e). It acted on SMC's application for immediate issuance of a temporary restraining order ex parte on the ground that substantial and irreparable injury to its property would transpire before the matter could be heard, on notice; it, however, first direct SMC Labor Arbiter Carmen Talusan to receive SMC's testimonial evidence in support of the application and thereafter submit her recommendation thereon; it found SMC's evidence adequate and issued the temporary restraining order upon bond. No irregularity may thus be imputed to the respondent Commission in the issuance of that order. In any event, the temporary restraining order had a lifetime of only twenty (20) days and became void ipso facto at the expiration of that period. In view of the foregoing factual and legal considerations, all irresistibly leading to the basic conclusion that the concerted acts of the members of petitioner Union in question are violative of the law and their formal agreement with the employer, the latter's submittal, in its counter-petition that there was, in the premises, a "legal duty and obligation" on the part of the respondent Commission "to enjoin the unlawful and prohibited acts and omissions of petitioner IBM and the workers complained of" 20 a proposition with which, it must be said, the Office of the Solicitor General concurs, asserting that the "failure of the respondent commission to resolve the application for a writ of injunction is an abuse of discretion especially in the light of the fact that the restraining order it earlier issued had already expired" must perforce be conceded. 2. PROCEDURAL REQUIREMENTS AND RULES FOR THE ISSUANCE OF LABOR INJUNCTIONS Bisig ng Manggagawa, etc. v. NLRC (1993) Strike has been considered the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment. It may be that in highly developed countries, the significance of strike as a coercive weapon has shrunk in view of the preference for more peaceful modes of settling labor disputes. In the Philippine milieu where social justice remains more as a rhetoric than a reality, labor has vigilantly fought to safeguard the sanctity of the right to strike. Its struggle to gain the right to strike has not been easy and effortless. Hence, on June 17, 1953, Congress gave statutory recognition to the right to strike when it enacted RA 875, otherwise known as the Industrial Peace Act. For the first time in our constitutional history, the fundamental law of our land (1987 Constitution) mandated the State to ".. guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law." This constitutional imprimatur given to the right to strike constitutes signal victory for labor. Our Constitutions of 1935 and 1973 did not accord constitutional status to the right to strike RA 6715 came into being on March 21, 1989, an intentional replication of RA 875. In light of the genesis of the right to strike, it ought to be obvious that the right should be read with a libertarian latitude in favor of labor. In the wise words of Father Bernas, S.J.. . the constitutional recognition of the right to strike does serve as a reminder that injunctions, should be reduced to the barest minimum". In the case at bar, the records will show that the respondent NLRC failed to comply with the letter and spirit of Article 218 (e), (4) and (5) of the Labor Code in issuing its Order of May 5, 1992. Article 218 (e) of the Labor Code provides both the procedural and substantive requirements which must strictly be complied with before a temporary or permanent injunction can issue in a labor dispute "Verily, the factual circumstances proven by the evidence show that there was no concurrence of the five (5) prerequisites mandated by Art. 218(e) of the Labor Code. Thus there is no justification for the issuance of the questioned Order of preliminary injunction." Moreover, the records reveal the continuing misuse of unfair strategies to secure ex parte temporary restraining orders against striking employees. (a) Petitioner union did not receive any copy of private respondent's petition for injunction in Case No. 000249-92 filed on April 8, 1992. Its address as alleged by the private respondent turned out to be "erroneous". (b) Consequently, the petitioner was denied the right to attend the hearing held on April 13, 1992 while the private respondent enjoyed a field day presenting its evidence ex parte. (c) On the basis of uncontested evidence, the public respondent, on the same day April 13, 1992, temporarily enjoined the petitioner from committing certain alleged illegal acts. Again, a copy of the Order was sent to the wrong address of the petitioner. (d) Knowledge of the Order came to the petitioner

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only when its striking members read it after it was posted at the struck areas of the private respondent. To be sure, the issuance of an ex parte temporary restraining order in a labor dispute is not per se prohibited. Its issuance, however, should be characterized by care and caution for the law requires that it be clearly justified by considerations of EXTREME NECESSITY, i.e., when the commission of unlawful acts is causing substantial and irreparable injury to company properties and the company is, for the moment, bereft of an adequate remedy at law. This is as it ought to be, for imprudently issued temporary restraining orders can break the back of employees engaged in a legal strike. Often times, they unduly tilt the balance of a labor warfare in favor of capital. When that happens, the deleterious effects of a wrongfully issued, ex parte temporary restraining order on the rights of striking employees can no longer be repaired for they defy simple monetization. Moreover, experience shows that ex parte applications for restraining orders are often based on fabricated facts and concealed truths. A more becoming sense of fairness, therefore, demands that such ex parte applications should be more minutely examined by hearing officers, lest, our constitutional policy of protecting labor becomes nothing but a synthetic shibboleth. The immediate need to hear and resolve these ex parte applications does not provide any excuse to lower our vigilance in protecting labor against the issuance of indiscriminate injunctions. Stated otherwise, it behooves hearing officers receiving evidence in support of ex parte injunctions against employees in strike to take a more active stance in seeing to it that their right to social justice is in no way violated despite their absence. This equalizing stance was not taken in the case at bar by the public respondents. Nor do we find baseless the allegation by petitioner that the public respondents have neglected to resolve with reasonable dispatch its own Petition for Injunction with prayer for a temporary restraining order dated April 25, 1992. The petition invoked Article 264 (d) of the Labor Code to enjoin the private respondent from using the military and police authorities to escort scabs at the struck establishment. Sadly contrasting is the haste with which public respondents heard and acted on a similar petition for injunction filed by the private respondent. In the case of the private respondent, its prayer for an ex parte temporary restraining order was heard on April 13, 1992 and it was granted on the same day. Its petition for preliminary injunction was filed on April 30, 1992, and was granted on May 5, 1992. In the case of petitioner, its petition for injunction was filed on April 24, 1992, and to date, the records do not reveal whether the public respondent has granted or denied the same. The disparate treatment is inexplicable considering that the subject matters of their petition are of similar importance to the parties and to the public. 3. INJUNCTION AND MED-ARBITER Dinio v. Laguesma (1997) In the performance of his duties, the public respondent should not be shackled by stringent rules, if to do so would result in manifest injustice. Thus, he cannot, and correctly did not, turn a blind eye to the arbitrary and haphazard manner by which the Med-Arbiter issued the subject temporary restraining order, even though this issue was not explicitly raised by private respondents. There is no question that the issuance of a temporary restraining order is addressed to the sound discretion of the Med-Arbiter. However, "this discretion should be exercised based upon the grounds and in the manner provided by law." In the case of labor injunctions or temporary restraining orders, one may issue only in instances where the complainant or applicant will suffer grave or irreparable damages as provided in Sec. 5, Rule XVI, Book V of the Omnibus Rules Implementing the Labor Code:
Sec 5. Injunctions. No temporary injunctions or restraining order in any case involving or growing out of a labor dispute shall be issued by any court or other entity. On the other hand, the Office of the President, the Secretary of Labor, the Commission, the Labor Arbiter or med-arbiter may enjoin any or all acts involving or arising from any case pending before any of said offices or officials which if not restrained forthwith may cause grave or irreparable damage to any of the parties to the case or seriously affect social or economic stability.
In the instant controversy, the first petition for injunction and temporary restraining order filed by petitioners on 29 January 1992 was manifestly insufficient to show grave or irreparable injury and it puzzles us to no end how the Med-Arbiter could have issued the temporary restraining order on such flimsy basis. For instance, petitioners alleged that the PCIBEU-Comelec was illegally constituted, yet, they unhesitatingly participated in the preelection process. They announced their candidates and actively campaigned for them. In the petition for injunction itself, petitioners even stated that they filed their certificates of candidacy in compliance with the directives of the PCIBEUComelec. How can petitioners obey the orders of the PCIBEU-Comelec and at the same time reject its authority? This should have put the Med-Arbiter on guard. While it is true that the Med-Arbiter has the authority to issue a writ of preliminary injunction, or a temporary restraining order against any act arising from any case pending before him, the exercise thereof shall always be subject to the test of reasonableness. The Med-Arbiter should ascertain that the act complained of, if not restrained forthwith, may cause grave or irreparable damage to any of the parties to the case. Damage is considered "irreparable": a) if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law (Allendorf vs. Abalanson, 38 Phil. 585), or b) where there is no standard by which their amount can be measured with

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reasonable accuracy, that is, it is not susceptible of mathematical computation (SSC vs. Bayona, et al., L-13555, May 30, 1962). Measured against such test, the act complained of in the present case such as the conduct of the election as originally set on 31 January 1992 may not be said to cause "grave or irreparable" damage to the petitioner-appellee considering that any complaint or question on the conduct of the election maybe the subject of protest, an administrative remedy available and convenient to the parties in the case. On the contrary, considering that the petition for issuance of a writ of injunction was filed barely two days before the date set for the conduct of the election, when the election materials were already readied and the other mechanics for election had already been threshed out, to say the least, the damage that would result would substantially be more, should the election be postponed to another indefinite time. It is well to remember that "injunctions or restraining orders are frowned upon as a matter of labor relations policy," and as a general reminder: There is no power the exercise of which is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. DISINI: 1. 2. Labor Injunction is not the same as the injunction under the rules of court. General rule is stated in Art. 254 - The exceptions are in Art. 218 and Art. 264 - If you are filing injunction under Art. 218, the allegations of the acts committed are different from the allegations of acts committed under Art. 264. BUT the procedure to follow is the same, Art. 218. Procedure for issuance of TRO is different from procedure of issuance of Injunction. - The similarity is in the testimony given. - But TRO is different because it is valid only for 20 days. It is important to take note of the BOND filed and what other remedies there are just in case the injunction or TRO is wrongfully issued. -which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: PROCEDURE for issuance of injunction (also the same for allegations under Art. 264) -Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued A. B. except after hearing the testimony of witnesses, with opportunity for crossexamination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the commission, to the effect:
II.
C. D.
(1) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; "(2) That substantial and irreparable injury to complainants property will follow; "(3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; "(4) That complainant adequate remedy and" (5) has no at law;
3.
4.
ART. 218 Powers of the Commission. The Commission shall have the power and authority: I. ALLEGATIONS FOR ART. 218 TO APPLY (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute
That the public officers charged with the duty to protect complainants property are unable or unwilling to furnish adequate protection.

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E. PERSONAL NOTICE To whom : "Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, - to all known persons against whom relief is sought, - and also to the Chief Executive and - other public officials of the province or city within which the unlawful have been threatened or committed charged with the duty to protect complainant's property: of shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. V. Other Remedies But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Role of the Labor Arbiter Provided, further, that the (1) reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall (2) submit thereafter his recommendation to the Commission.
VI.
III. a)
PROCEDURE for issuance Temporary Restraining Order
Provided, however, the complainant "shall also allege that, unless a temporary restraining order shall be issued without notice, - a SUBSTANTIAL and IRREPARABLE INJURY to complainant's PROPERTY will be unavoidable;"
b)
there is "TESTIMONY under OATH, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice;" the "temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days." No such temporary restraining order or temporary injunction shall be issued except on condition that - "complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission;"
c)
d)
IV. A.
The UNDERTAKING WITH ADEQUATE SECURITY (bond) The UNDERTAKING herein mentioned shall be understood to constitute an agreement into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety upon a hearing to assess damages, of which hearing complainant and surety

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Part XI : Alternatives to Use of Economic Force: Conciliation And Arbitration Labor Relations
Part XI : ALTERNATIVES TO USE OF ECONOMIC FORCE: CONCILIATION AND ARBITRATION AS MODES OF LABOR DISPUTE SETTLEMENT
1. CONCILIATION 11.01 POLICY
Art. 211. Declaration of Policy. (e)To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes; 1987 Constitution. Art. XIII, Sec. 3 x x x The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
2. ARBITRATION 11.04 IN GENERAL

Chung Fu Industries v. CA (1992) As early as the 1920's, this Court declared: "In the Philippines fortunately, the attitude of the courts toward arbitration agreements is slowly crystallizing into definite and workable form ... The rule now is that unless the agreement is such as absolutely to close the doors of the courts against the parties, which agreement would be void, the courts will look with favor upon such amicable arrangements and will only with great reluctance interfere to anticipate or nullify the action of the arbitrator. That there was a growing need for a law regulating arbitration in general was acknowledged when Republic Act No. 876 (1953), otherwise known as the Arbitration Law, was passed. "Said Act was obviously adopted to supplement-not to supplant-the New Civil Code on arbitration. It expressly declares that' the provisions of chapters one and two, Title XIV, Book IV of the Civil Code shall remain in force." In recognition of the pressing need for an arbitral machinery for the early and expeditious settlement of disputes in the construction industry, a Construction Industry Arbitration Commission (CIAC) was created by Executive Order No. 1008, enacted on February 4, 1985. In practice nowadays, absent an agreement of the parties to resolve their disputes via a particular mode, it is the regular courts that remain to resolve such matters. However, the parties may opt for recourse to third parties, exercising their basic freedom to "establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy." In such a case, resort to the arbitration process may be spelled out by them in a contract in anticipation of disputes that may arise between them. Or this may be stipulated in a submission agreement when they are actually confronted by a dispute. Whatever be the case, such recourse to an extrajudicial means of settlement is not intended to completely deprive the courts of jurisdiction. In fact, the early cases on arbitration carefully spelled out the prevailing doctrine at the time, thus: ". . . a clause in a contract providing that all matters in dispute between the parties shall be referred to arbitrators and to them alone is contrary to public policy and cannot oust the courts of jurisdiction." But certainly, the stipulation to refer all future disputes to an arbitrator or to submit an ongoing dispute to one is valid. Being part of a contract between the parties, it is binding and enforceable in court in case one of them neglects, fails or refuses to arbitrate. Going a step further, in the event that they declare their intention to refer their differences to arbitration first before taking court action, this constitutes a condition precedent, such that where a suit has been
11.02 CONCILIATION AS PART OF COLLECTIVE BARGAINING PROCESS

Art. 250 Procedure in collective bargaining. c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. Art. 233 Privileged communication. Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.
11.03 CONCILIATION AGENCY NATIONAL CONCILIATION AND MEDIATION BOARD

Read: CONCILIATORS HANDBOOK, NCMB, DOLE

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instituted prematurely, the court shall suspend the same and the parties shall be directed forthwith to proceed to arbitration. A court action may likewise be proper where the arbitrator has not been selected by the parties. Under present law, may the parties who agree to submit their disputes to arbitration further provide that the arbitrators' award shall be final, unappealable and executory? Article 2044 of the Civil Code recognizes the validity of such stipulation, thus: "Any stipulation that the arbitrator's award or decision shall be final is valid, without prejudice to Articles 2038, 2039 and 2040." Similarly, the Construction Industry Arbitration Law provides that the arbitral award "shall be final and inappealable except on questions of law which shall be appealable to the Supreme Court."16 Under the original Labor Code, voluntary arbitration awards or decisions were final, unappealable and executory. "However, voluntary arbitration awards or decisions on money claims, involving an amount exceeding One Hundred Thousand Pesos (P100,000.00) or forty-percent (40%) of the paid-up capital of the respondent employer, whichever is lower, may be appealed to the NLRC on any of the following grounds: (a) abuse of discretion; and (b) gross incompetence." It is to be noted that the appeal in the instances cited were to be made to the National Labor Relations Commission and not to the courts. With the subsequent deletion of the abovecited provision from the Labor Code, the voluntary arbitrator is now mandated to render an award or decision within 20 calendar days from the date of submission of the dispute and such decision shall be final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties. Where the parties agree that the decision of the arbitrator shall be final and unappealable as in the instant case, the pivotal inquiry is whether subject arbitration award is indeed beyond the ambit of the court's power of judicial review. We rule in the negative. It is stated explicitly under Art. 2044 of the Civil Code that the finality of the arbitrators' award is not absolute and without exceptions. Where the conditions described in Articles 2038, 2039 and 2040 applicable to both compromises and arbitrations are obtaining, the arbitrators' award may be annulled or rescinded. Additionally, under Sections 24 and 25 of the Arbitration Law, there are grounds for vacating, modifying or rescinding an arbitrator's award. If courts refuse or neglect to inquire into the factual milieu of an arbitrator's award to determine whether it is in accordance with law or within the scope of his authority? How may the power of judicial review be invoked? This is where the proper remedy is certiorari under Rule 65 the Revised Rules of Court. It is to be borne in mind, however, that this action will lie only where a grave abuse of discretion or an act without or in excess of jurisdiction on the part of the voluntary arbitrator is clearly shown. For "the writ of certiorari is an extraordinary remedy and that certiorari jurisdiction is not to be equated with appellate jurisdiction. In a special civil action of certiorari, the Court will not engage in a review of the facts found nor even of the law as interpreted or applied by the arbitrator unless the supposed errors of fact or of law are so patent and gross and prejudicial as to amount to a grave abuse of discretion or an exces de pouvoir on the part of the arbitrator." Even decisions of administrative agencies which are declared "final" by law are not exempt from judicial review when so warranted. It should be stressed too, that voluntary arbitrators, by the nature of their functions, act in a quasi-judicial capacity. It stands to reason, therefore, that their decisions should not be beyond the scope of the power of judicial review of this Court. LM Power Engineering Corp. v. Capitol Industrial Construction Groups (2003) Held: Essentially, the dispute arose from the parties incongruent positions on whether certain provisions of their Agreement could be applied to the facts. The instant case involves technical discrepancies that are better left to an arbitral body that has expertise in those areas. In any event, the inclusion of an arbitration clause in a contract does not ipso facto divest the courts of jurisdiction to pass upon the findings of arbitral bodies, because the awards are still judicially reviewable under certain conditions. The Subcontract of the parties contain an arbitration clause. Being an inexpensive, speedy and amicable method of settling disputes, arbitration -- along with mediation, conciliation and negotiation -- is encouraged by the Supreme Court. Aside from unclogging judicial dockets, arbitration also hastens the resolution of disputes, especially of the commercial kind. It is thus regarded as the wave of the future in international civil and commercial disputes. Brushing aside a contractual agreement calling for arbitration between the parties would be a step backward. Consistent with the above-mentioned policy of encouraging alternative dispute resolution methods, courts should liberally construe arbitration clauses. Provided such clause is susceptible of an interpretation that covers the asserted dispute, an order to arbitrate should be granted. Any doubt should be resolved in favor of arbitration. According to petitioner, assuming arguendo that the dispute is arbitrable, the failure to file a formal request for arbitration with the Construction Industry Arbitration Commission (CIAC) precluded the latter from acquiring jurisdiction over the question. Held: Sec 1 of Article II of the old Rules of Procedure Governing Construction Arbitration indeed required the submission of a request for arbitration, as follows. However, the new Rules of Procedure Governing Construction Arbitration has dispensed with this requirement and recourse to the CIAC may now be availed of whenever a contract contains a clause for the submission of a future controversy to arbitration . Clearly, there is no more need to file a request with the CIAC in order to vest it

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with jurisdiction to decide a construction dispute. The arbitral clause in the Agreement is a commitment on the part of the parties to submit to arbitration the disputes covered therein. Because that clause is binding, they are expected to abide by it in good faith. And because it covers the dispute between the parties in the present case, either of them may compel the other to arbitrate. enforcement agencies to ensure the compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concerns for and highest respect accorder to the right of patients to life and health, strikes and lock-outs in HOSPITALS, CLINICS, and SIMILAR MEDICAL INSTITUTIONS SHALL, to every extent possible, BE AVOIDED, and all serious efforts, not only by labor and management but government as well, be exhausted to SUBSTANTIALLY MINIMIZE, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, 1. it shall be the DUTY of striking union or locking out employer to provide and maintain an EFFECTIVE SKELETAL WORKFORCE of medical and other health personnel, 2. Whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may IMMEDIATELY assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose the contending parties are STRICTLY ENJOINED to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of back wages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded 1. From DETERMINING THE INDUSTRIES that, in HIS OPINION, are indispensable to the national interest, and 2. From intervening at any time and assuming jurisdiction over such labor dispute in order to settle or terminate the same. Sec. 22 RA 8791 Banking institutions are industries indispensable to the national interest. PAL v. NLRC (1989) Neither can proceedings on appeal before the NLRC en banc be considered as part of the arbitration proceeding. In its broad sense, arbitration is the reference of a dispute to an impartial third
11.05 COMPULSORY ARBITRATION

1. DEFINITION AND NATURE OF DISPUTE SUBJECT TO COMPULSORY ARBITRATION Compulsory Arbitration is by mandate of law. While voluntary arbitration is by agreement of parties. What is the type of dispute subject to compulsory arbitration? Labor disputes in industry indispensable to the national interest. Who is initiating party? Initiated by the Secretary of Labor or the President.
Take note that the NLRC has no authority to initiate. The NLRC only comes into the picture when the secretary of labor or the President certifies the case to them. Art. 263 (g) Strikes, Picketing, and Lock-outs When, in his OPINION, there exists a LABOR DISPUTE causing or likely to cause a STRIKE OR LOCKOUT in an INDUSTRY INDISPENDSABLE TO THE NATIONAL INTERESTS, The Secretary of Labor and Employment MAY 1. assume jurisdiction over the dispute and decide it OR 2. certify the same to the Commission (NLRC) for COMPULSORY ARBITRATION. Such assumption or certification shall have the effect of: AUTOMATICALLY enjoining the intended or impending strike or lock-out as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, 1. All striking or locked-out employees shall IMMEDIATELY RETURN TO WORK 2. AND the employer shall IMMEDIATELY resume operations and READMIT all workers under the SAME terms and conditions prevailing before the strike or lock-out. The Secretary of Labor and Employment or the Commission may seek the assistance of law

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person, chosen by the parties or appointed by statutory authority to hear and decide the case in controversy [Chan Linte v. Law Union and Rock, Inc. Co., 42 Phil. 548 (1921)]. When the consent of one of the parties is enforced by statutory provisions, the proceeding is referred to as compulsory arbitration. In labor cases, compulsory arbitration is the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all the parties Under the Labor Code, it is the Labor Arbiter who is clothed with the authority to conduct compulsory arbitration on cases involving termination disputes [Article 217, Pres. Decree No. 442, as amended]. When the Labor Arbiter renders his decision, compulsory arbitration is deemed terminated because by then the hearing and determination of the controversy has ended. Any appeal raised by an aggrieved party from the Labor Arbiter's decision is already beyond the scope of arbitration since in the appeal stage, the NLRC en banc merely reviews the Labor Arbiter's decision for errors of fact or law and no longer duplicates the proceedings before the Labor Arbiter. Thus, the clause "pending final resolution of the case by arbitration" should be understood to be limited only to the proceedings before the Labor Arbiter, such that when the latter rendered his decision, the case was finally resolved by arbitration. GTE Directories Corp. v. GTE Directories Corp. Employees Union (1991) Minister Sanchez decided the dispute in the exercise of the jurisdiction assumed by his predecessor in accordance with Article 263 (g) of the Labor Code. Even that assumption s is open to question. The production and publication of telephone directories, which is the principal activity of GTE, can scarcely be described as an industry affecting the national interest. GTE is a publishing firm chiefly dependent on the marketing and sale of advertising space for its not inconsiderable revenues. Its services, while of value, cannot be deemed to be in the same category of such essential activities as "the generation or distribution of energy" or those undertaken by "banks, hospitals, and export-oriented industries." It cannot be regarded as playing as vital a role in communication as other mass media. The small number of employees involved in the dispute, the employer's payment of "P10 million in income tax alone to the Philippine government," and the fact that the "top officers of the union were dismissed during the conciliation process," obviously do not suffice to make the dispute in the case at bar one "adversely affecting the national interest." Luzon Development Bank v. Association of Development Bank Employees (1995) Compulsory arbitration is a system whereby the parties to a dispute are compelled by the government to forego their right to strike and are compelled to accept the resolution of their dispute through arbitration by a third party. The essence of arbitration remains since a resolution of a dispute is arrived at by resort to a disinterested third party whose decision is final and binding on the parties, but in compulsory arbitration, such a third party is normally appointed by the government. Trans-Asia Shipping Lines, Inc. v. CA (2004) A cursory reading of the above provision shows that when the Secretary of Labor assumes jurisdiction over a labor dispute in an industry indispensable to national interest or certifies the same to the NLRC for compulsory arbitration, such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout. Moreover, if one had already taken place, all striking workers shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The powers granted to the Secretary of Labor under Article 263 (g) of the Labor Code have been characterized as an exercise of the police power of the State, with the aim of promoting public good: When the Secretary exercises these powers, he is granted great breadth of discretion in order to find a solution to a labor dispute. The most obvious of these powers is the automatic enjoining of an impending strike or lockout or the lifting thereof if one has already taken place. Assumption of jurisdiction over a labor dispute, or as in this case the certification of the same to the NLRC for compulsory arbitration, always co-exists with an order for workers to return to work immediately and for employers to readmit all workers under the same terms and conditions prevailing before the strike or lockout. That respondents business is of national interest is not disputed. It is engaged in coastwise shipping services for the transportation of passengers and cargoes. The direct intervention of this Office becomes imperative on account of the magnitude of the adverse effect of any work stoppage at the Company to the regional and national economy. Under the present state of things, the exercise of this Offices power as embodied under Article 263 (g) of the Labor Code, as amended, is warranted. The maritime industry is indubitably imbued with national interest. Under the circumstances, the Labor Secretary correctly intervened in the labor dispute between the parties to this case by certifying the same to the NLRC for compulsory arbitration. Manila Diamond Hotel Employees Union v. CA (2004) The CA based its decision on this Courts ruling in UST v. NLRC. There, the Secretary assumed jurisdiction over the labor dispute between striking teachers and the university. He ordered the striking teachers to return to work and the university to accept them under the same terms and conditions. However, in a subsequent order, the NLRC provided payroll reinstatement for the

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striking teachers as an alternative remedy to actual reinstatement. True, this Court held therein that the NLRC did not commit grave abuse of discretion in providing for the alternative remedy of payroll reinstatement. This Court found that it was merely an error of judgment, which is not correctible by a special civil action for certiorari. The NLRC was only trying its best to work out a satisfactory ad hoc solution to a festering and serious problem. However, this Court notes that the UST ruling was made in the light of one very important fact: the teachers could not be given back their academic assignments since the order of the Secretary for them to return to work was given in the middle of the first semester of the academic year. The NLRC was, therefore, faced with a situation where the striking teachers were entitled to a return to work order, but the university could not immediately reinstate them since it would be impracticable and detrimental to the students to change teachers at that point in time. In the present case, there is no showing that the facts called for payroll reinstatement as an alternative remedy. A strained relationship between the striking employees and management is no reason for payroll reinstatement in lieu of actual reinstatement. Petitioner correctly points out that labor disputes naturally involve strained relations between labor and management, and that in most strikes, the relations between the strikers and the non-strikers will similarly be tense. Nevertheless, the government must still perform its function and apply the law, especially if, as in this case, national interest is involved. Whether the Court of Appeals erred in ruling that the Secretary did not commit any grave abuse of discretion in ordering payroll reinstatement in lieu of actual reinstatement? This question is answered by the nature of Article 263(g). As a general rule, the State encourages an environment wherein employers and employees themselves must deal with their problems in a manner that mutually suits them best. This is the basic policy embodied in Article XIII, Section 3 of the Constitution, which was further echoed in Article 211 of the Labor Code. Hence, a voluntary, instead of compulsory, mode of dispute settlement is the general rule. However, Article 263(g), which allows the Secretary of Labor to assume jurisdiction over a labor dispute involving an industry indispensable to the national interest, provides an exception:
(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. x x x
This provision is viewed as an exercise of the police power of the State. A prolonged strike or lockout can be inimical to the national economy and, therefore, the situation is imbued with public necessity and involves the right of the State and the public to self-protection. Under Article 263(g), all workers must immediately return to work and all employers must readmit all of them under the same terms and conditions prevailing before the strike or lockout. This Court must point out that the law uses the precise phrase of under the same terms and conditions, revealing that it contemplates only actual reinstatement. This is in keeping with the rationale that any work stoppage or slowdown in that particular industry can be inimical to the national economy. It is clear that Article 263(g) was not written to protect labor from the excesses of management, nor was it written to ease management from expenses, which it normally incurs during a work stoppage or slowdown. It is, therefore, evident from the foregoing that the Secretarys subsequent order for mere payroll reinstatement constitutes grave abuse of discretion amounting to lack or excess of jurisdiction. Even in the exercise of his discretion under Article 236(g), the Secretary must always keep in mind the purpose of the law. Time and again, this Court has held that when an official by-passes the law on the asserted ground of attaining a laudable objective, the same will not be maintained if the intendment or purpose of the law would be defeated. 2. RATIONALE ARBITRATION FOR COMPULSORY
National Federation of Labor v. MOLE (1983) "The very nature of a return-to-work order issued in a certified case lends itself to no other construction. The certification attests to the urgency of the matter, affecting as it does an industry indispensable to the national interest. The order is issued in the exercise of the court's compulsory power of arbitration, and therefore must be obeyed until set aside. To say that its effectivity must await affirmance on a motion for reconsideration is not only to emasculate it but indeed to defeat its import, for by then the deadline fixed for the return to work would, in the ordinary course, have already passed and hence can no longer be affirmed insofar as the time element is concerned." It is quite apparent, therefore, why this case calls for prompt decision. After this long lapse of time, respondent Zamboanga Wood Products, Inc. had failed to abide by the clear and mandatory requirement of the law. It would negate the very purpose of a compulsory arbitration, which precisely is intended to call a halt to a pending strike by requiring that the status quo prior to its

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declaration be preserved, if one of the parties fails to live up to such a norm. The inconsistencies between what was sought by private respondent, namely, compulsory arbitration, and the failure to admit the striking employees back to work in the meantime, cannot be countenanced. As noted earlier, time is of the essence as far as the eightyone petitioners are concerned. Phil. School of Business Administration v. Noriel(1988) In the opinion of Acting Secretary Noriel, the labor dispute adversely affected the national interest, affecting as it did some 9,000 students. He was authorized by law to assume jurisdiction over the labor dispute, after finding that it adversely affected the national interest. This power is expressly granted by Art. 263(g) of the Labor Code. Acting Secretary Noriel did exactly what he was supposed to do under the Labor Code. Petitioner contends that the Acting Secretary erred when he found that the strike staged by respondent union and its members, who had already been restrained by the RTC from picketing and barricading the main gate of the school, was a fit subject of a return to work order. However, the Court finds that no error was made by the Acting Secretary. The RTC had no jurisdiction over the subject matter of the case filed by some PSBA students, involving as it does a labor dispute over which the labor agencies had exclusive jurisdiction. That the regular courts have no jurisdiction over labor disputes and to issue injunctions against strikes is well-settled. It may also be added that due to petitioner's intransigent refusal to attend the conciliation conferences called after the union struck, assumption of jurisdiction by the Secretary of Labor and the issuance of a return-to-work order had become the only way of breaking the deadlock and maintaining the status quo ante pending resolution of the dispute. The Solicitor General was correct when he stated that by assuming jurisdiction over the labor dispute, the Acting Secretary of Labor merely provided for a formal forum for the parties to ventilate their positions with the end in view of settling the dispute. It is, therefore, error for the petitioners to allege that by the mere act of certifying a labor dispute for compulsory arbitration and issuing a return to work order, the Minister of Labor and Employment thereby "enters the picture on the side of the Company," and violates the freedom of expression of workers engaged in picketing, "in utter subversion of the constitutional rights of workers." As contended by the SolGen, "there can be no such unconstitutional application (of BP 227) because all that Minister has done is to certify the labor dispute for arbitration and thereafter personally assume jurisdiction over it. He has not rendered any decision; he has not favored one party over the other. The exercise of the power, to be in full accord with the Constitution, must be with a view to the protection of labor: . . . It must be stressed anew, however, that the power of compulsory arbitration, while allowable under the [1973] Constitution, and quite understandable in labor disputes affected with a national interest, to be free from the taint of unconstitutionality, must be exercised in accordance with the constitutional mandate of protection to labor. The arbiter then is called upon to take due care that in the decision to be reached, there is no violation of "the rights of workers to selforganization, collective bargaining, security of tenure, and just and humane conditions of work." [Art. II, Sec. 9, 1973 Constitution.] It is of course manifest that there is such unconstitutional application if a law "fair on its face and impartial in appearance is applied and administered by a public authority with an evil eye and an unequal hand." [Yick Wo v. Hopkins, 118 U.S. 356, 372 (1886).] It does not even have to go that far. An instance of unconstitutional application would be discernible if what is ordained by the fundamental law, the protection of law, is ignored or disregarded. Manila Cordage Company v. CIR (1971) The purpose of a presidential certification is nothing more than to bring about soonest, thru arbitration by the industrial court, a fair and just solution of the differences between an employer and his workers regarding the terms and conditions of work in the industry concerned which in the opinion of the President involves the national interest, so that the damage such employer-worker dispute might cause upon the national interest may be minimized as much as possible, if not totally averted by avoiding the stoppage of work as a result of a strike or lock out or any lagging of the activities of the industry or the possibility of these contingencies which might cause detriment to such national interest. This is the foundation of that court's jurisdiction in what may be termed as a certification case. Naturally, if the employer and the workers are able to arrive at an amicable settlement by free and voluntary collective bargaining preferably thru a labor union, before the court is able to use its good offices, it is but in consonance with the objective of the Industrial Peace Act to promote unionism and free collective bargaining that the court should step out of the picture and declare its function in the premises at an end, except as it may become necessary to determine whether or not the agreement forged by the parties is not contrary to law, morals or public policy. 3. PROCESS INITIATION CERTIFICATION OF DISPUTE 1) Initiating Party a) Secretary DOLE b) President Union of Filipino Employees v. Nestle Philippines (1990) The assumption of jurisdiction by the Secretary of Labor over labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest is in the nature of a POLICE POWER measure. It cannot be denied that the private respondent is engaged in an undertaking

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affected with public interest being one of the largest manufacturers of food products. The compelling consideration of the Secretary's assumption of jurisdiction is the fact that a prolonged strike or lockout is inimical to the national economy and thus, the need to implement some measures to suppress any act which will hinder the company's essential productions is indispensable for the promotion of the COMMON GOOD. Under this situation, the Secretary's certification order for compulsory arbitration which was intended for the immediate formulation of an already delayed CBA was proper. Corollary, the NLRC was thereby charged with the task of implementing the certification order for compulsory arbitration. As the implementing body, its authority did not include the power to amend the Secretary's order. For the same reason, We rule that the prayer to declare the respondent company guilty of acts of unfair labor practice when it allegedly resorted to practices designed to delay the collective bargaining negotiations cannot be subsumed in this petition, it being beyond the scope of the certification order. Petitioner argues that because of the public respondent's actuation in this regard, it committed grave abuse of discretion as it allowed multiplicity of suits and splitting causes of action which are barred by procedural rule. What is compulsory arbitration? "When the consent of one of the parties is enforced by statutory provisions, the proceeding is referred to as compulsory arbitration In labor cases, compulsory arbitration is the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all the parties. When sitting in a compulsory arbitration certified to by the Secretary of Labor, the NLRC is not sitting as a judicial court but as an administrative body charged with the duty to implement the order of the Secretary. In this case, Its function only is to formulate the terms and conditions of the CBA and cannot go beyond the scope of the order. Moreover, the Commission is further tasked to act within the earliest time possible and with the end in view that its action would not only serve the interests of the parties alone, but would also have favorable implications to the community and to the economy as a whole. In view of the avowed but limited purpose of respondent's assumption of jurisdiction over this compulsory arbitration case, it cannot be faulted in not taking cognizance of other matters that would defeat this purpose. Intl Pharmaceuticals Inc. v. Secretary of DOLE (1992) The foregoing provisions persuade us that the Secretary did not gravely abuse his discretion when he issued the questioned orders. As early as 1913, this Court laid down in Herrera vs. Baretto, et al. the fundamental normative rule that jurisdiction is the authority to hear and determine a cause - the right to act in a case. However, this should be distinguished from the exercise of jurisdiction. The authority to decide a case at all and not the decision rendered therein is what makes up jurisdiction. Where there is jurisdiction over the person and the subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. In the present case, the Secretary was explicitly granted by Art. 263(g) of the Labor Code the authority to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, and decide the same accordingly. Necessarily, this authority to assume jurisdiction over the said labor dispute must include and extend to all questions and controversies arising therefrom, including cases over which the labor arbiter has exclusive jurisdiction. Moreover, Art. 217 is not without, but contemplates, exceptions thereto. This is evident from the opening proviso therein reading "(e)xcept as otherwise provided under this Code . . ." Plainly, Article 263(g) was meant to make both the Secretary (or the various regional directors) and the labor arbiters share jurisdiction, subject to certain conditions. Otherwise, the Secretary would not be able to effectively and efficiently dispose of the primary dispute. To hold the contrary may even lead to the absurd and undesirable result wherein the Secretary and the labor arbiter concerned may have diametrically opposed rulings. As we have said, "(i)t is fundamental that a statute is to be read in a manner that would breathe life into it, rather than defeat it. In fine, the issuance of the assailed orders is within the province of the Secretary as authorized by Article 263(g) of the Labor Code and Article 217(a) (1) and (5) of the same Code, taken conjointly and rationally construed to subserve the objective of the jurisdiction vested in the Secretary. Our pronouncement on this point should be distinguished from the situation which obtained and our consequent ruling in Servando's, Inc. vs. wherein we referred to the Sec of Labor appropriate labor arbiter a case previously decided by the Secretary. The said case was declared to be within the exclusive jurisdiction of the labor arbiter since the aggregate claims of each of the employees involved exceeded P5,000.00. In Servando, the Secretary invoked his visitorial and enforcement powers to assume jurisdiction over the ease, the exclusive and original jurisdiction of which belongs to the labor arbiter. We said that to uphold the Secretary would empower him, under his visitorial powers, to hear and decide an employee's claim of

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more than P5,000.00. We held that he could not do that and we, therefore, overruled him. In the present case, however, by virtue of Article 263(g) of the Labor Code, the Secretary has been conferred jurisdiction over cases which would otherwise be under the original and exclusive jurisdiction of labor arbiters. There was an existing labor dispute as a result of a deadlock in the negotiation for a CBA and the consequent strike, over which the Secretary assumed jurisdiction pursuant to Article 263(g) of the Labor Code. The three NLRC cases were just offshoots of the stalemate in the negotiations and the strike. We, therefore, uphold the Secretary's order to consolidate the NLRC cases with the labor dispute pending before him and his subsequent assumption of jurisdiction over the said NLRC cases for him to be able to competently and efficiently dispose of the dispute in its totality. Feati University v. Bautista(1966) "It thus appears that when in the opinion of the President a labor dispute exists in an industry indispensable to national interest and he certifies it to the Court of Industrial Relations the latter acquires jurisdiction to act thereon in the manner provided by law. Thus the court may take either of the following courses: a. it may issue an order forbidding employees to strike or the employer to lockout its employees, or, failing in this, b. it may issue an order fixing the terms and conditions of employment. It has no other alternative. It can throw the case out in the assumption that the certification was erroneous. ". . . The fact, however, is that because of the strike declared by the members of the minority union which threatens a major industry the President deemed it wise to certify the controversy to the Court of Industrial Relations for adjudication. This is the power that the law gives to the President the propriety of its exercise being a matter that only devolves upon him. The same is not the concern of the industrial court. What matters is that by virtue of the certification made by the President the case was placed under the jurisdiction of said court." To certify a labor dispute to the CIR is the prerogative of the President under the law, and this Court will not interfere in, much less curtail, the exercise of that prerogative. The jurisdiction of the CIR in a certified case is exclusive (Rizal Cement Co., Inc. vs. Rizal Cement Workers Union (FFW), et al., G. R. L-12747, July 30, 1960). Once the jurisdiction is acquired pursuant to the presidential certification, the CIR may exercise its broad powers as provided in Commonwealth Act 103. All phases of the labor dispute and the employer-employee relationship may be threshed out before the CIR, and the CIR may issue such order or orders as may be necessary to make effective the exercise of its jurisdiction. The parties involved in the case may appeal to the Supreme Court from the order or orders thus issued by the CIR. And so, in the instant case, when the President took into consideration that the University "has some 18,000 students and employed approximately 500 faculty members," that "the continued disruption in the operation of the University will necessarily prejudice the thousand of students", and that "the dispute affects the national interest", and certified the dispute to the CIR, it is not for the CIR nor this Court to pass upon the correctness of the reasons of the President in certifying the labor dispute to the CIR. 4. ARBITRATION AGENCIES St. Scholasticas College v. Torres (1992) An issue that is not part of the dispute may be ruled on a compulsory arbitration case if it was submitted by the parties. The issue on whether respondent SECRETARY has the power to assume jurisdiction over a labor dispute and its incidental controversies, causing or likely to cause a strike or lockout in an industry indispensable to the national interest, was already settled in International Pharmaceuticals, Inc. Secretary of Labor and Employment. Therein, We ruled that:
". . . [T]he Secretary was explicitly granted by Article 263 (g) of the Labor Code the authority to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, and decide the same accordingly. Necessarily, this authority to assume jurisdictional over the said labor dispute must include and extend to all questions and controversies arising therefrom, including cases over which the Labor Arbiter has exclusive jurisdiction."
At first glance, the rulings above stated seem to run counter to that of PAL v. Secretary or Labor and Employment, which was, cited by petitioner. But the conflict is only apparent, not real. To recall, We ruled in the latter case that the jurisdiction of the Secretary of Labor and Employment in assumption and/or certification cases is limited to the issues that are involved in the disputes or to those that are submitted to him for resolution. The seeming difference is, however, reconcilable. Since the matter on the legality or illegality of the strike was never submitted to him for resolution, he was thus found to have exceeded his jurisdiction when he restrained the employer from taking disciplinary action against employees who staged an illegal strike. Before the Secretary of Labor and Employment may take cognizance of an issue which is merely incidental to the labor dispute, therefore, the same must be involved in the labor dispute itself, or otherwise submitted to him for resolution.

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If it was not, as was the case in PAL and he nevertheless acted on it, that assumption of jurisdiction is tantamount to a grave abuse of discretion. Otherwise, the ruling in International Pharmaceuticals, Inc. v. Secretary of Labor and Employment, supra, will apply. The submission of an incidental issue of a labor dispute, in assumption and/or certification cases, to the Secretary of Labor and Employment for his resolution is thus one of the instances referred to whereby the latter may exercise concurrent jurisdiction together with the Labor Arbiters. Effect of non-compliance with return to work order Non-compliance with the certification order of the Sec of Labor or a return to work order of the Commission shall be considered an illegal act committed in the course of the strike or lookout and shall authorize the Sec of Labor or the Commission, as the case may be, to enforce the same under pain or loss of employment status or entitlement to full employment benefits from the locking-out employer or backwages, damages and/or other positive and/or affirmative reliefs, even to criminal prosecution against the liable parties . . ." Private respondent UNION maintains that the reason they failed to immediately comply with the return-to-work order was because they questioned the assumption of jurisdiction of respondent SECRETARY. They were of the impression that being an academic institution, the school could not be considered an industry indispensable to national interest, and that pending resolution of the issue, they were under no obligation to immediately return to work. This position of the UNION is simply flawed. Article 263 (g) provides that if a strike has already taken place at the time of assumption, "all striking . . . employees shall immediately return to work." This means that by its very terms, a return-towork order is immediately effective and executory notwithstanding the filing of a motion for reconsideration It must be strictly complied with even during the pendency of any petition questioning its validity (Union of Filipro Employees v. Nestle' Philippines, Inc., supra) After all, the assumption and/or certification order is issued in the exercise of respondent SECRETARY's compulsive power of arbitration and, until set aside, must therefore be immediately complied with. The rationale for this rule is explained in University of Sto. Tomas v. NLRC, "To say that the return-to-work order effectivity must wait affirmance in a motion for reconsideration is not only to emasculate it but indeed to defeat its import, for by then the deadline fixed for the return to work would, in the ordinary course, have already passed and hence can no longer be affirmed insofar as the time element is concerned." Moreover, the assumption of jurisdiction by the Secretary of Labor over labor disputes involving academic institutions was already upheld in Philippine School of Business Administration v. Noriel where We ruled thus: "There is no doubt that the on-going labor dispute at the school adversely affects the national interest. Respondent UNION's failure to immediately comply with the return-to-work order of 5 November 1990, therefore, cannot be condoned. The respective liabilities of striking union officers and members who failed to immediately comply with the return-to-work order is outlined in Art. 264 of the Labor Code which provides that any declaration of a strike or lockout after the Secretary of Labor and Employment has assumed jurisdiction over the labor dispute is considered an illegal act. Any worker or union officer who knowingly participates in a strike defying a returnto-work order may, consequently, "be declared to have lost his employment status." Thus, we held in Sarmiento v. Tuico, supra, that by insisting on staging the restrained strike and defiantly picketing the company premises to prevent the resumption of operations, the strikers have forfeited their right to be readmitted, having abandoned their positions, and so could be validly replaced. The sympathy of the Court which, as a rule, is on the side of the laboring classes (Reliance Surety & Insurance Co., Inc. v. NLRC), cannot be extended to the striking union officers and members in the instant petition. There was willful disobedience not only to one but two return-towork orders. Considering that the UNION consisted mainly of teachers, who are supposed to be well-lettered and well-informed, the Court cannot overlook the plain arrogance and pride displayed by the UNION in this labor dispute. It is clear from the provisions above quoted that from the moment a worker defies a return-to-work order, he is deemed to have abandoned his job. It is already in itself knowingly participating in an illegal act. Otherwise, the worker will just simply refuse to return to his work and cause a standstill they refused to discharge or allow the management to fill (Sarmiento v. Tuico, supra). Suffice it to say, in Federation of Free Workers v. Inciong, supra, the workers were terminated from work after defying the return-to-work order for only nine (9) days. It is indeed inconceivable that an employee, despite a return-to-work order, will be allowed in the interim to stand akimbo and wait until five (5) orders shall have been issued for their return before they report back to work. This is absurd. 5. EFFECT OF CERTIFICATION VIOLATION OF ORDER AND
Sarmiento v. Tuico (1988) The law itself provides that "such assumption or certification shall have the effect of automatically enjoining the intended or impending strike. If one has already taken place at the time of assumption or certification, all

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striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout." It must be stressed that while one purpose of the return-to-work order is to protect the workers who might otherwise be locked out by the employer for threatening or waging the strike, the more important reason is to prevent impairment of the national interest in case the operations of the company are disrupted by a refusal of the strikers to return to work as directed. In the instant case, stoppage of work in the firm will be hurtful not only to both the employer and the employees. More particularly, it is the national economy that will suffer because of the resultant reduction in our export earnings and our dollar reserves, not to mention possible cancellation of the contracts of the company with foreign importers. It was particularly for the purpose of avoiding such a development that the labor dispute was certified to the NLRC, with the return-to-work order following as a matter of course under the law. It is also important to emphasize that the return-to-work order not so much confers a right as it imposes a duty; and while as a right it may be waived, it must be discharged as a duty even against the worker's will. Returning to work in this situation is not a matter of option or voluntariness but of obligation. The worker must return to his job together with his co-workers so the operations of the company can be resumed and it can continue serving the public and promoting its interest. That is the real reason such return can be compelled. Not a violation of right against involuntary servitude So imperative is the order in fact that it is not even considered violative of the right against involuntary servitude, as this Court held in Kaisahan ng Mga Manggagawa sa Kahoy v. Gotamco Sawmills. The worker can of course give up his work, thus severing his ties with the company, if he does not want to obey the order; but the order must be obeyed if he wants to retain his work even if his inclination is to strike. If the worker refuses to obey the return-towork order, can it be said that he is just suspending the enjoyment of a right and he is entitled to assert it later as and when he sees fit? In the meantime, is the management required to keep his position open, unable to employ replacement to perform the work the reluctant striker is unwilling to resume because he is still manning the picket lines? While the ATC has manifested its willingness to accept most of the workers, and has in fact already done so, it has balked at the demand of the remaining workers to be also allowed to return to work. Its reason is that these persons, instead of complying with the return-to-work order, as most of the workers have done, insisted on staging the restrained strike and defiantly picketed the company premises to prevent the resumption of operations. By so doing, the ATC submits, these strikers have forfeited their right to be readmitted, having abandoned their positions, and so could be validly replaced. One other point that must be underscored is that the return-to-work order is issued pending the determination of the legality or illegality of the strike. It is not correct to say that it may be enforced only if the strike is legal and may be disregarded if the strike is illegal, for the purpose precisely is to maintain the status quo while the determination is being made. Otherwise, the workers who contend that their strike is legal can refuse to return to their work and cause a standstill in the company operations while retaining the positions they refuse to discharge or allow the management to fill. Worse, they will also claim payment for work not done, on the ground that they are still legally employed although actually engaged in activities inimical to their employer's interest. Accordingly, the Court holds that the returnto-work order should benefit only those workers who complied therewith and, regardless of the outcome of the compulsory arbitration proceedings, are entitled to be paid for work they have actually performed. Conversely, those workers who refused to obey the said order and instead waged the restrained strike are not entitled to be paid for work not done or to reinstatement to the positions they have abandoned by their refusal to return thereto as ordered. Telefunken Semi-Conductor Employees Union v. CA (2000) It is clear from Art. 263 that the moment the Secretary of Labor assumes jurisdiction over a labor dispute in an industry indispensable to national interest, such assumption shall have the effect of automatically enjoining the intended or impending strike. It was not even necessary for the Secretary of Labor to issue another order directing them to return to work. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. However, petitioners refused to acknowledge this directive of the Secretary of Labor on September 8, 1995 thereby necessitating the issuance of another order expressly directing the striking workers to cease and desist from their actual strike, and to immediately return to work but which directive the herein petitioners opted to ignore. In this connection, Article 264(a) of the Labor Code clearly provides that:
Article 264. Prohibited Activities. (a) x x x No strike or lock out shall be declared after the assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of

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cases involving the same grounds for the strike or lockout. Any union officer who knowingly participates in illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, that mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment even if a replacement had been hired by the employer during such lawful strike.
i. The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or resolve the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and executory ten (10) calendar days after receipt thereof by the parties. Art. 277 i. To ensure speedy labor justice, the periods provided in this Code within which decisions or resolutions of labor relations cases or matters should be rendered shall be mandatory. For this purpose, a case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading or memorandum required by the rules of the Commission or by the Commission itself, or the Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional Director. Upon expiration of the corresponding period, a certification stating why a decision or resolution has not been rendered within the said period shall be issued forthwith by the Chairman of the Commission, the Executive Labor Arbiter, or the Director of the Bureau of Labor Relations or MedArbiter, or the Regional Director, as the case may be, and a copy thereof served upon the parties. Despite the expiration of the applicable mandatory period, the aforesaid officials shall, without prejudice to any liability which may have been incurred as a consequence thereof, see to it that the case or matter shall be decided or resolved without any further delay. Telefunken Semi-Conductor Employees Union v. CA (2000) SOLE OFFICE OF THE WRIT OF CERTIORARI IS THE CORRECTION OF ERRORS OF JURISDICTION INCLUDING THE COMMISSION OF ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION, As regards the third assigned error, petitioners contend that a resolution of a petition for certiorari under Rule 65 of the Rules of Court should include the correction of the Secretary of Labors evaluation of the evidence and factual findings thereon pursuant to the doctrine laid down in Meralco v. The Honorable Secretary of Labor Leonardo A. Quisumbing. That contention is misplaced. In that case, we ruled that:
The extent of judicial review over the Secretary of Labors arbitral award is not limited to a determination of grave abuse in the manner of the secretarys exercise of his statutory powers. This Court is entitled to, and must in the exercise of its judicial power review the substance of the Secretarys award when grave abuse of discretion is alleged to exist in the award, i.e., in the appreciation of and the conclusions the Secretary drew from the evidence presented.
The rationale of this prohibition is that once jurisdiction over the labor dispute has been properly acquired by the competent authority, that jurisdiction should not be interfered with by the application of the coercive processes of a strike. We have held in a number of cases that defiance to the assumption and return-to-work orders of the Secretary of Labor after he has assumed jurisdiction is a valid ground for loss of the employment status of any striking union officer or member. Having thus resolved the threshold issue as hereinabove discussed, it necessarily follows that the strike of the Union cannot be viewed as anything but illegal for having been staged in open and knowing defiance of the assumption and return-to-work orders. The necessary consequence thereof are also detailed by the Supreme Court in its various rulings. In Marcopper Mining Corp. v. Brillantes (254 SCRA 595), the High Tribunal stated in no uncertain terms that by staging a strike after the assumption of jurisdiction or certification for arbitration, workers forfeited their right to; be readmitted to work, having abandoned their employment, and so could be validly replaced. Disini: RULES REGARDING RETURN TO WORK ORDER 1) The moment there is Presidential (or by Secretary of Labor) assumption of jurisdiction, whether a return to work order is issued or not, the return to work order is an integral part of the assumption of jurisidiction. (Sarmiento v. Tuico) 2) A return to work order does not violate the Involuntary Servitude clause (Sarmiento v. Tuico) 3) A return-to-work order must be complied with as a matter of duty not just a right. 4) A return-to-work order may be appealed but even pending appeal the return-to-work order must still be followed. 5) According to the Bagiou Colleges case: If there is doubt, take note of the duty to comply. One merely has to file a motion for clarification. TAKE NOTE: The extent of authority of the compulsory arbitration are those that may be necessary to settle the dispute. 6. AWARDS AND ORDERS Art. 263 Strikes, picketing and lockouts.
However, this Courts review of the substance does not mean a re-calibration of the evidence presented before the DOLE but only a determination of whether the Secretary of Labors award passed the test of reasonableness when he arrived at his conclusions made thereon. Thus, we declared in Meralco, that:

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In this case we believe that the more appropriate and available standard and one does not require a constitutional interpretationis simply the standard of In laymans terms, reasonableness. reasonableness implies the absence of arbitrariness; in legal parlance, this translates into the exercise of proper discretion and to the observance of due process. Thus, the question we have to answer in deciding this case is whether the Secretarys actions have been reasonable in light of the parties positions and the evidence they presented.
The main thrust of a petition for certiorari under Rule 65 of the Rules of Court is only the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack or excess of jurisdiction. However, for this Court to properly exercise the power of judicial review over a decision of an administrative agency, such as the DOLE, it must first be shown that the tribunal, board or officer exercising judicial or quasi-judicial functions has indeed acted without or in excess of its or his jurisdiction, and that there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. In the absence of any showing of lack of jurisdiction or grave abuse tantamount to lack or excess of jurisdiction, judicial review may not be had over an administrative agencys decision. We have gone over the records of the case at bar and we see no cogent basis to hold that the Secretary of Labor has abused his discretion.
paper and to attach thereto affidavits and documentary evidence within 10 days. Petitioners non-compliance with that directive should not be ascribed as the fault of the Sec of Labor when he denied their demurrer to evidence and forthwith rendered decision on the illegality of the strike. A party who has availed of the opportunity to present his position paper cannot claim to have been denied due process. The requirements of due process are satisfied when the parties to a labor case are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in the event it will be decided that no further hearing should be conducted or that hearing was not necessary. The grant of plenary powers to the Secretary of Labor under Art. 263(g) makes it incumbent for him to bring about soonest, a fair and just solution to the differences between the employer and the employees so that the damage such labor dispute might cause upon the national interest may be minimized as much as possible, if not totally averted, by avoiding stoppage of work or any lagging of the activities of the industry or the possibility of these contingencies which might cause detriment to such national interest. NEGATING THE PETITIONERS VESTED RIGHT TO BACKWAGES Since, as correctly found by the Secretary of Labor, the strikers were not illegally dismissed, the COMPANY is under no obligation to pay backwages to them. It is simply inconsistent, nay, absurd, to award backwages when there is no finding of illegal dismissal (Filflex Industrial and Manufacturing Corporation, 286 SCRA 245) when the record shows that the striking workers did not comply with lawful orders for them to return to work during said periods of time. In fact, the Secretary of Labor observed that while it was obligatory on the part of both parties to restore, in the meantime, the status quo obtaining in the workplace, the same was not possible considering the strikers had defied the return-to-work Order of this Office. With such blatant disregard by the strikers of official edicts ordering their temporary reinstatement, there is no basis to award them backwages corresponding to said time frames. Otherwise, they will recover something they have not or could not have earned by their willful defiance of the return-to-work order, a patently incongruous and unjust situation (Santos v. National Labor Relations Commission, 154 SCRA 166). The same view holds with respect to the award of financial assistance or separation pay. The assumption for granting financial assistance or separation pay, which is, that there is an illegally dismissed employee and that illegally dismissed employee would otherwise have been entitled to reinstatement, is not present in the case at bench.
THAT TECHNICAL RULES OF EVIDENCE PREVAILING IN THE COURTS OF LAW AND EQUITY HAVE NO ROOM IN ADMINISTRATIVE AND/OR QUASI-JUDICIAL PROCEEDINGS. The contention of petitioners that they should have been allowed to present evidence when their demurrer to evidence was denied by the Secretary of Labor, is untenable. The record shows that in the hearing of September 22, 1998 attended by the parties, Atty. Lita V. Aglibut, Hearing Officer, of the public respondents office, who presided over the hearing directed the parties to submit their respective position papers together with the affidavits and documentary evidence within ten (10) days. While the Company submitted its position paper together with supporting evidence and rested its case for resolution, herein petitioners, however, submitted only its position paper but without attaching thereto any supporting documentary evidence. Petitioners chose to rely on the Rules of Court by filing a demurrer to evidence in the hope of a favorable decision and disregarded our resolution in G.R. No. 127215 ordering the Secretary of Labor to determine with dispatch the legality of the strike. The fact that the Hearing Officer of DOLE admitted their demurrer to evidence is not a valid excuse for them not to comply with the directive to submit their position

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We are of course aware that financial assistance may be allowed as a measure of social justice in exceptional circumstances and as an equitable concession. We are likewise mindful that financial assistance is allowed only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character o However, the attendant facts show that such exceptional circumstances do not obtain in the instant cases to warrant the grant of financial assistance to the striking workers. o To our mind, the strikers open and willful defiance of the assumption order dated September 16, 1995 constitute serious misconduct as well as reflective of their moral character, hence, granting financial assistance to them is not and cannot be justified Necessarily, this authority to assume jurisdiction over the said labor dispute must include and extend to all questions and controversies arising therefrom, including cases over which the labor arbiter has exclusive jurisdiction. Petitioner union maintained that the Labor Arbiter and the appellate court disregarded the "parol evidence rule" when they upheld the allegation of respondent company that the work schedule of its employees was from 6 a.m. to 6 p.m. and from 6 pm to 6 am. The reliance on the parol evidence rule is misplaced. In labor cases pending before the Commission or the Labor Arbiter, the rules of evidence prevailing in courts of law or equity are not controlling. Rules of procedure and evidence are not applied in a very rigid and technical sense in labor cases. Hence, the Labor Arbiter is not precluded from accepting and evaluating evidence other than, and even contrary to, what is stated in the CBA. 7. OPTION SUBMIT CASE VOLUNTARY ARBITRATION AFTER CERTIFICATION Art. 263 Strikes, picketing and lockouts. (h) Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. 8. COMPULSORY ARBITRATION AND LABOR RIGHTS Philtread Workers Union v. Confessor (1997) Petitioners contend that Article 263 (g) of the Labor Code violates the workers right to strike which is provided for by Section 3, Article XIII of the Constitution. The assailed order of the Secretary of Labor, which enjoins the strike, is an utter interference of the workers right to selforganization, to manage their own affairs, activities and programs, and therefore is illegal. The order is likewise contrary to Article 3 of the International Labor Organization Convention No. 87, which specifically prohibits public authorities from interfering in purely union matters, viz.: Article 3. 1. Workers and Employers organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programs. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. A cursory reading of Article 263 (g) allegedly shows that the power of the Secretary of Labor to assume jurisdiction or to certify a dispute for compulsory arbitration is strictly restricted to cases involving industries that are indispensable to national interest. Petitioners posit that the instant labor dispute does not adversely affect the national interest. The tire industry has long ceased to be a government protected industry and, moreover,
Interphil Laboratories Union v. Interphil Laboratories (2001) On the matter of the authority and jurisdiction of the Secretary of Labor and Employment to rule on the illegal strike committed by petitioner union, it is undisputed that the petition to declare the strike illegal before Labor Arbiter was filed long before the Secretary of Labor issued the assumption order on 14 February 1994. However, it cannot be denied that the issues of "overtime boycott" and "work slowdown" amounting to illegal strike before Labor Arbiter are intertwined with the labor dispute before the Labor Secretary. In fact, petitioner union even asked Labor Arbiter to suspend the proceedings before him and consolidate the same with the case before the Secretary of Labor. When Acting Labor Secretary Brillantes ordered Labor Arbiter Caday to continue with the hearing of the illegal strike case, the parties acceded and participated in the proceedings, knowing fully well that there was also a directive for Labor Arbiter Caday to thereafter submit his report and recommendation to the Secretary. As the appellate court pointed out, the subsequent participation of petitioner union in the continuation of the hearing was in effect an affirmation of the jurisdiction of the Secretary of Labor. The appellate court also correctly held that the question of the Secretary of Labors jurisdiction over labor and labor-related disputes was already settled in International Pharmaceutical, Inc. vs. Hon. Secretary of Labor and ALU where the Court declared: In the present case, the Secretary was explicitly granted by Article 263(g) of the Labor Code the authority to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, and decide the same accordingly.

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Philtread Tire and Rubber Corporation is not indispensable to the national interest. The strike in Philtread will not adversely affect the supply of tires in the market and the supply of imported tires is more than sufficient to meet the market requirements. Held: The petition is devoid of merit. On the issue of the constitutionality of Article 263 (g), the same had already been resolved in Union of Filipino Employees vs. Nestle Philippines, Inc., to wit: In the case at bar, no law has ever been passed by Congress expressly repealing Articles 263 and 264 of the Labor Code. Neither may the 1987 Constitution be considered to have impliedly repealed the said Articles considering that there is no showing that said articles are inconsistent with the said Constitution. Moreover, no court has ever declared that the said articles are inconsistent with the 1987 Constitution. On the contrary, the continued validity and operation of Articles 263 and 264 of the Labor Code has been recognized by no less than the Congress of the Philippines when the latter enacted into law R.A. 6715, otherwise known as Herrera law, Section 27 of which amended paragraphs (g) and (l) of Article 263 of the Labor Code. At any rate, it must be noted that Articles 263 (g) and 264 of the Labor Code have been enacted pursuant to the police power of the State, which has been defined as the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general welfare of society (People vs. Vera Reyes, 67 Phil. 190). Article 263 (g) of the Labor Code does not violate the workers constitutional right to strike. The foregoing article clearly does not interfere with the workers right to strike but merely regulates it, when in the exercise of such right, national interests will be affected. The rights granted by the Constitution are not absolute. They are still subject to control and limitation to ensure that they are not exercised arbitrarily. The interests of both the employers and employees are intended to be protected and not one of them is given undue preference. The Secretary of Labor acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to impede the workers right to strike but to obtain a speedy settlement of the dispute. We do not agree with the petitioners that the respondent company is not indispensable to national interest considering that the tire industry has already been liberalized. Philtread supplies 22% of the tire products in the country. Moreover, it employs about 700 people. As observed by the Secretary of Labor, viz.: The Company is one of the tire manufacturers in the country employing more or less 700 workers. Any work disruption thereat, as a result of a labor dispute will certainly prejudice the employment and livelihood of its workers and their dependents. Furthermore, the labor dispute may lead to the possible closure of the Company and loss of employment to hundreds of its workers. This will definitely aggravate the already worsening unemployment situation in the country and discourage foreign and domestic investors from further investing in the country. There is no doubt, therefore, that the labor dispute in the Country is imbued with national interest. At this point in time when all government efforts are geared towards economic recovery and development by encouraging both foreign and domestic investments to generate employment, we cannot afford to derail the same as a result of a labor dispute considering that there are alternative dispute resolution machineries available to address labor problems of this nature.
11.05 VOLUNTARY ARBITRATION

1. DEFINED Manila Central Line Corp. v. manila Central Line Free Workers Union (1998) Despite the fact that it agreed with the union to submit their dispute to the labor arbiter for arbitration, petitioner questions the jurisdiction of the labor arbiter to render the decision in question. Petitioner contends that the policy of the law now is to encourage resort to conciliation and voluntary arbitration as Art 250(e) of the Labor Code provides. Indeed, the Labor Code formerly provided that if the parties in collective bargaining fail to reach an agreement, the BLR should call them to conciliation meetings and, if its efforts were not successful, certify the dispute to a labor arbiter for compulsory arbitrarion. But this was changed by R.A.6715 which took effect on March 21, 1989. Art 250(e) of the Labor Code now provides that if effects of conciliation fail, the Board shall encourage the parties to submit their case to a voluntary arbitrator. With specific reference to cases involving deadlocks in collective bargaining, Art. 262 provides: Jurisdiction over other labor disputes The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. This is what the parties did in this case. After the Board failed to resolve the bargaining deadlock between parties, the union filed a petition for compulsory arbitration in the Arbitration Branch of the NLRC. Petitioner joined the petition and the case was submitted for decision. Although the unions petition was for compulsory arbitration, the subsequent agreement of petitioner to submit the matter for arbitration in

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effect made the arbitration a voluntary one. The essence of voluntary arbitration, after all is that it is by agreement of the parties, rather than compulsion of law, that a matter is submitted for arbitration. It does not matter that the person chosen as arbitrator is a labor arbiter who, under Art 217 of the Labor Code, is charged with the compulsory arbitration of certain labor cases. There is nothing in the law that prohibits these labor arbiters from also acting as voluntary arbitrators as long as the parties agree to have him hear and decide their dispute. Moreover, petitioner must be deemed to be estopped from questioning the authority of Labor Arbiter, to act as voluntary arbitrator and render a decision in this case. Petitioner agreed together with the union, to refer their dispute for arbitration to him. It was only after the decision was rendered that petitioner raised the question of lack of jurisdiction. 2. BASIS FOR VOLUNTARY AND RATIONALE ARBITRATION personnel policies referred to in the immediately preceding article. Accordingly, violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA. For purposes of this article, gross violations of CBA shall mean flagrant and/ or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the apartment of Labor and employment shall not entertain disputes and grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrators or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement. Art. 262 Jurisdiction over other labor disputes. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. Rights Disputes v. Interest Disputes Rights disputes: Claim for violation of a specific right (Arising from a contract, ex: CBA or company policies). Voluntary Arbitrator has original and exclusive jurisdiction over this matters. Interest Disputes: These ponders on the questions what should be included in the CBA. Strictly speaking, the parties may choose a voluntary arbitrator to decide on terms and conditions of employment, but that is impracticable because it will be a value judgment of the arbitrator and not the parties. 5. ARBITRATOR SELECTION Art. 260 x x x. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement the procedure for the selection of such Voluntary Arbitrator or panel of voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining
1987 Constitution. Art. XIII, Sec. 3 x x x The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. 3. PROCESS ENCOURAGEMENT/PROMOTION Establishing Machinery Dispute Settlement Collective Bargaining Agreement and Time Frame Art. 260 Grievance Machinery and Voluntary Arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within 7 month calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. xxx 4. ARBITRABLE ISSUES Art. 261 Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The voluntary arbitrators shall have ORIGINAL AND EXCLUSIVE jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation and enforcement of company

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Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as prescribed. JURISDICTION Viviero v. Court of appeals (2000) Private respondents attempt to justify the conferment of jurisdiction over the case on the Voluntary Arbitrator on the ground that the issue involves the proper interpretation and implementation of the Grievance Procedure found in the CBA. They point out that when petitioner sought the assistance of his Union to avail of the grievance machinery, he in effect submitted himself to the procedure set forth in the CBA regarding submission of unresolved grievances to a Voluntary Arbitrator. Held: The argument is untenable. The case is primarily a termination dispute. It is clear from the claim/assistance request form submitted by petitioner to AMOSUP that he was challenging the legality of his dismissal for lack of cause and lack of due process. The issue of whether there was proper interpretation and implementation of the CBA provisions comes into play only because the grievance procedure provided for in the CBA was not observed after he sought his Unions assistance in contesting his termination. Thus, the question to be resolved necessarily springs from the primary issue of whether there was a valid termination; without this, then there would be no reason to invoke the need to interpret and implement the CBA provisions properly. In San Miguel Corp. v. National Labor Relations Commission this Court held that the phrase "all other labor disputes" may include termination disputes provided that the agreement between the Union and the Company states "in unequivocal language that [the parties] conform to the submission of termination disputes and unfair labor practices to voluntary arbitration." Ergo, it is not sufficient to merely say that parties to the CBA agree on the principle that "all disputes" should first be submitted to a Voluntary Arbitrator. There is a need for an express stipulation in the CBA that illegal termination disputes should be resolved by a Voluntary Arbitrator or Panel of Voluntary Arbitrators, since the same fall within a special class of disputes that are generally within the exclusive original jurisdiction of Labor Arbiters by express provision of law. Absent such express stipulation, the phrase "all disputes" should be construed as limited to the areas of conflict traditionally within the jurisdiction of i.e., disputes Voluntary Arbitrators, relating to contract-interpretation, contract-implementation, or interpretation or enforcement of company personnel policies. Illegal termination disputes - not falling within any of these categories should then be considered as a special area of interest governed by a specific provision of law. Ludo and Luym Corp v. Saornido (2003) Petitioner contends that the appellate court gravely erred when it upheld the award of benefits which were beyond the terms of submission agreement. Petitioner asserts that the arbitrator must confine its adjudication to those issues submitted by the parties for arbitration, which in this case is the sole issue of the date of regularization of the workers. Hence, the award of benefits by the arbitrator was done in excess of jurisdiction. On the matter of the benefits, respondents argue that the arbitrator is empowered to award the assailed benefits because notwithstanding the sole issue of the date of regularization, standard companion issues on reliefs and remedies are deemed incorporated. Otherwise, the whole arbitration process would be rendered purely academic and the law creating it inutile. The jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators and Labor Arbiters is clearly defined and specifically delineated in the Labor Code. The pertinent provisions of the Labor Code, read:
Art. 217. Jurisdiction of Labor Arbiters and the Commission. --- (a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases: 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wage, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; xxx Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes,

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grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement. Art. 262. Jurisdiction over other labor disputes. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
PROCEDURE Art. 262-A Procedures The voluntary Arbitrators or panel of Voluntary Arbitrators shall have the power to hold hearings, receive evidences and take whatever action is necessary to resolve the issue or issues subject of dispute, including efforts to effect a voluntary settlement between parties. All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the Voluntary Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned for a cause or upon agreement by the parties. Unless the parties agreed otherwise, it shall be mandatory for the Voluntary Arbitrators or panel of Voluntary Arbitrators to render an award or decision within twenty ?(20) calendar days from the date of submission of the dispute to voluntary arbitration. The award or decision shall contain the facts and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt of the copy of the award or its decision by the parties. Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the voluntary arbitrator or panel of voluntary arbitrators for any reason, may issue a writ of execution requiring wither the sheriff of the Commission or regular Courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order, or award. NATURE OF OFFICE AND FUNCTION Nippon Paint Employees Union v. CA (2004) In the case of Luzon Development Bank vs. Association of Luzon Development Bank Employees, this Court ruled that a voluntary arbitrator partakes of the nature of a quasijudicial instrumentality and is within the ambit of Section 9(3) of the Judiciary Reorganization Act, as amended, which provides:
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Employees Compensation Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of
In construing the above provisions, we held in San Jose vs. NLRC, that the jurisdiction of the Labor Arbiter and the Voluntary Arbitrator or Panel of Voluntary Arbitrators over the cases enumerated in the Labor Code, Articles 217, 261 and 262, can possibly include money claims in one form or another. Comparatively, in Reformist Union of R.B. Liner, Inc. vs. NLRC, compulsory arbitration has been defined both as the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all the parties, and as a mode of arbitration where the parties are compelled to accept the resolution of their dispute through arbitration by a third party . While a voluntary arbitrator is not part of the governmental unit or labor departments personnel, said arbitrator renders arbitration services provided for under labor laws. Generally, the arbitrator is expected to decide only those questions expressly delineated by the submission agreement. Nevertheless, the arbitrator can assume that he has the necessary power to make a final settlement since arbitration is the final resort for the adjudication of disputes. In one case, the SC stressed that xxx the Voluntary Arbitrator had plenary jurisdiction and authority to interpret the agreement to arbitrate and to determine the scope of his own authority subject only, in a proper case, to the certiorari jurisdiction of this Court. The Arbitrator, as already indicated, viewed his authority as embracing not merely the determination of the abstract question of whether or not a performance bonus was to be granted but also, in the affirmative case, the amount thereof. By the same token, the issue of regularization should be viewed as two-tiered issue. While the submission agreement mentioned only the determination of the date or regularization, law and jurisprudence give the voluntary arbitrator enough leeway of authority as well as adequate prerogative to accomplish the reason for which the law on voluntary arbitration was created speedy labor justice. It bears stressing that the underlying reason why this case arose is to settle, once and for all, the ultimate question of whether respondent employees are entitled to higher benefits. To require them to file another action for payment of such benefits would certainly undermine labor proceedings and contravene the constitutional mandate providing full protection to labor.

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Section 17 of the Judiciary Act of 1948.
6. AWARDS AND ORDERS Art. 262-A xxx The award or decision shall contain the facts and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt of the copy of the award or its decision by the parties. Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the voluntary arbitrator or panel of voluntary arbitrators for any reason, may issue a writ of execution requiring the sheriff of the Commission or regular Courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order, or award. Davao Integrated v. Abarquez (1993) Moreover, petitioner-company's objection to the authority of the Voluntary Arbitrator to direct the commutation of the unenjoyed portion of the sick leave with pay benefits of intermittent workers in his decision is misplaced. Article 261 of the Labor Code is clear. The questioned directive of the herein public respondent is the necessary consequence of the exercise of his arbitral power as Voluntary Arbitrator under Article 261 of the Labor Code "to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement." We, therefore, find that no grave abuse of discretion was committed by public respondent in issuing the award (decision). Moreover, his interpretation of Sections 1 and 3, Article VIII of the 1989 CBA cannot be faulted with and is absolutely correct. Citibank Employees Union v. MOLE (1980) The position of respondent Minister is that assuming the final and executory character of the award in question, the same could still be modified or set aside, as contended by the Solicitor General in his comment dated August 6, 1979, in consequence or by reason of the supervening acts of respondent Minister, citing, in support of such contention, the cases of Ocampo vs. Sanchez, in which the SCruled that "when after judgment has been rendered and the latter has become final, facts and circumstances transpire which render its execution impossible or unjust; the interested party may ask to modify or later judgment to harmonize the same with justice and the facts Held: After mature deliberation, We have arrived at the conclusion that the respondent's position is not well taken. The situation before Us in the instant case has no parity with those obtaining in the
As such, the decisions of a voluntary arbitrator fall within the exclusive appellate jurisdiction of the Court of Appeals. Indeed, this Court took this decision into consideration in approving the 1997 Rules of Civil Procedure, the pertinent provision of which states as follows:
SECTION 1. Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.
It is elementary in remedial law that the use of an erroneous mode of appeal is cause for dismissal of the petition for certiorari and it has been repeatedly stressed that a petition for certiorari is not a substitute for a lost appeal. This is due to the nature of a Rule 65 petition for certiorari which lies only where there is no appeal, and no plain, speedy and adequate remedy in the ordinary course of law. As previously ruled by this Court: x x x We have time and again reminded members of the bench and bar that a special civil action for certiorari under Rule 65 lies only when "there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law." Certiorari can not be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, certiorari not being a substitute for lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. The fact that the NPEU used the Rule 65 modality as a substitute for a lost appeal is made plainly manifest by: a) its filing the said petition 45 days after the expiration of the 15-day reglementary period for filing a Rule 43 appeal; and b) its petition which makes specious allegations of grave abuse of discretion but asserts the failure of the voluntary arbitrator to properly appreciate facts and conclusions of law. This salutary rule has been disregarded on occasion by this Court in instances where valid and compelling circumstances warrant. However, NPEU has not provided this Court any compelling reason why it must disregard the mandate of the Rules of Court.

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instances where this Court sanctioned departure from the terms of a final and executory judgment by reason of supervening events that would make literal execution in whole or in part of such judgment unjust and inequitable. It should be clear to anyone conversant with the elementary principles of collective bargaining and the constitutional injunction assuring the rights of workers thereto (Sec. 9, Article II, Constitution of the Philippines) that the terms and conditions of a collective bargaining agreement constitute the sacred law between the parties as long as they do not contravene public order, interest or policy. We might say that the prohibition in the Constitution's Bill of Rights against the passage or promulgation of any law impairing the obligation of contracts applies with perhaps greater force to collective bargaining agreements, considering that these deal with the rights and interests of labor to which the charter explicitly affords protection. (Sec. 9. Article 11.) The award of the arbitrator in this case is not to be equated with a judicial decision. In effect, when in relation to a controversy as to working conditions, which necessarily include the amount of wages, allowances, bonuses, overtime pay, holiday pay, etc., the parties submit their differences to arbitration, they do not seek any judicial pronouncement technically as such: they are merely asking the arbitrator to fix for them what would be the fair and just condition or term regarding the matter in dispute that should govern further collective bargaining relations between them. Stated differently, the arbitrator's award when stipulated by the parties to be conclusive becomes part and parcel of the CBA. Viewed in this sense, which We are fully convinced is most consistent with the principles of collective bargaining, the subsequent or supervening facts referred to by the Solicitor General consisting of acts of none other than the respondent Minister may not be invoked to alter, modify, reform, much less abrogate, the new terms, so to speak, of the collective bargaining inserted by virtue of the award of the arbitrator. To do otherwise would violate the prescription of the Constitution against impairment of the obligation of contracts. We hold that regardless of any law anterior or posterior to the Arbitrator's award, the collective bargaining agreement in this case has been correspondingly amended in a manner that is unalterable, immovable and immutable like the rock of Gibraltar, during the lifetime of the said collective bargaining agreement. See: Ludo and Luym v. Saornido, supra 7. FINALITY AND EXECUTION OF AWARDS Imperial Textile Miles, etc. Calica (1992) When the parties submitted their grievance to arbitration, they expressly agreed that the decision of the Voluntary Arbitrator would be final, executory and unappealable. In fact, even without this stipulation, the first decision had already become so by virtue of Article 263 of the Labor Code making voluntary arbitration awards or decisions final and executory. The philosophy underlying this rule was explained by Judge Freedman in the case of La Vale Plaza, Inc., v. R.S. Noonan, Inc. thus: It is an equally fundamental common law principle that once an arbitrator has made and published a final award, his authority is exhausted and he is functus officio and can do nothing more in regard to the subject matter of the arbitration. The policy which lies behind this is an unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion. The continuity of judicial office and the tradition which surround judicial conduct is lacking in the isolated activity of an arbitrator, although even here the vast increase in the arbitration of labor disputes has created the office of the specialized provisional arbitrator. (Washington-Baltimore N.G., Loc. 35 v. Washington Post Co., 442 F. 2d 1234 (19711, pp. 1238-1239) The case of The Consolidated Bank & Trust Corporation (SOLIDBANK) v. Bureau of Labor Relations, et al., this Court held that the Voluntary Arbitrator lost jurisdiction over the case submitted to him the moment he rendered his decision. Therefore, he could no longer entertain a motion for reconsideration of the decision for its reversal or modification. Thus: By modifying the original award, respondent arbitrator exceeded his authority as such, a fact he was well aware of, as shown by his previous Resolution of Inhibition wherein he refused to act on the Union's motion for reconsideration of the award or decision. It is true that the present rule makes the voluntary arbitration award final and executory after ten calendar days from receipt of the copy of the award or decision by the parties. Presumably, the decision may still be reconsidered by the Voluntary Arbitrator on the basis of a motion for reconsideration duly filed during that period, Such a provision, being procedural, may be applied retroactively to pending actions as have herein a number cases. However, it cannot b e applied to a case in which the decision had become final before the new provision took effect, as in the case at bar. RA 6715, which introduced amended Article 262-A of the Labor Code became effective on March 11, 1989. The first decision of the Voluntary Arbitrator was rendered on July 12, 1988, when the law in force was Article 263 of the Labor Code, which provided that: Voluntary

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arbitration awards or decisions shall be final, unappealable, and executory. The above-quoted provision did not expressly fix the time when the Voluntary Arbitrator's decision or award would become final. We have held, however, that it would assume the attribute of finality upon its issuance, subject only to judicial review in appropriate cases. The public respondent exceeded his authority when he acted on the Union's motion for consideration and reversed his original decision. Corollarily his second decision dated December 14, 1988, having been rendered in violation of law, must be considered null and void and of no force and effect whatsoever.
five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
8. APPEAL Luzon Development Bank v. Assoc of Luzon Devt Employees (1995) In the Philippine context, the parties to a CBA are required to include therein provisions for a machinery for the resolution of grievances arising from the interpretation or implementation of the CBA or company personnel policies. For this purpose, parties to a CBA shall name and designate therein a voluntary arbitrator or a panel of arbitrators, or include a procedure for their selection, preferably from those accredited by the National Conciliation and Mediation Board (NCMB). Article 261 of the Labor Code accordingly provides for exclusive original jurisdiction of such voluntary arbitrator or panel of arbitrators over (1) the interpretation or implementation of the CBA and (2) the interpretation or enforcement of company personnel policies. Article 262 authorizes them, but only upon agreement of the parties, to exercise jurisdiction over other labor disputes. On the other hand, a labor arbiter under Article 217 of the Labor Code has jurisdiction over the following enumerated cases:
"x x x- (a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts, 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employeremployee relations, including those of persons in domestic or household service, involving an amount exceeding
It will thus be noted that the Jurisdiction conferred by law on a voluntary arbitrator or a panel of such arbitrators is quite limited compared to the original jurisdiction of the labor arbiter and the appellate jurisdiction of the NLRC for that matter. The state of our present law relating to voluntary arbitration provides that "the award or decision of the Voluntary Arbitrator x x x shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties," while the "decision, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders." Hence, while there is an express mode of appeal from the decision of a labor arbiter, Republic Act No. 6715 is silent with respect to an appeal from the decision of a voluntary arbitrator. Yet, past practice shows that a decision or award of a voluntary arbitrator is, more often than not, elevated to the Supreme Court itself on a petition for certiorari, in effect equating the voluntary arbitrator with the NLRC or the Court of Appeals. In the view of the Court, this is illogical and imposes an unnecessary burden upon it. In Volkschel Labor Union, et al. v. NLRC et al. on the settled premise that the judgments of courts and awards of quasijudicial agencies must become final at some definite time, this Court ruled that the awards of voluntary arbitrators determine the rights of parties; hence, their decisions have the same legal effect as judgments of a court. In Oceanic Bic Division (FFW), et al. v. Romero, et al., this Court ruled that "a voluntary arbitrator by the nature of her functions acts in a quasi-judicial capacity." Under these rulings, it follows that the voluntary arbitrator, whether acting solely or in a panel, enjoys in law the status of a quasi-judicial agency but independent of, and apart from, the NLRC since his decisions are not appealable to the latter. Sec. 9 of BP Blg. 129, as amended by RA 7902, provides that the Court of Appeals shall exercise: (B) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasijudicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Employees Compensation Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.

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Assuming arguendo that the voluntary arbitrator or the panel of voluntary arbitrators may not strictly be considered as a quasi-judicial agency, board or commission, still both he and the panel are comprehended within the concept of a "quasi-judicial instrumentality." It may even be stated that it was to meet the very situation presented by the quasi judicial functions of the voluntary arbitrators here, as well as the subsequent arbitrator/arbitral tribunal operating under the Construction Industry Arbitration Commission, that the broader term "Instrumentalities" was purposely included in the above-quoted provision. An "Instrumentality" is anything used as a means or agency. Thus, the terms governmental "agency" or instrumentality" are synonymous in the sense that either of them is a means by which a government acts, or by which a certain government act or function is performed. The voluntary arbitrator no less performs a state function pursuant to a governmental power delegated to him under the provisions therefor in the Labor Code and he falls, therefore, within the contemplation of the term instrumentality" in Sec. 9 of BP 129. The fact that his functions and powers are provided for in the Labor Code does not place him within the exceptions to said Sec. 9 since he is a quasi-judicial instrumentality as contemplated therein. o It will be noted that, although the Employees Compensation Commission is also provided for in the Labor Code, Circular No. 1-9 1, which is the forerunner of the present Revised Administrative Circular No. 1-95, laid down the procedure for the appealability of its decisions to the Court of Appeals under the foregoing rationalization, and this was later adopted by Republic Act No. 7902 in amending Sec. 9 of B.P. 129. A fortiori, the decision or award of the voluntary arbitrator or panel of arbitrators should likewise be appealable to the Court of Appeals, in line with the procedure outlined in Revised Administrative Circular No. 1-95, just like those of the quasijudicial agencies, boards and commissions enumerated therein. This would be in furtherance of, and consistent with, the original purpose of Circular No. 1-91 to provide a uniform procedure for the appellate review of adjudications of all quasijudicial entities18 not expressly excepted from the coverage of Sec. 9 of B.P. 129 by either the Constitution or another statute. Nor will it run counter to the legislative intendment that decisions of the NLRC be reviewable directly by the Supreme Court since, precisely, the cases within the adjudicative competence of the voluntary arbitrator are excluded from the jurisdiction of the NLRC or the labor arbiter. In the same vein, it is worth mentioning that under Section 22 of Republic Act No. 876, also known as the Arbitration Law, arbitration is deemed a special proceeding of which the court specified in the contract or submission, or if none be specified, the Regional Trial Court for the province or city in which one of the parties resides or is doing business, or in which the arbitration is held, shall have jurisdiction, A party to the controversy may, at any time within one (1) month after an award is made, apply to the court having jurisdiction for an order confirming the award and the court must grant such order unless the award is vacated, modified or corrected.19 In effect, this equates the award or decision of the voluntary arbitrator with that of the regional trial court. Consequently, in a petition for certiorari from that award or decision, the Court of Appeals must be deemed to have concurrent jurisdiction with the Supreme Court. As a matter of policy, this Court shall henceforth remand to the Court of Appeals petitions of this nature for proper disposition. Unicraft Industries Intl v. CA (2001) More specifically, petitioners contend that the Court of Appeals committed grave abuse of discretion in affirming the award of separation pay in favor of private respondent workers, considering that the respondent court was not in possession of the records and evidence that would support its ruling. It is at once clear from the records that petitioners were not able to present evidence before the Voluntary Arbitrator. This is plainly evident from the Stipulation entered into by the parties and submitted to the Court of Appeals, which pertinently states:
b) The case will be referred back to Voluntary Arbitrator Calipay so that petitioners will be granted their day in court to prove their case, the hearing thereat to treat the following issues: (1) Whether or not the complainants mentioned in Exhibit J of the Decision really filed their complaints before the NLRC; (2) Whether or not complainants were dismissed; if so, whether or not their dismissals were valid; (3) Whether or not complainants are entitled to separation pay, money claims, attorneys fees and litigation costs specified in the decision, Annex A of the petition; amd (4) Whether or not Robert Dino, Cristina Dino and Michael Dino can be held liable for the claims of complainants.
The foregoing is an acknowledgment by both parties that the proceedings before the Voluntary Arbitrator have not been completed. Despite this, the Court of Appeals rendered the assailed resolution ordering the immediate execution of the award of separation pay and attorneys fees. Prior to that, Voluntary Arbitrator Calipay filed a comment contending that he had lost jurisdiction over the case after he rendered judgment. While under the

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law decisions of voluntary arbitrators are accorded finality, the same may still be subject to review, such as here where there was a violation of petitioners right to due process and to be heard. 9. COSTS Art. 262-B. Cost of Voluntary Arbitration and Voluntary Arbitrators fee. The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of the voluntary arbitration including the Voluntary Arbitrators fee. The fixing of the fee of the Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the special voluntary arbitration fund, shall take into account the following factors: a. Nature of the case b. Time consumed in hearing the case c. Professional Standing of the Voluntary Arbitrator Capacity to Pay of the parties.
xxx Inspite of statutory provisions making final the decisions of certain administrative agencies, we have taken cognizance of petitions questioning these decisions where want of jurisdiction, grave abuse of discretion, violation of due process, denial of substantive justice, or erroneous interpretation of the law where brought to our attention. The right of due process is fundamental in our legal system and we adhere to this principle not for reasons of convenience or merely to comply with technical formalities but because of a strong conviction that every man must have his day in court. Even the Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings, in Rule VI, Section 6 thereof, explicitly mandates voluntary arbitrators to observe the requirements of procedural due process: Section 6. Arbitration Hearing. --- In the conduct of hearing, the arbitrator shall provide the parties adequate opportunities to be heard. He shall control the proceedings and see to it that proper decorum is observed. He must render a ruling of the issue/s raised in the course of the proceedings. He must treat all significant aspects of the proceedings as confidential in nature unless confidentiality is waived by the parties. At this juncture, it may not be amiss to restate our previous reminder to labor tribunals in the weighing of the rights and interest of employers and employees, viz: While the intendment of our laws is to favor the employee, it in no way implies that the employer is not entitled to due process. For a tribunal such as the NLRC to wantonly disregard the employers constitutional right to be heard is a matter that cause great concern to the Court. Such an action can only result in public mistrust of our entire legal system, and we strongly remind the NLRC of their duty to uphold an inspire confidence in the same.
It bears stressing that the award of separation pay carries with it the inevitable conclusion that complainants were illegally dismissed. That finding of the Voluntary Arbitrator, however, was premature and null and void for the reasons above-stated. Therefore, there is a need to remand the case to the Voluntary Arbitrator, as originally stipulated by the parties, to allow petitioners to present evidence in their behalf. The Court of Appeals, thus, committed grave abuse of discretion amounting to lack of jurisdiction when it ordered the immediate execution of the Voluntary Arbitrators award of separation pay and attorneys fees, notwithstanding that the same was null and void for violation of petitioners right to due process of law.

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Part I : Definitions and Policies Labor Relations

Part I : Definitions and Policy

Employ: To make use of, the use the service of.

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Part I : Definitions and Policies Labor Relations

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Part I : Definitions and Policies Labor Relations

1.02 LABOR RELATIONS POLICY

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Part I : Definitions and Policies Labor Relations

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Part I : Definitions and Policies Labor Relations

Part II : RIGHT TO SELF-ORGANIZATION

Take note: this freedom is subject to legislative discretion.

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Part II : Right to Self -Organization Labor Relations

2.02 EXTENT AND SCOPE OF RIGHT

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2.03 WORKERS WITH RIGHT OF SELFORGANIZATION

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GOVERNMENT CORPORATION EMPLOYEES

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WITH EMPLOYERS REGARDING TERMS AND CONDITIONS OF EMPLOYMENT

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2.05 PARTY PROTECTED

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Yellow-dog contracting Company unionism

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Part III : LABOR ORGANIZATIONS

3.02 LABOR ORGANIZATION

Labor Organization is a technical definition; it is composed of two parts:

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3.03 RATIONALE FOR RIGHT

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3.04 LABOR UNION AND GOVERNMENT REGULATION

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Art. 270 Regulation of foreign assistance.