1. As a result of bargaining deadlock between ROSE Corporation and ROSE Employees Union, its members staged a strike.

During the strike, several employees committed illegal acts. The company refused to give in to the union's demands. Eventually, its members informed the company of their intention to return to work. (10%) Can ROSE Corporation refuse to admit all the strikers? SUGGESTED ANSWER: Rose Corporation cannot refuse to admit all the strikers. Participants in a lawful strike generally have the right to reinstatement to their positions upon the termination of the strike (Insular Life Assurance Co. Employees Assn. v. Insular Life Assurance Co., G.R. No. L-25291, January 30, 1979; Consolidated Labor Assn. of the Phil. v. Marsman & Co., Inc., G.R. No. L-17038, July 31, 1964). However, the Labor Code provides that any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be deemed to have lost his employment status (Bascon v. CA, G.R. No. 144899, February 5, 2004; First City Interlink Trans. Co., Inv. v. Confessor, G.R. No. 106316, May 5,1997; Lapanday Workers' Union v. NLRC, G.R. Nos. 95494-97, September 7, 1995; Art. 264, Labor Code). 2. Can the issue of wage distortion be raised in a notice of strike? Explain. SUGGESTED ANSWER: NO. Section 16, Chapter I of Rules Implementing RA 6727 provides that "Any dispute involving wage distortions shall not be a ground for strike/lockout." Article 124 of the Labor Code, as amended by Republic Act 6727 prescribes a procedure for the correction of a wage distortion, implicitly excluding strikes or lockouts or other concerted activities as modes of settlement of the issue. The legislative intent that wage distortion shall be solved by voluntary negotiation or arbitration is made clear in the rules (Ilaiv at Buklod ng Manggagawa v. NLRC, G.R. No. 91980, June 27, 1991). 3. During their probationary employment, eight (8) employees were berated and insulted by their supervisor. In protest, they walked out. The supervisor shouted at them to go home and never to report back to work. Later, the personnel manager required them to explain why they should not be dismissed from employment for abandonment and failure to qualify for the positions applied for. They filed a complaint for illegal dismissal against their employer. As a Labor Arbiter, how will you resolve the case? (10%) SUGGESTED ANSWER: As a Labor Arbiter I will resolve the case in favor of the eight (8) probationary employees due to the following considerations: 1 Probationary employees also enjoy security of tenure (Biboso v. Victoria Milling, G.R. No. L44360, March 31, 1977).

2 In all cases involving employees on probationary status, the employer shall make known to the employee at the time he is hired, the standards by which he will qualify for the positions applied for. 3 The filing of the complaint for illegal dismissal effectively negates the employer's theory of abandonment (Rizada v. NLRC, G.R. No. 96982, September 21, 1999). 4 The order to go home and not to return to work constitutes dismissal from employment. 5 The eight (8) probationary employees were terminated without just cause and without due process In view of the foregoing, I will order reinstatement to their former positions without loss of seniority rights with full backwages, plus damages and attorney fees. 4. Little Hands Garment Company, an unorganized manufacturer of children's apparel with around 1,000 workers, suffered losses for the first time in history when its US and European customers shifted their huge orders to China and Bangladesh. The management informed its employees that it could no longer afford to provide transportation shuttle services. Consequently, it announced that a normal fare would be charged depending on the distance traveled by the workers availing of the service. Was the Little Hands Garments Company within its rights to withdraw this benefit which it had unilaterally been providing to its employees? Select the best answer(s) and briefly explain your reason(s) therefor. (a) Yes, because it can withdraw a benefit that is unilaterally given; (b) Yes, because it is suffering losses for the first time; (c) Yes, because this is a management prerogative which is not due any legal or contractual obligation; (d) No, because this amounts to a diminution of benefits which is prohibited by the Labor Code; (e) No, because it is a fringe benefit that has already ripened into a demandable right or entitlement. (10%) ALTERNATIVE ANSWER: (b) Yes, because it is suffering losses for the first time; (c) Yes, because this is a management prerogative which is not due any legal or contractual obligation; An employer cannot be forced to continue giving a benefit, being given as a management prerogative, when it can no longer afford to pay for it. To hold otherwise, would be to penalize the employer for his past generosity. (Producer's Bank of the Philippines v. NLRC, G.R. No. 100701, March 28, 2001) ALTERNATIVE ANSWER: (d) No, because this amounts to a diminution of benefits which is prohibited by the Labor Code;

(e) No, because it is a fringe benefit that has already ripened into a demandable right or entitlement. A company practice favorable to employees had indeed been established and the payments made pursuant thereto, ripened into benefits enjoyed by them. And any benefit and supplement being enjoyed by the employees cannot be reduced, diminished, discontinued or eliminated by the employer by virtue of Article 100 of the Labor Code of the Philippines which prohibits the diminution or elimination of the employer of the employees' existing benefits. (Sevilla Trading Co. v. Semana, G.R. No. 152456, April 28, 2004) ALTERNATIVE ANSWER: (b) Yes, because it is suffering losses for the first time; (d) No, because this amounts to a diminution of benefits which is prohibited by the Labor Code. You cannot compel an employer to continue paying the benefits if it is suffering from serious business losses. However, the benefit has already ripened into an employer practice or policy, and therefore it cannot be withdrawn without violating Article 100 of the Labor Code on non-diminution of benefits. 5. As Human Resources Department (HRD) manager of EZ Components, an unorganized manufacturer of electric and electronic components for household appliances, you are suddenly confronted with demands for recognition and collective bargaining negotiations from two competing labor unions. They both claim to represent all the rank-and-file employees. Union A is led by a moderate faction, while Union B is affiliated with a militant federation identified with leftist ideology. Which of the following courses of action should you take to best protect the interests of your company and employees? (a.) Recognize Union A as the rightful bargaining representative because it will be more reasonable to deal with; (b.) Recognize Union B because you do not want to antagonize its leftist connections and foment inter-union conflicts; (c.) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage; or (d.) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the employees in the bargaining unit. (10%) ALTERNATIVE ANSWER: (d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the employees in the bargaining unit. (Haw at Buklod ng Manggagaiva [IBM] v. Calleja, G.R. No. 84685, February 23,1990) ALTERNATIVE ANSWER: (c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage.

6. Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labor organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received the notice of termination, the labor union went on strike. Management filed an action to declare the strike illegal, contending that: Rule on the foregoing contentions with reasons. [a] The union did not observe the cooling-off period mandated by the Labor Code; (2%) and a.) Cooling-off period is not required in union busting. [b] The union went on strike without complying with the strike-vote requirement under the Labor Code. (2%) b.) Despite being exempted from the cooling-off period, a strike vote and strike vote report as well as 24 hour notice to the NCMB is still required. [c] The Labor Arbiter found management guilty of unfair labor practice for the unlawful dismissal of Johnny. The decision became final. Thereafter, the NMMR filed a criminal case against the Manager of Manila Restaurant. Would the Labor Arbiters finding be sufficient to secure the Managers conviction? Why or why not? (2%) c.) Decision of the labor arbiter in unlawful dismissal cases is a condition precedent for the filing of ULP in the regular courts. However, the deicision of the arbiter is not sufficient to convict the manager because it requires proof beyond reasonable doubt. In labor cases, substantial evidence is sufficient.

7. Among the 400 regular rank-and-file workers of MNO Company, a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes: 1. Union A 70 2. Union B 71 3. Union C 42 4. Union D 33 5. No union 180 6. Spoiled votes 4

There were no objections or challenges raised by any party on the results of the election. [a] Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company considering that it garnered the highest number of votes among the contending unions? Why or why not? (3%) a) No, Union B cannot be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company. ART. 256 of the labor code as amended, states that 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 the case at bar, although Union B garnered the highest number of votes among the contending unions, but it did not received the majority of the valid votes casted in the election. Hence, Union B failing to receive the majority votes of the valid votes casted failed to qualify to be certified as the sole and exclusive bargaining agent of the employees, as mandated in the above mentioned provision of law. [b] May the management or lawyer of MNO Company legally ask for the absolute termination of the certification election proceedings because 180 of the workers a clear plurality of the voters have chosen not to be represented by any union? Reasons. (3%) b) No, the management or lawyer of MNO Company cannot legally ask for the absolute termination of the certification election proceedings. While it is true that 180 of the workers a clear plurality of the voters have chosen not to be represented by any union, the remaining votes casted in favor of the contending union in sum have clearly shown that the majority of the employees wanted to be represented by a union. Hence, to terminate the proceedings would clearly disenfranchise the employees by denying them their choice to be represented by a union. [c] If you were the duly designated election officer in this case, what would you do to effectively achieve the purpose of certification election proceedings? Discuss. (3%) As the duly designated election officer in this case, I would conduct a runoff election. Under Art 256, labor code as amended, it is stated that : When an election which provides for three 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 two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. A run-off election is in order when these requisites concur: -

- there was a valid election; - that said election provides for 3 or more choices; - that none among the choices received a majority of the valid votes casted; and - that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes casted. The facts of the case show that all the requisites are present- hence, a run-off election is in order. Therefore, as the officer-in-charge, I would call for the run-off election in consonance with Art 256, LC as amended. 8. TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] An employment contract prohibiting employment in a competing company within one year from separation is valid. TRUE. An exclusivity clause or non-involvement clause is not void per se. As a rule, such a clause which prohibits the employee from competing with the employer after termination of the employment is valid and enforceable if reasonable and supported by a valuable consideration. [b] All confidential employees are disqualified to unionize for the purpose of collective bargaining. True, like managerial employees, confidential employees are ineligible to form, assist or join a labor union. [c] A runaway shop is an act constituting unfair labor practice. TRUE. A runaway shop (that is, the transfer or relocation of business motivated not by business considerations but by anti-union sentiments) is an unfair labor practice. [d] In the law on labor relations, the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement. TRUE. The employees cannot revoke the validly executed collective bargaining agreement with their employer by the simple expedient of changing their bargaining agent. The employees, thru their new bargaining agent, cannot renege on their collective bargaining contract, except to negotiate with management for the shortening thereof. [e] The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5,000.00.

TRUE. The visitorial and enforcement powers of the Secretary of Labor and Employment, exercised through his representatives such as the DOLE Regional Director, encompass compliance with all labor standards laws and other labor legislation, regardless of the amount of the claims filed by workers. The old rule setting a limit of P5,000 on money claims to be covered by the visitorial and enforcement powers of the Secretary of Labor and Employment or his duly authorized representatives has been repealed by RA 7730. 9. In her State of the Nation Address, the President stressed the need to provide an investor-friendly business environment so that the country can compete in the global economy that now suffers from a crisis bordering on recession. Responding to the call, Congress passed two innovative legislative measures, namely: (1) a law abolishing the security of tenure clause in the Labor Code; and (2) a law allowing contractualization in all areas needed in the employers business operations. However, to soften the impact of these new measures, the law requires that all employers shall obtain mandatory unemployment insurance coverage for all their employees. The constitutionality of the two (2) laws is challenged in court. As judge, how will you rule? (5%) Unconstitutional.

Congress cannot alter constitutionally protected rights through a legislation as this will result to an indirect amendment of the constitution, which can only be done through a consitutional convention, constituent assembly or people's initiative. 10 .Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that although there may be just cause, he was not afforded due process by management prior to his termination. He demands reinstatement with full backwages. [a] What are the twin requirements of due process which the employer must observe in terminating or dismissing an employee? Explain. (3%) The employer must observe the twin due process requirements of notice and hearing. It means that the employer should inform the employee of the nature and cause of the accusations against him and to accord him ample opportunity to rebut the claims against him by allowing him to present evidence on his behalf. [b] Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%) -No. Although generally an illegally dismissed employee is entitled to reinstatement and full backwages the same does not apply in this case since the termination was for a just cause.