Labor Law II

broken up into little sandwiches

2nd semester, AY 2006-2007
Prof. D. Disini
This reviewer was made with much love, care, and sleep deprivation by the LABOR team of UP Law 2009B.
Headings for some cases as well as [bracketed text] were merely invented for your studying convenience.
Cases which Sir D singled out for discussion in his Integration classes are indicated with a star ().
All such inventions are without prejudice and merely supplementary to the black-letter text of the law and jurisprudence.
Should you, dear blockmate, find any mistakes or oversights in this text, please consider
that the hardworking and mildly obsessive-compulsive LABOR team probably replicated those very same mistakes and
oversights
in their own exams much to their own damage and prejudice, and forgive them.
Such contingencies notwithstanding... BON APPETIT!

I. Labor Relations Law Private Sector

Part One Introductory Materials
1.2 Definitions
1.2.1Employer and Employee Significance of Means and Includes
A broad meaning. In defining the term "employer" the Act uses the word "includes", which it also used in
defining "employee" and "representative"; and not the word "means" which the Act uses in defining [many of the
other terms]. This methodical variation in terminology is manifest and cannot be presumed to have been the
inconsequential product of an oversight; rather, it must have been the result of a deliberate and purposeful act.
Congress did not intend to give a complete definition of "employer", but rather that such definition should be
complementary to what is commonly understood as employer. Congress intended the term to be understood in a
broad meaning because, firstly, the statutory definition includes not only "a principal employer but also a person
acting in the interest of the employer"; and secondly, the Act itself specifically enumerates those who are not
included in the term "employer", namely: (1) a labor organization (otherwise than when acting as an employer), (2)
anyone acting in the capacity of officer or agent of such labor organization, and (3) the Government and any
political subdivision or instrumentality thereof insofar as the right to strike for the purpose of securing changes or
modifications in the terms and conditions of employment is concerned. Among these statutory exemptions,
educational institutions are not included; hence, they can be included in the term "employer". (FEATI University
v Bautista, 1966)
Part Three Labor Organization
3.6 Union-Member Relations
3.6.2Issues
3.6.2.D Due Process Rules
Goodbye due process, hello damages. Bugay has filed before the CFI an action for moral damages under Art.
2217CC "for mental anguish, anxiety, social humiliation and besmirched reputation specially among the thousands
of employees of the Manila Railroad Company. The Union has moved to dismiss for lack of cause of action, since
supposedly in the ULP case it was never held that the original charges against Bugay were false or fabricated, nor
was there a finding of bad faith, and the decision was rendered only on the basis of procedural defects. The Union
also says that Bugay never lost his employment with MRC because of his expulsion, nor did he suffer any change in
his status.
Sure, there were never any findings of bad faith or fabrication, but the fact remains that his expulsion was found to
be illegal due to irregularities committed in his investigation, and that because of said expulsion he was subjected
to humiliation and mental anguish with the consequent loss of his good name and reputation.
The union says that his claim for moral damages should have been included in the unfair labor case before the CIR.
But such a claim doesnt come within the jurisdiction of the CIR, but that of the regular courts. (Bugay v
Kapisanan ng mga Manggagawa, 1962)
3.6.2.G Union Funds
3.6.2.G.1Source Payment Attorneys Fees
Liability and jurisdiction. The union, not the employees, is obligated to Atty. Saavedra. The fees should be
charged against the union funds, not against the P14M monetary benefits awarded to the employees under the
finalized CBA. The P14M constitutes the employees money; it is not union funds.
Art. 222 controls. It is another guarantee intended to protect the employee against unwarranted practices that
would diminish his compensation without his knowledge and consent. Also applicable is Art. 242(n-o).
The Office of the President had no jurisdiction here. The case was appealed with respect to the CBA terms and
conditions, not with respect to attorney's fees. Although the fees were a mere incident, nevertheless, the
jurisdiction to fix the same and to order the payment thereof was outside the pale of the Presidential Executive

Some minidigests in the midterm reviewer were inaccurate/incomplete for exam purposes, so here they are in their more correct form.
Sobrang sorry!
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Assistants appellate jurisdiction. He was right in adopting a hands-off attitude in his first resolution. (Pacific
Banking v Clave, 1984)
3.7 Union Affiliation: Local and Parent Union Relations
3.7.2Supervisor-Rank-and-File Union Affiliation
Rule Affiliation
Affiliation okay. [A supervisor's union may affiliate with a federation with which unions of rank and-file
employees of the same employer are also affiliated.] The inclusion of FFW in the registration of the local
unions is merely to stress that they are its affiliates at the time of registration. It does not mean that said
local unions cannot stand on their own. Neither can it be construed that their personalities are so merged
with the mother federation that for one difference or another they cannot pursue their own ways,
independently of the federation. Locals are separate and distinct units primarily designed to secure and
maintain the equality of bargaining power between the employer and their employee-member in the
economic struggle for the fruits of the joint productive effort of labor and capital. Locals remain the basic
units of association; free to serve their own and the common-interest of all.
A&ASup and the A&A Salesmen Assn (FFW) have their own respective CBL. They are separately and
independently registered of each other. Both sent their separate proposals for CBAs with their employer.
There could be no employer influence on rank-and-file organizational activities nor their could be any rank
and file influence on the supervisory function of the supervisors.
{Also, the supervisors in the supervisory employees union were not the supervisors of the R&F employees in
the R&F union. -Sir} (Adamson & Adamson v CIR, 1984)
Part Six Union Representation: Establishing Union Majority Status
6.3 Certification Election Process
6.3.3Nature of Proceeding
Investigatory. A cert election is the only expedient way by which the rivalry between the two unions may
be solved to avoid friction and other unfortunate incidents.
Certification proceedings are investigatory in nature, since the object of the proceedings is not the decision
of any alleged commission of wrong nor asserted deprivation of rights but is merely that determination of
proper bargaining units and the ascertainment of the will and choice of the employees in respect of the
selection of a bargaining representative. The determination of the proceedings 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.' (Young Men Labor Union
Stevedores v CIR, 1965)
6.4 Certification Election Process and Procedure
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 Department
of Labor and Employment within the sixty-day period before the expiration of the collective bargaining
agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition
is supported by the written consent of at least twenty-five percent (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 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.
At the expiration of the freedom period, the employer shall continue to recognize the majority status of the
incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No.
6715, March 21, 1989)

Art. 257. Petitions in unorganized establishments. In any establishment where there is no certified
bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the
filing of a petition by a legitimate labor organization. (As amended by Section 24, Republic Act No. 6715, March 21, 1989)
Art. 258. When an employer may file petition. When requested to bargain collectively, an employer may
petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the
unit, the Bureau shall, after hearing, order a certification election.
All certification cases shall be decided within twenty (20) working days.
The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and
regulations prescribed by the Secretary of Labor.
(a) Effect of Private Agreement
Private agreement illegal. In this case, there was an agreement by the DOLE with TUCP to forward
to the latter cases involving its member unions. This is illegal as the Labor Code never intended that
the Director of Labor Relations should abdicate, delegate, and relinquish his arbitrational prerogatives
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in favor of a private person or entity or to a federation of trade unions. Such surrender of official
functions is an anomalous, deplorable and censurable renunciation of the Directors adjudicatory
jurisdiction in representation cases.
Article 226 provides in peremptory terms that the BLR and the labor relations divisions in the regional
offices of the Ministry of Labor shall have original and exclusive authority to act, at their own initiative
or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes,
grievances or problems arising from or affecting labor management relations in all workplaces whether
agricultural or nonagricultural, except those arising from the implementation or interpretation of
collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary
arbitration.
There is another aspect of this case which should be underscored. And that is that the Labor Code never
intended that the original record of a labor case, an official public record, should be removed from the
legitimate custodian thereof and entrusted to a private person or entity. The Director of Labor Relations
in imprudently and illegally delivering to the TUCP the record of the certification election case (instead of
a transcript thereof) placed himself in the pitiable, lamentable and ridiculous situation of having to beg
the TUCP for the return of the record and then to ask for a court order to compel its return since the TUCP
has cavalierly not heeded its request. (Ilaw at Buklod ng Manggagawa v Director of BLR, 1979)
Certification election still the best way of ascertaining majority status. A letter from the
president of respondent union reveals the present state of affairs of the employees wherein they are
deprived of the benefits of a collective bargaining agreement, for management refused to bargain with
the union. If this situation continues, the employees would stand to lose and with the present set-up, a
certification election is warranted. Time and again, We have ruled in a long-line of cases that the
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.
It is a fundamental postulate that the will of the majority if given expression in an honest election with
freedom on the part of the voters to make their choice, is controlling. Protection to labor and freedom
of peaceful assembly and association are guaranteed by the Constitution. (PLUM Federation v
Noriel, 1982)
(b) Posting [of] Notice > Waiver
Estoppel applies. There is no merit in the petitioner's contention that the non-posting of the notice of the
certification election as prescribed by Section 1, Rule VI, Book V of the Omnibus Rules misled and confused
the workers regarding the mechanics of the election. JIU is estopped from raising that issue for it signed an
agreement with the private respondent 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. (Jiescor Independent Union v Torres,
1993)
(c) Voting List and Voters
Voting List
Bound by earlier agreement. The labor unions agreed, not only to the holding of the 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 its payroll to said court and stated that the
labor unions had been furnished copy at least 3 days before. Said labor unions were given an
opportunity to make their comments and observations on the list of workers contained in the payroll
and to ask or suggest the inclusion or exclusion of names therein or therefrom. Petitioner's
representative then stated that it would abide by whatever ruling the court may make on the matter of
inclusion and exclusion of voters. The court issued the order for the holding of the election and its
ruling on the question as to who were qualified to vote, and petitioner did not move for a
reconsideration although 2 other Labor Unions and that Company did so, and their motions for
reconsideration were denied. Hence, petitioner may no longer contest the accuracy of the
aforementioned voters list. (Acoje Workers Union v NAMAWU, 1963)
Employer has no standing to question the exclusion of probationary and substitute
employees from the qualified voters list. Unless it filed a petition for a certification election
pursuant to Article 258, the employer has no standing to question the election, which is the sole
concern of the workers. It did not and will not sustain direct injury as a result of the non-inclusion of
some of its employees. Only the employees themselves, being the real parties-in-interest, may
question their removal from the voters list. (Notre Dame of Greater Manila v Laguesma, 2004)
Eligible voters = employees in the bargaining unit sought to be represented. The members
of Samahang Manggagawa are employees in the Tandang Sora campus. Under its constitution and bylaws, Samahang Manggagawa seeks to represent the motor pool, construction and transportation
employees of the Tandang Sora campus. Thus, the computation of the quorum should be based on the
rank and file motor pool, construction and transportation employees of the Tandang Sora campus and
not on all the employees in St. James five campuses. The motor pool, construction and transportation
employees of the Tandang Sora campus had 149 qualified voters at the time of the certification
election. Hence, the 149 qualified voters should be used to determine the existence of a quorum.

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Since a majority or 84 out of the 149 qualified voters cast their votes, a quorum existed in the
certification election.
The list submitted by the school consisted of its administrative, teaching and office personnel. These
administrative, teaching and office personnel were not members of Samahang Manggagawa. They did
not belong to the bargaining unit that Samahang Manggagawa seeks to represent. Hence, the list
submitted by St. James may not be used as basis to determine the members of Samahang Manggagawa.
(St. James School v Samahang Manggagawa, 2005)
Voters All Employees
As long as theyre in the right bargaining unit. The objectives of the Industrial Peace Act would
be sooner attained if at the earliest opportunity the employees, all of them, in an appropriate
bargaining unit be pooled to determine which labor organization should be its exclusive representative.
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
negotiated by the certified union binds all employees in the bargaining unit. Hence, 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 as basis for eligibility in
supporting the petition for certification election. 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". Even
assuming the fact that a number of signatories have disaffiliated and even assuming further that the
20% requirement is not reached, this will not defeat the petition for certification election. On the
contrary, it becomes more imperative to conduct one. The exercise the constitutional right to choose a
labor union would be rendered nugatory and ineffectual if they would be denied the opportunity to
choose the bargaining unit to represent them in a certification election, which is not a litigation, but a
mere investigation of a non-adversary character. The holding of a certification election is a statutory
policy that should not be circumvented. (Airtime Specialists v Director of BLR, 1989)
Must settle company domination questions first. If a LO were to object to the participation in a
CE of a company-dominated union and thus file a complaint for ULP against the employer, the status of
the company-dominated union would have to be cleared before the CE could take place. The reason
that justifies the postponement of a CE pending an inquiry as to the bona fides of a union calls
precisely for the holding of a CE in this situation where it is management that would have the ULP case
it filed against its employees concluded before agreeing to the holding of a CE. If management here is
allowed to have its way, the result might be to dilute or fritter away the strength of an organization
bent on a more zealous defense of labors prerogatives. The difficulties and obstacles that must be
then hurdled would not be lost on the rest of the personnel, who had not as yet made up their minds
one way or the other.
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, in itself not likely to enhance the prospect of
respondent-unions, 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. There is no valid reason then for the postponement
sought. 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 in question are no longer entitled to
participate in the certification election for having automatically lost their jobs. (Barrera v CIR, 1981)
All workers should be given the opportunity to participate in a certification election. The
Director of Labor Relations allowed PAFLU to participate in a certification election. It is valid not only
because no certification election had as yet been held but since PAFLU had established substantial
interest in the ordered election. Also, the issue had become moot and academic since, prior to the
issuance of the temporary restraining order, a certification election among the rank-and-file employees
resulted in PAFLU receiving majority of the votes cast. Also, for the integrity of the collective
bargaining process to be maintained and thus manifest steadfast adherence to the concept of
industrial democracy, all workers of a collective bargaining unit should be given the opportunity to
participate in a certification election. (Confederation of Citizens Labor Unions v Noriel, 1980)
All employees in bargaining unit entitled to vote. Who can ask for a certification election is one
thing. Who can vote in a certification election is another. The plain language of the law certainly is
controlling. All employees can participate. The later article (A.257) is, therefore, lacking in any
relevance. It is not a limitation to the right of all those in a collective bargaining unit to cast their vote.
Thus: it has been the consistent ruling of this Court that for the integrity of the collective bargaining
process to be maintained and thus manifest steadfast adherence to the concept of industrial
democracy, all the workers of a collective bargaining unit should be given the opportunity to
participate in a certification election.
The slightest doubt cannot therefore be entertained that what possesses significance in a petition for
certification is that through such a device the employees are given the opportunity to make known who
shall have the right to represent them. What is equally important is that not only some but all of them
should have the right to do so." (Eastland Mfg. v Noriel, 1982)

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Employee with a present, unabandoned right to or expectation of reemployment can vote.

R Transports contention that the employment status of the striking members of CLOP must be
resolved first before certification election can be conducted is wrong. "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. Thus, and to repeat, if the dismissal is under question, as in
the case now at bar whereby a case of illegal dismissal and/or unfair labor practice was filed, the
employees could still qualify to vote in the elections." Therefore, the employees of petitioner 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. (R Transport
v Laguesma, 1993)
Effect [of] Non-Participation [in] Previous Election
No effect. The contention that petitioners should be denied the right to vote because they "did not
participate in previous certification elections in the company for the reason that their religious beliefs do
not allow them to form, join or assist labor organizations," is unacceptable. No law, administrative rule or
precedent prescribes forfeiture of the right to vote by reason of neglect to exercise the right in past
certification elections. (Reyes v Trajano, 1992)
Voting Day
Election held on a valid voting day despite strike. Section 2, Rule VI, Book V of the Omnibus Rules:
The election shall be set during the regular business day of the company unless otherwise agreed upon by
the parties. However, an actual election was conducted on said date of strike. In the Minutes of the
Certification Election, the representatives of the contending unions, and of the Ministry of Labor even
attested that the election was peaceful and orderly and none of the parties registered any protest on any
matter concerning the election proceedings. There is thus, no valid reason to annul the certification
election. (Asian Design & Mfg. v Calleja, 1989)
(d) Validity
Majority vote; basis for determining total number of eligible voters. The CE should not be
declared null and void.
(1) Even though only 62 out of an alleged 130 employees participated in the CE, what Art. 256 LC requires
for a valid election is the participation of at least a majority of all eligible voters in the bargaining unit. 62
out of 98 eligible voters in the SSS list of employees cast their votes = validity.
(2) It should ideally be the payroll which should have been used for the purpose of the election, as basis for
determining the total number of eligible voters in the bargaining unit. Samahan claims that, according to
the Implementing Rules, the basis for the list of eligible voters should have been the payroll 3 months
preceding the filing of the petition for certification election and that if this was done the 62 votes cast
would be short of the required majority. However, the unjustified refusal of a company to submit the payroll
in its custody, despite efforts to make it produce it, compelled resort to the SSS list as the next best source
of information. After all, the SSS list is a public record whose regularity is presumed.
No obstacle must be placed to the holding of certification elections, for it is a statutory policy that should
not be circumvented. whenever there is doubt as to whether a particular union represents the majority of
the rank and file employees, in the absence of a legal impediment, the holding of a certification election is
the most democratic method of determining the employees' choice of their bargaining representative. It is
the appropriate means whereby controversies and disputes on representation may be laid to rest, by the
unequivocal vote of the employees themselves. Indeed, it is the keystone of industrial democracy.
Insistence on the application of the Omnibus Implementing Rules could defeat this policy. Worse, it could
facilitate fraud by employers who can easily suppress the payroll to prevent certification elections from
being held. Where it concerns the weight to be accorded to the wishes of the majority as expressed in an
election conducted fairly and honestly, certain provisions that may be considered mandatory before the
voting takes place become thereafter merely directory in order that the wishes of the electorate prevail.
(Samahan ng Manggagawa sa Pacific Plastic v Laguesma, 1997)
(e) Protest
Period
Proper time to make objections to elections. Under the Implementing Rules, protests against
elections should be formalized before the Med-Arbiter within 5 days from the close of the election
proceedings and must be decided by the latter within 20 working days. In this case, the protest
against the election was presented to the med-arbiter only after the lapse of almost 2 years after it
was held, And in that interval, no informal protest, oral or written, was ever presented against the
election. Indeed, there was tacit acceptance of the regularity of the elections and the results thereof,
for during that period, certain significant events took place without demur or objection of any sort on
the part of private respondents and the rest of the members of the Kapisanan. (Timbungco v
Castro, 1990)
5-day period for protest not to be strictly applied. Under Section 13 of the Rules Implementing
Book V of the LC, the election officers authority to certify the results of the election is limited to

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situations in which there has been no protest filed; or if there has been any, it has not been perfected
or formalized within five days from the close of the election proceedings.
Further, Section 14 of the same Rules provides that when a protest has been perfected, only the medarbiter can proclaim and certify the winner. Clearly, this rule is based on the election officers function,
which is merely to conduct and supervise certification elections. It is the med-arbiter who is authorized to
hear and decide representation cases. Consequently, the decision whether to certify the results of an
election or to set them aside due to incidents occurring during the campaign is within the med-arbiters
discretion.
When the med-arbiter admitted and gave due course to respondents Petition for nullification of the
election proceedings, the election officer should have deferred issuing the Certification of the results
thereof. Section 13 of the Implementing Rules cannot strictly be applied to the present case.
We are not easily persuaded by the argument of petitioner that the employees had sufficient time
between the misrepresentation and the election to check the truth of its claims. They could hardly be
expected to verify the accuracy of any statement regarding petitioner, made to them by its officers. No
less than its president stated that it was an independent union. At the time, the employees had no
reason to doubt him. (DHL Phils. United Rank & File Assn v Buklod ng Manggagawa ng DHL
Phils., 2004)
(f) Appeal
The periods for appeal. Sections 3 and 4, Rule VI, Book V of the Implementing Rules:
"Section 3. Representation officer may rule on any-on-the-spot questions.-The Representation officer may
rule on any on-the-spot question arising from the conduct of the election. The interested party may
however, file a protest with the representation officer before the close of the proceedings.
'Protests not so raised are deemed waived. Such protest shall be contained in the minutes of the
proceedings.
"Section 4. Protest to be decided in twenty (20) working days.-Where the protest is formalized before the
med-arbiter within five (5) days after the close of the election proceedings, the med-arbiter shall decide
same the within twenty (20) working days from the date of forma action. If not formalized within the
prescribed period, the protest shall be deemed dropped. The decision may be appealed to the Bureau in
the same manner and on the same grounds as provided under Rule V."
These are thus the requirements for a protest:
(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.
The phrase close of election proceedings" as used in Secs 3 and 4 of the IRR refers to that period from
the closing of the polls to the counting and tabulation of the votes, and it could not have been the
intention of the Implementing Rules to include in the term "close of the election proceedings" the period
for the final determination of the challenged votes and the canvass thereof, which may take a very long
time. (Phil. Fruits & Vegetables Industries v Torres, 1992)
CBA no obstacle to still-pending petition for CE. Accdg to the Secretary, the dismissal of the
petition by the Med Arbiter was in order that other LLOs may file an entirely new petition for
certification election. This is rejected. The order of the Med-Arbiter dismissing the pet for cert election
was seasonably appealed. The appeal stopped the holding of any certification election. There was thus
an unresolved representation case at the time the CBA was entered between FWU and private
respondent. Such CBA cannot and will not prejudice petitioner's pending representation case or render
the same moot. (Samahan ng Manggagawa sa Filsystems v Secretary, 1998)
Not all orders issued by the med-arbiter are appealable. The certification election is not stayed
by the employers appeal of the Med-arbiters denial of their motion to include probationary and
substitute employees in the voters list. A259 clearly speaks of the "orderof the election." It pertains
only to the order granting the petition for certification election. Interlocutory orders issued by the medarbiter prior to the grant or denial of the petition, including orders granting motions for intervention
issued after an order calling for a certification election, shall not be appealable. However, any issue
arising therefrom may be raised in the appeal on the decision granting or denying the petition. The
intention of the law is to limit the grounds for appeal that may stay the holding of a certification
election. This intent is manifested by Department Order No. 40: an appeal of a med-arbiters order to
hold a certification election will not stay the holding thereof where the employer company is an
unorganized establishment, and where no union has yet been duly recognized or certified as a
bargaining representative. This new rule, therefore, decreases or limits the appeals that may impede
the selection by employees of their bargaining representative. (Notre Dame of Greater Manila v
Laguesma, 2004)
Employer as bystander. Titans failure to file its MFR seasonably (10 days) is jurisdictional and has,
in effect, rendered final and executory the Resolutions of the DOLE Secretary. But even if there was no
procedural flaw, in certification elections, the employer is a bystander, it has no right or material
interest to assail the certification election. Thus, when a petition for certification election is filed by a
legitimate labor organization, it is good policy of the employer not to have any participation or partisan
interest in the choice of the bargaining representative. While employers may rightfully be notified or
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informed of petitions of such nature, they should not, however, be considered parties thereto with an
inalienable right to oppose it. (SMC Quarry Workers Union v Titan Megabags Indl, 2004)
(g) Annulment
Allegations / Grounds
Company domination = ULP = prejudicial question. 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.
A complaint for unfair labor practice may be considered a prejudicial question in a proceeding for
certification election when it is charged therein that one or more labor unions participating in the election
are being aided, or are controlled, by the company or employer. The reason is that the certification
election may lead to the selection of an employer-dominated or company union as the employees'
bargaining representative, and when the court finds that said union is employer-dominated in the unfair
labor practice case, the union selected would be decertified and the whole election proceedings would be
rendered useless and nugatory.
Because respect must be accorded to the will of labor thus ascertained, a general allegation of duress is
not sufficient to invalidate a certification election; it must be shown by competent and credible proof.
That is to give substance to the principle of majority rule, one of the basic concepts of a democratic
polity. 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.
(United Employees Union of Gelmart Industries v Noriel, 1975)
Nuns and priests, okay. Nor need this Court pass upon the ground of protest based on the alleged
participation by nuns and a priest who presumably aided the cause of private respondent. The
primacy of religious freedom, to which contractual rights, even on labor matters, must yield! One's
religious convictions may be the basis for an employee joining or refusing to join a labor union.
Certainly, the wide latitude accorded religious groups in the exercise of their constitutional freedom
would caution against reliance on such a ground to invalidate a certification election. (United
Employees Union of Gelmart Industries v Noriel, 1975)
Actual fraud and irregularities trump failure to seasonably file protest. In this case, petitioner
maintains that private respondent did not make any protest regarding the alleged irregularities (e.g.,
massive disfranchisement of employees) during the election. Hence, the appeal and motions for
reconsideration of HPI should have been dismissed summarily. It is essential that the employees must
be accorded an opportunity to freely and intelligently determine which labor organization shall act in
their behalf. The workers in this case were denied this opportunity. Not only were a substantial number
of them disfranchised, there were, in addition, allegations of fraud and other irregularities which put in
question the integrity of the election. Workers wrote letters and made complaints protesting the
conduct of the election. The Report of Med-Arbiter Pura who investigated these allegations found the
allegations of fraud and irregularities to be true. The failure to file a protest within time allowed is a
mere technicality which should not be allowed to prevail over the workers welfare. (NFL v
Secretary, 1998)
Misrepresentation of material facts in the campaign. The making of false statements or
misrepresentations that interfere with the free choice of the employees is a valid ground for protest. A
certification election may be set aside for misstatements made during the campaign, where 1) a
material fact has been misrepresented in the campaign; 2) an opportunity for reply has been lacking;
and 3) the misrepresentation has had an impact on the free choice of the employees participating in
the election. A misrepresentation is likely to have an impact on their free choice, if it comes from a
party who has special knowledge or is in an authoritative position to know the true facts. This principle
holds true, especially when the employees are unable to evaluate the truth or the falsity of the
assertions.
The fact that the officers of petitioner especially its president, misrepresented it to the voting employees
as an independent union constituted a substantial misrepresentation of material facts of vital concern to
those employees. The materiality of such misrepresentation is self-evident. The employees wanted an
independent union to represent them in collective bargaining, free from outside interference. Thus, upon
knowing that petitioner was in fact an affiliate of the FFW, the members disaffiliated from petitioner and
organized themselves into an independent union. Additionally, the misrepresentation came from
petitioners recognized representative, who was clearly in a position to hold himself out as a person who
had special knowledge and was in an authoritative position to know the true facts.
We are not easily persuaded by the argument of petitioner that the employees had sufficient time
between the misrepresentation and the election to check the truth of its claims. They could hardly be
expected to verify the accuracy of any statement regarding petitioner, made to them by its officers. No
less than its president stated that it was an independent union. At the time, the employees had no
reason to doubt him. (DHL Phils. United Rank & File Assn v Buklod ng Manggagawa ng DHL
Phils., 2004)
Irregularities
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Irregularities in conduct of certification election render it invalid. We hold that the

certification election is invalid because of certain irregularities such as that (1) the workers on the night
shift (10pm 6am) and some of those in the afternoon shift were not able to vote, so much so that out
of 1,010 voters only 692 voted and about 318 failed to vote; (2) the secrecy of the ballot was not
safeguarded; (3) the election supervisors were remiss in their duties and were apparently "intimidated"
by a union representative and (4) the participating unions were overzealous in wooing the employees
to vote in their favor by resorting to such tactics as giving free tricycle rides and T-shirts.
The purpose of a certification election is to give the employees "true representation in their collective
bargaining with an employer". That purpose was not achieved in the run-off election because many
employees or union members were not able to vote and the employer, through apathy or deliberate
intent, did not render assistance in the holding of the election. (Confederation of Citizens Labor
Unions v Noriel, 1982)
Irregularities did not affect the election. It does not appear that the dispensing with certain
technical requirements or formalities (i.e. no COMELEC and no tally sheet) in 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 that expression and ascertainment of the popular will in
the choice of officers. (Timbungco v Castro, 1990)
6.5 Certification of Designated Majority Union
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 labor-management
councils: Provided, That the representatives of the workers in such labor-management councils shall be
elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21,
1989)

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 Department of
Labor and Employment within the sixty-day period before the expiration of the collective bargaining
agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is
supported by the written consent of at least twenty-five percent (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 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.
At the expiration of the freedom period, the employer shall continue to recognize the majority status of the
incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715,
March 21, 1989)

ILO Convention No. 135

Worker's Representatives Convention concerning Protection and Facilities to be Afforded to Workers'
Representatives in the Undertaking
Article 1
Workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them,
including dismissal, based on their status or activities as a workers' representative or on union membership or
participation in union activities, in so far as they act in conformity with existing laws or collective agreements
or other jointly agreed arrangements.
Article 2
1. Such facilities in the undertaking shall be afforded to workers' representatives as may be appropriate in
order to enable them to carry out their functions promptly and efficiently.
2. In this connection account shall be taken of the characteristics of the industrial relations system of the
country and the needs size and capabilities of the undertaking concerned.
3. The granting of such facilities shall not impair the efficient operation of the undertaking concerned.
Article 3
For the purpose of this Convention the term workers' representatives means persons who are recognised as
such under national law or practice, whether they are-(a) trade union representatives, namely, representatives designated or elected by trade unions or by members
of such unions; or
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(b) elected representatives, namely, representatives who are freely elected by the workers of the undertaking
in accordance with provisions of national laws or regulations or of collective agreements and whose functions
do not include activities which are recognised as the exclusive prerogative of trade unions in the country
concerned.
Article 4
National laws or regulations, collective agreements, arbitration awards or court decisions may determine the
type or types of workers' representatives which shall be entitled to the protection and facilities provided for in
this Convention.
Article 5
Where there exist in the same undertaking both trade union representatives and elected representatives,
appropriate measures shall be taken, wherever necessary, to ensure that the existence of elected
representatives is not used to undermine the position of the trade unions concerned or their representatives
and to encourage co-operation on all relevant matters between the elected representatives and the trade
unions concerned and their representatives.
Article 6
Effect may be given to this Convention through national laws or regulations or collective agreements, or in any
other manner consistent with national practice.
Majority Union
The union represents all the R&F employees, not just its members, even when filing cases.
The Union was already certified (in fact more than a year after winning the consent election) as the
exclusive bargaining agent of all the rank and file employees of respondent company. The effect of such a
certification brought about the legal mandate that henceforth, the Union would be the exclusive
representative (Art. 255) of all the rank and file employees (take note, not just the union members) of the
company, not only for the purpose of entering into a CBA on "terms and conditions of employment" (Arts.
251, 252), but also in the matter of "rights, benefits and welfare" (Art. 255) of the said represented
workers. The case filed by the GTEWU-ANGLO president for and in behalf of all the workers and
employees of the Golden Taxi Co. thus is binding upon all rank and file employees of company exclusively
represented by the union. (Militante v NLRC, 1995)
An existing and duly registered CBA, or a certification of a designated majority union, bars
any petition questioning the status of the designated majority union and the holding of a cert.
election. The certification of ILO-PHILS. "as the sole and exclusive bargaining agent of the rank-and-file
workers of Transunion-Glassware Division," means it shall remain as such during the existence of the CBA,
to the exclusion of other labor organizations, including TUPAS, and no petition questioning the majority
status of the incumbent bargaining agent shall be entertained, nor shall certification election be
conducted, outside of the sixty-day freedom period immediately before the expiry date of the five-year
term of the CBA.
The procedural requirement of filing the CBA within 30 days from date of execution under Article 231 was
not met. Be that as it may, the delay in the filing of the CBA was sufficiently explained, i.e., there was an
inter-union conflict on who would succeed to the presidency of ILO-PHILS. In the absence of any substantial
evidence that DOLE officials or personnel, in collusion with private respondent, had antedated the filing date
of the CBA, the presumption on regularity in the performance of official functions holds. More importantly,
non-compliance with the cited procedural requirement should not adversely affect the substantive validity of
the CBA. A CBA is more than a contract. It is highly impressed with public interest for it is an essential
instrument to promote industrial peace. Hence, it bears the blessings not only of the employer and
employees concerned but even the DOLE. To set it aside on technical grounds is not conducive to the public
good. (Trade Unions of the Phils. v Laguesma, 1994)
Innocent until proven guilty. Accdg to Art. 256 LC, for a union to become an exclusive bargaining
representative of a particular establishment, it must emerge as winner in a certification election. In the
case at bar, there was no certification election held challenging the majority status of NAMAWU as the
exclusive bargaining representative of petitioners employees. NAMAWU, therefore, remains the exclusive
bargaining representative of petitioners employees and possesses legal standing to represent them.
(Maricalum Mining v Brion, 2006)
Effect of Certification
No fees from non-members. Whatever benefits the majority union obtains from the employer accrue also
to nonmembers. But this alone cannot justify the collection of agency fees from these non-members, because
the benefits of a CBA are extended to all employees regardless of their membership in the majority Union; if to
hold otherwise, if they were to be deprived of these benefits, it would amount to discrimination against them.
Going on to the issue of requiring non-members to pay agency fees to the majority union, the Court held that
this practice is unlawful. This is because non-member employees cannot be forced to join a majority union
when they are already members of another union; thus they are protected from a closed shop agreement. And
as they have this protection, neither may a lesser form of union security be imposed on them, that is: agency
fees.
Also, when a union bids to be the bargaining agent, it voluntarily assumes the responsibility of representing all
the employees in the appropriate bargaining unit. The law states: "The labor organization designated or
selected for the purpose of collective bargaining by the majority of the employees in the appropriate collective

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bargaining unit shall be the exclusive representative of all the employees in such unit for the purpose of
collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of
employment." (National Brewery & Allied Industries Labor Union v San Miguel Corp., 2002)
6.6 Bars to Certification Election
6.6.1 One-Year Bar Rule > Period Covered
Must have been an actual election. Was the filing of the second petition subject to a one-year bar,
starting from the dismissal of the first petition? No. Said rule applies only when an actual election is held
(there shouldve been voting, counting of votes, etc), and there was none here. A misreading caused the
wrongful contention of R Transport. (R Transport v Laguesma, 1993)
Computation of period. It is evident that the prohibition imposed by law on the holding of a
certification election "within one year from the date of issuance of declaration of a final certification
election result," - or the date of the Resolution declaring a union the exclusive bargaining representative
of rank-and-file workers - can have no application to the case at bar. That one-year period - known as the
"certification year" during which the certified union is required to negotiate with the employer, and
certification election is prohibited - has long since expired.
It seems fairly certain that prior to the filing of the petition for election in this case, there was no such
"bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of
a valid notice of strike or lockout." To be sure, there are in the record assertions by the union that its
attempts to bring the employer to the negotiation table had been unsuccessful because of the latter's
recalcitrance, and unfulfilled promises to bargain collectively; but there is no proof that it had taken any
action to legally coerce the employer to comply with its statutory duty to bargain collectively. It could have
charged the company with ULP; but it did not. It could have gone on a legitimate strike in protest of its
refusal to bargain collectively and compel it to do so; but it did not. (Kaisahan ng Manggagawang
Pilipino v Trajano, 1991)
6.6.2Deadlock Bar Rule
Requirements
The public respondent maintains that Section 6 of the Rules Implementing Executive Order No Ill commands
that the petition for certification election must be filed within the last 60 days of the CBA and further
reiterates and warns that any petition filed outside the 60-day freedom period "shall be dismissed outright."
Moreover, Section 3, Rule V, Book V of the Rules Implementing the Labor Code enjoins the filing of a
representation question if, before a petition for certification election is filed, a bargaining deadlock to which
the bargaining agent is a party is submitted for conciliation or arbitration.
Rule V, Section 6, Book V of the Implementing Rules: Procedure. In a petition involving an organized
establishment or enterprise where the majority status of the incumbent collective bargaining union is
questioned by a legitimate labor organization, the Med-Arbiter shall immediately order the conduct of a
certification election if the petition is filed during the last sixty (60) days of the collective bargaining
agreement. Any petition filed before or after the sixty-day freedom period shall be dismissed outright.
"The sixty-day freedom period based on the original collective bargaining agreement shall not be affected by
any amendment, extension or renewal of the collective bargaining agreement for purposes of certification
election.
Only a certified CBAi.e., an agreement duly certified by the BLRmay serve as a bar to certification
elections. A petition for certification election or a motion for intervention can only be entertained within sixty
days prior to the expiry date of an existing CBA (the freedom period). The purpose, obviously, is to ensure
stability in the relationships of the workers and the management by preventing frequent modifications of any
collective bargaining agreement earlier entered into by them in good faith and for the stipulated original
period.
Even if there was no new CBA, "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." Despite the lapse of the formal effectivity of the CBA the law
still considers it as continuing in force and effect until a new CBA is validly executed. Hence, the contract bar
rule still applies. Besides, the CBA was extended for another 3 years and the deadlock was submitted to the
Labor Management Council. (Natl Congress of Unions in the Sugar Industry v Trajano, 1992)
No Deadlock
Definition, etc. "deadlock" = the "counteraction of things producing entire stoppage: a state of inaction or
of neutralization caused by the opposition of persons or of factions; standstill"; a 'complete blocking or
stoppage resulting from the action of equal and opposed forces; impasse (presupposes reasonable effort at
good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties)
There was no .reasonable effort at good faith bargaining"especially on the part of the University. Its
indifferent attitude towards collective bargaining inevitably resulted in the failure of the parties to arrive at
an agreement. While collective bargaining should be initiated by the union, there is a corresponding
responsibility on the part of the employer to respond in some manner to such acts as provided in Art 250.
The records do not show that during this 3 year period, the union exerted any effort to pursue collective
bargaining as a means of attaining better terms of employment. That the DWUEU abandoned its collective

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bargaining proposals is further confirmed by the fact that Union bound itself to submit a new set of proposals.
The Court is not inclined to rule that there has been a deadlock or an impasse in the collective bargaining
process. There has not been a "reasonable effort at good faith bargaining" on the part of the University. Thus,
while the Court recognizes that technically, the University has the right to file the petition for certification
election as there was no bargaining deadlock to speak of, to grant its prayer that the assailed Orders be
annulled would put an unjustified premium on bad faith bargaining.
Bad faith is further exemplified by the fact that an hour before the start of the 5/10/88 conference, it
surreptitiously riled the petition for certification election. And yet during said conference, it committed itself
to "sit down" with the Union. Obviously, the University tried to preempt the conference which would have
legally foreclosed its right to file the petition far certification election. In so doing, the University failed to act
in accordance with Art. 252 which defines the meaning of the duty to bargain collectively as "the
performance of a mutual obligation to meet and convene promptly and expeditiously in good faith."
Moreover, by filing the petition for certification election while agreeing to confer with the DWUEU-ALU, the
University violated the mandate of Art. 19 of the Civil Code that "(e)very person must, in the exercise of his
rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and
good faith." (Divine Word University of Tacloban v Secretary, 1992)
6.6.3Contract Bar Rule
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. (As
amended by Section 15, Republic Act No. 6715, March 21, 1989)

[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. 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 thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit
copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and
Employment 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. The Bureau or
Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement
within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy
of the Collective Bargaining Agreement within five (5) days from its submission.
The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a
registration fee of not less than one thousand pesos (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. 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 Secretary of Labor and Employment, Regional Directors and the Commission.(As
amended by Section 15, Republic Act No. 6715, March 21, 1989)]
History
Taking our cue from Uncle Sam. Whenever a substantial number of employees in an appropriate
bargaining unit desires to be represented by a union or organization other than that which had
negotiated a collective bargaining contract with the management, the CIR is faced with the dilemma of
the right of contract or the right of representation: "The [US] Board is faced with the problem of
balancing two separate interests of employees and society which the act was designed to protect: the
interest in such stability is as essential to encourage the effective collective bargaining, and the
sometimes conflicting interest in the freedom of employees to select and change their representatives.
A CBA of reasonable duration is "in the interest of the stability of industrial relations", a bar to certification
elections. Thus evolved the "contract-bar policy". In adopting the "contract-bar policy", the [US] Board,
however, was careful in refusing to announce an inflexible rule as to its authority. The Board has not
adopted an ironclad policy, rigid and fixed, but rather one to be applied according to the changing
conditions and industrial practices.
It is reasonable and proper that when there is a bargaining contract for more than a year, it is too early to
hold a certification election within a year from the effectivity of said bargaining agreement; also that a two
year bargaining contract is not too long for the purpose of barring a certification election. For this purpose,
a bargaining agreement may run for three, even four years, but in such case, it is equally advisable that to
decide whether or not within those three or four years, a certification election should not be held, may well
be left to the sound discretion of the CIR, considering the conditions involved in the case, particularly, the
terms and conditions of the bargaining contract.
In an earlier case as to whether or not upon submission of a petition for certification election by at least
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The statute itself expressly recognizes one exception, which is when a certification election had occurred
within one year. And the judicial administrative agencies have found two exceptions: (1) where there is an
unexpired bargaining agreement not exceeding two years and (2) when there is a pending charge of
company domination of one of the labor unions intending to participate in the election."
From the cases decided by the NLRB of the United States and our own cases, the SC has arrived at the
conclusion that where the bargaining contract is to run for more than two years, the principle of
substitution may well be adopted and enforced by the CIR to the effect that after two years of the life of
bargaining agreement, a certification election may be allowed by the CIR; that if a bargaining agent other
than the union or organization that executed the contract, is elected, said new agent would have to respect
said contract, but that it may bargain with the management for the shortening of the life of the contract if
it considers it too long, or refuse to renew the contract pursuant to an automatic renewal clause. (Genl
Maritime Stevedores v South Sea Shipping Lines, 1964)
Adjust as needed. The CIR enjoys a breadth of discretion in determining whether or not a certification
election would be held. The overmastering requirement is "to insure the fair and free choice of
bargaining representatives by employees." Unless the actuation of the CIR, here the NLRC, could be
shown to deviate from that basic norm, a plea for the reversal of the order complained of would be
marked by futility. This Tribunal has wisely recognized a latitude of discretion in the CIR, the agency
which is in a better position to see to it that the certification election is properly conducted.
It is in that perspective that the invocation by petitioners of the contract bar rule should be viewed. Under
certain circumstances while the right to free and unfettered choice by employees of their exclusive
bargaining representative should be respected, there are circumstances, which in the interest of stability of
labor relations, call for a relaxation in its observance. As a statement of a norm, it has something in its
favor. It should not lend itself however to denigrating the fundamental right of an appropriate bargaining
unit to determine who should speak for it. That is of the essence of industrial democracy. Moreover, it is a
guarantee that labor organizations will ever be on the alert to obtain the most favorable terms of
employment. That may explain why the contract bar never obtained a secure foothold in the Philippines.
There has been no fixed or rigid formulation of the contract bar rule as it is recognized in the United States.
The practice followed has not adhered to a single concept. The approach has been wavering. If identified
with a line, it is far from straight and at times has been blurred. From its earliest days the NLRB [in the US]
was confronted with the question whether the existence of a collective agreement with one union would
bar another union from petitioning for an election and being certified as the exclusive representative. Two
competing values clashed. The statute guarantees employees the right to bargain through representatives
of their own choosing, and this freedom of existing representative proves unsatisfactory. But one of the
goals of the statute is to achieve stability in labor relations through the negotiation of collective
agreements.
The Board initially reconciled these competing demands by declaring that the existence of a collective
agreement would not bar an election but that the winning union was subject to the existing agreement.
Within three years the Board changed its rule to hold that a contract for one year would bar an election, as
one year was not such a long period 'as to be contrary to the purposes and the policies of the Act.' This
rule was later expanded to bar elections during contracts of 'reasonable duration' measured by what was
customary in the industry. In 1945 the Board held that it would presume a contract of two years
reasonable, and in 1947 it ruled that this presumption was conclusive.
Hershey Chocolate Corporation case: A contract will not act as a bar where a schism has occurred. A
schism will not be found merely because of dissatisfaction by the members of a local with their leaders. But
where the members of a local vote in open meeting to disaffiliate and where this action grows out of a
conflict over policy taking place at the highest level of the International, no genuine interest of stability
would be served by barring an election.
What becomes crystal-clear in the light of the above is that the pragmatic approach has been followed, due
note being taken of the varied as well as changing conditions to make such a norm truly responsive to the
needs of the occasion. It would be going too far then to affix to the contract bar rule the element of
inflexibility. (Confederation of Citizens Labor Unions v NLRC, 1974; Fernando, J. concurring)
Rule Statement
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 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: " . If a CBA 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. 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. (Colegio de San Juan de Letran
v Assn of Employees and Faculty, 2000)
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It is not enough that a union has the support of the majority of the employees. It is equally important
that everyone in the bargaining unit be given the opportunity to express himself. This is especially so
because, in this case, the recognition given to the union came barely 10 months after the employees had
voted "no union" in the certification election conducted in the company. As pointed out by the Secretary
of Labor in his decision, there can be no determination of a bargaining representative within a year of the
proclamation of the results of the certification election. Here the results, which showed that 61% of the
employees voted for "no union," were certified only on February 25, 1991 but on December 1, 1991
Permex Producer already recognized the union and entered into a CBA with it a certification which the
employer has no authority to give, for it is the employees' prerogative (not the employer's) to determine
whether they want a union to represent them, and, if so, which one it should be. The company does not
have the power to declare the union the exclusive representative of the workers for the purpose of
collective bargaining. (Samahan ng Manggagawa sa Permex v Secretary, 1998) [misplaced case?
Should be under One-Year Bar?]

A contract bar applies in a situation where the petition is directed towards one and the same bargaining
unit. This does not appear to be so in the case considering the representation, as stated in the CBA, is
limited only to particular employees. There will also be a contract bar if, before filing a petition for
certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is party
had been submitted to conciliation/arbitration, or had become the subject of a valid notice of strike or
lockout. (Barbizon Phils. v Nagkakaisang Supervisor, 1996)
Incomplete Contract
Complete or incomplete, pass your papers. The CBA entered into by and between the Saulog Transit,
Inc. and the Buklod ng Saulog Transit does not touch in substantial terms the rates of pay, wages, hours of
employment, and other conditions of employment of all the employees in the company but seeks to establish
merely a grievance procedure for drivers, conductors and inspectors who are members of the Buklod ng
Saulog. And even in the supplementary agreement, there is no clear-cut stipulation as to rates of pay,
wages, hours of employment, or other conditions of employment. In their reply the respondents claim that
such an agreement and the supplementary agreement have not been identified and offered in evidence and
should not be taken into consideration. The trial court took, however, into consideration both agreements
and found that the first agreement being incomplete does not bar a certification election; and as to the
supplementary agreement the Court held that it having been entered into after the filing of the petition for a
certification election the same cannot and does not bar a certification election. The affidavit filed by the
President of the Buklod ng Saulog Transit is not mentioned in the order and resolution appealed from. It is
clearly an effort on the part of the petitioner to supply what was lacking in the two agreements already
mentioned. The contention that as RA875 does not require that the agreement be in writing unless either
party request that it be reduced to writing, thereby insinuating that there had been a verbal understanding
before the written agreement was entered into, has no bearing and effect in a case where there is a written
agreement which the CIR found incomplete. (Buklod ng Saulog Transit v Casalla, 1956)
Premature Contract
Not a bar. The CBA concluded between Samahan and the company during the pendency of the
representation proceedings and after the filing of the petition for CE does not render the CE moot and
academic. Sec. 4, Rule V, Book V, Omnibus Rules: The representation case shall not, however, be
adversely affected by a CBA registered before or during the last 60 days of a subsisting agreement or
during the pendency of the representation case. Also, a CBA which was prematurely renewed is not a
bar to the holding of a certification election. (Samahan ng Manggagawa sa Pacific Plastic v
Laguesma, 1997)
The extension of the CBA was not a premature contract. The extension of the life of the CBA,
while significant, is really of little moment, because after that date, the problem will still be there unless
it is resolved before then. It is a sound and unassailable labor practice for labor and management to
conclude a new contract before the expiry date of any CBA in order to avoid a hiatus in managementlabor relations. The Industrial Peace Act was designed primarily to promote industrial peace through
encouragement of collective bargaining. Any undue delay in the selection of a bargaining representative
can hardly be said to contribute to that end. (Citizens Labor Union v CIR, 1966)
Exception
Majority representation uncertain. The new CBA does not constitute a bar to the holding of a CE. The
new CBA between the company and [the incumbent union] shall remain effective between the parties,
subject to the result and effects of the certification election to be called.
Even Tupas did not say that the mere ratification of the CBA by the majority of the workers signified their
affirmation of membership in the negotiating union. That case required, first, ratification of the CBA, and
second, affirmation of membership in the negotiating union. The second requirement has not been
established in the case at bar as the record does not show that the majority of the workers, besides ratifying
the new CBA, have also formally affiliated with [the incumbent union].
Deviation from the contract-bar rule is justified only where the need for industrial stability is clearly shown to
be imperative. Subject to this singular exception, contracts where the identity of the authorized
representative of the workers is in doubt must be rejected in favor of a more certain indication of the will of

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the workers. Any stability that does not establish the type of industrial peace contemplated by the law must
be subordinated to the employees' freedom to choose their real representative.
Section 4, Rule V, Book V of the Omnibus Rules provides that the representation case shall not be adversely
affected by a collective agreement submitted before or during the last 60 days of a subsisting agreement or
during the pendency of the representation case. As the new CBA was entered into at the time when the
representation case was still pending, it follows that it cannot be recognized as the final agreement between
the [company] and its workers. (Port Workers Union v Laguesma, 1992)
Not Registered CBA
We still can apply the contract-bar rule. An existing and duly registered CBA, or a certification of a
designated majority union, bars any petition questioning the status of the designated majority union and the
holding of a cert. election. It appears that the procedural requirement of filing the CBA within 30 days from
date of execution under Article 231 was not met. Be that as it may, the delay in the filing of the CBA was
sufficiently explained, i.e., there was an inter-union conflict on who would succeed to the presidency of ILOPHILS. In the absence of any substantial evidence that DOLE officials or personnel, in collusion with private
respondent, had antedated the filing date of the CBA, the presumption on regularity in the performance of
official functions holds. More importantly, non-compliance with the cited procedural requirement should not
adversely affect the substantive validity of the CBA. A CBA is more than a contract. It is highly impressed
with public interest for it is an essential instrument to promote industrial peace. Hence, it bears the blessings
not only of the employer and employees concerned but even the DOLE. To set it aside on technical grounds is
not conducive to the public good. (Trade Unions of the Phils. v Laguesma, 1994)
Registered CBA
CBA needs to be registered to invoke contract-bar rule. At the time the petition for certification
election was filed by AIUP, there was an existing CBA between the company and CCEA, the incumbent
bargaining representative of all rank and file employees. The petition should have not been entertained
because of the contract bar rule. When a CBA has been duly registered in accordance with Article 231, a
petition for certification election or motion for intervention may be entertained only within 60 days prior to
the expiry date of the said agreement. Outside the said period, as in the present case, the petition for
certification election or motion for intervention cannot be allowed. (Assn of Independent Unions v
NLRC, 1999)
Expired CBA
Despite lapse of effectivity of the CBA, the law still considers the same as continuing in force
and effect until a new CBA have been validly executed. In this case, CBA between the employer and
the union expired and they entered into negotiations for a new CBA. However, a petition for CE was filed and
the employer suspended the negotiations.
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 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 60-day freedom period. The "Contract Bar Rule"
under Section 3, Rule XI, Book V, of the Omnibus Rules: "If a CBA has been duly registered in accordance with
Article 231, a petition for certification election or a motion for intervention can only be entertained within 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. 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. (Colegio de San Juan de Letran v Assn of
Employees and Faculty, 2000)
6.7 Suspension of Certification Election
Prejudicial Question Rule
Art. 248. Unfair labor practices of employers. 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;
ULP case (against union) not necessarily a prejudicial Q to cert election. If under the
circumstances disclosed, management is allowed to have its way, the result might be to dilute or fritter
away the strength of an organization bent on a more zealous defense of labor's prerogatives. The
difficulties and obstacles that must be then hurdled would not be lost on the rest of the personnel, who had
not as yet made up their minds one way or the other. 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
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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, in itself
not likely to enhance the prospect of respondent-unions, 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. There is no valid
reason then for the postponement sought. This is one instance that calls for the application of the maxim,
lex dilationes semper exhorret. Moreover, is there not in the posture taken by petitioner a contravention of
what is expressly set forth in the Industrial Peace Act, which speaks of the labor organizations "designated
or selected for the purpose of collective bargaining by the majority of the employees in an appropriate
collective bargaining unit [be the exclusive] representative of all the employees in such unit for the
purpose of collective bargaining." The law clearly contemplates all the employees, not only some of them.
As much as possible then, there is to be no unwarranted reduction in the number of those taking part in a
certification election, even under the guise that in the meanwhile, which may take some time, some of
those who are employees could possibly lose such status, by virtue of a pending unfair labor practice case.
(BF Goodrich v BF Goodrich Confidential and Salaried Employees Union, 1973)
Rule and Rationale. The pendency of a formal charge of company domination is a prejudicial question
that, until decided, bars proceedings for a certification election, the reason being that the votes of the
members of the dominated union would not be free. The ULP case was filed before the certification case.
The pendency of the charge was known to the Med Arbiter, and there was no allegation made that the ULP
Case was instituted in bad faith to forestall the Certification Case. [The Feeble Mind of the Digester postulates! so
parang exception; general rule: pendency of a formal charge of company domination, like the ULP case in this case, bars the
holding of a certification election. except: when the case was instituted in bad faith to forestall/suspend the CE.]

"There is no assertion that such complaint was flimsy, or made in bad faith or filed purposely to forestall the
certification election. So, no reason existed for the Industrial Court to depart from its established practice of
suspending the election proceeding. And this seems to be accepted rule in the law of labor relations, the
reason being, 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.
Such charge of company domination is a prejudicial question that until decided, shall suspend or bar
proceedings for certification election.
If an election would be held despite the pendency of such complaint, and then the Union would be dissolved
due to the favorable action on such a complaint, then the holding of the election shall waste energy and
money of all the parties involved. (United CMC Textile Workers Union v BLR, 1984)
Party and Issue
What might work for an employee might not work for the employer. A pending certification
election proceeding may not be dismissed or held in abeyance, there being a motion alleging a ULP against
one of the contending parties. 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 situation here is exactly the reverse. It is management that would have a ULP case filed by it for illegal
strike engaged in by some of its employees concluded, before it would agree to the holding of a certification
election. If under the circumstances disclosed, management is allowed to have its way, the result might be
to dilute or fritter away the strength of an org bent on a more zealous defense of labor's prerogatives. There
is no valid reason then for the postponement sought. This is one instance that calls for the application of the
maxim, lex dilationes semper exhorret [the law always abhors delay]. (Barrera v CIR, 1981)
Who and Whats the Matter with It. A complaint for ULP may be considered a prejudicial question in a
proceeding for certification election when it is charged therein that one or more labor unions participating
in the election are being aided, or are controlled, by the company or employer. The reason is that the
certification election may lead to the selection of an employer-dominated or company union as the
employees' bargaining representative, and when the court finds that said union is employer-denominated
in the ULP case, the union selected would be decertified and the whole election proceedings should be
rendered useless and nugatory.
Only a formal charge of company domination may serve as a bar to and stop a certification election, the
reason being that if there is a union dominated by the Company, to which some of the workers belong, an
election among the workers and employees of the company would not reflect the true sentiment and wishes
of the said workers and employees from the standpoint of their welfare and interest, because as to the
members of the company dominated union, the vote of the latter in the election would not be free. It is
equally true, however, that the opposition to the holding of a certification election due to a charge of
company domination can only be filed and maintained by the labor organization which made the charge of
company domination, because it is the entity that stands to lose and suffer prejudice by the certification
election,' the reason being that its members might be overwhelmed in the voting by the other members
controlled and dominated by the Company'. (United CMC Textile Workers Union v BLR, 1984)
6.8 Effect [of] Pending Petition [for] Cancellation [of] Trade Union Registration
Art. 239. Grounds for cancellation of union registration. The following shall constitute grounds for cancellation of

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union registration:
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 and 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, or failure to submit these documents together with the list of the newly
elected/appointed officers and their postal addresses within thirty (30) days from election;

d.

Failure to submit the annual financial report to the Bureau within thirty (30) days after the closing of every
fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report itself;

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 terms and conditions of employment below
minimum standards established by law;

g.

Asking for or accepting attorneys fees or negotiation fees from employers;

h.

Other than for mandatory activities under this Code, checking off special assessments or any other fees without
duly signed individual written authorizations of the members;

i.

Failure to submit list of individual members to the Bureau once a year or whenever required by the Bureau;
and

j.

Failure to comply with requirements under Articles 237 and 238.

[Art. 237. Additional requirements for federations or national unions. Subject to Article 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 following:
a.

Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective
bargaining agent in the establishment or industry in which it 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 of all the
members in each company involved.

Art. 238. Cancellation of registration; appeal. 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 organization no longer meets one or more of the requirements herein prescribed.]
Petition for cancellation of registration of the union requesting for a CE is not a bar to the
resolution of a prior petition for CE. At the time the respondent union filed its petition, it still had the
legal personality to perform such act absent an order directing a cancellation. It is the policy of the State in
protecting the rights of labor to ensure and maintain industrial peace. For this reason, all employees of an
appropriate bargaining unit shall be given an opportunity to organize and to determine which labor
organization should be their exclusive bargaining representative. This is especially true when it involves
the ultimate respect for and protection of the rights of government employees. Therefore, the holding of a
certification election, being a statutory policy, should not be circumvented. (Assn of CA Employees v
Ferrer-Calleja, 1991)
It aint over till its over. The pendency of a cancellation case is not a ground for the dismissal or
suspension of representation proceedings considering that a registered labor organization continues to be
a legitimate one entitled to all the rights appurtenant thereto until a final valid order is issued canceling
such registration. (Progressive Development v Laguesma, 1998)
Part Seven Collective Bargaining: Process, Procedures, and Issues
7.1 General Concepts
7.1.1Policy Declaration
Art. 211. 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;

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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.

87C, Art. XIII, Section 3.

The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential
use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance
therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share
in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and
growth.
Collective Bargaining, Definition. Collective bargaining which is defined as negotiations towards a
collective agreement, 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 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. (Kiok Loy v NLRC, 1986)
7.1.2Nature and Purpose
Because they cant all come to the meetings. 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. (United
Employees Union of Gelmart Industries v Noriel, 1975)
7.1.3Waiver
Waiver not of the right, but of the time periods within which to exercise it. The assailed PALPALEA 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. There is no conflict between said
agreement and Article 253-A. 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. (Rivera v Espiritu, 2002)
7.2 Bargaining Procedure
7.2.1Private Procedure
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.
7.2.2Code 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;

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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;

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. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)

Art. 251. supra

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.
Nature of Procedure
Mutual responsibility and legal obligation. Collective bargaining, which is defined as negotiations
toward a collective agreement, 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. Thus Art. 249(g) makes it ULP for an employer to refuse to meet and convene promptly
and expeditiously in good faith... (Kiok Loy v NLRC, 1986)
The mechanics of CBA are set in motion only when the following jurisdictional preconditions are present,
namely, (1) possession of the status of majority representation by the EEs representative in accordance
with any of the means of selection and/or designation provided for by the Labor Code; (2) proof of
majority representation; and (3) a demand to bargain under Art 251.
In the present case, the standing of petitioner as an exclusive bargaining representative is dubious, to say
the least. The only express recognition of ALU as said EEs' bargaining representative is in the CBA 2 days
thereafter. Evidently, there was precipitate haste on the part of company in recognizing ALU. Even if MLE
directly certified the union as the bargaining representative, the Court can void such certification where
there was a failure to properly determine with legal certainty whether the union enjoyed a majority
representation. The holding of a certification election at a proper time would not necessarily be a mere
formality as there was a compelling reason not to directly and unilaterally certify a union. An additional
infirmity of the CBA was the failure to post the same in at least 2 conspicuous places in the establishment
at least 5 days before its ratification. Petitioners rationalization which was puerile was that "(b)ecause of
the real existence of the illegal strike staged by SPFL in all the stores of GAW Trading, Inc. it had become
impossible to comply with the posting requirement in so far as the realization of its purpose is concerned as
there were no impartial members of the unit who could be appraised of the CBA's contents. " The posting
of copies of the CBA is the responsibility of the ER which can easily comply with the requirement through a
mere mechanical act. The fact that there were "no impartial members of the unit" is immaterial. The
purpose of the requirement is precisely to inform the employees in the bargaining unit of the contents of
said agreement so that they could intelligently decide whether to accept the same or not. The assembly of
the members of ALU wherein the agreement in question was allegedly explained does not cure the defect.
The contract is intended for all employees and not only for the members of the purported representative
alone. It may even be said the need to inform the non-members of the terms thereof is more exigent and
compelling since, in all likehood, their contact with the persons who are supposed to represent them is
limited.
Another potent reason for annulling the CBA is the finding of respondent director that 181 of the
281workers who "ratified" the same now " strongly and vehemently deny and/or repudiate the alleged
negotiations and ratification of the CBA. " Although petitioner claims that only 7 of the repudiating group of
workers belong to the total number who allegedly ratified the agreement, nevertheless such substantiated
contention weighed against the factual that the controverted contract will not promote industrial stability.
At this juncture, petitioner should be reminded that the technical rules of procedure do not strictly apply in
the adjudication of labor disputes. Consequently, its objection that the evidence with respect to the
aforesaid repudiation of the supposed CBA cannot be considered for the first time on appeal on the BLR
should be disregarded, especially considering the weighty significance thereof. Both petitioner and private
respondent GAW Trading, Inc. allege that the employees are now enjoying the benefits of the CBA. But
there is not find sufficient evidence of record to support this contention. Additionally, the inapplicability of
the contract bar rule is further underscored by the fact that when the disputed agreement was filed before
the Labor Regional Office on May 27, 1986, a petition for certification election had already been filed on
May 19, 1986. Although the petition was not supported by the signatures of 30% of the workers in the
bargaining unit, the same was enough to initiate said certification election. (ALU v Calleja, 1989)
Bargaining is a process of finding a reasonable solution to a conflict and harmonizing
opposite positions into a fair and reasonable compromise. Unions claim of GAD is anchored on

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the simple fact that the secretary adopted largely the proposals of Caltex. It should be understood that
bargaining is not equivalent to an adversarial litigation where rights and obligations are delineated and
remedies applied. When parties agree to submit unresolved issues to the secretary, they should not
expect their positions to be adopted in toto. It is understood that they defer to his wisdom and
objectivity, and unless they can clearly demonstrate bias, arbitrariness, capriciousness or personal
hostility, the SC will not interfere. This is particularly true in the resolution of controversies in CBAs where
the question is rarely one of legal right or wrong, but one of wisdom, cogency and compromise as to
what is possible, fair and reasonable under the circumstances. (Caltex Refinery Employees v
Brillantes, 1997)
No obligation until demand is made. We dont believe that the members of the agency made
"repeated requests" upon the petitioner to negotiate a CBA with the union. Apart from their oral
declaration, the private respondents have not presented any written proof that such requests were
made. The desire to negotiate an agreement should be expressed through a written notice. At the time
the members of the agency were allegedly presenting "repeated requests" for negotiation, they were
represented by counsel. If such requests were in fact made, counsel would not have failed to advise his
clients to tender their requests in the manner required by law. (American President Lines v Clave,
1982)
Replying to the written notice for collective bargaining by employees is merely procedural. It
is true that under Section 14 of Republic Act 875 whenever a party serves a written notice upon the
employer making some demands the latter shall reply thereto not later than 10 days from receipt
thereof, but this condition is merely procedural, and as much its non-compliance cannot be deemed to be
an act of unfair labor practice. The fact is that respondents did not ignore the letter sent by the union so
much so that they called a meeting to discuss its demands, as already stated elsewhere.
Besides, the court a quo found that in the letter sent by the union to respondents containing its demands
marked in the case as Exhibit 1, there appears certain marks, opposite each demand, such as a check for
those demands to which the restaurant was agreeable, a cross signifying the disapproval the restaurant,
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 called by respondents on May 3, 1960 at their restaurant in Quezon City. The court a quo
concluded that the fact that respondent restaurant had agreed to some of the demands shows that it did
not refuse to bargain collectively with the complaining union. (Natl Union of Restaurant Workrs v
CIR, 1964)
Refusal to make a counter-proposal = bad faith = violation of duty to bargain. 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. 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 governing the procedure in collective bargaining.
The company's refusal to make counter-proposal to the union's proposed CBA 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. In the case at bar, petitioner's actuation
show a lack of sincere desire to negotiate rendering it guilty of unfair labor practice. (Colegio de San
Juan de Letran v Assn of Employees and Faculty, 2000)
7.2.3Conciliation Procedure
Art. 250. Procedure in collective bargaining. The following procedures shall be observed 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. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)
Art. 233. supra
7.3 Duty to Bargain
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

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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. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)

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, 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, the duty to bargain collectively shall also mean that neither party shall terminate
nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or
modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep
the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the
60-day period and/or until a new agreement is reached by the parties.
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 its 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;
Meaning of Duty
How (not) to determine good faith. The crucial question whether or not a party has met his statutory
duty to bargain in good faith typically turns on the facts of the individual case. There is no per se test of
good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. The effect of
an employers or a unions actions individually is not the test of good-faith bargaining, but the impact of all
such occasions or actions, considered as a whole.
Under Article 252, both parties are required to perform their mutual obligation to meet and convene
promptly and expeditiously in good faith for the purpose of negotiating an agreement. The union lived up to
this obligation when it presented proposals for a new CBA to GMC within 3 years from the effectivity of the
original CBA. But GMC failed in its duty under Article 252. What it did was to devise a flimsy excuse, by
questioning the existence of the union and the status of its membership to prevent any negotiation.
The procedure in collective bargaining prescribed [in Art. 250] is mandatory because of the basic interest of
the state in ensuring lasting industrial peace. 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.
GMCs refusal to make a counter-proposal 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. (General Milling Corp. v CA, 2004)
Duty to bargain defined. Noteworthy in the above definition (Art. 252, LC) 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 the other hand, petitioner devised ways and
means in order to prevent the negotiation. (Colegio de San Juan de Letran v Assn of Employees
and Faculty, 2000)
No legal duty of employer to initiate contract negotiation. While it is a mutual obligation of the
parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation. The
mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are
present, namely, (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(a). (Kiok Loy v NLRC, 1986)
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
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obligation to meet and convene and a violation of this obligation is an ULP. (Republic Savings Bank
v CIR, 1967)
Deadlock
Definition, etc. Rule XXII, Section I, of the Rules and Regulations Implementing Book V: "Grounds for strike
and lockout. -- A strike or lockout may be declared in cases of 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."
The grounds relied upon by the union are non-strikeable. The issues which may lend substance to the notice of
strike are: collective bargaining deadlock and SMCs alleged violation of the CBA. 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 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 CBA, the notice of strike
should have been dismissed by the NLRC.
[T]he 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. ...[S]trikes 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.
The alleged violation of the CBA is chargeable against the union. In abandoning the grievance proceedings and
stubbornly refusing to avail of the remedies under the CBA, the union violated the mandatory provisions of the
CBA.
Abolition of departments or positions in the company is one of the recognized management prerogatives. In
fact, the union does not question the validity of the business move. In the absence of proof that SMCs act was
ill-motivated, it is presumed that SMC acted in good faith. In fact, SMC acceded to the demands of the union by
redeploying most of the employees involved. SMC having evinced its willingness to negotiate the fate of the
remaining employees affected, there is no ground to sustain the notice of strike. (San Miguel Corp. v
NLRC, 1999)
Minutes of Negotiation
Do not form part of the entire agreement. 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, 14 it is not a part thereof
and the proponent has no claim whatsoever to its implementation.
Hence, petitioner union's 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 management's usual negotiation strategies is to ". . . 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-the-board
salary increases ordered by the government, such promise could only be demandable in law if incorporated in
the CBA. (Samahang Manggagawa sa Top Form v NLRC, 1998)
Suspension of Bargaining
No suspension of negotiation without valid petition for certification election. 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 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, otherwise it is covered by the Contract Bar Rule.
In the case at bar, 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

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a bar to the ongoing negotiation. (Colegio de San Juan de Letran v Assn of Employees and Faculty,
2000)
7.4 Bargainable Issues > Issues
Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a
mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an
agreement with respect to wages, hours of work and all 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.
Minimum wages = non-negotiable. The Industrial Peace Act, in its present regime of collective
bargaining, enshrines industrial democracy in the sense that the parties, through the collective contract,
could determine the rules that regulate labor-management relations. 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. That is why it is obvious that petitioners cannot
successfully invoke the principles associated with the institution of collective bargaining.
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. (Phil-American Management v Phil-American
Management Employees Assn, 1973)
Thou shall not bargain on exemptions from a Wage Order. A CBA refers to the negotiated contract
between a legitimate labor organization and the 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, the parties in a CBA may 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. Section 3, Art. VIII, of the CBA is a void provision because, by
agreeing to condone the implementation of the Wage Order, the parties thereby contravened its mandate
on a wage increase of P12.00 effective 8 January 1991. Also, it is only the Tripartite Wage Productivity
Board of the DOLE that could approve exemption of an establishment from coverage of a Wage Order.
If petitioner is a financially distressed company then it should have applied for a wage exemption so that it
could meet its labor costs without endangering its viability or its very existence upon which both
management and labor depend for a living. Parties to a CBA may not, by themselves, set a wage lower than
the minimum wage. To do so would render nugatory the purpose of a wage exemption, not to mention the
possibility that employees maybe duped or be unwittingly put in a position to accept a lower wage. (Manila
Fashions v NLRC, 1996)
Bargainable Issue adjusting of grievances. Not even the Bank's judgment that the employees
committed libel could excuse it from its duty to bargain collectively, which includes the adjustment of
grievances. Furthermore, even assuming that the respondent employees failed to observe procedure, the
Bank was not thereby justified in unilaterally discharging them. (Republic Savings Bank v CIR, 1967)
Retirement plan, even a non-contributory one. The company's contention that its retirement plan is
non-negotiable, is not well-taken. The NLRC correctly observed that the inclusion of the retirement plan in
the CBA as part of the package of economic benefits extended by the company to its employees to provide
them a measure of financial security after they shall have ceased to be employed in the company, reward
their loyalty, boost their morale and efficiency and promote industrial peace, gives "a consensual
character" to the plan so that it may not be terminated or modified at will by either party. The fact that the
retirement plan is non-contributory, i.e., that the employees contribute nothing to the operation of the
plan, does not make it a non-issue in the CBA negotiations. As a matter of fact, almost all of the benefits
that the petitioner has granted to its employees under the CBA salary increases, rice allowances, midyear bonuses, 13th and 14th month pay, seniority pay, medical and hospitalization plans, health and
dental services, vacation, sick & other leaves with pay are non-contributory benefits. Since the
retirement plan has been an integral part of the CBA since 1972, the Union's demand to increase the
benefits due the employees under said plan, is a valid CBA issue. The petitioner's contention, that
employees have no vested or demandable right to a non-contributory retirement plan, has no merit for
employees do have a vested and demandable right over existing benefits voluntarily granted to them by
their employer. The latter may not unilaterally withdraw, eliminate or diminish such benefits (Art. 100).
(Nestl Phils. v NLRC, 1991)
If mandatory subject of collective bargaining, it can be insisted on until stalemate. Because the
proposal was never embodied in the CBA, the promise has remained just that, a promise, the
implementation of which cannot be validly demanded under the law (the promise is that the employer will
grant wage increases across the board). The union asserts that the company committed "acts of unfair
labor practices by virtue of its contractual commitment made during the collective bargaining process."
The mere fact, however, that the proposal in question was not included in the CBA indicates that no
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contractual commitment thereon was ever made. The failure to reach an agreement after negotiations
continued for a reasonable period does not establish a lack of good faith.
"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 the 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. (Samahang Manggagawa sa Top Form v NLRC, 1998)
* The Subjects of Mandatory Bargaining / Meltzer
The NLRB has tended to expand the bargaining duty in response to new conditions which include the
collective agreements into new areas.
Case 1: Recognition clause (company recognizes Local affiliated with International and not both Local and
International) and a ballot clause (in case of nonarbitrable issues and before union could strike, 30-ay
negotiation ensues after which a secret ballot occurs on the companys last offer and when majority of the EEs
disagree, company can within 72hrs present another offer) are both enforceable and lawful if union agreed,but
it does not mean that company can lawfully insist upon them as a condition precedent. It is lawful to insist
upon matters which are the subj of mandatory bargaining and unlawful to insist upon matters without. Both
ballot and recognition clauses are not within terms and conditions of employment which defines mandatory
bargaining.
Case 2 : Contracting out is within subj of bargaining. It does not curtail management rights since no capital
investment was involved and it did not alter basic company operation. Unilateral contracting out of work is
thus illegal. The decision does not encompass other forms of subcontracting and contracting out. Hence, in
Westinghouse case, where the contracting out was motivated solely by economic reasons, comported with the
traditional business operations of company, did not vary from customary past practice, had no demonstrable
adverse impact on EEs and where Union had chances to negotiate about changes in existing subcontracting
practices at mtgs, the company is held not guilty of violating bargaining obligation in not inviting union
participation in subcontracting decisions.
Case 3: The law defines the obligation to bargain with respect to mandatory terms and conditions of
employment, it also prescribes duty to maintain mandatory terms without unilateral modification for the
duration of the CBA. Whether the offer of the company is ULP i.e. modification of a mandatory subject of
bargaining, the court looked into nature of subject and held that the unilateral mid-term modification of a
permissive term such as retirees benefits does not violate such provision. By bargaining and agreeing on a
permissive subject, the parties do not make it mandatory subject. Such unilateral modification gives rise to an
action for breach of contract not in a ULP proceeding.
Case 4: Either side can choose bargaining reps freely except when such is motivated by ill will, usually
personal or conflict of interest that makes good faith bargaining impractical. Company has the burden of
proving clear and present danger to collective bargaining process in arguing that EEs may not select reps of
their choice. Union can use experts (members of other unions) whether the expertise be technical, substantive
matters or on the general art of negotiating. That negotiators may improperly press impermissible subjects is
inherent in bargaining process and must be taken. And while motives may be difficult to determine due to
mixed-union, such danger could still exist if there were no members of other unions in the committee due to
modern technology or communication techniques. Cooperation between unions is not improper and Board is
tasked to determine whether line has been crossed. The court agrees thus with the Boards rejection of a per
se rule which bans mixed-union committees.
7.5 The Collective Bargaining Agreement
7.5.1Definition
Collectivus Bargainus Agreementiae. 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. Its primary
purpose 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.
(Rivera v Espiritu, 2002)
Definition. A CBA refers to the negotiated contract between a legitimate labor organization and the
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. Since
they failed to reach an agreement regarding certain items of the CBA, they still have the duty and are

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enjoined to comply with the directive of the Secretary to negotiate a new collective CBA in good faith.
(University of the Immaculate Conception v Secretary, 2002)
Definition. It bears stressing that a CBA refers to the negotiated contract between the legitimate labor
organization and the employer concerning wages, hours of work and all other terms and conditions of
employment in the bargaining unit. During the negotiations, the parties, management and union meet
and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement.
Unless annulled, the CBA, as a contract governing the employer and the employees respecting the terms
of employment, should prevail. (NFL v CA, 2004)
More than just a contract. Art. 252: CBA = 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.
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 of the 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.
(Davao Integrated Port Stevedoring Services v Abarquez, 1993)
7.5.2Contents
7.5.2.1 (see sample CBA)
7.5.2.2 Effect [of] 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;
7.5.2.3 Duration and Renegotiation
Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may
enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition
questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election
shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before
the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the
Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any
agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from
the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall
retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the
parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the
Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No.
6715, March 21, 1989)

7.5.2.4 Grievance Procedure

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 or implementation 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 seven (7) calendar days from the
date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining
Agreement.
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 a procedure for the selection of such
Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators
duly accredited by the Board. 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 Collective Bargaining 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
described above.
Grievance procedure required content in CBAs. 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 NCMB. Article 261 accordingly
provides for exclusive original jurisdiction of such voluntary arbitrator or panel of arbitrators over (1) the
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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. (Luzon Devt Bank v Assn of Devt Bank Employees, 1995)
The Restricted Umbrella of Grievance Procedure. The instant case (where Navarro forced a lady
employee to the floor and kissed her) 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 (Labor Code).
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 CBA. (Navarro III v Damasco, 1995)
Duration and renegotiation. Art. 253-A states that the CBA has a term of 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 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.
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 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.
In the instant case, it is not difficult to determine the period of effectivity for the non-representation
provisions of the CBA. Taking it from the history of their CBAs, SMC intended to have the terms of the CBA
effective for 3 years reckoned from the expiration of the old or previous CBA. (San Miguel Corp. v
Confesor, 1996)
Renegotiation problems? Seek help. Dial 253-A now. Under 253- A, it is indisputable that when
the union requested for a renegotiation of the CBA, it was still the certified collective bargaining agent of
the workers, because it was seeking said renegotiation within 5 years from the date of effectivity of the
CBA. The unions proposal was also submitted within the prescribed 3-year period from the date of
effectivity of the CBA, albeit just before the last day of said period. GMC had no valid reason to refuse to
negotiate in good faith with the union. For refusing to send a counter-proposal to the union and to
bargain anew on the economic terms of the CBA, the company committed a ULP under Article 248 (g).
(General Milling Corp. v CA, 2004)
7.5.3Registration Period, Requirements, and Actions
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. 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 thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of
the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment 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. The Bureau or Regional Offices shall act upon
the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt
thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five
(5) days from its submission.
The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration
fee of not less than one thousand pesos (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. 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 Secretary of Labor and Employment, Regional Directors and the Commission. (As amended by Section 15, Republic Act
No. 6715, March 21, 1989)

7.5.4Contract Beneficiaries > Beneficiaries

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 decisionLABOR II

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making processes of the establishment where they are employed insofar as said processes will directly affect their
rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils:
Provided, That the representatives of the workers in such labor-management councils shall be elected by at least
the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989)
Even the non-member employees are entitled to the benefits of the contract. To accord its benefits
only to members of the union without any valid reason would constitute undue discrimination against
nonmembers. A laborer can even claim benefits from a CBA of which he is a member at the time of the
conclusion of the agreement, after he has resigned from said union. Thus, the benefits in this case should be
extended to those employees who only became such after the stipulated term. To exclude them would
deprive them of monetary benefits they would otherwise be entitled to under a new CBA to which they would
have been parties. Since no new agreement had been entered into, it is only fair and just that the employees
hired thereafter be included. (New Pacific Timber and Supply v NLRC, 2000)
7.5.5Contract Administration and Enforcement
7.5.5.1 Nature of Contract
In favor of labor, unless clear. Any doubt or ambiguity in the contract between management and
the union members should be resolved in favor of the latter. A1702CC: (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.
The 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. 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. (Babcock-Hitachi v BHPI
Makati Employees Union, 2005)
Presumption of knowledge of the existence of the CBA. Since the petitioners have been working
in the company for several years already and since they succeeded in wielding sufficient influence to
persuade other employees to join them in forming the new union, it can be reasonably inferred that
they knew of the existence of the 1st CBA. Finally, even if we assume, in gratia argumentis, that the
petitioners were unaware of the stipulations set forth in the collective bargaining agreement, since
their membership in the BBLU prior to their expulsion therefrom is undenied, there can be no question
that as long as the agreement with closed-shop provision was in force, they were bound by it.
(Manalang v Artex Devt., 1967)
Unambiguous contracts to be interpreted literally. The cited CBA provision needs no
interpretation. Contracts which are not ambiguous are to be interpreted according to their literal
meaning and not beyond their obvious intendment. 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." (Mindanao Steel v Minsteel Free Workers
Organization, 2004)
Like any other contract. A CBA, 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 primordial; if the terms of the contract are clear, the literal meaning of the stipulations shall
control, but if the words appear to be contrary to the evident intention of the parties, the latter shall
prevail over the former.
The company has agreed in its CBA with the employees "to employ (an) immediate member of the family
provided qualified upon the employee's resignation, retirement, disability or death." This is its basic
covenant. Covered by the term "(an) immediate member of the family" are the employee's legitimate
children and, in default thereof, a collateral relative with the third civil degree; it is thus a definition by
inclusion. The phrase "in default thereof has not been intended or contemplated by the parties as having
a preclusive effect within the group. It simply sets a priority on who can possibly be recommendees for
employment. The employee, in fine, need not be childless at all for him to be allowed to nominate a third
degree collateral relative. (Kimberly-Clark Phils. v Lorredo, 1993)
A CBA is more than a contract; it is a generalized code to govern a myriad of cases which the
draftsmen cannot wholly anticipate. It covers the whole employment relationship and prescribes the
rights and duties of the parties. It is a system of industrial self-government with the grievance
machinery at the very heart of the system. The parties solve their problems by molding a system of
private law for all the problems which may arise and to provide for their solution in a way which will
generally accord with the variant needs and desires of the parties.
If the terms of a CBA are clear and have no doubt upon the intention of the contracting parties, the literal
meaning of its stipulation shall prevail. However, if, in a CBA, the parties stipulate that the hirees must
be presumed of employment qualification standards but fail to state such qualification standards in said
CBA, the VA may resort to evidence extrinsic of the CBA to determine the full agreement intended by the
parties. When a CBA may be expected to speak on a matter, but does not, its sentence imports
ambiguity on that subject. The VA is not merely to rely on the cold and cryptic words on the face of the
CBA but is mandated to discover the intention of the parties. Recognizing the inability of the parties to
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anticipate or address all future problems, gaps may be left to be filled in by reference to the practices of
the industry, and the step which is equally a part of the CBA although not expressed in it. In order to
ascertain the intention of the contracting parties, their contemporaneous and subsequent acts shall be
principally considered. The VA may also consider and rely upon negotiating and contractual history of
the parties, evidence of past practices interpreting ambiguous provisions. The VA has to examine such
practices to determine the scope of their agreement, as where the provision of the CBA has been loosely
formulated. Moreover, the CBA must be construed liberally rather than narrowly and technically and the
Court must place a practical and realistic construction upon it. (United Kimberly-Clark Employees
Union v Kimberly-Clark Phils., 2006)
A CBA, as a labor contract, is not merely contractual in nature but impressed with public
interest. If the retirement provisions in the CBA run contrary to law, public morals, or public policy,
such provisions may very well be voided, such as when it allows management to subvert security of
tenure and unilaterally retire employees. Neither will the Court sustain a retirement clause that
entitles the retiring employee to benefits less than what is guaranteed under the Labor Code.
Nonetheless, twenty years is a more than ideal length of service an employee can render to one
employer. Exercise by management of its retirement prerogative is less susceptible to dubitability as to
the question of whether an employee could be validly retired, as opposed to termination due to
just/authorized cause. (Cainta v Cainta, 2006)
7.5.5.2 Grievance Procedure
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 or implementation 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 seven (7) calendar days from the
date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining
Agreement.
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 a procedure for the selection of such
Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators
duly accredited by the Board. 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 Collective Bargaining 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
described above.
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 labor-management councils:
Provided, That the representatives of the workers in such labor-management councils shall be elected by at least
the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989)
Dispute Settlement: Issues and Individual Grievance
Limits of management prerogative. 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.
A grievance procedure is part of the continuous process of collective bargaining (Republic Savings Bank
vs. CIR, 1967). 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 demonstrated its lack of intent to abide by the terms of the CBA. (Master
Iron Labor Union v NLRC, 1993)

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Grievance Procedure to be observed even if division head is on leave. The employees

presented their grievance but the division head was on-leave, thus making the EEs believe that the
grievance was resolved in their favor. But 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.
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 believing that the effects of the CBA in their favor had already stepped into the
controversy.
If the Court were to follow petitioner's line of reasoning, it would be easy for management to delay the
resolution of labor problems, the complaints of the workers in particular, and hide under the cloak of its
officers being "on leave" to avoid being caught by the 5-day deadline under the CBA. If this should be
allowed, the workingmen will suffer great injustice for they will necessarily be at the mercy of their
employer. That could not have been the intendment of the pertinent provision of the CBA, much less the
benevolent policy underlying our labor laws. (PAL v Santos, 1993)
Parties with discretion to formulate their own grievance machinery. No particular setup for a
grievance machinery is mandated by law. Rather, A260, 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." The procedure described by the Secretary sufficiently
complies with the minimum requirement of the law. He 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 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. The SC cannot really impute grave abuse of discretion on this issue. (Caltex Refinery
Employees v Brillantes, 1997)
7.5.5.3 Individual Worker and Contract
CBA trumps individual contracts. Collective bargaining does not, except in rare cases, result in a
contract of employment. It is often a trade agreement between the negotiating parties of the employees
and the employer. After this is made, the individuals who shall benefit are identified by individual hirings;
there is little left to individual agreement except the act of hiring, which may be done by mouth or by word
of mouth or by implied conduct. In the sense of hiring, individual contracts between the employer and
employee are not forbidden, but are necessitated by the collective bargaining procedure.
However, the employee, due to the Labor Relations Act is a 3rd party beneficiary to the collective trade
agreement. The individual contract is only subsidiary to this trade agreement, and such contract may not
waive, not be treated as a waiver by the employee if he signs, any of the benefits of the latter.
Though allowed, and sometimes even necessary in some circumstances (like when negotiation is
deadlocked or delayed; or when conditions for collective bargaining are inexistent, etc), such individual
contracts may not be availed of to defeat or delay the procedures prescribed by the law for collective
bargaining. They cannot be used to exclude the employee from an appropriate bargaining unit, or to
forestall bargaining, or to limit/condition the terms of a collective agreement. (J.I. Case v NLRB, 1944)
7.5.5.4 Contract Infirmity
The mechanics of CBA are set in motion only when the following jurisdictional preconditions are present,
namely, (1) possession of the status of majority representation by the EEs representative in accordance
with any of the means of selection and/or designation provided for by the Labor Code; (2) proof of majority
representation; and (3) a demand to bargain under Art 251. In the present case, the standing of petitioner
as an exclusive bargaining representative is dubious, to say the least. The only express recognition of ALU
as said EEs' bargaining representative is in the CBA 2 days thereafter. Evidently, there was precipitate
haste on the part of company in recognizing ALU. Even if MLE directly certified the union as the bargaining
representative, the Court can void such certification where there was a failure to properly determine with
legal certainty whether the union enjoyed a majority representation. The holding of a certification election
at a proper time would not necessarily be a mere formality as there was a compelling reason not to directly
and unilaterally certify a union. An additional infirmity of the CBA was the failure to post the same in at
least 2 conspicuous places in the establishment at least 5 days before its ratification. Petitioners
rationalization which was puerile was that "(b)ecause of the real existence of the illegal strike staged by
SPFL in all the stores of GAW Trading, Inc. it had become impossible to comply with the posting requirement
in so far as the realization of tits purpose is concerned as there were no impartial members of the unit who
could be appraised of the CBA's contents. " The posting of copies of the CBA is the responsibility of the ER
which can easily comply with the requirement through a mere mechanical act. The fact that there were "no
impartial members of the unit" is immaterial. The purpose of the requirement is precisely to inform the
employees in the bargaining unit of the contents of said agreement so that they could intelligently decide
whether to accept the same or not. The assembly of the members of ALU wherein the agreement in
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question was allegedly explained does not cure the defect. The contract is intended for all employees and
not only for the members of the purported representative alone. It may even be said the need to inform the
non-members of the terms thereof is more exigent and compelling since, in all likehood, their contact with
the persons who are supposed to represent them is limited.
Another potent reason for annulling the CBA is the finding of respondent director that 181 of the
281workers who "ratified" the same now " strongly and vehemently deny and/or repudiate the alleged
negotiations and ratification of the CBA. " Although petitioner claims that only 7 of the repudiating group of
workers belong to the total number who allegedly ratified the agreement, nevertheless such substantiated
contention weighed against the factual that the controverted contract will not promote industrial stability.
At this juncture, petitioner should be reminded that the technical rules of procedure do not strictly apply in
the adjudication of labor disputes. Consequently, its objection that the evidence with respect to the
aforesaid repudiation of the supposed CBA cannot be considered for the first time on appeal on the BLR
should be disregarded, especially considering the weighty significance thereof. Both petitioner and private
respondent GAW Trading, Inc. allege that the employees are now enjoying the benefits of the CBA. But
there is not find sufficient evidence of record to support this contention. Additionally, the inapplicability of
the contract bar rule is further underscored by the fact that when the disputed agreement was filed before
the Labor Regional Office on May 27, 1986, a petition for certification election had already been filed on
May 19, 1986. Although the petition was not supported by the signatures of 30% of the workers in the
bargaining unit, the same was enough to initiate said certification election. (ALU v Calleja, 1989)
7.5.5.5 Contract Duration and Renewals
Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may
enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition
questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election
shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before
the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the
Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any
agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from
the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall
retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the
parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the
Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No.
6715, March 21, 1989)

Article 253-A serves as the guide in determining when the effectivity of the CBA is to take
effect. The 5-year term requirement is specific to the representation aspect, which refers to the
identity and majority status of the union that negotiated the CBA while all other provisions simply
refers to the rest of the CBA, economic as well as noneconomic issues. What the law additionally
requires is that a CBA must be re-negotiated within 3 years after its execution. 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 anybody else - the discretion to fix the effectivity of the agreement.
(MERALCO v Quisumbing, 1999)
The NLRC may dictate retroactivity. Allegedly, this retroactivity goes against A253-A LC. But 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.
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), such as herein involved, the NLRC 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. (Manila Central Line v Manila
Central Line Free Workers Union, 2000)
Suspending the representation period and 253-A. There was likewise no violation of the 5-year
representation limit mandated by Article 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.
The PAL-PALEA agreement is a valid exercise of the freedom to contract. Under the principle of
inviolability of contracts guaranteed by the Constitution, the contract must be upheld. (Rivera v
Espiritu, 2002)
7.5.5.6

CBA and 3rd Party Applicability

CBAs not enforceable against transferee of an enterprise. The rule is that unless expressly
assumed, labor contracts such as employment contracts and CBAs are not enforceable against a
transferee of an enterprise, labor contracts being in personam, thus binding only between the parties
and does not create any real right which should be respected by third parties. This conclusion draws its
force from the right of an employer to select his employees and to decide when to engage them as
protected under the Constitution.

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However, although the purchaser of the assets or enterprise is not legally bound to absorb the employers
of the seller, the parties are liable to the employees if the transaction between the parties is colored or
clothed with bad faith. There was no bad faith in this case, thus, the absorption of the employees of
Mabuhay may not be imposed on petitioner. (Sundowner Devt v Drilon, 1989)
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
transfer or to continue employing them. Nor is the transferee liable for past ULP 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 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. Since the petitioners
were effectively separated from work due to a bona fide change of ownership and they were
accordingly paid their separation pay, which they freely and voluntarily accepted, the private
respondent corporation was under no obligation to employ them; it may, however, give them
preference in the hiring. The private respondent in fact hired, but on probationary basis, all the
petitioners, except Rosario Cuarto. The non-hiring of Cuarto was legally permissible.The hiring of
employees on a probationary basis is an exclusive management prerogative. The employer has the
right or privilege to choose who will be hired and who will be denied employment. It is within the
exercise of this right that the employers may set or fix a probationary period within which it may test
and observe the employee's conduct before hiring him permanently. (Manlimos v NLRC, 1995)
7.5.5.7 CBA and Disaffiliation Substitution Doctrine
Substitution: Disaffiliations possible fruit. Elisco-Elirol Labor Union-NAFLU, consisting of employees
and members of the local union was the principal party to the agreement. NAFLU as the "mother" in
participating in the execution of the bargaining agreement with respondent company acted merely as
agent of the local union, which remained the basic unit of the association existing principally and freely to
serve the common interest of all its members, including the freedom to disaffiliate.
Corollary, the "substitution" doctrine likewise fully supports EEL (the union). EEL, 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 CBA 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. When there occurs a shift in
employees' union allegiance after the execution of a bargaining contract with their employer, even during
the effectivity of a CBA executed between employer and employees thru their agent, the employees can
change said agent but the contract continues to bind them (employees) up to its expiration date. They may
bargain however for the shortening of said expiration date.
In formulating the 'substitutionary' doctrine, the only consideration involved was the employees' interest
in the existing bargaining agreement. The agent's interest never entered the picture. In fact, the
justification for said doctrine was that the majority of the employees, as an entity under the statute, is the
true party in interest to the contract, holding rights through the agency of the union representative. Thus,
any exclusive interest claimed by the agent is defeasible at the will of the principal. (Elisco-Elirol Labor
Union v Noriel, 1977)
7.5.5.8 Effect [of] Expiry
The new CBA is given prospective effect generally since 253 and 253-A provide 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 effectivty of CBA is longer. Until a new
agreement has been executed, they are duty bound to keep the status quo and to continue in full force
and effect the terms and conditions of existing agreements. The law doesnt provide for an exception
nor qualification as to which of the economic provisions are to retain force and effect, therefore it
encompasses all provisions. (New Pacific Timber and Supply v NLRC, 2000)
When 6 months have elapsed but no agreement has been reached with respect to
effectivity, any provision of law should then apply for the law abhors a vacuum. One such
provision is the principle of hold over. 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. (MERALCO v Quisumbing, 1999)
No breaks. It is a sound and unassailable labor practice for labor and management to conclude a new
contract before the expiry date of any CBA in order to avoid a hiatus in management-labor relations.
The Industrial Peace Act was designed primarily to promote industrial peace through encouragement of
collective bargaining. Any undue delay in the selection of a bargaining representative can hardly be
said to contribute to that end. (Citizens Labor Union v CIR, 1966)
Part Eight Unfair Labor Practice
8.1 Introductory Concepts
8.1.1Definition and General Concept
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Art. 212. Definitions.

(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 self-organization, 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 labor-management relations.
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, the civil aspects of all cases involving unfair labor practices, which
may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other
affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall 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. During the pendency of such
administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall
be considered interrupted: 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. (As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989)
Definition
No ULP when merely an employee who is not connected with any union. The company cannot be
considered as having committed acts constituting ULP as defined in the Industrial Peace Act. The term ULP
has been defined as any of those acts listed in Sec. 4 of the Act. Sol has never been found to commit any of
the acts mentioned in paragraph (a) of Sec. 4. 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. (Sterling
Products v Sol, 1963)
8.1.2 Requisite Relationship > Required Relationship
Not just at firing, but also at hiring. Protection of the workers' right to self-organization does not curtail
the appropriate sphere of managerial freedom; it furthers the wholesome conduct of business enterprise.
The employer still may exercise the right to select or discharge its employees. But 'under cover of that
right', the employer may not 'intimidate or coerce its employees with respect to their self-organization and
representation.
Workers cannot be dismissed from employment because of their union affiliations. [Likewise,] discrimination
against union men at the time of hiring has been held to go against the right to self-organization and to
collective bargaining. Such a policy is an inevitable corollary of the principle of freedom of organization.
Discrimination against union labor in the hiring of men is a dam to self organization at the source of supply.
The effect of such discrimination is not confined to the actual denial of employment; it inevitably operates
against the whole idea of the legitimacy of organization. In a word, it undermines the principle which, as we
have seen, is recognized as basic to the attainment of industrial peace.
We have seen the close link between a bar to employment because of union affiliation and the opportunities
of labor organizations to exist and to prosper. Such an embargo against employment of union labor was
notoriously one of the chief obstructions to collective bargaining through self-organization.
The text of the provision should be construed as imposing no obligation on the employer to favor union
members in hiring employees. He is as free to hire as he is to discharge employees. The statute does not
touch 'the normal exercise of the right of the employer to select its employees or to discharge them'. It is
directed solely against the abuse of that right by interfering with the countervailing right of self-organization.
So far as questions of constitutionality are concerned, there is 'no greater limitation in denying him (the
employer) the power to discriminate in hiring, than in discharging'. (Phelps-Dodge Corp. v NLRB, 1941)
8.1.3Construction
Law to be liberally construed as to employees and strictly construed as to employers. The
charge of ULP against the Company is well-taken. [The Company has shown a history of guilty conduct
WRT unions.] Long prior to the strike, the Company had interfered with the Union. During the strike, in
addition to other culpable acts of the Company, due significance must be given to the inclusion initially
of the Association's President and Vice-President, respectively, in two coercion cases filed at that time
and their subsequent elimination from the charges at the initiative of the Company after the settlement
of the strike; the cutting off of telephone facilities extended to Association members in the refinery; and
the use of a member of the Association to spy for the company. The discriminatory acts practiced by the
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Company against active unionists after the strike furnish further evidence that the Company committed
unfair labor practices as charged. The discrimination consisted in the Company's preferring nonmembers of the Association in promotions to higher positions and humiliating active unionists by either
promoting junior supervisors over them or by reduction of their authority compared to that assigned to
them before the strike, or otherwise downgrading their positions. Then, the Company terminated the
employment of the union President and Vice-President. We perceive in this particular action of the
Company its anti-union posture and attitude.
Pursuant to the mandate of Art. 24 of the Civil Code that courts must be vigilant for the protection of one at
a disadvantageand here the Association appears to be at a disadvantage in its relations with the
Company as the records showadequate affirmative relief, including backwages, must be awarded to the
strikers. It is high time and imperative that in order to attain the laudable objectives of RA 875 calculated to
safeguard the rights of employees, the provisions thereof should be liberally construed in favor of
employees and strictly against the employer, unless otherwise intended by or patent from the language of
the statute itself. (Caltex Filipino Managers and Supervisors Assn v CIR, 1972)
Enumeration of ULPs in LC not exclusive. Necessarily, a determination of the validity of the Bank's
unilateral implementation of its policy or the Union's act of engaging in concerted activities involves an
appraisal of their motives. In cases of this nature, motivations are seldom expressly avowed, and
avowals are not always candid. There must thus be 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 constitutes 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. (HSBC Employees
Union v NLRC, 1997)
8.1.4Law Nomenclature and Interrelations of Acts of ULP
Art. 212. Definitions.
(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 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;
(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 the giving of financial or other support to it or its organizers or supporters;
(e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to
encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall
stop the parties from requiring membership in a recognized collective bargaining agent as a condition for
employment, except those employees who are already members of another union at the time of the signing of
the collective bargaining agreement. Employees of an appropriate 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;
(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being
about to give testimony under this Code;
(g) To violate the duty to bargain collectively as prescribed by this Code;
(h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any
issue in collective bargaining or any other dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations,
associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall
be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)
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;
(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;
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(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the
employees;
(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other
things of value, in the nature of an exaction, for services which are not performed or not to be performed,
including the demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in
collective bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards,
representatives or agents or members of labor associations or organizations who have actually participated in,
authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)
ULP consider all actions as a whole. The Labor Code 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 law's general prohibitory language in light of infinite
combinations of events which may be charged as violative of its terms.
It has been held that the crucial question whether or not a party has met his statutory duty to bargain in
good faith typically turns on the facts of the individual case. There is no per se test of good faith in
bargaining. Good faith or bad faith is an inference to be drawn from the facts. To some degree, the question
of good faith may be a question of credibility. The effect of an employer's or a union's actions individually is
not the test of faith bargaining, but the impact of all such occasions or good-faith actions, considered as a
whole, and the inferences fairly drawn therefrom collectively may offer a basis for the finding of the NLRC.
(HSBC Employee Union v NLRC, 1997)
The Banks act of dismissing employees because of an alleged libelous letter, where they demanded that
the bank president resign because he was immoral, he commited acts of embezzlement and he practiced
favoritism and nepotism, was ULP. A number of the Justices believe that what the Bank should have done
was to refer the letter-charge to the grievance committee. This was its duty, failing which it committed an
ULP. While Fernando maintained that the respondents who were labor leaders, adopted a hard line position
from the beginning, (they manifested they wanted the president out; they didnt select their words in the
letter; they didnt want discussion), he had to concur because of the mass dismissal which would lead to
the supervisors union, the Republic Savings Bank employees union, the Republic Savings Bank security
guards union, and the Republic Savings Bank supervisors union being left leaderless. For collective
bargaining to be meaningful there must be two parties, one representing management and the other
representing the union. (Republic Savings Bank v CIR, 1967; Fernando, J. concurring)
The Union bases its claim of interference on the alleged suggestions of Bank Manager to exclude Fed Pres
from the Unions negotiating panel. The records show that after the initiation of the collective bargaining
process, with the inclusion of Fed Pres in the Unions negotiating panel, the negotiations pushed through.
The complaint was made only after a deadlock was declared by the Union.
The Union alleges that the Bank violated its duty to bargain; hence, committed ULP under Article 248(g)
when it engaged in surface bargaining. Surface bargaining is defined as "going through the motions of
negotiating" without any legal intent to reach an agreement. The resolution of surface bargaining allegations
never presents an easy issue. The determination of whether a party has engaged in unlawful surface
bargaining is usually a difficult one because it involves, at bottom, a question of the intent of the party in
question, and usually such intent can only be inferred from the totality of the challenged partys conduct
both at and away from the bargaining table. It involves the question of whether an employers conduct
demonstrates an unwillingness to bargain in good faith or is merely hard bargaining.
The records do not show that the Bank had any intention of violating its duty to bargain with the Union. After
the Union sent its proposal to the Bank, the latter replied with a list of its counter-proposals. Thereafter,
meetings were set for the settlement of their differences. The minutes of the meetings show that both the
Bank and the Union exchanged economic and non-economic proposals and counter-proposals. The Union has
not been able to show that the Bank had done acts, both at and away from the bargaining table, which tend
to show that it did not want to reach an agreement with the Union or to settle the differences between it and
the Union. Admittedly, the parties were not able to agree and reached a deadlock. However, it is herein
emphasized that the duty to bargain "does not compel either party to agree to a proposal or require the
making of a concession." Hence, the parties failure to agree did not amount to ULP under Article 248(g) for
violation of the duty to bargain.
While the refusal to furnish requested information is in itself an ULP, and also supports the inference of
surface bargaining, in the case at bar, Fed Pres Umali requested the Bank to validate its guestimates on the
data of the rank and file. However, Umali failed to put his request in writing as provided for in Article 242(c)
of the Labor Code. The Union, did not, as the Labor Code requires, send a written request for the issuance of
a copy of the data about the Banks rank and file employees. Moreover, as alleged by the Union, the fact that
the Bank made use of the aforesaid guestimates, amounts to a validation of the data it had used in its
presentation. (Standard Chartered Bank v Confesor, 2004)
8.2 Unfair Labor Practice: Employer and Labor Organization Acts Violating Right of Self-Organization
[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

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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 selforganization and collective bargaining. (Insular Life Assurance Employees Assn v Insular Life
Assurance Co., 1971) not in the syllabus at this point but emphasized by Sir and dont know where else to put it ]
ULP and Management Functions
Despite the employee's right to self-organization, the employer still retains his inherent right
to discipline his employees. Company not guilty of ULP in dismissing employee who filed charges
against the manager which were not connected with or necessarily arising from union activities. The
statute goes no further than to safeguard the right of employees to self-organization and to select
representatives of their own choosing without restraint or coercion by their employer. The protection of
workers' right to self-organization in no way interferes 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. 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. (Royal
Inter-Ocean Lines, 1960)
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 ERs.
Discriminating in the context of the Code involves either encouraging membership in any LO or is made on
account of the employees having given or being about to give testimony under the Labor Code. These
have not been proved in the case at bar. There can be no discrimination where the employees concerned
are not similarly situated. A union officer has larger and heavier responsibilities than a union member.
Union officers are duty bound to respect the law and to exhort and guide their members to do the same;
their position mandates them to lead by example. By committing prohibited activities during the strike, the
VP of petitioner UNION demonstrated a high degree of imprudence and irresponsibility. Verily this justifies
his dismissal from employment. Since the objective of the Labor Code is to ensure a stable but dynamic
and just industrial peace, the dismissal of undesirable labor leaders should be upheld. (GrePaLife
Employees Union v GrePaLife Assurance, 1999)
8.2.1Interference, Restraint, and Coercion
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;
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;
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 labor-management councils:
Provided, That the representatives of the workers in such labor-management councils shall be elected by at least
the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989)
Art. 277. Miscellaneous provisions.
(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 the shared
responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working
conditions and the quality of working life. (Incorporated by Batas Pambansa Bilang 130, August 21, 1981)
(h) 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. (As amended by Section 33, Republic Act
No. 6715, March 21, 1989)

Right to Organize and Collective Bargaining Convention

Convention (No. 98) concerning the Application of the Principles of the Right to Organize and to Bargain
Collectively
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Article I
1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their
employment.
2. Such protection shall apply more particularly in respect of acts calculated to:
(a) Make the employment of a worker subject to the condition that he shall not join a union or shall relinquish
trade union membership;
(b) Cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of
participation in union activities outside working hours or, with the consent of the employer, within working hours.
Article 2
1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each
other or each other's agents or members in their establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of workers' organisations under the
domination of employers or employers' organisations, or to support workers' organisations by financial or other
means, with the object of placing such organisations under the control of employers or employers' organisations,
shall be deemed to constitute acts of interference within the meaning of this article.
8.2.2No-Union Membership, or Withdrawal from Membership as Condition [for] Employment
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(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;
8.2.3Contracting Out to Discourage Unionism
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(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;
Art. 106. Contractor or subcontractor. Whenever an employer enters into a contract with another person for the
performance of the formers work, the employees of the contractor and of the latters subcontractor, if any, shall
be paid in accordance with the provisions of this Code.
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this
Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to
the extent of the work performed under the contract, in the same manner and extent that he is liable to
employees directly employed by him.
The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out
of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make
appropriate distinctions between labor-only contracting and job contracting as well as differentiations within
these types of contracting and determine who among the parties involved shall be considered the employer for
purposes of this Code, to prevent any violation or circumvention of any provision of this Code.
There is "labor-only" contracting where the person supplying workers to an employer does not have substantial
capital or investment in the form of tools, equipment, machineries, work premises, among others, and the
workers recruited and placed by such person are performing activities which are directly related to the principal
business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of
the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly
employed by him.
8.2.4Company-Dominat[ed] Union
Art. 248. Unfair labor practices of employers. 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;
8.2.5Discrimination [to] Encourage / Discourage Unionism
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(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 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

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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;
Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its
officers, agents or representatives:
(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;
8.2.6Retaliation [for] Testimony against Employer
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being
about to give testimony under this Code;
8.2.7Exaction Featherbedding
Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its
officers, agents or representatives:
(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
Unfair labor practices relate only to violations of the constitutional right of workers and
employees to self-organization and are limited to the acts enumerated in Article 248. None of
the acts applies to the present case. There is no evidence that Galanida took part in forming a union, or
even that a union existed in Allied Bank. The employer exercises the prerogative to transfer an employee for
valid reasons and according to the requirement of its business, provided the transfer does not result in
demotion in rank or diminution of benefits. (Allied Bank v CA, 2003)
1.

Interrogation

Ignorance is bliss. Questioning of employees concerning union membership and activities and
disparaging remarks by supervisory employees made in such a way as to hamper the exercise of free
choice on the part of the employees, have been uniformly condemned as a violation of the Act.
"[I]t appears that [the president of the union] was discharged ... at the time when the question of union
representation was be coming acute. The Company contends that the ground of the discharge was
insubordinate language and conduct... Under such circumstances, the Board may very well have
concluded that the true reason for the discharge was other than the one given, and was to be found in
the position Mrs. Elder held in the union and her activity in its behalf. This is all the more reasonable in
view of the manifest anti-union bias of the company's officers and superintendent and of the controversy
with regard to the recognition of the union which had just been revived...
{Dear blockmates: Sir keeps saying how the Court said in this case that the Blue Flash doctrine doesnt
apply in the Philippines, pero nowhere in the case is the doctrine even mentioned as such. Anyway, ang
sinabi lang niya about this in the integration is that contrary to the Blue Flash doctrine (which is allegedly
to the effect na the employer can ask questions etc., but at his own risk of being found guilty of ULP),
just about any act on the part of the employer na kumbaga antagonistic to the union may give rise to a
finding of ULP.} (Scotys Dept Store v Micaller, 1956)
Interrogation if not for a legitimate purpose = ULP. 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 Doctrine). The rule in this
jurisdiction is that subjection by the company of its employees to a series of questionings 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. (Phil. Steam Navigation v Phil. Marine
Officers Guild, 1965)

2.

Polling
In a legitimate employer poll, the questioning must occur in a context free from employer
hostility to union organization and must not itself be coercive in nature. Blue Flash: The employer
should explain the purpose of the poll to all of the employees, and should offer assurances that their rights
under the Act would not be infringed. The Board should come to grips with the constantly recurring
problem of unlawful discrimination, where the prelude was an employers attempts to investigate the
sympathies of his employees. The Board could outline at least minimal standards to govern the

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ascertainment of union status, or even the desire of the employees with respect to a contract with the
union. (Operating Engineers Local 49 v NLRB, 1965)
3.

Speech

Letters here, not okay. 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.
Indeed, it is a ULP for an employer operating under a CBA 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. It is likewise an act of interference for the employer to send
a letter to all employees notifying them to return to work at a time specified therein, otherwise new
employees would be engaged to perform their jobs. Individual solicitation of the employees or visiting
their homes, with the employer or his representative urging the employees to cease union activity or
cease striking, constitutes unfair labor practice. All the above-detailed activities are unfair labor practices
because they tend to undermine the concerted activity of the employees, an activity to which they are
entitled free from the employer's molestation.
Moreover, since exhibit A is a letter containing promises of benefits to the employees in order to entice
them to return to work, it is not protected by the free speech provisions of the Constitution. The same is
true with exhibit B since it contained threats to obtain replacements for the striking employees in the
event they did not report for work. The free speech protection under the Constitution is inapplicable
where the expression of opinion by the employer or his agent contains a promise of benefit, or threats, or
reprisal. (Insular Life Assurance Employees Assn v Insular Life Assurance Co., 1971)
Subtle Assistance by Employer, the Freedom of Speech cannot protect. SC: Employer
assisted the Machinists; ULP existed. The toolroom episode was but an integral part of a long plant
controversy. What happened from the time the employees started soliciting till the signing of the
closed-shop contract cannot properly be divorced from the events immediately preceding and
following. The active opposition of the employer to U.A.W. throughout the whole controversy has a
direct bearing on the events during that intermediate period. Known hostility to one union and clear
discrimination against it may indeed make seemingly trivial intimations of preference for another union
powerful assistance for it. Slight suggestions as to the employer's choice between unions may have
telling effect among men who know the consequences of incurring that employer's strong displeasure.
The freedom of activity permitted one group and the close surveillance given another may be more
powerful support for the former than campaign utterances.
To be sure, it does not appear that the employer instigated the introduction of petitioner into the plant.
But the employer 'assisted' it in its organizational drive. Silent approval of or acquiescence in that drive
for membership and close surveillance of the competitor; the intimations of the employer's choice made
by superiors; the fact that the employee-solicitors had been closely identified with the company union
until their quick shift to petitioner; the rank and position of those employee-solicitors; the ready
acceptance of petitioner's contract and the contemporaneous rejection of the contract tendered by
U.A.W.; the employer's known prejudice against the U.A.W., were all proper elements for the Board to
take into consideration. (Intl Assn of Machinists v NLRB, 1940)
Neither the Act nor the Boards order enjoins the Company enjoins the employer from expressing its
view on labor policies or problems nor is a penalty imposed upon it because of any utterances which it
has made. The sanctions of the Act are imposed not in punishment of the employer but for the
protection of the employees. The employer is as free now as ever to take any side it may choose on
this controversial issue. But certainly conduct though evidenced in part by speech, may amount in
connection with other circumstances to coercion within the meaning of the Act. If the total activities of
the employer restrain or coerce his employees in their free choice, then those employees are entitled
to the protection of the Act. And in determining whether a course of conduct is restraint or coercion
pressure exerted vocally by the employer may be no more disregarded that pressure exerted in other
ways. For slight suggestions as to the employers choice between unions may have a telling effect
among men who know the consequences of incurring that employers strong displeasure.
If the Boards order here may be fairly said to be based on the totality of the Companys activities during
the period in question, the court may not consider the findings of the Board as to the coercive effect of
the bulletin and the speeches in isolation from the findings as respects the other conduct of the
Company. If the Boards ultimate conclusion is based upon a complex of activities, that conclusion would
not be vitiated by the fact that the Board considered what the Company said in conjunction with what it
did. The mere fact that language merges with the course of conduct does not put that whole course
without the range of otherwise applicable admin power. In determining whether the Company interfered
with, restrained and coerced its EEs the Board has a right to look at what the Company has said as well
as what it has done. The Board did not consider the whole complex of activities of which the bulletin and
speeches are but parts in reaching its ultimate conclusion. (NLRB v Virginia Electric and Power
Co., 1941)

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Specific statements made by an employer to his employees may constitute an electionvoiding ULP and fall outside the protection of the First Amendment. An employer's free
speech right to communicate his views about unionism or about a particular union to his employees is
firmly established and cannot be infringed by a union or the Board so long as such expression contains
no threat of reprisal or force or promise of benefit. He may even make a prediction as to the precise
effects he believes unionization will have on his company, but it must be carefully phrased on the basis
of objective fact to convey a belief as to demonstrably probable consequences beyond his control or to
convey a management decision already arrived at. If there is any implication that an employer may or
may not take action solely on his own initiative for reasons unrelated to economic necessities and
known only to him, the statement is a threat of retaliation. (NLRB v Gissel Packing Co., 1969)
4.

Espionage
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 ULP. 'Nothing is more calculated to interfere with, restrain and coerce employees in the exercise
of their right to self-organization 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.' The ULP 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. (Insular Life Assurance Employees Assn v
Insular Life Assurance Co., 1971)

5.

Economic Coercion and Inducement

Strike-breaking or union-busting. 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 ULP. 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: 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, profit-sharing, and a new building to work in.
(Insular Life Assurance Employees Assn v Insular Life Assurance Co., 1971)
The hand that feeds you. The broad purpose of the law is to establish "the right of employees to
organize for mutual aid without employer interference." It prohibits not only intrusive threats and
promises but also conduct immediately favorable to employees which is undertaken with the express
purpose of impinging upon their freedom of choice for or against unionization and is reasonably
calculated to have that effect. The action of employees with respect to the choice of their bargaining
agents may be induced by favors bestowed by the employer as well as by his threats or domination.
The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the source of benefits now conferred is also the
source from which future benefits must flow and which may dry up if it is not obliged. The danger may
be diminished if, as in this case, the benefits are conferred permanently and unconditionally. But the
absence of conditions or threats pertaining to the particular benefits conferred would be of controlling
significance only if it could be presumed that no question of additional benefits or renegotiation of
existing benefits would arise in the future; and, of course, no such presumption is tenable.
It is true that in most cases of this kind the increase in benefits could be regarded as "one part of an
overall program of interference and restraint by the employer," and that in this case the questioned
conduct stood in isolation. Other unlawful conduct may often be an indication of the motive behind a
grant of benefits while an election is pending, and to that extent it is relevant to the legality of the grant;
but when as here the motive is otherwise established, an employer is not free to violate the law by
conferring benefits simply because it refrains from other, more obvious violations. This will not have the
"ironic" result of "discouraging benefits for labor." The beneficence of an employer is likely to be
ephemeral if prompted by a threat of unionization which is subsequently removed. Insulating the right of
collective organization from calculated good will of this sort deprives employees of little that has lasting
value. (NLRB v Exchange Parts Co., 1964)

6.

Union Solicitation and Distribution of Literature and Materials [wag na raw intindihin since it doesnt happen
here...]

(Lechmere v NLRB, 1992)

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Company rules against solicitation (during employees own time) = interference with
employees right to organize. Not only has the Board in these cases sufficiently expressed the
theory upon which it concludes that rules against solicitation or prohibitions against the wearing of
insignia must fall as interferences with union organization but in so far as rules against solicitation are
concerned, it had theretofore succinctly expressed the requirements of proof which it considered
appropriate to outweigh or overcome the presumption as to rules against solicitation.
No motion was made in the court after the Board's decisions for leave to introduce additional evidence to
show unusual circumstances involving their plants or for other purposes. Such a motion might have been
granted by the Board or court. We perceive no error in the Board's adoption of this presumption.
Like a statutory presumption or one established by regulation, the validity, perhaps in a varying degree,
depends upon the rationality between what is proved and what is inferred.
In the Republic Aviation case, petitioner urges that irrespective of the validity of the rule against
solicitation, its application in this instance did not violate Section 8(3), note 1, supra, because the rule
was not discriminatorily applied against union solicitation but was impartially enforced against all
solicitors. It seems clear, however that if a rule against solicitation is invalid as to union solicitation on
the employer's premises during the employee's own time, a discharge because of violation of that rule
discriminates within the meaning of Section 8(3) in that it discourages membership in a labor
organization. (Republic Aviation v NLRB, 1945)
Non-employee organizers can distribute, only if!...The rule: If non-employee
organizers/distributors of pamphlets on union literature do not have reasonable means to reach the
employees of a company, the company must allow said organizers to distribute within their property.
But it is not required of the employer to allow access when normal means of contacting the employees
are possible. Here, since the employees live in a nearby village, they can be contacted there. (NLRB
v Babcock and Wilcox Co., 1956)
Employer rules prohibiting organizational solicitation are not ULP per se, there must be some basis in
the actualities of industrial relations which are lacking in both cases. Employer rules prohibiting orgl
solicitation are not in and of themselves violative of this Act, for they may duly serve production, order
and discipline. Neither of the cases attacking the enforcement of the no-solicitation rule contests its
validity. Nor is the claim made that an employer may not, under proper circumstances engage in noncoercive anti-union solicitation; indeed his right to do so is protected by employer free speech of the
Act. Contrariwise, as both cases show, coercive anti-union solicitation and other similar conduct run
afoul of the Act and constitute ULP irrespective of the bearing of such practices on the enforcement of
no solicitation rule. The very narrow and abstract question here derives from the claim that when the
employer himself engages in anti-union solicitation that if engaged in by employees would constitute a
violation of the rule- particularly when his solicitation is coercive or accompanied by other ULP his
enforcement of an otherwise valid no-solicitation rule is itself ULP. The coincidence of these
circumstances does not violate the Act. One must consider the way in which the particular controversy
arose and whether the employers conduct to any considerable degree created an imbalance in the
opportunities for orgl communication. One must carefully appraise the interests of both sides of labor
management controversy in the diverse circumstances of particular cases and in light of the Boards
understanding of the industrial situations.
There is no indication that the employees in these cases or the union on their behalf requested the
employer himself engaged in anti-union solicitation to make an exception to the rule for pro-union
solicitation. There is evidence in both cases that the employers had in the past made exceptions to their
rules for charitable solicitations. Notwithstanding the clear anti-union bias of the employer, the court did
not rule although the Board may conclude as a matter of industrial experience that a request for a
similar qualification upon the rule for organizational solicitation would have been rejected. Certainly the
employer is not obliged voluntarily and without any request to offer the use of his facilities and the time
of his employees for pro-union solicitation. He may well be wary of a charge that he is interfering with or
contributing support to a labor org.
No attempt was made to make a showing that the no-solicitation rules truly diminished the ability of the
labor orgs to carry out their msgs to the employees. Just as that is vital in determining the validity of a
non-solicitation rule, it is highly relevant in determining whether a valid rule has been fairly applied.
While the rules had the effect of closing one of the channels of communication, the Act does not
command that labor orgs as a matter of abstract law under all circumstances be protected in the use of
every possible means of reaching the minds of individual workers nor that they are entitled to a medium
of communication simply because the employer is using it.. If by virtue of the location of the plant and of
the facilities and resources available to the union, the opportunities for effectively reaching the
employees with a pro-union msg in spite of a no-solicitation rule are as great as the employers ability to
promote the legally authorized expression of his anti-union views, there is no basis in invalidating these
otherwise valid rules. In determining WON the enforcement of the rule is ULP, the Board may find
relevant alternative channels available for communications on the right to organize. When this issue is
not raised before the Board and no evidence bearing on it adduced, the concrete basis for appraising the
significance of the employers conduct is wanting. (NLRB v United Steel Workers of America,
1958)
7.

Discrimination
There can be no discrimination as the situation of the union employees is different and
distinct from the non-union employees. Discrimination per se is not unlawful. The grant of profit

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sharing benefits to the employees outside the "bargaining unit" falls under the ambit of managerial
prerogative. It appears to have been done in good faith and without ulterior motive. More so when as in
this case there is a clause in the CBA where the employees are classified into those who are members of
the union and those who are not. In the case of the union members, they derive their benefits from the
terms and conditions of the CBA which constitute the law between the parties. (Wise and Co. v Wise
and Co. Employees Union, 1989)
8.

Runaway Shop
Definition, etc. A "runaway shop" is defined as an industrial plant moved by its owners from one location
to another to escape union labor regulations or state laws, but the term is also used to describe a plant
removed to a new location in order to discriminate against employees at the old plant because of their
union activities. It is 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.
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. It cannot, therefore, be
said that the temporary closure in Complex and its subsequent transfer of business to Ionics was for antiunion purposes. The Union failed to show that the primary reason for the closure of the establishment was
due to the union activities of the employees.
The mere fact that one or more corporations are owned or controlled by the same or single stockholder, [or
that they have the same president], 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. To disregard said separate juridical personality of a corporation, the
wrongdoing must be clearly and convincingly established.
When Complex filed a notice of closure of its Lite-On Line, the employees filed a notice of strike which
greatly alarmed the customers of Complex and this led to the pull-out of their equipment, machinery and
materials from Complex. Thus Complex was unable to continue its business. It was left with no other
choice except to shut down the entire business. Nonetheless, whether or not Complex was incurring great
losses, it still one of the management's prerogative to close down its business as long as it is done in good
faith. (Complex Electronics Employees Assn v NLRC, 1999)

8.3 Unfair Labor Practice: Employer and Labor Organization Acts Violative of Right to Collective Bargaining
8.3.1Violate Duty to Bargain
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(g) To violate the duty to bargain collectively as prescribed by this Code;
Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its
officers, agents or representatives:
(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;
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. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)
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, hours of work and all other terms and conditions of employment including
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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, the duty to bargain collectively shall also mean that neither party shall
terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to
terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both
parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing
agreement during the 60-day period and/or until a new agreement is reached by the parties.
Boulwareism a.k.a. take-it or leave-it bargaining = ULP. The companys policy of Boulwareism,
in its take it or leave it stance, patently violates the obligation of the company to bargain with the
employees. Aside from this, General Electric committed other acts of ULP. Insurance is ordinarily a
mandatory subject for collective bargaining and GE violates the National Labor Relations Act for refusing
to bargain over it. In unilaterally changing the conditions and terms of employment, GE committed ULP.
GE committed ULP in refusing to answer questions of union as to costs per employee of proposed
insurance benefits and proposed pension benefits. Where information available to employer would have
assisted union in bargaining collectively with employer, employer committed ULP in withholding
information. GE committed ULP when it went behind backs of national negotiators and offered separate
peace settlements to local unions and failed to respect status of national union as exclusive bargaining
representative. (NLRB v General Electric, 1969)
Refusal to make a counter-proposal = bad faith = violation of duty to bargain. 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. 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.
The company's refusal to make counter-proposal to the union's proposed CBA 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. In the case at bar, petitioner's actuation
show a lack of sincere desire to negotiate rendering it guilty of unfair labor practice. (Colegio de San
Juan de Letran v Assn of Employees and Faculty, 2000)
Tardiness = bad faith. 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. This is an
indication of its bad faith, and makes it liable for ULP. (General Milling Corp. v CA, 2004)
8.3.2Negotiation or Attorneys Fees
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(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;
Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its
officers, agents or representatives:
(f) To violate a collective bargaining agreement.
8.3.3Violate CBA
Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(g) To violate the duty to bargain collectively as prescribed by this Code;
Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its
officers, agents or representatives:
(f) To violate a collective bargaining agreement.
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, grievances or matters under the exclusive and original jurisdiction of the Voluntary

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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.
The LA under Art 217 has original and exclusive jurisdiction of ULP cases and money claims but changes
were effected by RA 6715 which took effect on March 21, 1989. The Act provides that cases arising from
interpretation or implementation of the CBA and those arising from the interpretation of company policies
shall be disposed of by the LA by referring the same to the grievance machinery and voluntary arbitration.
This exclusionary proviso is reflected in Art 261 in LC. Hence as of March 21, 1989, violations of CBA were no
longer deemed ULP except those gross in character and were considered mere grievances resolvable through
the appropriate grievance machinery or voluntary arbitration provided in the CBA. Jurisdiction over such case
was withdrawn from the LA. This law was not yet in effect when the complaint was filed and it was only after
PALs MFR that said law was effective. Under the circumstances, no estoppel can be ascribed to PAL. The
breach of agreement on PALs part may not also be considered so gross a character as to constitute an
exception to the rule making the case cognizable by the LA. But court did not dismissed the proceeding on
the ground of lack of jurisdiction because both parties have extensively and exhaustively ventilated the issue
before LA and NLRC. It would serve no useful purpose to have same evidence and arguments adduced before
another arbitrator considering that the proceedings were had before the law was effective and that the
parties are directed to convene in order to correct the wage distortion with the intervention of the Office of
Socio Economic Analyst as well as the willingness of PAL to correct any wage distortion which may exist. This
appears to the court the most expedient option. (PAL v NLRC, 1997)
8.4 Employer Functions and ULP
Management prerogative, BUT... The existence of a labor dispute is not negated by the fact that the
parties do not stand in the proximate relation of employer and employee. What the Union seeks is to
regularize the status of the contracted employees and that they be absorbed into the working unit of SMC.
The matter of representation falls within the scope of a labor dispute. As the case is indisputably linked
with a labor dispute, jurisdiction belongs to the labor tribunals and not to the RTC. The Court does
recognize the proprietary right of SMC to exercise an inherent management prerogative to determine
whether it should contract out the performance of some of its work However, the rights of all workers to
self-organization, collective bargaining and negotiations, and peaceful concerted activities, equally call for
recognition and protection. (SMC Employees Union v Bersamira, 1990)
Employers intent. The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel and giving undue publicity to their letter-charge. To be sure, the right of self-organization
of employees is not unlimited, as the right of an employer to discharge for cause is undenied. The
Industrial Peace Act does not touch the normal exercise of the right of an employer to select his employees
or to discharge them. It is directed solely against the abuse of that right by interfering with the
countervailing right of self-organization. But there is still the difficulty of ascertaining the employers
intent: Was it a separate cause which caused the dismissal or because of the right of self-organization? It
is for the CIR, in the first instance, to make the determination, "to weight the employer's expressed motive
in determining the effect on the employees of management's otherwise equivocal act." (Republic
Savings Bank v CIR, 1967)
8.5 Motive, Conduct, and Proof
8.5.1Employer Motive and Proof
They wuz set up. Besana and Rodiel were in reality dismissed because of their union activities and not
because of their violation of a company rule against fights in the premises or during working hours. The
so-called violation of company rules having been brought about by the company itself, through the
recent employment of Reyes and Pacia who provoked the fight, the same cannot be regarded as a
ground to punish the said employees. Thus the dismissal of Besana and Rodiel [union officers]
constituted ULP.
...the true and basic inspiration for the employers act is derived from the employees 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 employers acts in discharging
employees were actually prompted by the employers improper interest in the affected employees union
affiliations and activities, even though the employer urged that his acts were predicated on economic
necessity, desire to give employment to more needy persons, lack of work, cessation of operations, refusal
to work overtime, refusal of non-union employees to work with union employees, seasonal lay-off, libelous
remarks against management, violation of company rules. (Rothenberg)
So plain from the record is the bad faith that attended the companys deliberate and calculated act of ULP
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. (Visayan Bicycle Mfg. v NLU, 1965)
Motive of employer may be used to prove ULP. The reason invoked by petitioners to justify the
cessation of corporate operations was alleged business losses. Yet, other than generally referring to the
financial crisis in 1998 and to their supposed difficulty in obtaining an export quota, interestingly, they
never presented any report on the financial operations of the corporation during the period before its
shutdown. Neither did they submit any credible evidence to substantiate their allegation of business
losses. Basic is the rule in termination cases that the employer bears the burden of showing that the
dismissal was for a just or authorized cause. Otherwise, the dismissal is deemed unjustified. Apropos

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this responsibility, petitioner corporation should have presented clear and convincing evidence of
imminent economic or business reversals as a form of affirmative defense in the proceedings before the
labor arbiter or, under justifiable circumstances, even on appeal with the NLRC.
All the evidence 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. (MeShurn Corp. v MeShurn Workers Union, 2005)
8.5.2Totality of Conduct Rule and Effect of Failure to Act
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 anti-union bias or because of their connection with an established collateral
plan of coercion or interference." (Insular Life Assurance Employees Assn v Insular Life Assurance
Co., 1971)
8.6 Enforcement, Remedies, and Sanctions
8.6.1Parties against Whom ULP Committed
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;
(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 the giving of financial or other support to it or its organizers or supporters;
(e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to
encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall
stop the parties from requiring membership in a recognized collective bargaining agent as a condition for
employment, except those employees who are already members of another union at the time of the signing of
the collective bargaining agreement. Employees of an appropriate 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;
(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being
about to give testimony under this Code;
(g) To violate the duty to bargain collectively as prescribed by this Code;
(h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any
issue in collective bargaining or any other dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations,
associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall
be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)
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;
(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
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employee on any ground other than the usual terms and conditions under which membership or continuation of
membership is made available to other members;
(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the
employees;
(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other
things of value, in the nature of an exaction, for services which are not performed or not to be performed,
including the demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorneys fees from employers as part of the settlement of any issue in
collective bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards,
representatives or agents or members of labor associations or organizations who have actually participated in,
authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)
Art. 212. Definitions.
(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.
Not just at firing, but also at hiring. Is the national interest in industrial peace less affected by
discrimination against union activity when men are hired [than when they are dismissed]? No.
Discrimination against union men at the time of hiring has been held to go against the right to selforganization and to collective bargaining. Such a policy is an inevitable corollary of the principle of freedom
of organization. Discrimination against union labor in the hiring of men is a dam to self organization at the
source of supply. The effect of such discrimination is not confined to the actual denial of employment; it
inevitably operates against the whole idea of the legitimacy of organization.
The text of the provision should be construed as imposing no obligation on the employer to favor union
members in hiring employees. He is as free to hire as he is to discharge employees. The statute does not
touch 'the normal exercise of the right of the employer to select its employees or to discharge them'. It is
directed solely against the abuse of that right by interfering with the countervailing right of self-organization.
So far as questions of constitutionality are concerned, there is 'no greater limitation in denying him ( the
employer) the power to discriminate in hiring, than in discharging'. (Phelps-Dodge Corp. v NLRB, 1941)
8.6.2Parties Liable for Acts
8.6.2.1 Employer
Art. 248. Unfair labor practices of employers. xxx
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. (As amended by Batas Pambansa Bilang 130, August 21, 1981)
Art. 212. Definitions.
(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.
Art. 288. Penalties. Except as otherwise provided in this Code, or unless the acts complained of hinge on a
question of interpretation or implementation of ambiguous provisions 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 than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos
(P10,000.00) or imprisonment of not less than 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 concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas
Pambansa Bilang 70)

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.

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Art. 290. Offenses. Offenses penalized under this Code and the rules and regulations issued pursuant thereto
shall prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from
accrual of such unfair labor practice; otherwise, they shall be forever barred.
8.6.2.2 Labor Organization
Art. 249. Unfair labor practices of labor organizations. xxx
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. (As amended by Batas Pambansa Bilang 130, August 21, 1981)
Arts. 288-290, supra.
8.6.3Prosecution and Prescriptive Period
8.6.3.1 Civil Aspect
Art. 247. Concept of unfair labor practice and procedure for prosecution thereof. 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, the civil aspects of all cases involving unfair labor practices, which may
include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative
relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall 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. xxx
Art. 290. Offenses. Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall
prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from
accrual of such unfair labor practice; otherwise, they shall be forever barred.
8.6.3.2 Criminal Aspect
Art. 247. Concept of unfair labor practice and procedure for prosecution thereof. 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. During the pendency of such
administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall
be considered interrupted: 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. (As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989)
Art. 290, supra.
The Criminal Side of the Coin. Before Batas Blg. 70 (An Act to Strengthen the Constitutional Right of
Workers to Self-Organization and Free Collective Bargaining and to Penalize Unfair Labor Practices Further
Amending for the Purpose Articles 244, 247, 249, 250, and 289 (Book V) OF the LC, approved 1 May 1980)
was enacted into law, ULPs were considered administrative offenses, and have been held akin to tort,
wherein damages are payable.
The criminalization of unfair labor practices has been explained as follows: [from the Explanatory Note for
BP 70]
"Our experience in the field of labor relations of the last four years, since the Labor Code took effect, has
shown that the change in concept of 'unfair labor practice' as outlined in Article 250 of the same, from
'penal' to 'administrative,' has brought more harm than good.
"Remedial legislative measures must, therefore, have to be instituted to effectuate the equal, desirable
balance between capital and labor, necessary to bring about a stable, but dynamic and just industrial
peace. Hence, these proposals to restore the penal concept of 'unfair labor practice' - although ,for a
speedy, faster disposition of the more immediate labor relations grievances arising therefrom, the civil
aspect of ULP complaints must still continue to be processed and resolved in mere administrative
proceedings - and to declare as unlawful all violations of the right of workers and employees to selforganization in order to provide adequate teeth for Article 289 to grind along implementation of the
declared State policy to encourage the growth of trade unions in the country. (CLLC EG Gochangco
Workers Union v NLRC, 1988)

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8.6.4Compromise
AFP-MBAI is guilty of ULP for dismissing 34 employees by reason of the suspension and/or abolition of
some of its operations. Under the law, an employer may close his business provided the same is done in
good faith and is due to causes beyond his control. However, it appears that the books of accounts and
other pertinent papers showed that the current or working capital ratio of the respondent Association is
more than the standard or average ratio. While a CBA was entered and executed between the parties
providing among others guaranteed security of tenure of employment, there is evidence which is
substantial that the Association, in entering into said CBA, did not have the honest intention of complying
with all the provisions thereof. The Board of Directors knew that the Office of the Insurance
Commissioner would stop the grant of the loans said investments being unlawful and in direct violation of
the Revised Administrative Code. Moreover, the feasibility study on the investment capability of the
Association before the signing of the CBA recommended among others: "Retain 70 personnel; provided
that 26 personnel out of the 70 personnel retained will be phased out within a period of two years." Upon
these facts already known to the Association prior to the signing and acknowledgment of the CBA, TC is
correct in holding that the ASso did not have the honest intention of complying with all the provisions
thereof. The fact that the Association actually terminated the services of the individual complainants 12
days after the acknowledgment of the contract by the parties without referring the matter of phasing out
or lay-off to the proper labor management committee, as well as the fact that the supposed guidelines
containing the criteria in the selection of those who were to be terminated was not presented to the
court despite requests therefor, are not disputed by the Association. Hence the termination of
employment of the individual complaints constitutes ULP.
19 complainants executed, signed and subscribed under oath documents entitled "Quitclaim and Complete
Release" 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. 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. (AFP Mutual Benefit Assn v AFP MBAI-EU, 1980)
No Compromise for ULP in general. The NLRC bared its bias for management by ruling that the
employees had waived their rights and claims. The waiver here only applied to other cases, and not in
this ULP case. Furthermore, these alleged waivers were not presented in the first instance; they cant be
introduced for the first time on appeal.
ULP cases, because of the public interest involved, are not subject to compromise. (CLLC EG Gochangco
Workers Union v NLRC, 1988)

Valid compromise lays the issue to rest. The legality of the strike was no longer open to litigation,
because the dispute or strike was settled when the company and the union entered into an agreement
where the private respondents agreed to accept all employees who by then, had not yet returned to
work. By acceding to the peaceful settlement brokered by the NLRC, the private respondents waived the
issue of the illegality of the strike.
The very nature of compulsory arbitration makes the settlement binding upon the parties. Clearly then,
the legality of the strike could no longer be reviewed by the Labor Arbiter, much less by the NLRC. The
agreement, after which the certified case was dismissed, conclusively disposed of the strike issue. Article
263(i): The decision in compulsory arbitration proceedings "shall be final and executory ten (10) calendar
days after receipt thereof by the parties."
The agreement entered into by the company and the union, moreover, was in the nature of a compromise
agreement, i.e., "an agreement between two or more persons, who, for preventing or putting an end to a
lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which everyone
of them prefers to the hope of gaining, balanced by the danger of losing." Thus, in the agreement, each
party made concessions in favor of the other to avoid a protracted litigation. While we do not abandon the
rule that "unfair labor practice acts are beyond and outside the sphere of compromises, the agreement
herein was voluntarily entered into and represents a reasonable settlement thus it binds the parties. On
this score, the Labor Code bestows finality to unvitiated compromise agreements:
Art. 227. Compromise agreements. - Any compromise settlement, including those involving labor
standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional
office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations
Commission or any court shall not assume jurisdiction over issues involved therein except in case of
noncompliance thereof or if there is prima facie evidence that the settlement was obtained through fraud,
misrepresentation or coercion.
The agreement in this case complies with the above requisites, forged as it was under authority of the
Labor Secretary, with representatives from both the union and the company signing the handwritten
agreement to signify their consent thereto. The company never alleged in its answer to the unions
complaint before the Labor Arbiter, nor in their complaint, that the workers did not comply with the
agreement. The binding effect of the agreement on the private respondents is thus unimpaired.

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The companys 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. (Reformist Union of RB Liner v NLRC, 1997)
8.6.5 Remedies and Sanctions
8.6.5.1 Civil Remedies
Art. 247. Concept of unfair labor practice and procedure for prosecution thereof. 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, the civil aspects of all cases involving unfair labor practices, which
may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other
affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall 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.
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. Such appeal may be entertained only on any of the following grounds:
a.

If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

b.

If the decision, order or award was secured through fraud or coercion, including graft and corruption;

c.

If made purely on questions of law; and

d.

If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury
to the appellant.

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.
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the
reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall
either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or
separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the
employer shall not stay the execution for reinstatement provided herein.
To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty,
including fines or censures, upon the erring parties.
In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an
answer not later than ten (10) calendar days from receipt thereof.
The Commission shall decide all cases within twenty (20) calendar days from receipt of the answer of the
appellee. The decision of the Commission shall be final and executory after ten (10) calendar days from receipt
thereof by the parties.
Any law enforcement agency may be deputized by the Secretary of Labor and Employment or the Commission in
the enforcement of decisions, awards or orders. (As amended by Section 12, Republic Act No. 6715, March 21, 1989)
Art. 279. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an
employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act
No. 6715, March 21, 1989)

Moral & exemplary damages may be awarded in ULP cases. Unfair labor practices violate the
constitutional rights of workers and employees to self-organization, 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. As the conscience of the
government, it is the Court's sworn duty to ensure that none trifles with labor rights. 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.
To warrant an award of moral damages, it must be shown that the dismissal of the employee was attended
to by bad faith, or constituted an act oppressive to labor, or was done in a manner contrary to morals,
good customs or public policy. (Nueva Ecija I Electric Cooperative v NLRC, 2000)
Posting of bond necessary to appeal judgment involving a monetary award, exception.
Indisputable is the legal doctrine that the appeal of a decision involving a monetary award in labor cases
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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 (Art. 223, LC). 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. 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. (Nueva
Ecija I Electric Cooperative v NLRC, 2000)
8.6.5.2 Penal Remedies
Art. 247. Concept of unfair labor practice and procedure for prosecution thereof. Unfair labor practices violate
the constitutional right of workers and employees to self-organization, 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 labor-management relations.
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.
x x x
Art. 288. Penalties. Except as otherwise provided in this Code, or unless the acts complained of hinge on a
question of interpretation or implementation of ambiguous provisions 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 than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos
(P10,000.00) or imprisonment of not less than 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 concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas
Pambansa Bilang 70)

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.
Art. 290. Offenses. Offenses penalized under this Code and the rules and regulations issued pursuant thereto
shall prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from
accrual of such unfair labor practice; otherwise, they shall be forever barred.

Part Nine Concerted Activities

9.1 Basis of Right to Engage in Concerted Activities
9.1.1Constitution
87C, Art. XIII, Section 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee
the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane
conditions of work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared
responsibility between workers and employers and the preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State
shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the
fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and
growth.
Consti grudgingly provides for right to strike. Although CA 103 recognizes, in a negative way, the
laborers' right to strike, it also creates all the means by which a resort thereto may be avoided, "because
a strike is a remedy essentially coercive in character and general in its disturbing effects upon the social
order and the public interests"; that "as the strike is an economic weapon at war with the policy of the
Constitution and the law, a resort thereto by laborers shall be deemed to be a choice of a remedy
peculiarly their own, and outside of the statute, and, as such, the strikers must accept all the risks
attendant upon their choice."

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The law does not look with favor upon strikes nad lockouts because of their disturbing and pernicious
effects upon the social order and the public interests; to prevent or avert them and to implement the
constl provision, the law has created several agencies: the BLR, DOLE, CIR, and the Labor-Management
Advisory Board. (Luzon Marine Dept. Union v Roldan, 1950)
Like most other rights, not absolute. The right to strike, while constitutionally recognized, is not
without legal restrictions. The LC regulates the exercise of said right by alancing the interests of labor
and management in the light of the overarching public interest. Thus Arts. 263(c) and (f) mandate the
procedural steps to be followed before a strike may be staged. These requirements are mandatory; noncompliance therewith makes the strike illegal. The evident intention of the law in these requirements is
to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy
objectives embodied in the law. (Stamford Marketing v Julian, 2004)
9.1.2Statutory
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
intra-union disputes.
A strike that is undertaken despite the issuance of the Labor Sec of an assumption or a certification order
becomes a prohibited activity and thus illegal. The Union officers and members are deemed to have lost
their employment status for having knowingly participated in an illegal act. But the NLRC was not
inclined to declare a wholesale forfeiture of employment status of all those who participated in the strike
because (1) there was inadequate service of the certification order and (2) there was no proof that the
employees were apprised of the order. Also applying the principle of vicarious liability, only the officers of
the union should be penalized with the loss of their employment status. While general membership may
have joined the strike at its inception, they returned to work and they did not abandon their job. The
circumstances of time and place of employment and the residences as well as the lack of notice to the
employees justify their failure to beat the deadline. While the resolution was published by the company,
the ordinary workers cannot be reasonably expected to be regular readers of the newspaper. And the
publication was made only once.
An employee who protests his lay-off cannot by any logic be said to have abandoned his work. A worker
who joins a strike does so precisely to assert or improve the terms and conditions of his employment. If his
purpose is to abandon his work, he would not go into the trouble of joining a strike. The right to strike is
one of the rights recognized and guaranteed by the Constitution as an instrument of labor for its protection
against exploitation against management. By virtue of this right the workers are able to press their
demands for better terms of employment with more energy and persuasiveness, poising the threat to strike
as their reaction to employers intransigence. The strike is indeed a powerful weapon of the working class.
But precisely because of this, it must be handed carefully, like a sensitive explosive, lest it blow up in the
workers hands. Thus it must be declared after a thoughtful consultation among them, conducted among
them, conducted in the only way allowed, that is, peacefully, and in every case conformably to reasonable
regulation. Any violation of the legal requirements and strictures such as defiance of the return-to-work
order in industries affected with public interest, will render the strike illegal, to the detriment of the very
workers it is supposed to protect. Even war must be lawfully waged. A labor dispute demands no less
observance of the rules, to the benefit of all concerned. (BLT Bus v NLRC, 1992)
The rules of engagement. The right to strike is one of the rights recognized and guaranteed by the
Constitution and the Labor Code as an instrument of labor for it provides protection against exploitation
by management. By virtue of this right, the workers are able to press their demands for better terms of
employment with more energy and persuasiveness. But precisely because of this, it must de declared
only after the most thoughtful consultation among them, conducted in the only was allowed that is,
peacefully, and in every case conformably to reasonable regulation. Any violation of the legal
requirements and will render the strike illegal to the detriment of the very workers it is supposed to
protect. Every war must be lawfully waged. (Lapanday Workers Union v NLRC, 1995)
Governing provisions. Under A263(c) and (f) may be found the requisites for a valid strike. 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.
The respondents cannot argue that since the notice of strike on November 16 were for the same grounds
as those contained in their notice of strike on September 27 which complied with the requirements of the
law on the cooling-off period, strike ban, strike vote and strike vote report, the strike staged by them on
November 16 was lawful. The matters contained in the notice of strike of September 27 had already been
taken cognizance of by the SOLE when he issued [his 3rd SQUAB] order. Despite the SOLE order, the union
nevertheless staged a strike on November 16 simultaneously with its notice of strike, thus violating Article
264(a). The acts of the hotel in barring the union officers from working, in terminating the employment of
Kristoffer So, and in informing the employees of its retrenchment program were not valid justifications for
the respondents to do away with the statutory procedural requirements for a lawful strike. Nor is the
respondents claim of good faith a valid excuse.
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A strike is the most preeminent of the economic weapons of workers which they unsheathe to force
management to agree to an equitable sharing of the joint product of labor and capital. But we also
emphasized that strikes exert some disquieting effects not only on the relationship between labor and
management, but also on the general peace and progress of society, not to mention the economic wellbeing of the State. It is a weapon that can either breathe life to or destroy the union and members in their
struggle with management for a more equitable due of their labors. Hence, the decision to wield the
weapon of strike must therefore rest on a rational basis, free from emotionalism, unswayed by the tempers
and tantrums of a few hotheads, and firmly focused on the legitimate interest of the union which should
not however be antithetical to the public welfare. In every strike staged by a union, the general peace and
progress of society and public welfare are involved. (Grand Boulevard Hotel v Genuine Labor
Organization, 2003)
9.1.3International Covenant on Economic, Social and Cultural Rights
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules
of the organization concerned, for the promotion and protection of his economic and social interests. No
restrictions may be placed on the exercise of this right other than those prescribed by law and which are
necessary in a democratic society in the interests of national security or public order or for the protection
of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to
form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and
which are necessary in a democratic society in the interests of national security or public order or for the
protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of
the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948
concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which
would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that
Convention.
9.1.4Limitations
Injunctions against strikes are valid, but should be minimized. The 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. In underdeveloped countries, however, where the economic crunch
continues to enfeeble the already marginalized working class, the importance of the right to strike
remains undiminished as indeed it has proved many a time as the only coercive weapon that can correct
abuses against labor. It remains as the great equalizer. In the Philippine milieu where social justice
remains more as 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. 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. [T]he constitutional recognition of the right to strike does serve as a reminder that injunctions
should be reduced to the barest minimum. (Bisig ng Manggagawa sa Concrete Aggregates v
NLRC, 1993)
The rules of engagement (repeat refrain). The strike is indeed a powerful weapon of the working
class. But precisely because of this, it must be handed carefully, like a sensitive explosive, lest it blow up
in the workers hands. Thus it must be declared after a thoughtful consultation among them, conducted
among them, conducted in the only way allowed, that is, peacefully, and in every case conformably to
reasonable regulation. Any violation of the legal requirements and strictures such as defiance of the
return-to-work order in industries affected with public interest will render the strike illegal, to the
detriment of the very workers it is supposed to protect. Even war must be lawfully waged. A labor
dispute demands no less observance of the rules, to the benefit of all concerned. (BLT Bus v NLRC,
1992)
Some of the limitations on the exercise of the right of strike are provided for in (c) and (f) of
Article 263. These procedural steps are mandatory in character. Undeniably, strikes exert some
disquieting effects not only on the relationship between labor and management but also on the general
peace and progress of society. Laws thus regulate their exercise within reasons by balancing the interests
of labor and management together with the overarching public interest. The strike is plainly illegal as it
was held within the seven day waiting period. The haste in holding the strike prevented the DOLE from
verifying whether it carried the approval of the majority of the union members. (Lapanday Workers
Union v NLRC, 1995)
9.2 Strike Activity
9.2.1Definition

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Art. 212. Definitions.

(o) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute.
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, thru concerted action, caused a temporary
stoppage of work as a result of an industrial dispute. Members of the petitioner union, along with other
employees particularly from the knitting department, joined in the picket. It is, thus, apparent that the
concerted effort of the members of the petitioner union and its supporters caused a temporary work
stoppage.
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.
(Bukluran ng Manggagawa sa Clothman Knitting Corp. v CA, 2005)
As the law defines it, a strike means only a "temporary stoppage of work. What the union
contemplated was evidently a permanent cut-off of employment relationship. The pilots' rank disregard
for the compulsory orders of the industrial court 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. Neither employers nor employees should be allowed to make of judicial authority a nowyouve-got-it-now-you-dont affair. (Airline Pilots Assn v CIR, 1977)
An employee has no inherent right to seniority. He has only such rights as may be based on a contract, a
statute, or an administrative regulation relative thereto [Trailmobile Co. vs. Whirls]. Seniority rights,
which are acquired by an employee through long-time employment, are contractual and not
constitutional. Hence, the discharge of such employee, thereby terminating such rights, would not violate
the Constitution [Wicks vs. Southern Pacific Co]. When the pilots tendered their respective retirement or
resignation and PAL immediately accepted them, both parties mutually terminated the contractual
employment relationship between them thereby curtailing whatever seniority rights and privileges the
pilots had earned through the years. Hence, contrary to petitioners' contention, loss of seniority rights
was not a penalty for their precipitate retirement or resignation. Rather, it was the expected
consequence of the acceptance of their retirement or resignation. 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. As they did not assume the status of strikers, their
"protest retirement/resignation" was not a concerted activity which was protected by law. Petitioners
cannot, therefore, validly claim that PAL committed an ULP because, having voluntarily terminated their
employment relationship with PAL, they were not dismissed.
The retirement/resignation of ALPAP members on December 12, 1970 was not a concerted activity
protected by law. 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.
(Enriquez v Zamora, 1986)
The demonstration was not a declaration of a strike as the same is not rooted in any
industrial dispute although there is a concerted act and the occurrence of a temporary
stoppage of work. It was against alleged abuses of some Pasig policemen, not against their employer
and so it was purely and completely an exercise of their freedom of expression in general and of their
right of assembly and of petition for redress of grievances in particular before the appropriate
governmental agency. They exercised their civil and political rights for their mutual aid and protection
from what they believe were police excesses. The strained construction of the CIR that stipulated
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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. The mass
demonstration could not have been legally enjoined by any court, for such an injunction would be
trenching upon the freedom of expression of the workers, even if it legally appears to be an illegal
picketing or strike. The company is the one guilty of ULP, for violating the employees right "to engage in
concerted activities for . . . mutual aid or protection." (Phil. Blooming Mills v PBM Employees
Organization, 1973)
A strike is "any temporary stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute." It is the most preeminent of the economic weapons of workers
which they unsheathe to force management to agree to an equitable sharing of the point product of
labor and capital. (Lapanday Workers Union v NLRC, 1995)
Beyond the statutory definition. Strike shall comprise not only concerted work stoppages, but also
slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage plant equipment and
facilities, and similar activities.
The basic elements of a strike are present in the case at bar. First, petitioners officers and members
numbering 167, in a concerted manner, did not report for work on May 20, 1994; second, they gathered in
front of respondents office at Pier 12, North Harbor at Manila to participate in a strike voting conducted by
petitioner; and third, such union activity was an aftermath of petitioners second notice of strike by reason
of respondents unfair labor practice/s. Clearly, what transpired then was a strike because the cessation of
work by petitioners concerted action resulted from a labor dispute, even though the union tries to argue
that it was merely a one-day work absence or a simple act of absenteeism. (Samahang
Manggagawa sa Sulpicio Lines v Sulpicio Lines, 2004)
9.2.2Nature and Purpose
Laborers weapon. 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 interests so require or when the court cannot promptly decide the case, the strikers
are ordered back to work. (Phil. Can v CIR, 1950)
9.2.3Effect on Work Relationship
No severance of employer-employee relationship during strike. 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 the worker ceased to be an
employee during the period when he was on strike, cannot be sustained. (Elizalde Rope Factory v SSC,
1962)
9.2.4Types, Changes, and Conversion
9.2.4.1 Types
9.2.4.1.1Unfair 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. (As amended by
Executive Order No. 111, December 24, 1986)

Conversion of a strike by the employer and by the strikers. The offer to return to work was not
unconditional. Its conditions for return were subjected to whatever the CIR might order, which includes
the payment of strike duration pay. Therefore, its invocation of the cases whose doctrines say refusal of

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the company to accept an unconditional offer of the strikers to return to work constitutes unfair labor
practice and which converts an illegal strike to a lawful one is erroneous.
If strikers act from an unlawful, illegitimate, unjust, unreasonable, or trivial ground, reason or motive,
even if they do so in good faith, and the Court of Industrial Relations so finds, the strike may be declared
illegal notwithstanding their good faith. (Luzon Stevedoring v CIR, 1966)
9.2.4.1.2Bargaining Deadlock Economic
Art. 263 (c). supra
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,1 and the
striking employees would 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.2 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 ULP strike.
The Company alleges that it was economic reasons, i.e., its policy of retrenchment, not labor
discrimination, which prevented it from rehiring complainants. This is disproved, however, by the fact that
it not only readmitted the other strikers, but also hired new employees and even increased the salaries of
its personnel by almost 50%. We are convinced that it was not business exigency but a desire to
discourage union activities which prompted the Company to deny readmittance to complainants. This is
an indubitable case of ULP.
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.
The Company further argues that since the methods used by the strikers were illegal, it had the right to
refuse them readmission. Of the 69 complainants, nine were charged with and convicted of various
crimes like coercion, malicious mischief, physical injuries, breach of the peace, light threats, and damage
to property, all committed during the period from September 4, 1954 to October 12, 1954. Admittedly,
the Company could not have condoned these acts which were committed after it had offered to reinstate
the strikers. Nevertheless, as the lower court reasoned out, it does not appear that the aforementioned
individual acts were authorized or even impliedly sanctioned by the Union. Hence, the other strikers who
were innocent of and did not participate in the illegal acts should not be punished by being deprived of
their right of reinstatement. It is only those who had been found guilty who should be penalized by the
loss of the right. (Consolidated Labor Assn v Marsman & Co., 1964)
9.2.4.2 Change in Type
(Consolidated Labor Assn v Marsman & Co., 1964, supra)
9.2.4.3 Non-Conversion Strike to Lockout
The strike cannot be converted into a pure and simple lockout by the mere expedient of filing
before the TC a notice of offer to return to work during the pendency of the labor dispute. The
law does not provide for a virtual lockout. But assuming, that the non- acceptance 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. (Rizal Cement Workers Union v CIR, 1962)
9.2.5Grounds
9.2.5.1 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. 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. (As amended by
Executive Order No. 111, December 24, 1986)

9.2.5.2 Prohibited Strikes

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
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mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to
lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor
union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.
(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the
dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or
certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified
in the assumption or certification order. If one has already taken place at the time of assumption or certification, all
striking or locked out employees shall immediately return-to-work and the employer shall immediately resume
operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The
Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to
ensure compliance with this provision as well as with such orders as he may issue to enforce the same.
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 locking-out
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. 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. 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. (Incorporated by Section 28, Republic Act No. 6715, March 21, 1989)
Not on wage distortions. Section 3 of RA 6727 prescribes a specific, detailed and comprehensive
procedure for the correction of wage distortions, thereby implicitly excluding strikes, lockouts, and
other collective activities as modes of settlement. 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. Sec 16, Chapter I: Wage distortions shall be first settled voluntarily by the parties and
eventually by compulsory arbitration. "Any issue involving wage distortion shall not be a ground for a
strike/lockout. " (Ilaw at Buklod ng Manggagawa v NLRC, 1991)
In defiance of assumption/certification. A263(c) and (f), the requisites for a valid strike: (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
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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.
The respondents cannot argue that since the notice of strike on November 16 were for the same grounds
as those contained in their notice of strike on September 27 which complied with the requirements of the
law on the cooling-off period, strike ban, strike vote and strike vote report, the strike staged by them on
November 16 was lawful. The matters contained in the notice of strike of September 27 had already
been taken cognizance of by the SOLE when he issued [his 3rd SQUAB] order. Despite the SOLE order,
the union nevertheless staged a strike on November 16 simultaneously with its notice of strike, thus
violating Article 264(a).
The acts of the hotel in barring the union officers from working, in terminating the employment of
Kristoffer So, and in informing the employees of its retrenchment program were not valid justifications for
the respondents to do away with the statutory procedural requirements for a lawful strike. Nor is the
respondents claim of good faith a valid excuse. (Grand Boulevard Hotel v Genuine Labor
Organization, 2003)
The BLR has jurisdiction to call for and conduct the election of officers of an employees association in
the public sector. EO 180: SEC. 16. The Civil Service and labor laws and procedures, whenever
applicable, shall be followed in the resolution of complaints, grievances and cases involving
government employees. Article 226 provides that the BLR has original and exclusive jurisdiction on
all inter-union and intra-union conflicts. An intra-union conflict would refer to a conflict within or inside
a labor union, and an inter-union controversy or dispute, one occurring or carried on between or among
unions. The subject of the case at bar, which is the election of the officers and members of the board of
KMKK-MWSS, is, clearly, an intra-union conflict, being within or inside a labor union. It is well within the
powers of the BLR to act upon. (Bautista v CA, 2005) [This case may have been mis-cited in the syllabus.
The word strike isnt even in it.]

9.2.5.3 No Strike Clause

To be invoked only in economic strikes. The right to strike is not absolute. It has heretofore been
held that a "no strike, no lock-out" provision in the 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 ULP. In this situation, it is not
essential that the ULP 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 warrant such a belief in good faith. (Panay Electric v
NLRC, 1995)
Invoking the No Strike Clause: Break Glass Only in case of Economic Strike. One reason why
the Labor Arbiter erroneously declared the strike illegal is due to the existence of a no strike no lockout
provision in the CBA. 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 ULP, as
was the honest belief of herein petitioners. (Malayang Samahan ng mga Manggagawa sa
Greenfield v Ramos, 2000)
9.2.6Striking 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
intra-union 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. 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. (As amended by
Executive Order No. 111, December 24, 1986)

9.2.7Procedural Requirements
9.2.7.1 Effort [to] Bargain
Art. 264. Prohibited activities.

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(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. 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;

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. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)

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, 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.
9.2.7.2 Filing of Notice [of] Intention
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. (As amended by
Executive Order No. 111, December 24, 1986)

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.

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
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sufficient ground for termination of his employment, even if a replacement had been hired by the employer during
such lawful strike.
9.2.7.3 Observance [of] Cooling-Off Period
Arts. 263 (c) and (e). supra
9.2.7.4 Conduct of Vote and Period of Validity
Art. 263. Strikes, picketing and lockouts.
(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. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and further amended by Executive Order No. 111, December 24, 1986)
Art. 264(a). supra
Only one strike vote per strike please. The respondents cannot argue that since the notice of
strike on November 16 were for the same grounds as those contained in their notice of strike on
September 27 which complied with the requirements of the law on the cooling-off period, strike ban,
strike vote and strike vote report, the strike staged by them on November 16 was lawful. The matters
contained in the notice of strike of September 27 had already been taken cognizance of by the SOLE
when he issued [his 3rd SQUAB] order. Despite the SOLE order, the union nevertheless staged a strike
on November 16 simultaneously with its notice of strike, thus violating Article 264(a). (Grand
Boulevard Hotel v Genuine Labor Organization, 2003)
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, it must be pursued within
legal bounds. One of the procedural requisites 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 the strike illegal. (San Miguel Corp. v
NLRC, 2003)
The strike was illegal for being conducted without the requisite strike vote. The
requirements under 263 are mandatory and failure of a union to comply renders the strike illegal.
DUCACOFSA-NAFTEU failed to prove that it obtained the required strike-vote among its members and
that the results thereof were submitted to the DOLE. (Piero v NLRC, 2004)
Going On Strike for Dummies. The Implementing Guidelines of Arts. 263(c) and (f) and 264(a):
1.

A strike shall be filed with the DOLE 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 CBL, 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.

Such requirements as the filing of a notice of strike, strike vote, and notice given to the Department of
Labor are mandatory in nature. Likewise, 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. The union insists that the strike can still be declared legal for it was done in good faith,
being in response to what its officers and members honestly perceived as unfair labor practice or union
busting committed by the company. But there is no proof. It is not enough that the union believed that
the employer committed acts of unfair labor practice when the circumstances clearly negate even a
prima facie showing to warrant such a belief. (Samahang Manggagawa sa Sulpicio Lines v
Sulpicio Lines, 2004)
Going On Strike for Dummies II. 2nd paragraph of Section 10, Rule XXII of the Omnibus Rules of the
NLRC: 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 of the Board and notice of meetings referred to in the preceding paragraph at least

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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.
Although the second paragraph of Section 10 of the said Rule is not provided in the Labor Code,
nevertheless, the same was incorporated in the Omnibus Rules 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 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.
The notices required by Article 263 of the Labor Code and the Implementing Rules:
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. []

4)

Before a strike is actually commenced, a strike vote should be taken by secret balloting, with a 24hour prior notice to NCMB. The decision to declare a strike requires the secret-ballot 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 cooling-off 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 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 seven-day
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 members.
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.
Article 264 of the Labor Code and Section 7, Rule XXII of the Omnibus Rules: 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. (Capitol Medical Center v NLRC, 2005)
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 strike-vote 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 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. (Bukluran ng Manggagawa sa Clothman Knitting Corp. v CA, 2005)
9.2.8Test of Legality
9.2.8.1 Legal Strikes
9.2.8.1.1Purpose and Means Test
In a Nutshell. In cases not falling within the prohibition against strikes, the legality or illegality of a
strike depends first, upon the purpose for which it is maintained, and, second, upon the means
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employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by means of
a strike is trivial, unreasonable, or unjust, or if in carrying on the strike the strikers should commit
violence or cause injuries to persons or damage to property, the strike, although not prohibited by
injunction, may be declared by the court illegal with the adverse consequences to the strikers.
(Luzon Marine Dept Union v Roldan, 1950; Phil. Marine Officers Guild v Cia. Maritima,
1968)
Illegality of strikes not dependent on WON the demand of the laborers may not be
granted. The Union sent a letter to the Company, containing 14 demands. The Union also gave the
manager of the Company 48 hours to decide on the demands, with the admonition that the Union
would declare a strike. These demands, if granted, would certainly tend to improve the conditions of
the laborers and employees affected, and cannot be said to be trivial, much less illegal. But whether
the same are unreasonable or unjust is a matter to be decided after proper consideration. If said
demands cannot be granted for being unjust or unreasonable, the only consequence should "be their
rejection and not the punishment of the workers who presented them." To make the legality or
illegality of strikes dependent solely on whether the demands of laborers may or may not be granted
is in effect to outlaw altogether an effective means for securing better working conditions. (Caltex
v Phil. Labor Organizations, 1953)
Thou shalt not kill. In this jurisdiction, acts of violence in carrying on a strike are not so easily
overlooked in the determination of its legality or illegality. To overlook them "would encourage
abuses and terrorism and, would subvert the very purpose of the law which provides for arbitration
and peaceful settlement of disputes." This Court has repeatedly frowned upon the use of unlawful
means in carrying out a strike. (Phil. Marine Officers Guild v Cia. Maritima, 1968)
Illegalizing Strikes for Dummies! Step One: Ignore the LAs return to work order. The
strike was not legal. UFE attempted to absolve itself by pointing to its motives, good faith, absence
of findings on specific participation and/or liability, and that the non-strike provision applies only to
economic strikes. However, UFE completely missed 264 (g)s underlying principle. The orders and
certifications given under 264(g) are executory and should be strictly complied with, for 264 aims for
a speedy and peaceful resolution of disputes. Thus, regardless of their motives, or the validity of
their claims, they should have immediately obeyed the LAs return to work orders and cease-anddesist-from-striking decrees. A return to work order issued during the pendency of the determination
of a strikes legality can be enforced WON the strike is legal. The RTWO is also a duty; it is a matter
of obligation. So, because the strike was still undertaken despite the assumption and orders of the
Secretary, it became a prohibited activity and thus illegal, pursuant of Art. 264. (Union of Filipro
Employees v Nestl Phils., 1990)
Good Morals and Right Conduct please. There is no dispute that the strike in question was
illegal, for failure of the striking personnel to observe legal strike requirements, to wit: (1) as to the
fifteen-day notice; (2) as to the two-thirds required vote to strike done by secret ballot; (3) as to
submission of the strike vote to the Department of Labor at least seven days prior to the strike.
Certain strikers harassed non-striking employees, called company officers names, and committed acts
of violence (as a result of which, criminal charges were brought with the fiscal's office.) There is no
question, finally, that the strike itself was prompted by no actual, existing ULP committed by company.
In effecting a change in the seating arrangement in the office of the underwriting department, the
petitioner merely exercised a reasonable prerogative employees could not validly question, much less
assail as an act of unfair labor practice. The Court is indeed at a loss how rearranging furniture, as it
were, can justify a four-month-long strike.
The private respondents can not find sanctuary in the cases of Ferrer v. CIR and Almira v. BF Goodrich
in which we affirmed reinstatement in spite of an "illegal" strike. In the first place, neither Ferrer nor
Almira involved an illegal strike. What was involved in Ferrer was a defective strike, that is, one
conducted in violation of the thirty-day "cooling-off' period, but one carried out in good faith "to offset
what petitioners were warranted in believing in good faith to be ULP [committed by] Management."
What Almira on the other hand declared was that a violent strike alone does not make the action
illegal, which would justify the dismissal of strikers. It is therefore clear that we ordered reinstatement
in both cases not in spite of the illegality of the strike but on the contrary, because the same was
"legal", that is to say, carried out in good faith. We can not apply, either, the ruling in Bacus v. Ople,
where we held that the mere finding of illegality attending a strike does not justify the "wholesale"
dismissal of strikers who were otherwise impressed with good faith.
The Court must not be understood to be abandoning the teachings of either Ferrer, Almira, or Bacus.
The Court reiterates that good faith is still a valid defense against claims of illegality of a strike. We do
find, however, not a semblance of good faith here, but rather, plain arrogance, pride, and cynicism of
certain workers. (Reliance Surety & Insurance Co. v NLRC, 1991)
For employees and employers alike. Among the rights guaranteed to employees by the Labor
Code is that of engaging in concerted activities in order to attain their legitimate objectives. 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

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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. (Ilaw at Buklod ng Manggagawa v NLRC, 1991)
Even if the strike is valid because its objective or purpose is lawful, the strike may still be
declared invalid where the means employed are illegal. Loss of employment could not be
attributed to the employers refusal to give them work but rather, to the voluntary withdrawal of
their services in order to compel the company to recognize their union. The strike was illegal
because the strikers committed illegal acts and they violated the TRO. To be valid, a strike must be
pursued within legal bounds. The right to strike as a means for the attainment of social justice is
never meant to oppress or destroy the employer. (Assn of Independent Unions v NLRC, 1999)
Notice of strike please. 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, it must be pursued within legal bounds. One of the procedural requisites 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 the strike
illegal. (San Miguel Corp. v NLRC, 2003)
The effect of the strikes purpose converting to another and of violence on both sides.The
strike here was legal. The Labor Arbiter (erroneously) held that the strike was illegal for the following
reasons: (1) it was based on an intra-union dispute (2) it was made in violation of the "no strike, no
lock-out" clause in the CBA (stated above), and (3) it was attended with violence, force and
intimidation.
On the first reason, that is, the intra-union conflict between the federation and the local union, it bears
reiterating that when the company dismissed the union officers, the issue was transformed into a
termination dispute and brought the company into the picture. Petitioners believed in good faith that in
dismissing them upon request by the federation, the company was guilty of ULP. The strike was staged
to protest the act of dismissing the union officers. Even if the allegations of ULP are subsequently
found out to be untrue, the presumption of legality of the strike prevails.
On the allegation of violence committed in the course of the strike, it must be remembered that the
Labor Arbiter and the Commission found that "the parties are agreed that there were violent incidents
resulting to injuries to both sides, the union and management." Evidence shows that the violence
cannot be attributed to the striking employees alone for the company itself employed hired men to
pacify the strikers. With violence committed on both sides, the management and the employees, such
violence cannot be a ground for declaring the strike as illegal. (Malayang Samahan ng mga
Manggagawa sa Greenfield v Ramos, 2000)
9.2.8.1.2Guidelines and Balancing of Interest
Balancing of interest; liability in case of violence in a strike is individual, not collective. A
strike otherwise valid, if violent in character, may be placed beyond the pale. Care is to be taken,
however, especially where an unfair labor practice is involved, to avoid stamping it with illegality just
because it is tainted by such acts. To avoid rendering illusory the recognition of the light 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.
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.
Serious acts of violence occurring in the course of the strike could be made the basis for holding
responsible a leader or a member of the Union guilty of their commission. (Shell Oil Workers Union
v Shell, 1971)
Termination of employment relationship, not an automatic result of illegal strike. 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.

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This is all that needs to be said except to remind petitioners that 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 negate 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. (Almira v BF Goodrich,
1974)
9.2.8.1.3Defenses Good Faith ULP
Good faith is not always a shield. The right to strike for mutual aid or protection is not absolute.
It comes into being and is safeguarded by law if and when the act or acts intended to render mutual
aid or protection to affiliates of a labor union arise from a lawful ground, reason or motive. If the
motive be lawful, any act that would tend to give such mutual aid or protection should and must be
protected and upheld. But if the motive that had led members of a labor union or organization to
stage a strike, even if they had acted in good faith, if in staging it they be unlawful illegitimate,
unjust, unreasonable or trivial, and the CIR finds it so, then the strike may be declared illegal.
(Interwood Employees Assn 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 ULP 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. The dismissal of
Coronel which allegedly triggered the wildcat strike was not a sufficient ground to justify that radical
recourse on the part of the Junta members. The dismissal was legal and was not a case of ULP but a
mere exercise of management prerogative on discipline, the validity of which could have been
questioned through the filing of an appropriate complaint and not through the filing of a notice of
strike or the holding of a strike. (Natl Union of Workers at Hotels, Restaurants and Allied
Industries v NLRC, 1998)
A strike does not automatically carry the stigma of illegality even if no ULP was
committed if such a belief in good faith is entertained by labor as the inducing factor for
the strike. The notice of strike was filed only after the union members lost hope for the redress and
they honestly believed that they were discriminated against, since the company practice in the past
was to grant salary increases to all employees. They complied with the legal requirements before
going on strike. The presumption of legality prevails even if the allegation of ULP is subsequently
found to be untrue, provided that the union and its members believed in good faith in the truth of
such averment. There should also be no automatic verdict of illegality on the strike conducted, even
if there was a strike prohibition in the CBA. Furthermore, the strike was peaceful and orderly. (PNOC
Dockyard v NLRC, 1998)
9.2.8.2 Illegal Strikes
9.2.8.2.1Basis 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
intra-union 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. 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. (As amended by
Executive Order No. 111, December 24, 1986)

Art. 264. Prohibited activities.

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(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. (Incorporated by Section 28, Republic Act No. 6715, March 21, 1989)
When the SOLE says you go back to work, you go back to work, bitchez. The provisions of
law which govern the effects of defying a return-to-work order are Arts. 263(g) and 264(a). The SC
has recently emphasized strict adherence to the rule that defiance of the return-to-work order
(RTWO) of the Secretary of Labor would constitute a valid ground for dismissal. The respective
liabilities of striking union officers and members who fail to immediately comply with the RTWO are
clearly spelled out in Article 264. Any worker or union officer who knowingly participates in a strike
defying a RTWO may as a result thereof be considered to have lost his employment status.
A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification
order becomes a prohibited activity and thus, illegal, pursuant to Article 264 (a). Moreover, the union
officers and members who have participated in the said illegal activity, are, as a result, deemed to
have lost their employment status. [A]ssumption and certification orders are executory in character
and are to be strictly complied with by the parties even during the pendency of any petition
questioning their validity. This extraordinary authority given to the Secretary of Labor is aimed at
arriving at a peaceful and speedy solution to labor disputes, without jeopardizing national interests.
Regardless therefore of their motives, or the validity of their claims, the striking workers must cease
and/or desist from any and all acts that tend to, or undermine this authority of the Secretary of Labor,
once an assumption and/or certification order is issued. They cannot, for instance, ignore return-towork orders, citing unfair labor practices on the part of the company, to justify their actions.
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 on 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 the activities inimical to their
employer's interest.
[T]he 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 discharges 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. 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."
Abandonment of work as a ground to dismiss under Article 282 (b) should not be confused with
abandonment of work under the law on strike, particularly those provided in Article 263 (g) and Article
264 (a). The former cannot be validly invoked in dismissals resulting from a striker's defiance of a
DOLE Secretary's assumption order so clearly spelled out in Article 263 (g), much less as a defense
against the ban on strikes after assumption of jurisdiction by the MOLE.
Furthermore, as non-compliance with an assumption or certification order is considered as an illegal act
committed in the course of a strike, the MOLE is authorized to impose such sanctions as may be
provided for by law which may include the hiring of replacements for workers defying the order.
Strikers who fail, without proper justification, to report for work assignment despite the issuance of the
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orders reinstating them to their jobs are deemed to have forfeited their right to reinstatement. (Allied
Bank v NLRC, 1996)
Slowdowns not allowed either. It is evident from the CBA provision that the working hours may
be changed, at the discretion of the company, should such change be necessary for its operations,
and that the employees shall observe such rules as have been laid down by the company. LA found
that company had to adopt a continuous 24-hour work daily schedule by reason of the nature of its
business and the demands of its clients. It was established that the employees adhered to the said
work schedule for 5 yrs already hence they are deemed to have waived the eight-hour schedule
since they followed, without any question or complaint, the two-shift schedule while their CBA was
still in force and even prior thereto. The two-shift schedule effectively changed the working hours
stipulated in the CBA. They cannot now be heard to claim that the overtime boycott is justified
because they were not obliged to work beyond eight hours. The union members unjustified
unilateral alteration of the 24-hour work schedule thru their concerted activities of "overtime
boycott" and "work slowdown" to force the petitioner company to accede to their unreasonable
demands can be classified as a strike on an installment basis. It is thus undisputed that members of
the union by their own volition decided not to render overtime services. More importantly, the
overtime boycott or work slowdown by the employees constituted a violation of their CBA, which
prohibits the union or employee, during the existence of the CBA, to stage a strike or engage in
slowdown or interruption of work. (Interphil Laboratories Employees Union v Interphil
Laboratories, 1998)
Non-compliance with procedural reqts = illegal strike. The results of the strike-vote were
never forwarded to the NCMB, as attested to by a Certification of Non-Submission of Strike Vote
issued by the NCMB. Without the submission of the results of the strike-vote, the strike was illegal,
pursuant to Article 264. (Samahan ng mga Manggagawa sa Moldex Products v NLRC, 2000)
9.2.8.2.2Effect of Illegality
Fired. A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption
or certification order becomes a prohibited activity and thus illegal. The Union officers and members,
as a result, are deemed to have lost their employment status for having knowingly participated in an
illegal act. (Grand Boulevard Hotel v Genuine Labor Organization, 2003)
Effect of illegality was that the Foundation was justified in terminating the employment
of the union officers. Despite the receipt of an order from then Secretary 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. (San Juan de Dios v
San Juan de Dios, 2004)
While the right to strike is specifically granted by law, it is a remedy which can only be availed of by
a LLO. Absent a showing as to the legitimate status of the LO, said strike would have to be
considered as illegal. A review of the records of this case does not show that the local union to which
complainants belong to has complied with these basic requirements necessary to clothe the union
with a legitimate status. In fact, and as respondents claim, there is no record with the BLR that the
union complainants belong to have complied with the aforementioned requirements. This Office
then has no recourse but to consider the union of complainants as not being a LLO. It then follows
that the strike conducted by complainants on respondent companies is illegal, as the right to strike is
afforded only to a LLO. (Stamford Marketing v Julian, 2004)
9.2.8.2.3Employment of Strike Breakers
Art. 264. Prohibited activities.
(c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.
Art. 212. Definitions.
(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 self-organization or collective bargaining.
9.2.8.2.4Runaway Shop
Indiscretion of union in filing the notice of strike was not the proper remedy to question the
amount of benefits due to employees who will be retrenched since the right should only be a
remedy of last resort and must not be used as a show of force against the employer. A
runaway shop is defined as an industrial plant moved by its owners from one location to another to
escape union labor regulations or state laws, but the term is also used to describe a plant removed to a
new location in order to discriminate against employees at the old plant because of their union activities.
Ionics was not set up merely for the purpose of transferring the business of Complex since at the time
the labor dispute arose, Ionics was already existing as an independent company. The lockout was
justified, since there was a complete cessation of the business operations not because of the labor
dispute but because of the customers pull-out of their equipment since they were already alarmed by
the pending labor dispute and imminent strike to be stage by the laborers. (Complex Electronics
Employees Assn v NLRC, 1999)

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9.2.8.2.5Burden of Economic Loss

No back pay for voluntary strikers. Discriminatorily dismissed employees receive back pay from
the date of the act of discrimination, that is from the day of their discharge. In contrast, the rest of
the employees here 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.
"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 ease, 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, their offer was conditional. It 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.
(Cromwell Comml Employees and Laborers Union v CIR, 1964)
No backpay in an economic strike. In an economic strike, the strikers are not entitled to
backpay, since the employer should get the equivalent days work for what he pays his employees.
During the time that the strike was an economic one, complainants had no right to backpay. The
Court could not have made a finding of ULP with regard such time, as none had so far been
committed. This being a ULP case, it cant therefore, order reinstatement much less backpay for that
period. (Consolidated Labor Assn v Marsman & Co., 1964)
Employer not automatically liable for backpay even after a finding of ULP. On the other
hand, even after the court has made a finding of ULP, it still has the discretion whether or not to
grant backpay. Such discretion was not abused when it denied backwages 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 one in order to preserve peace.
(Consolidated Labor Assn v Marsman & Co., 1964)
A fair days wage for a fair days labor is the age-old rule governing the relation between
labor and capital or management and employee. If there is no work performed by the employee
there can be no wage or pay, unless of course the laborer was able, willing and ready to work but
"was illegally locked out, dismissed or suspended. It is hardly fair or just for an employee or laborer
to fight or litigate against his employer on the employer's time."
In this case, the failure to work on the part of the members of the 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." (SSS v SSS Supervisors Union, 1982)
Condonation by employer limited to returning employees. Condonation by the employer
applies only to those who expressed intent to return. This is only logical and reasonable, and
promotes industrial peace. In this case, the 114 employees didnt express willingness to return, so
they were not pardoned by the employer, who is free to pursue its case against them.
Since there was indeed an illegal strike, the 114 workers who participated are liable for termination.
But there was also illegal lockout, so the same 114 are also subject to reinstatement.
The Company argues that its condonation operated as forgiveness also of its lockout, which even binds
the 114 workers. The SC disagreed, because those who returned acted for themselves.
As stated, the two parties were in pari delicto and a restoration of the status quo is in order. They
should be restored to that time before the Feb 12 walkout/strike occurred. But the 114 strikers
shouldnt be granted backwages, as an illegal strike occurred. No work, no pay. (Phil. Interfashion
v NLRC, 1982)
No backpay for impatient strikers. The 7-day waiting period is intended to give the DOLE an
opportunity to verify whether the projected strike really carries the imprimatur of the majority of the
union members. The strike here is plainly illegal as it was held within the 7-day waiting period. The
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penalty of dismissal is limited only to the leaders of the illegal strike especially the officers of the
union who served as its major players. They cannot claim good faith to exculpate themselves. They
admitted knowledge of the law on strike, including its procedure. They cannot violate the law which
ironically was cast to promote their interest. The union members who were merely instigated to
participate in the illegal strike should be treated differently from their leaders. Part of our benign
consideration for labor is the policy of reinstating rank-and-file workers who were merely misled in
supporting illegal strikes. Nonetheless, these reinstated workers shall not be entitled to backwages
as they should not be compensated for services skipped during the illegal strike. (Lapanday
Workers Union v NLRC, 1995)
9.2.8.2.6Improved 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. (Incorporated by Section 28, Republic Act No. 6715, March 21, 1989)
9.3 Picketing
9.3.1Definition > Bases
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
intra-union disputes.
87C, Art. III, Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of grievances.
9.3.2Nature and Purpose of Picket Line
A strike is essentially a battle waged with economic weapons, and the heated altercations
and occasional blows exchanged on the picket line do not affect or diminish the right to
strike. Being where the law expects them to be in the legitimate exercise of their rights, they had
every reason to defend themselves and their rights from any assault or unlawful transgression. The
police blotter attests that they did not resort to violence. Engaged in it are human beings whose
feelings are stirred to the depths. Violence of this nature, however much it is to be regretted, must
have been in the contemplation of the Congress and nothing therein should be construed so as to
interfere with or impede or diminish in any way the right to strike. If this were not so, the rights would
indeed be illusory. Even assuming that the acts were transgressions of law, they amount only to mere
ordinary misdemeanors and are not a bar to reinstatement. (Insular Life Assurance Employees
Assn v Insular Life Assurance Co., 1971)
Magpapansin. 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. The statutory command on picketing likewise calls
for a similar declaration. 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 precludes the
issuance of such a blanket prohibition as that imposed in the challenged order of respondent Judge.
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. (Security Bank Employees Union v Security Bank, 1968)
Prohibition only against illegal picketing. The second and last question which we have to consider
is the blanket prohibition against picketing in any guise or form contained in the order of February 21,
1947. The prohibition should be understood to cover only illegal picketing, that is, picketing through the
use of illegal means. Peaceful picketing cannot be prohibited. It is part of the freedom of speech
guaranteed by the Constitution. Therefore, the order of the Court of Industrial Relations prohibiting
picketing must be understood to refer only to illegal picketing, that is, picketing through the use of
illegal means. (Mortera v CIR, 1947)
Peaceful picketing phase of freedom of speech, BUT... 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

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constitution. If peacefully carried out, it can not be curtailed even in the absence of employer-employee
relationship.
The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an
exercise of free speech, 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. (PAFLU v Cloribel, 1969)
9.3.3Picketing and Libel Laws
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Peaceful picketing does not offend libel laws. If the matter were viewed solely from what appeared in
the placards, there is an element of plausibility in the assertion that while it was aimed at PNB, the way it
was worded could reflect on a stranger to the controversy, PCIBank. It is understandable if there were an
affront to the sensibilities of its officials. They were right to guard its reputation earned after many years of
laudable and creditable performance in the field of banking. It is, however, precisely because of its welldeserved reputation that what could at first glance be, for the most fastidious, hurtful to its prestige could, if
viewed with calmness and objectivity, be considered as lacking in libelous imputation.
Moreover, 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. Peaceful picketing is part of the freedom of speech
guaranteed by the Constitution.
Labor disputes give rise to strong emotional response; and it is a fact of industrial life that in the
confrontations between labor and management, the use of courteous and polite language would be unlikely.
Such being the case, there is no affront either to reason or to the law in the complaint for libel being
dismissed. (PCIBank v Philnabank Employees Assn, 1981)
9.3.4Employer-Employee Relationship
The acts of the defendants complained of in this case, which consisted only in walking slowly and
peacefully back and forth on the public sidewalk in front of the premises of the Dalisay Theater and
displaying placards publicizing the dispute between the theater and the management and the
picketeers, were not such as to disturb the public peace at the place. There was no clear and present
danger of destruction to life of property or of other forms of breach of the peace.
After defendants were dismissed or laid off from their work at the old Dalisay Theater by the Filipino
Theatrical Enterprises, Inc., the showhouse came under a totally different management when it was
reopened. There was no existence of a relationship of employees between plaintiffs and defendants,
although defendants purpose in picketing plaintiffs was for the defendants' reinstatement of their services
in the new Dalisay Theater under the new Management. Picketing peacefully carried out is not illegal
even in the absence of employer-employee relationship for peaceful picketing is a part of a freedom of
speech guaranteed by the Constitution. (De Leon v NLU, 1957)
Picketing is part of the freedom of speech guaranteed by the Constitution, and if peacefully
carried out is not illegal even in the absence of an employer-employee relationship. In this
case, the workers intention was not legitimate, and picketing aimed at accomplishing an unlawful
purpose may be enjoined by the courts. Nonetheless, the writs of injunction did not fulfill the legal
prerequisites for the issuance thereof. (Cruz v Cinema Stage, 1957)
9.3.5Curtailment
Only as to illegal picketing. Peaceful picketing cannot be restrained because the same is part of the
freedom of speech. [But in an earlier case] where the therein questioned order partly declared that ". .
. picketing under any guise and form is hereby prohibited . . .," the order was held 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 union and its officers, agents or sympathizers "are hereby directed
to call off the strike... 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. (Free Telephone Workers Union v
PLDT, 1982)
Peaceful picketing part of freedom of speech. The wholesale condemnation of peaceful picketing
is likewise clearly bereft of support in law. "It need not be stressed that peaceful picketing is embraced
in freedom of expression. '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.' In Associated Labor Union v. Gomez, the Court characterized the orders
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complained of as being 'fatally defective, suffering as it did from the infirmity that peaceful picketing
was enjoined.' It is in that sense that Presidential Decree No. 849 was a step in the right direction for
the status of picketing was again accorded due recognition. (Nagkakaisang Manggagawa sa
Cuizon Hotel v Libron, 1983)
9.3.6Restrictions, Innocent 3rd Party Rule and Liabilities
Right to picket subject to regulation by the court. 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. (Liwayway Publishing
v Permanent Concrete Workers Union, 1981)
Regulation of picketing right: Innocent Bystander Rule. The right to picket is not absolute.
While peaceful picketing is entitled to protection as an exercise of free speech, the courts have the
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.
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.
Here, MSF cannot be said not to have such connection to the dispute. 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 MSF, cant be ignored. 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 the
land on which the plant stood. This together with the fact that the the same plant or factory was used,
and similar or substantially the same working conditions exist, and the same machinery, tools, and
equipment; and manufacture the same products as Philtread: MSF is so closely linked to Philtread that it
is not entitled to an injunctive writ. (MSF Tire & Rubber Inc. v CA, 1999)
9.3.7Prohibited Activities Peaceful Picketing
Art. 264. Prohibited activities.
(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 bargaining, or shall aid or abet such obstruction or interference.
9.4 Role of Peace Officers during Strikes and Picketing
9.4.1Escorting
Art. 264. Prohibited activities.
(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. (As amended
by Executive Order No. 111, December 24, 1986)

9.4.2Arrest and Detention of Law Violators

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.

Part Ten Labor Injunction

10.1 Definition and Nature
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
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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 that the complaint alleges facts which appear to be sufficient to constitute a
proper basis for injunction and that on the entire showing from the contending parties, the injunction is
reasonably necessary to protect the legal rights of the plaintiff pending the litigation. Injunction is also a
special equitable relief granted only in cases where there is no plain, adequate and complete remedy at law.
In labor cases, Article 218 and Sec. 1, Rule XI of the New Rules of Procedure of the NLRC pertinently provide
for the the power of the NLRC to issue an injunctive writ which 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."
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. 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. (PAL v NLRC, 1998)
10.2 General Rule Prohibition
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 Articles
218 and 264 of this Code. (As amended by Batas Pambansa Bilang 227, June 1, 1982)
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 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 has no adequate remedy at law; and

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 acts have been threatened or committed,
charged with the duty to protect complainants property: Provided, however, that if a complainant shall also allege
that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to
complainants property will be unavoidable, such a temporary restraining order may be issued upon testimony
under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after
notice. Such a 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 attorneys 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 entered 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

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witnesses and shall submit thereafter his recommendation to the Commission.

(As amended by Section 10, Republic Act No. 6715, March 21,

1989)

Art. 212. Definitions.

a.

"Commission" means the National Labor Relations Commission or any of its divisions, as the case may be, as
provided under this Code.

b.

"Bureau" means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional offices
established under Presidential Decree No. 1, in the Department of Labor.

c.

"Board" means the National Conciliation and Mediation Board established under Executive Order No. 126.

d.

"Council" means the Tripartite Voluntary Arbitration Advisory Council established under Executive Order No.
126, as amended.

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.

h.

"Legitimate labor organization" means any labor organization duly registered with the Department of Labor and
Employment, and includes any branch or local thereof.

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.

j.

"Bargaining representative" means a legitimate labor organization whether or not employed by the employer.

k.

"Unfair labor practice" means any unfair labor practice as expressly defined by the Code.

l.

"Labor dispute" 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.

m. "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.
Supervisory employees are those who, in the interest of the employer, effectively recommend 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-andfile employees for purposes of this Book.
n.

"Voluntary Arbitrator" means any person accredited by the Board as such or any person named or designated in
the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator, or one chosen with or
without the assistance of the National Conciliation and Mediation Board, pursuant to a selection procedure
agreed upon in the Collective Bargaining Agreement, or any official that may be authorized by the Secretary of
Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the parties to
a labor dispute.

o.

"Strike" means any temporary stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute.

p.

"Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or labor
dispute.

q.

"Internal union dispute" includes all disputes or grievances arising from any violation of or disagreement over
any provision of the constitution and by laws of a union, including any violation of the rights and conditions of
union membership provided for in this Code.

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 self-organization or collective bargaining.

s.

"Strike area" means the establishment, warehouses, depots, plants or offices, including the sites or premises
used as runaway shops, of the employer struck against, as well as the immediate vicinity actually used by
picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. (As amended
by Section 4, Republic Act No. 6715, March 21, 1989)

General Rule: No injunction issued against any strike. Rationale: (1) The scheme in RA875 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. (2) The prohibition is
also designed to give labor a comparable bargaining power with capital and must be liberally construed to
that end. (Caltex Filipino Managers and Supervisors Assn v CIR, 1972)
10.3 Exceptions When Injunction Allowed
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Arts. 254 and 218(e). supra

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.

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 bargaining, or shall aid or abet such obstruction or interference.

c.

No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.

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. (As amended by Executive Order No. 111, December 24, 1986)

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 employers premises for lawful purposes, or obstruct public thoroughfares. (As amended
by Batas Pambansa Bilang 227, June 1, 1982)

Prerequisites. 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 that the complaint alleges facts
which appear to be sufficient to constitute a proper basis for injunction and 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. (PAL v NLRC, 1998)
When the sheriff is levying on the wrong persons stuff. "When the sheriff, acting beyond the
bounds of his authority, seizes a stranger's property, the writ of injunction which is issued to stop the
auction sale of that property is not an interference with the writ of execution issued by another court
because the writ of execution was improperly implemented by the sheriff. Under that writ, he could
attach the property of the judgment debtor. He is not authorized to levy upon the property of the third
party claimant." Thus the bankswho were not parties in the NLRC casehave every right to file a
separate [civil] action to vindicate their property rights. They do not seek to dispute the decision in the
NLRC case or the writ of execution issued thereunder; nor do they seek to enjoin the execution of the
decision against the properties of the judgment debtor. Instead, the issue 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. Such a recourse is allowed under the provisions of
Section 17, Rule 39 of the Rules of Court.
A sheriff has no authority to attach the property of any person under an execution except that of the
judgment debtor. If he does so, the writ of execution affords him no justification for the action is not in
obedience to the mandate of the writ. 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. (NAMAWU v Vera, 1984)
In order to restrain an actual or threatened unlawful strike. In an earlier case, the SC ruled that
the NLRC committed grave abuse of discretion when it denied the petition for injunction to restrain the
union from declaring a strike based on non-strikeable grounds. It is the legal duty and obligation of the
NLRC to enjoin a partial strike staged in violation of the law. Failure promptly to issue an injunction was
likewise held therein to be an abuse of discretion.
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 and its Implementing Rules prescribe is the filing
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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.
(San Miguel Corp. v NLRC, 2003)
Injunction proper when legal requisites are followed. 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 NLRCand 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 x x x." As a rule such restraining orders or injunctions do not issue
ex parte, but only after compliance with the following requisites enumerated in Art. 218.
The record reveals that the Commission exercised the power directly and plainly granted to it by subparagraph (e) Article 218 in relation to Article 254, and that it faithfully observed the procedure and
complied with the conditions for the exercise of that power prescribed in said sub-paragraph (e). (Ilaw at
Buklod ng Manggagawa v NLRC, 1991)
Trial court without jurisdiction to issue labor injunctions. Ostensibly the complaint before the trial
court was for the recovery of possession and injunction, but in essence it was an action challenging the
legality or propriety of the levy vis-a-vis the alias writ of execution, including the acts performed by the
Labor Arbiter and the Deputy Sheriff implementing the writ. The complainant was in effect a motion to
quash the writ of execution of a decision rendered on a case properly within the jurisdiction of the Labor
Arbiter, to wit: Illegal Dismissal and Unfair Labor Practice. Considering the factual setting, it is then
logical to conclude that the subject matter of the third party claim is but an incident of the labor case, a
matter beyond the jurisdiction of regional trial courts.
Precedents abound confirming the rule that said courts have no labor jurisdiction to act on labor cases or
various incidents arising therefrom, including the execution of decisions, awards or orders. Jurisdiction to
try and adjudicate such cases pertains exclusively to the proper labor official concerned under the DOLE. To
hold otherwise is to sanction split jurisdiction which is obnoxious to the orderly administration of justice.
The broad powers granted to the Labor Arbiter and to the NLRC by Articles 217, 218 and 224 can only be
interpreted as vesting in them jurisdiction over incidents arising from, in connection with or relating to
labor disputes, as the controversy under consideration, to the exclusion of the regular courts. Moreover, an
RTC, being a co-equal body of the NLRC, has no jurisdiction to issue any restraining order or injunction to
enjoin the execution of any decision of the latter. (Delta Ventures v Cabato, 2000)
Injunction: Not your ordinary panacea. 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. The petitioners complaint revolves around the issue of
his alleged dismissal from service and his claim for backwages, damages and attorneys fees. [The LA
ordered his reinstatement; the company obtained a TRO from the CA.] Moreover, Article 254 specifically
provides that the NLRC may grant injunctive relief under Article 218.
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. (Ravago v Eastern Marine, 2005)
10.4 Issuing Agency
10.4.1

NLRC

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:
6.

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;

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7.

That substantial and irreparable injury to complainants property will follow;

8.

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;

9.

That complainant has no adequate remedy at law; and

10. 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 acts have been threatened or committed,
charged with the duty to protect complainants property: Provided, however, that if a complainant shall also allege
that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to
complainants property will be unavoidable, such a temporary restraining order may be issued upon testimony
under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after
notice. Such a 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 attorneys 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 entered 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. (As amended by Section 10, Republic Act No. 6715, March 21,
1989)

Role of Labor Arbiter

(Actually, more like Role of NLRC.) 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. (Nestl Phils. v NLRC, 1991)
(Same.) 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. The petition for injunction directly filed before the NLRC is in reality an action for illegal
dismissal. This is clear from the allegations in the petition which prays for; reinstatement of private
respondents; award of full backwages, moral and exemplary damages; and attorney's fees. As such,
the petition should have been filed with the LA.
The jurisdiction conferred by the foregoing legal provision to the labor arbiter is both original and
exclusive. The only exceptions are where the Secretary of Labor or the NLRC exercises the power of
compulsory arbitration, or the parties agree to submit the matter to voluntary arbitration pursuant to
Article 263 (g)
The NLRC shall have exclusive appellate jurisdiction over all cases decided by labor arbiters as provided
in Article 217(b). In short, the jurisdiction of the NLRC in illegal dismissal cases is appellate in nature and,
therefore, it cannot entertain the private respondents' petition for injunction which challenges the
dismissal orders of petitioner. Article 218(e) does not provide blanket authority to the NLRC or any of its
divisions to issue writs of injunction, considering that Section 1 of Rule XI of the New Rules of Procedure
of the NLRC makes injunction only an ancillary remedy in ordinary labor disputes" Thus, the NLRC
exceeded its jurisdiction when it issued the assailed Order granting private respondents' petition for
injunction and ordering the petitioner to reinstate private respondents. (PAL v NLRC, 1998)
10.4.2

Procedural Requirements and Rules for the Issuance of Labor Injunctions

Art. 218 (e). supra

Its all in the law. The record reveals that the Commission exercised the power directly and plainly
granted to it by Article 218(e) in relation to Article 254, and that it faithfully observed the procedure
and complied with the conditions for the exercise of that power prescribed in 218(e). It acted on SMCs
application for immediate issuance of a TRO 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
directed the Labor Arbiter to receive SMC's testimonial evidence in support of the application and
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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 Commission in the
issuance of that order. In any event, the TRO had a lifetime of only 20 days and became void ipso
facto at the expiration of that period. (Ilaw at Buklod ng Manggagawa v NLRC, 1991)
The immediate need to hear and resolve ex parte applications does not provide any excuse
to lower vigilance in protecting labor against the issuance of indiscriminate injunctions.
NLRC cant issue a preliminary injunction after the lapse of a twenty day TRO, disregarding the specific
provision of Article 218 (e). The factual circumstances proven by the evidence show that there was no
concurrence of the five prerequisites. To be sure, the issuance of an ex parte TRO 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. Experience shows that ex parte applications are
often based on fabricated facts and concealed truths. (Bisig ng Manggagawa v NLRC, 1993)
Not a labor dispute; sufficient allegations; bond (...james bond). 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. The petitioners complaint revolves
around the issue of his alleged dismissal from service and his claim for backwages, damages and
attorneys fees. [The LA ordered his reinstatement; the company obtained a TRO from the CA.] The
petition contains facts sufficient to warrant the issuance of an injunction under Article 218 (e). Further,
respondents already posted a surety bond more than adequate to cover the judgment award.
(Ravago v Eastern Marine, 2005)
10.4.3

Injunctions and Med-Arbiters

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.
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." Injunctions or restraining orders are frowned upon as a matter of labor relations
policy. 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:
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.
The first petition for injunction and temporary restraining order was manifestly insufficient to show grave or
irreparable injury. The MA should not have issued the TRO on such flimsy basis. How can petitioners obey
the orders of the PCIBEU-Comelec and at the same time reject its authority? This should have put the MedArbiter 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" if it is of such constant and frequent recurrence that no fair or
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. (Dinio v Laguesma, 1997)

Part Eleven Alternatives to Use of Economic Force: Conciliation and Arbitration as Modes of Labor
Dispute Settlement
I. Conciliation
11.01 Policy
Art. 211. Declaration of Policy.
A. It is the policy of the State:
(e) To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes;
87C, Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes
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affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential
use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance
therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just
share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion
and growth.
11.02 Conciliation as Part of Collective Bargaining Process
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. 250. Procedure in collective bargaining. The following procedures shall be observed 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. (As amended by Section 20, Republic Act No. 6715, March 21, 1989)
11.03 Conciliation Agency NCMB
(The National Conciliation and Mediation Board is responsible for developing and implementing policies,
standards, programs, projects for the effective conciliation and mediation of labor disputes, for the promotion and
administration of voluntary arbitration program and other voluntary modes of preventing and settling labor
disputes and grievance handling.
The NCMB has the following basic functions:
a.) Formulate policies, programs, standards, procedures, manuals of operations and guidelines pertaining to
effective mediation and conciliation of labor disputes;
b.) Perform preventive mediation and conciliation functions;
c.) Coordinate and maintain linkages with other sectors or institutions, and other government authorities
concerned with matters relative to the prevention and settlement of labor disputes;
d.) Formulate policies, plans, programs, standards, procedures, manuals of operations and guidelines pertaining
to the promotion of cooperative and non-adversarial schemes, grievance handling, voluntary arbitration and
other voluntary modes of dispute settlement;
e.) Administer the voluntary arbitration program; maintain/update a list of voluntary arbitration awards and
decisions;
f.) Provide counseling and preventive mediation assistance particularly in the administration of collective
agreements;
g.) Monitor and exercise technical supervision over the board programs being implemented in the regional
branches; and
h.) Perform such other functions as may be provided by law or assigned by the Secretary.
[legal basis: EO 126 as amended by EO 251, Par. 3, Sec. 3, Article XIII; from the DOLE website])

(EO 251 which created the National Conciliation and Mediation Board (NCMB) ordains that the conciliation,
mediation and voluntary arbitration functions of the Bureau of Labor Relations (BLR) shall be absorbed by NCMB.
It is an attached agency under the administrative supervision of the Secretary of Labor and Employment.
The NCMB has jurisdiction over conciliation, mediation and voluntary arbitration cases. It performs preventive
mediation and conciliation functions. It administers the voluntary arbitration program; maintains/updates a list of
voluntary arbitrators; compiles arbitration awards and decisions; and provides counseling and preventive
mediation assistance particularly in the administration of collective agreements.
It is with the NCMB that Notices of Strike or Lockout are filed.
[from bar review materials at ChanRobles.com])

II. Arbitration
11.4 In General
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History and validity. Although early on, CA 103 provided for compulsory arbitration as the state policy
to be administered by the Court CIR, in time such a modality gave way to voluntary arbitration. While not
completely supplanting compulsory arbitration which until today is practiced by government officials, the
Industrial Peace Act favored the policy of free collective bargaining.
"The settlement of controversies by arbitration is an ancient practice at common law. In its broad sense it
is a substitution, by consent of parties, of another tribunal for the tribunals provided by the ordinary
processes of law. Its object in the final disposition, in a speedy and inexpensive way, of the matters
involved, so that they may not become the subject of future litigation between the parties."
Whether utilized in business transactions or in employer-employee relations, arbitration was gaining wide
acceptance. A consensual process, it was preferred to orders imposed by government upon the disputants.
Moreover, court litigations tended to be time-consuming, costly, and inflexible due to their scrupulous
observance of the due process of law doctrine and their strict adherence to rules of evidence.
In practice nowadays, absent an agreement of the parties to resolve their disputes via a particular mode, it
is the regular courts that remain the fora 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 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. (Chung Fu Industries v CA, 1992)
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. (LM Power Engineering v Capitol Industrial Construction Groups, 2003)
11.5 Compulsory Arbitration
11.5.1

Definition and Nature of Dispute Subject to Compulsory Arbitration

Art. 263. Strikes, picketing and lockouts.

(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the
dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or
certification shall have the effect of automatically enjoining the intended or impending strike or lockout as
specified in the assumption or certification order. If one has already taken place at the time of assumption or
certification, all striking or locked out employees shall immediately return-to-work and the employer shall
immediately resume operations and readmit all workers under the same terms and conditions prevailing before
the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law
enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to
enforce the same.
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
locking-out 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. 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
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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.
Arbitration 101. In its broad sense, arbitration is the reference of a dispute to an impartial third
person, chosen by the parties or appointed by statutory authority to hear and decide the case in
controversy. 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). 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. (PAL v NLRC, 1989)
Yeah, who still uses the Yellow Pages anyway? The production and publication of telephone
directories, which is the principal activity of GTE, can scarely 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 "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." (GTE Directories v Sanchez, 1991)
Compulsory arbitration is a system whereby the parties 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.
(Luzon Devt Bank v Assn of Devt Bank Employees, 1995)
Matchmakers dont count. The Labor Code vests in the Secretary of Labor the discretion to
determine what industries are indispensable to the national interest. Accordingly, upon such
determination, he will assume jurisdiction over the labor dispute in the said industry. This power,
however, is not without any limitation, the coverage being limited to "strikes or lockouts adversely
affecting the national interest.
A match factory, though of value, can scarcely be considered as an industry "indispensable to the
national interest" as it cannot be in the same category as "generation and distribution of energy, or
those undertaken by banks, hospitals, and export-oriented industries."
The Secretary assumed jurisdiction grounded on the alleged "obtaining circumstances"possible loss of
employment, not to mention consequent social problems... thereby compounding the unemployment
problemand not on a determination that the industry involved in the labor dispute is one
indispensable to the "national interest", the standard set by the legislature. To uphold the action of the
public respondent under the premises would be stretching too far the power of the Secretary of Labor. It
would be practically allowing the Secretary of Labor to intervene in any Labor dispute at his pleasure.
When an overzealous official by-passes the law on the pretext of retaining a laudable objective, the
intendment or purpose of the law will lose its meaning as the law itself is disregarded. (Phimco
Industries v Brillantes, 1999)
The maritime industry is indubitably imbued with national interest. The direct intervention of the
SOLE became imperative on account of the magnitude of the adverse effect of any work stoppage at
the Company to the regional and national economy. (Trans-Asia Shipping Lines v CA, 2004)
Not just payroll reinstatement. Art. 263(g) 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 selfprotection.
Under Art. 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 and not mere payroll 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

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management, nor was it written to ease management from expenses, which it normally incurs during a
work stoppage or slowdown. (Manila Diamond Hotel Employees Union v CA, 2005)
11.5.2

Rationale [of] Compulsory Arbitration

A quick, fair, and just solution. 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 contingenies 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. This is clear from the terms of Section 10 of the Act, from which the industrial court derives its
jurisdiction in a certification case, since it expressly provides that the Court may issue an order fixing
the terms and conditions of employment, if no other solution to the dispute is found. (Manila
Cordage v CIR, 1971)
Effect on economy. At this point when efforts of the government are focused in ensuring economic
recovery and growth, it is the primordial concern of this Office to avert unnecessary work stoppages,
especially when an alternative mechanism to resolve the differences between the parties exists. 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. The exercise of this
Offices power as embodied under Article 263 (g) is thus warranted. (Trans-Asia Shipping Lines v
CA, 2004)
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 declaration be
preserved, if one of the parties fails to abide by the Secretarys order. The inconsistencies
between what was sought by Zamboanga Wood, namely, compulsory arbitration, and the failure to
admit the striking employees back to work in the meantime, cannot be countenanced. The certification
attests to the urgency of the matter, affecting as it does an industry indispensable to the national
interest. (NFL v MOLE, 1983)
A formal forum for dispute settlement. 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
Art. 263(g) to assume jurisdiction over the labor dispute. Noriel did exactly what he was supposed to
do under the LC.
[T]he 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 self-organization, collective bargaining, security of tenure, and just
and humane conditions of work. There is of course 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". An instance of unconstitutional application would be discernible if what is ordained by
the fundamental law, the protection of law, is ignored or disregarded.
By assuming jurisdiction over the dispute, Noriel merely provided a formal forum for the parties to
ventilate their positions with the end in view of settling the dispute. It is therefore error to allege that
merely by certifying a labor dispute for compulsory arbitration and issuing a RTW order, the MOLE
thereby enters the picture on the side of the company and violates the workers freedom of expression.
He has not rendered any decision; he has not favored one party over the other. (PSBA v Noriel, 1988)
Maintain Status Quo. The main reason or rationale for the exercise of the SOLEs power under
Article 263(g) is the maintenance and upholding of the status quo while the dispute is being
adjudicated. Hence, the directive to the parties to refrain from performing acts that will exacerbate the
situation is intended to ensure that the dispute does not get out of hand, thereby negating the direct
intervention of this office.
The Schools act of suspending and terminating union members and the Unions act of filing another
Notice of Strike after this Office has assumed jurisdiction are certainly in conflict with the status quo
ante. By any standards, these acts will not in any way help in the early resolution of the labor dispute. It
is clear that the actions of both parties merely served to complicate and aggravate the already strained
labor-management relations. (University of the Immaculate Conception v Secretary, 2005)

11.5.3

Process Initiation Certification of Dispute

11.5.3.1 Initiating Party

11.5.3.1.aSecretary of DOLE
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Art. 263. Strikes, picketing and lockouts.

(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the
dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or
certification shall have the effect of automatically enjoining the intended or impending strike or lockout as
specified in the assumption or certification order. If one has already taken place at the time of assumption or
certification, all striking or locked out employees shall immediately return-to-work and the employer shall
immediately resume operations and readmit all workers under the same terms and conditions prevailing before
the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law
enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to
enforce the same.
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
locking-out 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. 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.
Secretarys discretion not unbounded. When the Secretary exercises the powers granted by
Article 263(g), he is, indeed, granted great breadth of discretion. However, the application of this
power is not without limitation, lest the Secretary would be above the law. Discretion is defined as
the act or the liberty to decide, according to the principles of justice and ones ideas of what is
right and proper under the circumstances, without willfulness or favor. Where anything is left to
any person to be done according to his discretion, the law intends it must be done with a sound
discretion, and according to law. The discretion conferred upon officers by law is not a capricious or
arbitrary discretion, but an impartial discretion guided and controlled in its exercise by fixed legal
principles. It is not a mental discretion to be exercised ex gratia, but a legal discretion to be
exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede
or defeat the ends of substantial justice. From the foregoing, it is quite apparent that no matter
how broad the exercise of discretion is, the same must be within the confines of law. Thus, the wide
latitude of discretion given the Secretary under Art. 263(g) shall and must be within the sphere of
law. (PLDT v Manggagawa ng Komunikasyon sa Pilipinas, 2005)
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 LA has
exclusive jurisdiction. Moreover, Article 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 x x x." 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 LA
concerned may have diametrically opposed rulings. In fine, the issuance of the assailed orders is
within the province of the Secretary as authorized by Article 263(g) and Article 217(a) (1) and (5),
taken conjointly and rationally construed to subserve the objective of the jurisdiction vested in the
Secretary.
There was an existing labor dispute as a result of a deadlock in the negotiation for a collective
bargaining agreement and the consequent strike, over which the Secretary assumed jurisdiction
pursuant to Article 263(g). 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. (Intl Pharmaceuticals v Secretary, 1992)
The intervention of the Secretary was necessary to settle the labor dispute which had
lingered and which had affected both company and union. The work slowdowns had greatly
affected the company that it had indefinitely ceased operations. The company is indispensable to
national interest considering that the tire industry has already been liberalized and that it supplies
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22% of the tire products. It employs about 700 people. Any work disruption will certainly prejudice
the employment and livelihood of its workers and their dependents. 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. (Philtread Workers Union v Confesor, 1997)
11.5.3.1.bPresident
Art. 263(g). supra
I can do it too! Although the MOLE can assume jurisdiction over certain disputes enumerated in
263, the President of the Philippines shall not be precluded from determining the industries where,
in his opinion, labor disputes may adversely affect the national interest, and from intervening at
any time and assuming jurisdiction over any labor dispute adversely affecting the national interest
in order to settle or terminate the same. (Union of Filipro Employees v Nestl Phils., 1990)
11.5.3.1.cOffice of the President
Art. 263(g). supra
Presidents prerogative. When a case is certified by the President to the Court of Industrial
Relations the case thereby comes under the operation of CA 103, and the Court may exercise the
broad powers and jurisdiction granted to it by said Act. Section 10 of RA 875 empowers the Court
of Industrial Relations to issue an order "fixing the terms of employment." This clause is broad
enough to authorize the Court to order the strikers to return to work and the employer to readmit
them.
Upon certification by the President under Section 10 of Republic Act 875 the case comes under the
operation of CA 103, which enforces compulsory arbitration in cases of labor disputes in industries
indispensable to the national interest. The evident intention of the law is to empower the CIR to act
in such cases, not only in the manner prescribed under CA 103, but with the same broad powers and
jurisdiction granted by that act.
When a case is certified to the CIR by the President of the Philippines pursuant to Section 10 of
Republic Act No. 875, the CIR is granted authority to find a solution to the industrial dispute; and the
solution which the CIR has found under the authority of the presidential certification and conformable
thereto cannot be questioned. The CIR may issue an order either forbidding employees to strike or
the employer to lockout, or fixing the terms and conditions of employment. Otherwise it can throw
the case out on the assumption that the certification was erroneous.
There is no reason or ground for the contention that Presidential certification of labor dispute to the
CIR is limited to the prevention of strikes and lockouts. Even after a strike has been declared where
the President believes that public interest demands arbitration and conciliation, the President may
certify the case for that purpose. The practice has been for the CIR to order the strikers to work,
pending the determination of the union demands that impelled the strike. There is nothing in the law
to indicate that this practice is abolished.
This is the power that the law gives to the President, the propriety of its exercise being a matter that
devolves only upon him. To certify is the Presidents prerogative; the Court will not interfere in, much
less curtail, the exercise thereof. Where the President considered that the University has some
18,000 students and employs approx. 500 faculty members, that the continued disuption in the
operation of the University will necessarily prejudice the thousands of students, it is not for the CIR
or the SC to pass upon the correctness of the Presidents reasons in certifying the dispute to the CIR.
(FEATI University v Bautista, 1966)
Because when elephants fight, it is the grass that suffers. The purpose of a presidential
certification is to bring about soonest, through 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 possibleif not totally avertedby avoiding stoppage of
work as a result of a strike or lockout, 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 the courts jurisdiction in what may be termed 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 through 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. (Manila Cordage
v CIR, 1971)
11.5.4

Arbitration Agencies

Art. 263(g). supra

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MOLE and the President. Although the MOLE can assume jurisdiction over certain disputes
enumerated in 263, the President of the Philippines shall not be precluded from determining the
industries wherein his opinion labor disputes may adversely affect the national interest, and from
intervening at any time and assuming jurisdiction over any labor dispute adversely affecting the
national interest in order to settle or terminate the same. (Union of Filipro Employees v Nestl
Phils., 1990)
The Secretary was explicitly granted by Article 263 (g) the authority to assume jurisdiction over a labor
dispute causing or likely to cause a strike or lockout in 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. Article 217 contemplates exceptions where the
Secretary is authorized to assume jurisdiction over a labor dispute otherwise belonging exclusively to
the Labor Arbiter. This is readily evident from its opening proviso reading '(e)xcept as otherwise
provided under this Code x x x" (St. Scholasticas College v Torres, 1992)
11.5.5

Effect of Certification and Violation of Order

Art. 263(g). supra

(Grand Boulevard Hotel v Genuine Labor Organization, 2003)
The enjoining effect of a certification and why the worker should obey it. 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 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.
It is also important to emphasize that the return-to-work order confers both as a right and 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 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. So imperative is the order in fact that it is not even considered violative of the right against
involuntary servitude 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. (Sarmiento v Tuico, 1988)
Art. 263(g) is clear 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. Defiance of 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. (Telefunken Semiconductors Employees Union v CA, 2000)
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. (Trans-Asia Shipping Linse v CA, 2004)
Assumption of jurisdiction or certification 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. Violation of the order will render the strike illegal. Consequently, the Union officers
were deemed to have lost their employment status for having knowingly participated in said illegal act.
They refused to accept the Assumption of Jurisdictio Order. The phrase immediately return to work
should not be interpreted as within 24 hours. (University of San Agustin v CA, 2006)

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11.5.6

Awards and Orders

Art. 263. Strikes, picketing and lockouts.

(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. (As amended by Section 27, Republic Act No. 6715, March 21, 1989)
Art. 277. Miscellaneous provisions.
(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 Med-Arbiter, 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. (Incorporated by Section 33, Republic Act No. 6715, March 21, 1989)
Reasonableness. The more appropriate and available standard, and one that does not require a
constitutional interpretation, is simply the standard of reasonableness. In laymans terms,
reasonableness implies the absence of arbitratiness; in legal parlance, the exercise of proper discretion
and the observance of due process. Thus the issue is whether the Secretarys actions have been
reasonable in light of the parties positions and the evidence they presented.
The Secretary of Labor disregarded and misappreciated evidence, particularly with respect to the wage
award. The Secretary of Labor apparently also acted arbitrarily and even whimsically in ordering the
inclusion of benefits, terms and conditions that the law and the parties did not intended to be reflected in
their CBA; even the Solicitor General himself considered that the Secretary gravely abused his discretion
on at least three major points: (a) on the signing bonus; (b) on the inclusion of confidential employees in
the rank and file bargaining unit; and (c) in mandating a union security closed shop regime in the
bargaining agreement.
The Sec based his decision on figures relating to MERALCO revenues supplied by the union, which were
less reliable and realistic than those supplied by MERALCO. At the very least, the Sec should have
properly justified his disregard of the company figures.
A CB dispute like this one requries due consideration & proper balancing of the interests of the parties
involved and other parties who might be affected, by considering such factors as the bargaining history
of the company, the trends & amounts of arbitrated & agreed-upon wage awards, previous CBAs, and
industry trends in general. As a rule, affordability / capacity to pay should be taken into account, but not
as the sole yardstick in determining a wage award. Moreover, esp. in considering a public utility, the
public interest aspects of the case should be weighed. (MERALCO v Quisumbing, 2000)
Secretary considers information as a whole. The Secretary considered all the evidence and
arguments adduced by both parties. In ordering the wage increase, the Secretary determined the true
financial condition of the Company, by collating income from all sources. The Inorganic Division (where
the Union is part) loses money but the other divisions are raking in lots of money. Thus, it could not
say that it is suffering from serious losses.
Verily, the company assertion that the Secretary failed to consider the evidence on record lacks merit. It
was only the Inorganic Division that was sustaining losses. Such incident does not justify the withholding
of any salary increase as petitioner's income from all sources are collated for the determination of its
true financial condition. As correctly stated by the Secretary, "the loss in one is usually offset by the
gains in the others. (LMG Chemicals v Secretary, 2001)
Basis for award. The retirement benefits that a pilot would get under the provisions of the abovequoted Article 287 are less than those that he would get under the applicable retirement plans of
petitioner. Therefore, it is Art. 287, and not the 1967 PAL-ALPAP Retirement Plan, that should be the
basis for the computation of the retirement benefits of the PAL employees. (PAL v Airline Pilots
Assn, 2002)
Petitioners cite Section 1, Rule IX of the NLRC Manual on Execution of Judgment: Section 1. Hours
and Days When Writ Shall Be Served. Writ of Execution shall be served at any day, except Saturdays,
Sundays and holidays, between the hours of eight in the morning and five in the afternoon. However,
the above-cited rule is not applicable to the case at bar inasmuch as Sections 145 and 4,46 Rule III of
the same NLRC Manual provide that such Execution shall issue only upon a judgment or order that
finally disposes of an action or proceeding.
The assumption and return-to-work Orders issued by the Secretary of Labor in the case at bar are not the
kind of orders contemplated in the immediately cited rule of the NLRC because such Orders of the
Secretary of Labor did not yet finally dispose of the labor dispute. As pointed out by the Secretary of
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Labor in his Decision, petitioners cannot now feign ignorance of his official intervention, to wit: The
admissibility of the evidence presented by the Company, however, has been questioned. The Unions
arguments are less than convincing. The numerous publications of the subject DOLE Orders in various
newspapers, tabloids, radio and television cannot be considered hearsay and subject to authentication
considering that the subject thereof were the lawful Orders of a competent government authority. In the
case of the announcements posted on the Unions bulletin board, pictures of which were presented by
the Company in evidence, suffice it for us to state that the bulletin board belonged to the Union. Since
the veracity of the contents of the announcements on the bulletin board were never denied by the Union
except to claim that these were self-serving, unverified/unverifiable and thus utterly inadmissible, We
cannot but admit the same for the purpose for which it was presented. (Telefunken Semiconductors
Employees Union v CA, 2000)
Intertwined. Yes, the filing of the petition to declare the strike illegal preceded the issuance of the
assumption order. However, it cannot be denied that the issues of overtime boycott and work
slowdown amounting to illegal strike before the LA are intertwined with the labor dispute before the
Secretary. When the parties participated in the illegal strike proceedings, they knew fully well that
there was also a directive for the LA to thereafter submit his report and recommendation to the
Secretary. This subsequent participation was in effect an affirmation of the Secretarys jurisdiction.
Moreover, the authority to assume jurisdiction over certain labor disputes, granted to the Secretary
under Art. 263(g), necessarily must include and extend to all questions and controversies arising
therefrom, including cases over which the LA has exclusive jurisdiction. (Interphil Laboratories
Employees Union v Interphil Laboratories, 2001)
11.5.7

Option Submit Case [to] 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.
11.5.8

Compulsory Arbitration and Labor Rights

Art 263 (g) does not violate the workers' constitutional right to strike but merely regulates it
when national interests will be affected in the exercise of such right. 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 assumption of jurisdiction is in the nature of police power
measure strictly restricted to cases involving industries indispensable to the national interest. This is done
for the promotion of the common good considering that a prolonged strike or lockout can be inimical to the
national economy. The Secretary 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. (Philtread Workers Union v Confesor, 1997)

11.6 Voluntary Arbitration

11.6.1

Defined
Under voluntary arbitration, referral of a dispute by the parties is made, pursuant to a
voluntary arbitration clause in their agreement, to an impartial third person for a final and
binding resolution. Ideally, arbitration awards are supposed to be complied with by both parties
without delay, such that once an award has been rendered by an arbitrator, nothing is left to be done
by both parties but to comply with the same. After all, they are presumed to have freely chosen
arbitration as the mode of settlement for that particular dispute. Pursuant thereto, they have chosen
mutually acceptable arbitrator who shall hear and decide their case. Above all, they have mutually
agreed to be bound by said arbitrator's decision. (Luzon Devt Bank v Assn of Devt Bank
Employees, 1995)
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 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 LA who, under Art 217, is charged with the compulsory arbitration of
certain labor cases. There is nothing in the law that prohibits these LAs from also acting as voluntary
arbitrators as long as the parties agree to have him hear and decide their dispute. (Manila Central
Line v Manila Central Line Free Workers Union, 1998)

11.6.2

Basis for Voluntary Arbitration and Rationale

87C, Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes
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affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential
use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance
therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just
share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion
and growth.
Art. 211. 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;
The VA had plenary jurisdiction and authority to interpret the agreement to arbitrate and to determine the
scope of his own authority subject to the certiorari jurisdiction of the SC. In the instant case, his authority
includes not merely the determination of the question of whether or not a claim is to be granted but also,
in the affirmative case, the amount thereof. Thus, as a rule, the decision of the VA chosen by the parties is
final, executory and not appealable. This is true especially when the parties have stipulated to that effect
in their submission agreement as in the present case. This principle strengthens the purpose of arbitration
in preserving industrial peace and in avoiding unnecessary litigation between the parties.
Where the petitioner union's evidence does not satisfactorily establish its cause of action against the
employer, the VA did not commit arbitrariness in his decision in dismissing the complaint, when the
proceedings had in the case were considered in their totality and the petitioner was given the opportunity
to present its side.
Further, the computation of salaries, allowances and even OT pay of the workers are factual questions
vested with the labor official concerned, who in this case, is the VA chosen by the parties pursuant to Art
263 .The SC has no authority in certiorari proceedings to evaluate the sufficiency of evidence before a
labor officer. In the absence of any sufficient proof that the VA gravely abused its discretion, his decision
should be given the highest respect and finality. (Eternit Employees and Workers Union v De Veyra,
1990)
11.6.3

Process Encouragement / Promotion > Establishing Machinery [for] Dispute Settlement > CBA and Time
Frame

EO 251, Sec. 4. [not available online; please see notes supra]

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 or implementation 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 seven (7) calendar days from
the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective
Bargaining Agreement.
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 a procedure for the selection of such
Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators
duly accredited by the Board. 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 Collective Bargaining 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
described above.
11.6.4

Arbitrable Issues

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, 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.

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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.
11.6.5

Arbitrator

11.6.5.1 Selection
Art. 260. supra
Pwedeng mag-sideline ang LA. 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 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 an LA who, under Art 217, is charged with the
compulsory arbitration of certain labor cases. There is nothing in the law that prohibits these LAs 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 LA 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. Even then, petitioner did so only for the first time in a supplemental
memorandum of appeal to the NLRC. (Manila Central Line Free Workers Union v Manila Central
Line, 1998)
11.6.5.2 Jurisdiction
Arts. 261-262. supra
Should be union vs. company. The Labor Arbiter has jurisdiction as this case does not pertain to
the interpretation of the CBA but is a case of termination. While it appears that the dismissal of the
private respondents was made upon the recommendation of the Union pursuant to the Union
Security Clause provided in the CBA, the SC is of the opinion that these do not come within the
phrase grievances arising from the interpretation or implementation of 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 this case, both the union and the company are united or have come to an agreement regarding the
dismissal. 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. (Sanyo Phils. Workers
Union v Caizares, 1992)
Termination dispute not covered. That the case is primarily a termination dispute 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.
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 Voluntary Arbitrators, i.e ., disputes relating to contractinterpretation, 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. (Vivero v CA, 2000)
Construction. The provisions of law cannot be read in isolation or separately. They must be read as
a whole and each Article reconciled one with the other. An analysis of the provisions of Articles 217,
261, and 262 indicates, that:

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1.

The jurisdiction of the Labor Arbiter and Voluntary Arbitrator or Panel of Voluntary Arbitrators
over the cases enumerated in Articles 217, 261 and 262, can possibly include money claims in
one form or another.

2.

The cases where the Labor Arbiters have original and exclusive jurisdiction are enumerated in
Article 217, and that of the Voluntary Arbitrator or Panel of Voluntary Arbitrators in Article 261.

3.

The original and exclusive jurisdiction of Labor Arbiters is qualified by an exception as indicated
in the introductory sentence of Article 217 (a). The phrase "Except as otherwise provided under
this Code" refers to the following exceptions: Art. 217 (c) and Art. 262.
Parenthetically, the original and exclusive jurisdiction of the Labor Arbiter under Article 217 (c), for
money claims is limited only to those arising from statutes or contracts other than a Collective
Bargaining Agreement. The Voluntary Arbitrator or Panel of Voluntary Arbitrators will have original
and exclusive jurisdiction over money claims "arising from the interpretation or implementation of
the Collective Bargaining Agreement and, those arising from the interpretation or enforcement of
company personnel policies", under Article 261.

4.

The jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators is provided for in Arts.
261 and 262 of the Labor Code as indicated above.
(a) A close reading of Article 261 indicates that the original and exclusive jurisdiction of Voluntary
Arbitrator or Panel of Voluntary Arbitrators is limited only to: unresolved grievances arising
from the interpretation or implementation of CBA and of company personnel policies
(b) Voluntary Arbitrators or Panel of Voluntary Arbitrators, however, can exercise jurisdiction over
any and all disputes between an employer and a union and/or individual worker as provided
for in Article 262.

It must be emphasized that the jurisdiction of the Voluntary Arbitrator or Panel of Voluntary Arbitrators
under Article 262 must be voluntarily conferred upon by both labor and management. The labor
disputes referred to in the same Article 262 can include all those disputes mentioned in Article 217
over which the Labor Arbiter has original and exclusive jurisdiction. (San Jose v NLRC, 1998)
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. While the submission agreement mentioned only the determination of
the date of regularization, law and jurisprudence give the VA enough leeway of authority as well as
adequate prerogative to accomplish the reason for which the law on VA was created - speedy labor
justice. While a VA is not part of the governmental unit or labor departments personnel, said
arbitrator renders arbitration services provided for under labor laws. The underlying reason why this
case arose is to settle the ultimate question of whether the employees are entitled to higher
benefits. The jurisdiction of the LA and the VA or Panel of VAs over the cases enumerated in
217/261/262 can possibly include money claims in one form or another. (Ludo & Luym Corp. v
Saornido, 2003)
Article 262 provides that upon agreement of the parties, the VA can hear and decide all other labor
disputes. Voluntary arbitration as a mode of settling the dispute was not forced upon respondents.
Both parties agreed to submit the issue of validity of the dismissal of petitioner to the jurisdiction of
the voluntary arbitrator by the Submission Agreement duly signed by their respective counsels.
(Apalisok v RPN Radio Station, 2003)
11.6.5.3 Procedures
Art. 262-A. Procedures. The Voluntary Arbitrator 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 the
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 cause or upon agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator 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 of the Voluntary Arbitrator or panel of Voluntary Arbitrators 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 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 either 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.
11.6.5.4 Nature of Office and Function
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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 or implementation 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 seven (7) calendar days from
the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective
Bargaining Agreement.
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 a procedure for the selection of such
Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators
duly accredited by the Board. 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 Collective Bargaining 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
described above.
Art. 212. Definitions.
(n) "Voluntary Arbitrator" means any person accredited by the Board as such or any person named or
designated in the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator, or one
chosen with or without the assistance of the National Conciliation and Mediation Board, pursuant to a selection
procedure agreed upon in the Collective Bargaining Agreement, or any official that may be authorized by the
Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the
parties to a labor dispute.
A VA by the nature of her functions acts in a quasi-judicial capacity. In spite of statutory
provisions making 'final' the decisions of certain administrative agencies, SC can take cognizance of
petitions where want of jurisdiction, grave abuse of discretion, violation of due process, denial of
substantial justice, or erroneous interpretation of the law are present. Art 262 making voluntary
arbitration awards final, inappealable, and executory.. refers to appeals to the NLRC and not to
judicial review. RA 876 (Arbitration Law): An appeal may be taken from an orderor from a
judgmentbut such appeals shall be limited to questions of law. (Continental Marble v NLRC,
1988)
The VA, 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. Assuming arguendo that the VA or the panel may not strictly be
considered as a quasi-judicial agency, board or commission, still they are comprehended within the
concept of a "quasi-judicial instrumentality" in S9 of BP 129. 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 word
"instrumentality," with respect to a state, contemplates an authority to which the state delegates
governmental power for the performance of a state function. (Luzon Devt Bank v Assn of Devt
Bank Employees, 1995)
Under voluntary arbitration, referral of a dispute by the parties is made, pursuant to a
voluntary arbitration clause in their agreement, to an impartial third person for a final
and binding resolution. Ideally, arbitration awards are supposed to be complied with by both
parties without delay, such that once an award has been rendered by an arbitrator, nothing is left to
be done by both parties but to comply with the same. After all, they are presumed to have freely
chosen arbitration as the mode of settlement for that particular dispute. Pursuant thereto, they have
chosen mutually acceptable arbitrator who shall hear and decide their case. Above all, they have
mutually agreed to be bound by said arbitrator's decision. Parties to a CBA are required to include
provisions for a machinery for the resolution of grievances arising from the interpretation or
implementation of the CBA or company personnel policies. (Luzon Devt Bank v Assn of Devt
Bank Employees, 1995)
A voluntary arbitrator partakes of the nature of a quasi-judicial instrumentality and is within
the ambit of Section 9(3) of the Judiciary Reorganization Act. Exclusive appellate jurisdiction over
all final judgments, decisions, resolutions, orders or awards of... quasi-judicial agencies,
instrumentalities, boards or commissions... except those falling within the appellate jurisdiction of
the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines...
Thus the decisions of a VA fall within the exclusive appellate jurisdiction of the CA. The SC took note of
this in approving the 1997 Rules of Civ Pro (Section 1).
It is elementary in remedial law that the use of an erroneous mode of appeal is cause for dismissal of
the petition for certiorari. 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. 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
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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. (Nippon Paint Employees Union v CA,
2004)
11.6.6

Awards and Orders

Art. 262-A. Procedures. The Voluntary Arbitrator 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 the
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 cause or upon agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator 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 of the Voluntary Arbitrator or panel of Voluntary Arbitrators 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 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 either 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.
Extent of authority of VA. The voluntary arbitrator had plenary jurisdiction and authority to
interpret the agreement to arbitrate and to determine the scope of his own authority subject to the
certiorari jurisdiction of this Court. In the instant case, his authority includes not merely the
determination of the question of whether or not a claim is to be granted but also, in the affirmative
case, the amount thereof. Thus, as a rule, the decision of the voluntary arbitrator chosen by the parties
is final, executory and not appealable. This is true especially when the parties have stipulated to that
effect in their submission agreement as in the present case. This principle strengthens the purpose of
arbitration in preserving industrial peace and in avoiding unnecessary litigation between the parties.
Where the petitioner union's evidence does not satisfactorily establish its cause of action against the
employer, the voluntary arbitrator did not commit arbitrariness in his decision in dismissing the
complaint, when the proceedings had in the case were considered in their totality and the petitioner was
given the opportunity to present its side. Further, the computation of salaries, allowances and even
overtime pay of the workers are factual questions vested with the labor official concerned, who in this
case, is the voluntary arbitrator chosen by the parties pursuant to Article 263.
This Court has no authority in certiorari proceedings to evaluate the sufficiency of evidence before a
labor officer. In the absence of any sufficient proof in this case that the voluntary arbitrator gravely
abused its discretion, his decision should be given the highest respect and finality. (Eternit Employees
and Workers Union v De Veyra, 1990)
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 "to hear and decide all unresolved
grievances arising from the interpretation or implementation of the CBA." We, therefore, find that no
grave abuse of discretion was committed by public respondent in issuing the award (decision).
Moreover, his interpretation of the 1989 CBA cannot be faulted and is absolutely correct. (Davao
Integrated Port Stevedoring Services v Abarquez, 1993)
The award of the arbitrator in this case is not to be equated with a judicial decision. When
in relation to a controversy as to working conditions, the parties submit their differences to arbitration,
they do not seek any judicial pronouncement technically as such since 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. The arbitrator's award when
stipulated by the parties to be conclusive becomes part and parcel of the CBA. The supervening facts
consisting of acts of the Minister may not be invoked to alter, modify, reform, much less abrogate, the
new terms of the CBA inserted by virtue of the award of the arbitrator. (Citibank Employees Union
v MOLE, 1980)
It is very clear by mathematical computation that the appeal was filed out of time; hence, the award
attained finality. The award of Voluntary Arbitrators acting within the scope of their authority
determines the rights of the parties, and their decisions have the same legal effects as a judgment of
the Court. Such decisions on matters of fact and law are conclusive, and all matters in the award are

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thenceforth res judicata, on the theory that the matter has been adjudged by the tribunal which the
parties have agreed to make final as tribunal of last resort. (Volkschel Labor Union v NLRC, 1981)
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. While the submission agreement mentioned only the determination of the
date of regularization, law and jurisprudence give the VA enough leeway of authority as well as
adequate prerogative to accomplish the reason for which the law on VA was created - speedy labor
justice. While a VA is not part of the governmental unit or labor departments personnel, said
arbitrator renders arbitration services provided for under labor laws. The underlying reason why this
case arose is to settle the ultimate question of whether the employees are entitled to higher benefits.
The jurisdiction of the LA and the VA or Panel of VAs over the cases enumerated in 217/261/262 can
possibly include money claims in one form or another. (Ludo & Luym Corp. v Saornido, 2003)
The work of a VA. As a general proposition, an arbitrator is confined to the interpretation and
application of the collective bargaining agreement. He does not sit to dispense his own brand of
industrial justice: his award is legitimate only in so far as it draws its essence from the CBA, i.e., when
there is a rational nexus between the award and the CBA under consideration. It is said that an
arbitral award does not draw its essence from the CBA; hence, there is an unauthorized amendment or
alteration thereof, if:
1.

It is so unfounded in reason and fact;

2.

It is so unconnected with the working and purpose of the agreement;

3.

It is without factual support in view of its language, its context, and any other indicia of the parties'
intention;

4.

It ignores or abandons the plain language of the contract;

5.

It is mistakenly based on a crucial assumption which concededly is a nonfact;

6.

It is unlawful, arbitrary or capricious; and

7.

It is contrary to public policy.

A CBA is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen
cannot wholly anticipate. It covers the whole employment relationship and prescribes the rights and
duties of the parties. It is a system of industrial self-government with the grievance machinery at the
very heart of the system. The parties solve their problems by molding a system of private law for all the
problems which may arise and to provide for their solution in a way which will generally accord with the
variant needs and desires of the parties.
If the terms of a CBA are clear and have no doubt upon the intention of the contracting parties, the literal
meaning of its stipulation shall prevail. However, if, in a CBA, the parties stipulate that the hirees must
be presumed of employment qualification standards but fail to state such qualification standards in said
CBA, the VA may resort to evidence extrinsic of the CBA to determine the full agreement intended by the
parties. When a CBA may be expected to speak on a matter, but does not, its sentence imports
ambiguity on that subject. The VA is not merely to rely on the cold and cryptic words on the face of the
CBA but is mandated to discover the intention of the parties. Recognizing the inability of the parties to
anticipate or address all future problems, gaps may be left to be filled in by reference to the practices of
the industry, and the step which is equally a part of the CBA although not expressed in it. In order to
ascertain the intention of the contracting parties, their contemporaneous and subsequent acts shall be
principally considered. The VA may also consider and rely upon negotiating and contractual history of
the parties, evidence of past practices interpreting ambiguous provisions. The VA has to examine such
practices to determine the scope of their agreement, as where the provision of the CBA has been loosely
formulated. Moreover, the CBA must be construed liberally rather than narrowly and technically and the
Court must place a practical and realistic construction upon it.
Here, the VA ignored the plain language of the 1997 CBA of the parties, as well as the Guidelines issued
by the company. He capriciously based his resolution on the companys practice of hiring which,
however, by agreement of petitioner and respondent, was discontinued. (United Kimberly-Clark
Employees Union v Kimberly-Clark Phils., 2006)
11.6.7

Finality and Execution of Awards

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.
Decisions of voluntary arbitrators are to be given the highest respect and a certain measure of finality,
but this is not a hard and fast rule; it does not preclude judicial review thereof where want of
jurisdiction, grave abuse of discretion, violation of due process, denial of substantial justice, or
erroneous interpretation of the law were brought to our attention. It should be emphasized that in
rendering the subject arbitral award, the VA Calica, a professor of the U.P. Asian Labor Education
Center, now the Institute for Industrial Relations, found that the existing law and jurisprudence on the
matter, supported the private respondent's contentions. Contrary to petitioner's assertion, public
respondent cited facts and the law upon which he based the award. Hence, public respondent did not
abuse his discretion. (Indophil Textile Mills Workers Union v Calica, 1992)
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Subject to judicial review. We are inclined not to disturb these findings which are uncontroverted
and supported by the evidence on record. Judicial review by this Court in labor cases does not go so far
as to evaluate the sufficiency of the evidence upon which the labor officer or office based his or its
determination but are limited to issues of jurisdiction or grave abuse of discretion.
Apropos of the power of judicial review, while decisions of voluntary arbitrators are given the highest
respect and accorded a certain measure of finality, this does not preclude the exercise of judicial review
over such decisions. A voluntary arbitrator, by the nature of his functions, acts in a quasi-judicial
capacity. There is no reason why his decisions involving interpretations of law should be beyond the
Supreme Court's review. Administrative officials are presumed to act in accordance with law and yet the
Court does not hesitate to pass upon their work where a question of law is involved or where there is a
showing of abuse of authority or discretion in their official acts. (PLDT v Montemayor, 1990)
Sorry, nag-decide na ko eh. 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 Voluntary Arbitrator loses jurisdiction over the case submitted to him the moment he renders his
decision. Therefore, he can no longer entertain a motion for reconsideration of the decision for its
reversal or modification. (Imperial Textile Mills v Sampan, 1993)
Rule VII, Section 1 of the Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings
provides The final arbitral disposition of issue/s submitted to voluntary arbitration is the Decision. The
disposition may take the form of a dismissal of a claim or grant of specific remedy, either by way of
prohibition of particular acts or specific performance of particular acts. In the latter case the decision
is called an Award.
Here the Decision of the Panel was in the form of a dismissal of petitioners complaint. Naturally, this
dismissal was contained in the main decision and not in the dissenting opinion. Thus, this Decision, as a
matter of course, would become final and executory after 10 calendar days from receipt of copies of the
decision by the parties even without receipt of the dissenting opinion unless, in the meantime, a motion
for reconsideration or a petition for review to the CA under Rule 43 of the RoC is filed within the same 10day period. A dissenting opinion is not binding on the parties as it is a mere expression of the individual
view of the dissenting member from the conclusion held by the majority of the Court. (CCBPI Sales
Force Union v Coca-Cola Bottlers Phils., Inc., 2005)
11.6.8

Appeal

RULE 43 APPEALS FROM THE COURT OF TAX APPEALS

AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
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 quasijudicial 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.
Sec. 2. Cases not covered.
This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines.
Sec. 3. Where to appeal.
An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein
provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law.
Sec. 4. Period of appeal.
The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or
from the date of its last publication, if publication is required by law for its effectivity, or of the denial of
petitioners motion for new trial or reconsideration duly filed in accordance with the governing law of the court or
agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of
the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension
shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.
Sec. 5. How appeal taken.
Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals,
with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy
of the petition intended for the Court of Appeals shall be indicated as such by the petitioner.

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Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing
and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other
lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth
valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other
lawful fees and deposit for costs within fifteen (15) days from notice of the denial.
Sec. 6. Contents of the petition.
The petition for review shall (a) state the full names of the parties to the case, without impleading the court or
agencies either as petitioners or respondents; (b) contain a concise statement of the facts and issues involved
and the grounds relied upon for the review; (c) be accompanied by a clearly legible duplicate original or a
certified true copy of the award, judgment, final order or resolution appealed from, together with certified true
copies of such material portions of the record referred to therein and other supporting papers; and (d) contain a
sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. The petition
shall state the specific material dates showing that it was filed within the period fixed herein.
Sec. 7. Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the
documents which should accompany the petition shall be sufficient ground for the dismissal thereof.
Sec. 8. Action on the petition.
The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss,
within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require
consideration.
Sec. 9. Contents of comment.
The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by
clearly legible certified true copies of such material portions of the record referred to therein together with other
supporting papers. The comment shall (a) point out insufficiencies or inaccuracies in petitioners statement of
facts and issues; and (b) state the reasons why the petition should be denied or dismissed. A copy thereof shall
be served on the petitioner, and proof of such service shall be filed with the Court of Appeals.
Sec. 10. Due course.
If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the
Court of Appeals or upon the expiration of the period for the filing thereof, and on the basis of the petition or the
records the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or
law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be
reviewed, it may give due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the
court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals.
Sec. 11. Transmittal of record.
Within fifteen (15) days from notice that the petition has been given due course, the Court of Appeals may
require the court or agency concerned to transmit the original or a legible certified true copy of the entire record
of the proceeding under review. The record to be transmitted may be abridged by agreement of all parties to the
proceeding. The Court of Appeals may require or permit subsequent correction of or addition to the record.
Sec. 12. Effect of appeal.
The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of
Appeals shall direct otherwise upon such terms as it may deem just.
Sec. 13. Submission for decision.
If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties
to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for
decision upon the filing of the last pleading or memorandum required by these Rules or by the Court of Appeals.
The VA, 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. Assuming arguendo that the VA or the panel may not strictly be
considered as a quasi-judicial agency, board or commission, still they are comprehended within the
concept of a "quasi-judicial instrumentality" in S9 of BP 129. 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 word "instrumentality," with
respect to a state, contemplates an authority to which the state delegates governmental power for the
performance of a state function. (Luzon Devt Bank v Assn of Devt Bank Employees, 1995)
The decision or award of the VA or panel should be appealable to the CA, in line with the
procedure outlined in RAC No. 1-95, just like those of the quasi-judicial agencies, boards
and commissions enumerated therein. The VA no less performs a state function pursuant to a
governmental power delegated to him under the provisions in the LC and he falls within the
contemplation of the term "instrumentality." The fact that his functions and powers are provided for in
the LC does not place him within the exceptions to Sec. 9 BP129 since he is a quasi-judicial
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instrumentality. The Employees Compensation Commission is also provided for in the LC. But Circular
No. 1-91 (now RAC No. 1-95), laid down the procedure for the appealability of its decisions to the CA
under the same rationalization, and this was later adopted by RA 7902 in amending S9 of BP129. 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 quasi-judicial entities not expressly
excepted from the coverage of S9 of BP129 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 SC since,
precisely, the cases within the adjudicative competence of the VA are excluded from the jurisdiction of
the NLRC or the LA. S22 of RA 876 equates the award or decision of the VA with that of the RTC.
Consequently, in a petition for certiorari, the CA must be deemed to have concurrent jurisdiction with
the SC. (Luzon Devt Bank v Assn of Devt Bank Employees, 1995)
Reviewable. The company was denied due process, so the case was remanded to the VA to allow
them to present evidence on their behalf. That the company was not able to present such evidence is
evident from the parties stipulation before the CA: 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... This 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.
While under the 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.
The SC has 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 were raised.
The right of due process is fundamental in our legal system. 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.
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 employer's
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. (Unicraft Industries Intl v CA, 2001)
11.6.9

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 voluntary arbitration including the
Voluntary Arbitrators fee. The fixing of fee of 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;

d.

Capacity to pay of the parties; and

e.

Fees provided for in the Revised Rules of Court.

II. Labor Relations Law Public Sector

Part Twelve
1.1 Right to Organize
Basis
1.1.1

Constitution

87C, 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.
Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to

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security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just
share in the fruits of production and the right of enterprises to reasonable returns to investments, and to
expansion and growth.
Art. IX-B, Sec. 2(5). The right to self-organization shall not be denied to government employees.
1.1.2

Statutory

EO 180 (1 June 1987).

I. Coverage
Sec. 1. This Executive Order applies to all employees of all branches, subdivisions, instrumentalities, and
agencies, of the Government, including government-owned or controlled corporations with original charters. For
this purpose, employees, covered by this Executive Order shall be referred to as "government employees".
Sec. 2. All government employees can form, join or assist employees' organizations of their own choosing for the
furtherance and protection of their interests. They can also form, in conjunction with appropriate government
authorities, labor-management committees, works councils and other forms of workers' participation schemes to
achieve the same objectives.
EO 180 (1987) Implementing Rules, Rule II. Coverage
SECTION 1. Employees of all branches, subdivisions, instrumentalities and agencies of the government,
including government-owned or controlled corporations with original charters, except members of the Armed
Forces of the Philippines, police officers, policemen, firemen and jail guards, may form, join or assist
organizations, associations and/or federations of exclusively government employees of their own choosing for the
furtherance, and the protection, of their interests.
They may also form, in conjunction with appropriate government authorities, labor-management committees,
work councils and other forms of workers' participation schemes to achieve the same objectives.
SECTION 2. Membership in employee's organizations formed for purposes of negotiation under these rules, shall
be open to all rank-and-file employees as defined in Rule I, Sec. 1.m.
High level employees are not eligible for membership in rank and file employees' organization formed for
purposes of negotiation under these rules.
1.1.3

ILO Convention No. 151, concerning Protection of the Right to Organize and Procedures for Determining
Conditions of Employment in the Public Service

Preamble.
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its
Sixty-fourth Session on 7 June 1978, and
Noting the terms of the Freedom of Association and Protection of the Right to Organise Convention, 1948, the Right
to Organise and Collective Bargaining Convention, 1949, and the Workers' Representatives Convention and
Recommendation, 1971, and
Recalling that the Right to Organise and Collective Bargaining Convention, 1949, does not cover certain categories
of public employees and that the Workers' Representatives Convention and Recommendation, 1971, apply to
workers' representatives in the undertaking, and
Noting the considerable expansion of public-service activities in many countries and the need for sound labour
relations between public authorities and public employees' organisations, and
Having regard to the great diversity of political, social and economic systems among member States and the
differences in practice among them (e.g. as to the respective functions of central and local government, of federal,
state and provincial authorities, and of state-owned undertakings and various types of autonomous or semiautonomous public bodies, as well as to the nature of employment relationships), and
Taking into account the particular problems arising as to the scope of, and definitions for the purpose of, any
international instrument, owing to the differences in many countries between private and public employment, as
well as the difficulties of interpretation which have arisen in respect of the application of relevant provisions of the
Right to Organise and Collective Bargaining Convention, 1949, to public servants, and the observations of the
supervisory bodies of the ILO) on a number of occasions that some governments have applied these provisions in a
manner which excludes large groups of public employees from coverage by that Convention, and
Having decided upon the adoption of certain proposals with regard to freedom of association and procedures for
determining conditions of employment in the public service, which is the fifth item on the agenda of the session,
and

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Having determined that these proposals shall take the form of an international Convention,
Adopts the twenty-seventh day of June of the year one thousand nine hundred and seventy-eight, the following
Convention, which may be cited as the Labour Relations (Public Service) Convention, 1978:
PART I. SCOPE AND DEFINITIONS
Article 1
1. This Convention applies to all persons employed by public authorities, to the extent that more favourable
provisions in other international labour Conventions are not applicable to them.
2. The extent to which the guarantees provided for in this Convention shall apply to high-level employees whose
functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly
confidential nature, shall be determined by national laws or regulations.
3. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the
police shall be determined by national laws or regulations.
Article 2
For the purpose of this Convention, the term public employee means any person covered by the Convention in
accordance with Article 1 thereof.
Article 3
For the purpose of this Convention, the term public employees' organisation means any organisation, however
composed, the purpose of which is to further and defend the interests of public employees.
PART II. PROTECTION OF THE RIGHT TO ORGANIZE
Article 4
1. Public employees shall enjoy adequate protection against acts of anti-union discrimination in respect of their
employment.
2. Such protection shall apply more particularly in respect of acts calculated to-(a) make the employment of public employees subject to the condition that they shall not join or shall relinquish
membership of a public employees' organisation;
(b) cause the dismissal of or otherwise prejudice a public employee by reason of membership of a public
employees' organisation or because of participation in the normal activities of such an organisation.
Article 5
1. Public employees' organisations shall enjoy complete independence from public authorities.
2. Public employees' organisations shall enjoy adequate protection against any acts of interference by a public
authority in their establishment, functioning or administration.
3. In particular, acts which are designed to promote the establishment of public employees' organisations under
the domination of a public authority, or to support public employees' organisations by financial or other means,
with the object of placing such organisations under the control of a public authority, shall be deemed to constitute
acts of interference within the meaning of this Article.
PART III. FACILITIES TO BE AFFORDED TO PUBLIC EMPLOYEES' ORGANIZATIONS
Article 6
1. Such facilities shall be afforded to the representatives of recognised public employees' organisations as may be
appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside
their hours of work.
2. The granting of such facilities shall not impair the efficient operation of the administration or service concerned.
3. The nature and scope of these facilities shall be determined in accordance with the methods referred to in
Article 7 of this Convention, or by other appropriate means.
PART IV. PROCEDURES FOR DETERMINING TERMS AND CONDITIONS OF EMPLOYMENT
Article 7
Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full
development and utilisation of machinery for negotiation of terms and conditions of employment between the
public authorities concerned and public employees' organisations, or of such other methods as will allow
representatives of public employees to participate in the determination of these matters.
PART V. SETTLEMENT OF DISPUTES
Article 8
The settlement of disputes arising in connection with the determination of terms and conditions of employment
shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through
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independent and impartial machinery such as mediation, conciliation and arbitration, established in such a manner
as to ensure the confidence of the parties involved.
PART VI. CIVIL AND POLITICAL RIGHTS
Article 9
Public employees shall have, as other workers, the civil and political rights which are essential for the normal
exercise of freedom of association, subject only to the obligations arising from their status and the nature of their
functions.
1.1.4

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.
International Covenant on Civil and Political Rights
Article 22
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade
unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and
which are necessary in a democratic society in the interests of national security or public safety, public order
(ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the
police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of
1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures
which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that
Convention.
1.2 Activities
EO 180 (1987) Implementing Rules, Rule III. Organization Activities
SECTION 1. The normal activities of employees' organizations shall be conducted in such a manner that will
enhance employee welfare in relation to conditions of work, consistent with the duty of government to provide
effective and dependable service to the public.
SECTION 2. The activities of the employees organization shall not prejudice or disrupt public service.
SECTION 3. The premises and/or facilities of the office may be availed of by the employee' organizations subject
to existing rules.
SECTION 4. The terms and conditions of employment in the government including any political subdivision or
instrumentality thereof and government-owned and controlled corporations with original charters are governed by
law and employees therein shall not strike for the purpose of securing changes thereof.

1.3 Officers and Employees with Right to Self-Organization

All Employees
EO 180 (1987), Sec. 2. All government employees can form, join or assist employees' organizations of their own
choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate
government authorities, labor-management committees, works councils and other forms of workers' participation
schemes to achieve the same objectives.
EO 180 (1987) Implementing Rules, Rule I. Definition of Terms
SECTION 1. As used in these rules, the following shall be construed thus:
[(l) High Level Employee is one whose functions are normally considered policy determining, managerial or one
whose duties are highly confidential in nature. A managerial function refers to the exercise of powers such as:
1. To effectively recommend such managerial actions;
2. To formulate or execute management policies and decisions; or
3. To hire, transfer, suspend, lay-off, recall, dismiss, assign or discipline employees. ]
(m) Rank-and-File Employee is one whose functions do not fall under any of those enumerated above. It
includes an employee whose work has ceased as result of, or in connection with, any current dispute or because of
any unfair labor practice except as may otherwise be determined by the Council.
1.4 Officers and Employees with No Right to Self-Organization
1.5 Protection of Right

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1.5.1

Non-Discrimination

EO 180 (1987), Sec. 5. Government employees shall not be discriminated against in respect of their
employment by reason of their membership in employees' organizations or participation in the normal activities
of their organization. Their employment shall not be subject to the condition that they shall not join or shall
relinquish their membership in the employees' organizations.
1.5.2

Non-Interference [with] Union Administration

Sec. 6. Government authorities shall not interfere in the establishment, functioning or administration of
government employees' organizations through acts designed to place such organizations under the control of
government authority.
1.6 Registration [of] Trade Union
1.6.1

Registration Agency

EO 180 (1987), III. Registration of Employees' Organization

Sec. 7. Government employees' organizations shall register with the Civil Service Commission and the Department
of Labor and Employment. The application shall be filed with the Bureau of Labor Relations of the Department which
shall process the same in accordance with the provisions of the Labor Code of the Philippines, as amended.
Applications may also be filed with the Regional Offices of the Department of Labor and Employment which shall
immediately transmit the said applications to the Bureau of Labor Relations within three (3) days from receipt
thereof.
Implementing Rules, Rule I. Definition of Terms
SECTION 1. As used in these rules, the following shall be construed thus:
(n) Registration is the processing of the application for registration and the issuance of the corresponding
certificate of registration, in accordance with these rules.
Rule IV. Registration
SECTION 1. The application for registration shall be signed by at least twenty (20) percent of the employees in the
appropriate organization unit which the applicant employees' organization seeks to represent, and shall be
accompanied by the following:
a. One hundred (P100.00) pesos registration fee;
b. The names and addresses of the officers, the principal address of the organization, the minutes of the
organizational meeting and the list of the employees who participated in such meeting:
c. The names of the employees comprising at least twenty (20) percent of all the employees in the
appropriate organizational units where it seeks to operate;
d. If the applicant employees' organization has been in existence for one more year, copies of its financial
reports;
e. Four (4) copies of the constitution and by-laws of the applicant organization, minutes of its adoption, and
the list of the employees who participated therein.
SECTION 2. The applications for registration of employees' organizations shall be filed with the Bureau of Labor
Relations or regional offices of the Department of Labor and Employment.
Applications filed with the regional offices of the Department shall be transmitted within three (3) days from receipt
thereof to the Bureau of Labor Relations.
SECTION 3. The Bureau of Labor Relations shall process the application for registration in accordance with these
rules and guidelines adopted by the Civil Service Commission and the Department of Labor and Employment and
shall prepare the certificate of registration for the signature of both the Chairman of the Civil Services Commission
and the Secretary of Labor and Employment.
SECTION 4. The Bureau and the Office of Personnel Relations of the Civil Service Commission shall keep and
maintain a record indicating the status of registered employees' organizations.
SECTION 5. Upon the issuance of the certificate of registration, the employees' organization shall have the
following rights and privileges:
a. to be certified, subject to the conditions prescribed in these rules as the sole representative of rank-and-file
employees to negotiate for them.
b.to undertake all other activities not contrary to law or public policy for the furtherance and protection of the
interests of its members.
1.6.2

Issuance of Certificate of Registration and Approval

Sec. 8. Upon approval of the application, a registration certificate be issued to the organization recognizing it as
a legitimate employees' organization with the right to represent its members and undertake activities to further
and defend its interest. The corresponding certificates of registration shall be jointly approved by the Chairman of
the Civil Service Commission and Secretary of Labor and Employment.
Implementing Rules, Rule I. Definition of Terms

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SECTION 1. As used in these rules, the following shall be construed thus:

(i). Registered Employees' Organization refers to any employee organization or association duly registered in
accordance with these rules.
1.6.3

Cancellation

Implementing Rules, Rule VII. Cancellation or Revocation of Certificate of Registration

SECTION 1. The Certificate of registration of any registered employees' organization may be cancelled at any time
for cause on any of the following grounds:
a.

Misrepresentation, false statement or fraud in connection with the adoption or ratification of the
constitution and by-laws or amendments thereto;

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 amendment thereto;

c.

Misrepresentation, false statement or fraud in connection with the election of officers, minutes of the
election of officers, the list of voters/members, or failure to submit these documents together with the list
of the newly elected/appointed officers and their addresses within thirty (30) days from election;

d.

Commission of acts or engaging in activities contrary to law;

e.

Checking off the special assessments or any other fees without duly signed individual written authorization
of the members; and

f.

Failure to submit list of individual members to the office or Bureau once a year or whenever required.

SECTION 2. The Bureau shall serve the notice of the cancellation proceeding to the employees' organization
concerned stating the grounds therefor, at least five (5) days before the scheduled date of hearing.
SECTION 3. The Chairman of the Civil Service Commission and the Secretary of the Department of Labor and
Employment shall issue the order of revocation of the certificate or registration.
The order or decision shall be final.
1.7 Exclusive Representation
1.7.1

Union Recognition

1.7.1.1 Voluntary Recognition

Sec. 11. A duly registered employees' organization shall be accorded voluntary recognition upon a showing that
no other employees' organization is registered or is seeking registration, based on records of the Bureau of Labor
Relations, and that the said organizations has the majority support of the rank-and-file employees in the
organizational unit.
Implementing Rules, Rule V. Recognition / Accreditation
SECTION 1. In case there is only one (1) registered employees' organization in the unit representing the
majority of the total rank-and-file personnel of said agency as certified by the Office of Personnel Relations, the
same shall be recognized and accredited to represent the employees of the agency in negotiating with the
employer on matters affecting the interests of the employer on matters affecting the interest of the employees.
SECTION 2. In case there are two or more registered employees' organizations in a particular agency requesting
accreditation, the Office of Personnel Relations shall, based on its records, determine which of the organizations
shall be accredited.
SECTION 3. In case two or more registered rank-and-file employees' organizations contest the representation of
the majority of the rank-and-file employees, a certification election shall be conducted in accordance with these
rules. The certification election shall include all registered employees organizations in the organizational unit.
SECTION 4. Failure of an accredited employees' organization to maintain the support of the majority of the rankand-file employees shall constitute a ground for a challenge which shall be processed in accordance with these
rules.
1.7.1.2 Recognition after Certification Election
Sec. 12. Where there are two or more duly registered employees' organizations in the appropriate organizational
unit, the Bureau of Labor Relations shall, upon petition, order the conduct of a certification election and shall
certify the winner as the exclusive representative of the rank-and-file employees in said organization unit.
Implementing Rules, Rule V. supra
Implementing Rules, Rule VI. Certification Election
SECTION 1. Subject to the preceding rule, a petition for certification election may be filed by the employer or
any of the registered employees' organizations with the Bureau or with regional offices which will forward the
petition to the Bureau within three (3) days from receipt thereof.
SECTION 2. The petition shall be in writing and under oath and shall contain among others, the following:
a. the name of the petitioner and its address;
b. name and address of the employer; and
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c.

total number of rank-and-file employees in the subject organizational unit.

A petition filed by a registered employees' organization shall contain the signatures of at least twenty (20)
percent of the rank-and-file employees in the subject organizational unit.
SECTION 3. A petition for certification election may be filed at any time but no certification election may be held
within one year from the date of issuance of a declaration of final certification election result.
SECTION 4. Upon receipt of a petition, the Bureau shall conduct a hearing to determine whether or not a
certification election is necessary. Should there be a need for a certification election, the order shall contain the
following:
a. names of the contending government employees' organizations;
b. name of the employer;
c.

description of the subject organizational unit;

d. list of eligible voters; and

e. date and time of the certification election.
If possible the certification election shall be held within fifteen (15) days from receipt by the parties of the
decision.
SECTION 5. The Bureau shall cause the posting of the necessary notices at least five (5) days before the date of
the election in at least two (2) conspicuous places in the employer's promises. The notices shall contain the date
of election, the names of the contending organizations, the description of the subject organizational unit and the
list of eligible voters.
SECTION 6. The election shall be held during regular office hours, unless otherwise agreed upon.
SECTION 7. The Bureau shall designate a representation officer who shall have the following functions:
a.

Before the actual voting commences, to inspect in the presence of the representatives of the parties, the
ballot boxes, and polling booths to ensure secrecy of the ballots;

b.

After the examination of the ballot boxes, to lock them and keep the keys, during the entire proceedings;
and

c.

To conduct the election and adopt measures to preserve the sanctity of the ballot. The Bureau shall
designate assistant representation officer/whenever necessary.

SECTION 8. Ballots shall be prepared in Pilipino or in English and shall contain serial numbers and the signature
of the representation officer at the back.
SECTION 9. The voter must write a cross (x) or a check (/) in the square opposite the registered employees'
organization of his choice.
SECTION 10. If a ballot is torn, marked, or defaced in such a manner that would identify the voter, it shall be
considered spoiled. If the voter inadvertently spoils a ballot, he shall return it to the Representation Officer who
shall destroy it and issue another ballot.
SECTION 11. Any voter may be challenged for a valid cause by and duly authorized party representative before
the voter casts his vote.
SECTION 12. If a voter is challenged on valid grounds, the Representation Officer shall segregate his ballot from
the unchallenged ballots and seal the questioned ballot in an envelop indicating the name of the challenger and
the ground of the challenge. cdt
SECTION 13. At the end of the voting, the votes cast shall be counted and tabulated by the Representation
Officer in the presence of the representatives of the parties. If the votes cast is less than majority of the total
eligible voters in the subject organizational unit, the Representation Officer shall declare a failure of election.
Otherwise, he shall canvass the votes. Upon completion of the canvassing, the Representation Officer shall give
each representative a certification of the results and the minutes of the election.
SECTION 14. The ballots, tally sheets, and certification of the results, together with the minutes of the elections,
shall be sealed in an envelope and signed outside by the Representation Officer and by the representatives of the
contending parties. These envelopes shall remain sealed under the custody of the Representation Officer and
shall be submitted to the Bureau which shall proclaim the winner immediately.
SECTION 15. The organization which obtained the majority of the total number of valid votes cast shall be
certified and accredited as the sole and exclusive representative of all the rank-and-file employees in the subject
organizational unit and shall remain as such unless challenged by another registered employees' organization in a
petition for certification election, subject to the limitation prescribed in Section 3, Rule VI.
SECTION 16. A formal protest may be filed within five (5) days from the close of the election proceedings with
the Bureau which shall decide the same within twenty (20) days from the date of filing. No protect shall be
entertained after the lapse of the five-day period. Neither shall a protest be entertained for grounds not raised
and recorded during the balloting.
SECTION 17. In cases where there are at least three (3) contending organizations and none received a majority
of the valid votes cast, the Representation Officer shall motu propio conduct a run-off election within five (5) days
from the close of the election.
In the run-off election, the rank-and-file employees shall vote on the two registered employees' organizations
receiving the largest and second largest number of votes in the first voting.

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1.7.2

Bargaining Unit Composition

IV. Sole and Exclusive Employees' Representatives

Sec. 9. The appropriate organizational unit shall be the employers unit consisting of rank-and-file employees
unless circumstances otherwise require.
1.8 Exclusive Representative
Sec. 10. The duly registered employees' organization having the support of the majority of the employees in the
appropriate organizational unit shall be designated as the sole and exclusive representative of the employees.
Implementing Rules, Rule I(j). Accredited Employees' Organization refers to a registered organization of
rank and file employees as defined in these rules recognized as the sole representative to negotiate for the
employees in an organization unit headed by an officer with sufficient authority to bind the agency such as heads
of departments, bureaus, and offices of equivalent rank in the national government including government owned
and/or controlled corporations with original charters, state colleges and universities, and national government,
and heads of local governments, and considering the nature of the matter subject for negotiation.
1.9 Settlement of Work Conditions
1.9.1

Negotiable Issues Terms and Conditions and Improvements Not Fixed by Law

Sec. 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may
be the subject of negotiations between duly recognized employees' organizations and appropriate government
authorities.
Implementing rules, Rule VIII. Terms and Conditions of Employment
SECTION 1. Terms and conditions of employment or improvements thereof, except those that are fixed by law,
may be subject of negotiation.
SECTION 2. The following concerns, among others, may be the subject of negotiation between the employer
and the accredited employees' organization:
a.

Schedule of vacation and other leaves;

b.

Work assignment of pregnant women;

c.

Personnel growth and development;

d.

Communication system lateral and vertical;

e.

Provision for protection and safety;

f.

Provision for facilities for handicapped personnel;

g.

Provision for first aid medical services and supplies;

h.

Physical fitness program;

i.

Provision for family planning services for married women;

j.

Annual medical/physical examination;

k.

Recreational, social, athletic and cultural activities and facilities.

SECTION 5. Nothing herein shall be construed to prevent any of the parties from submitting proposals to the
proper authorities to improve the terms and conditions of their employment.
1.9.2

Non-Negotiable Issues Terms and Conditions Fixed by Law

Sec. 13. supra

Implementing Rules, Rule VIII, Sec. 3. Those that require appropriation of funds, such as the following, are
not negotiable;
a.

Increase in salary emoluments and other allowances not presently provided for by law;

b.

Facilities requiring capital outlays;

c.

Car plan;

d.

Provident fund;

e.

Special hospitalization, medical and dental services;

f.

Rice/sugar/other subsidies;

g.

Travel expenses;

h.

Increase in retirement benefits.

Terms and conditions of employment of those covered by Civil Service Law not effected
through CBA. The officers and employees of a water district are covered by the Civil Service Law.
Hence petitioners invocation of the CBA, in justifying the receipt by the MCWD personnel of benefits
and privileges, is utterly misplaced. Thus, we sustain the disallowance by respondent COA.

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Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms
and conditions of employment in the unionized private sector are settled through the process of
collective bargaining. In government employment, however, it is the legislature and, where properly
given delegated power, the administrative heads of government which fix the terms and conditions of
employment. And this is effected through statutes or administrative circulars, rules, and regulations, not
through collective bargaining agreements. (Abanilla v COA, 2005)
Terms and conditions of employment in public service, generally governed by law. At
present, the terms and conditions of employment in the government service are governed by law, not
by the relative strengths of management and labor as they hammer out mutually acceptable terms
across the collective bargaining table. Paradoxically, all the representatives of "labor" and
"management" in government are employees. At the same time, everybody forms part of the owner
of the enterprise, the sovereign people. The qualifications and eligibilities of civil servants, their
appointment and promotion, standardization of salaries, disciplinary actions, fringe benefits, and
retirement gratuities, among others, are governed by statutes, rules, and established principles which
are the products of decades of experience, not to mention borrowings from civil service systems
abroad.
The provisions of the civil service law on the terms and conditions of employment including the
regulation of labor-management relations in the government sector, unless Congress decides to amend
or repeal them, form part of the response to any requests or demands of organized groups of
government personnel. Any understanding between the top officials of a government agency and the
union which represents the rank-and-file is subordinate to the law governing the particular issue or
situation. (Assn of Court of Appeals Employees v Ferrer-Calleja, 1991)
1.10 Concerted Activities
Governing Laws
VI. Peaceful Concerted Activities and Strikes
Sec. 14. The Civil Service laws and rules governing concerted activities and strikes in the government service shall
be observed, subject to any legislation that may be enacted by Congress.
Implementing Rules, Rule II, Sec. 3. The Civil Service law and rules governing concerted activities and strikes
in the government shall be observed by all government employees, whether or not they are members of
employees' organizations.
Rule III, Sec. 4. The terms and conditions of employment in the government including any political subdivision or
instrumentality thereof and government-owned and controlled corporations with original charters are governed by
law and employees therein shall not strike for the purpose of securing changes thereof.
PD 1177, Budget Reform Decree of 1977
REVISING THE BUDGET PROCESS IN ORDER TO INSTITUTIONALIZE THE BUDGETARY INNOVATIONS OF THE NEW
SOCIETY
[mahaba ito, 92 sections, so its been e-mailed to the block na lang]

CSC Memorandum Circular No. 6, s. of 1987

TO: All officials and employees in the civil service
SUBJECT: Strike by Government Employees
[SIGNED: Chairman Celerina Gotladera]
[See 1987 Const, Art. III Sec. 8 (freedom of association); Art. IX-B Sec. 2(5) (govt employees right to selforganization); and Art. XIII Sec. 3 Par. 2 (rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities incl. to strike in accordance with law) supra.]
Although the Constitution provides workers the right to strike, it is not yet clear whether government officials
and employees are included therein. And even assuming that they are so included under the term worker, it
has to be emphasized that the provision is not absolute nor [sic] unconditional. The right must be exercised in
accordance with law. This particular phrase was purposely included because of existing permanent laws and
in order for Congress to enact the corresponding limitations and regulations thereof. This means that Congress
will still have to determine whether the right to strike shall cover both the private and public sectors and if so,
as to what particular fields in the public service the right to strike shall be prohibited or allowed.
Public service is different from private industry service and, therefore, the right to strike may not necessarily be
similar in application. There exists some conflicting interests in private labor relations but not between the
government and its employees.
Alliance of Govt Workers v MOLE, cited in National Housing Corp. v Juco: ...by reason of the nature of the
public employer and the peculiar character of the public service, it must necessarily regard the right to strike
given to unions in private industry as not applying to public employees and the civil service employees. It has
been stated that the Government, in contrast to the private employer, protects the interests of all people in the
public service, and that accordingly, such conflicting interests as are present in private labor relations could not
exist in the relations between Government and those whom they employ.
Moreover, ...public employees by joining labor unions may be compelled to support objectives which are political
in nature.

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Civil servants are accorded by law some status which demands allegiance and loyalty to the government and
thereby should be expectant to accept certain limitations on the rights normally and usually granted to workers
in the private sectors.
In view thereof, and prior to the enactment by Congress of applicable laws..., and considering that there are
existing laws which prohibit government officials and employees from resorting to strike, the CSC enjoins, under
pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations,
mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of
public service. To allow otherwise is to undermine or prejudice the government system.
*cases cited in CSC Memorandum Circular No. 6, s. of 1987.

Rationale for the prohibition. The general rule in the past and up to the present is that "the terms and
conditions of employment in the Government, including any political subdivision or instrumentality thereof
are governed by law" (RA 875 and Article 277). Since the terms and conditions of government
employment are fixed by law, government workers cannot use the same weapons employed by workers in
the private sector to secure concessions from their employers. The principle behind labor unionism in
private industry is that industrial peace cannot be secured through compulsion by law. Relations between
private employers and their employees rest on an essentially voluntary basis. Subject to the minimum
requirements of wage laws and other labor and welfare legislation, the terms and conditions of
employment in the unionized private sector are settled through the process of collective bargaining. In
government employment, however, it is the legisature and, where properly given delegated power, the
administrative heads of government which fix the terms and conditions of employment. And this is
effected through statutes or administrative circulars, rules, and regulations, not through CBAs.
GOCC personnel are now considered part of the civil service. It would not be fair to allow them to engage in
concerted activities to wring higher salaries or fringe benefits from Government even as other civil service
personnel such as the hundreds of thousands of public school teachers, soldiers, policemen, health
personnel, and other government workers are denied the right to engage in similar activities.
To say that the words "all employers" in P.D. No. 851 includes the Government and all its agencies,
instrumentalities, and GOCCs would also result in nightmarish budgetary problems. Salaries and fringe
benefits of those embraced by the civil service are fixed by law. Any increases must come from law, from
appropriations or savings under the law, and not from concerted activity.
By reason of the nature of the public employer and the peculiar character of the public service, it must
necessarily regard the right to strike given to unions in private industry as not applying to public employees
and civil service employees. It has been stated that the Government, in contrast to the private employer,
protects the interests of all people in the public service, and that accordingly, such conflicting interests as
are present in private labor relations could not exist in the relations between government and those whom
they employ.
Moreover, determination of employment conditions as well as supervision of the management of the public
service is in the hands of legislative bodies. It is further emphasized that government agencies in the
performance of their duties have a right to demand undivided allegiance from their workers and must
always maintain a pronounced esprit de corps or firm discipline among their staff members. It would be
highly incompatible with these requirements of the public service, if personnel took orders from union
leaders or put solidarity with members of the working class above solidarity with the Government. This
would be inimical to the public interest.
"Moreover, it is asserted that public employees by joining labor unions may be compelled to support
objectives which are political in nature and thus jeopardize the fundamental principle that the governmental
machinery must be impartial and non-political in the sense of party politics.
It is the legislature or, in proper cases, the administrative heads of government and not the collective
bargaining process nor the concessions wrung by labor unions from management that determine how much
the workers in government-owned or controlled corporations may receive in terms of salaries, 13th month
pay, and other conditions or terms of employment. (Alliance of Government Workers v MOLE, 1983)*
GOCCs included in prohibition. The inclusion of "GOCCs" within the embrace of the civil service shows
a deliberate effort of the framers to plug an earlier loophole which allowed GOCCs to avoid the full
consequences of the all-encompassing coverage of the civil service system. The same explicit intent is
shown by the addition of "agency" and "instrumentality" to branches and subdivisions of the Government.
All offices and firms of the government are covered. [The idea is that] civil service coverage is broad and
a-embracing insofar as employment in the government in any of its governmental or corporate arms is
concerned. The constl provision has been implemented by statute: PD 807 is unequivocal that personnel
of GOCCs belong to the civil service and are subject to civil service requirements.
The NHC is a 100% govt-owned corporation organized in accordance with EO 399, the Uniform Charter of
Govt Corporations (1951). Its shares of stock are owned by the GSIS, the SSS, the DBP, the National
Investment and Development Corporation, and the People's Homesite and Housing Corporation. The NHC
has never had any private stockholders. Moreover, the NHC performs governmental functions and not
proprietary ones. It was established as an instrumentality of the government to accomplish governmental
policies and objectives and extend essential services to the people. It would be incongruous if employees
discharging essentially governmental functions are not covered by the same law and rules which govern
those performing other governmental functions. If government corporations discharging proprietary
functions now belong to the civil service with more reason should those performing governmental functions
be governed by civil service law. (Natl Housing Corp. v Juco, 1985)*

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Bawal Mag-Strike Dito. The 1987 Constitution, in Article 13, Sec 3, provides that the State shall
guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. But theres a limitation
in the sub-article on the Civil Service Commission, in that while government employees can self-organize,
there is a silence on WON they can go on strike. The framers did not intend to include the right to strike
with regard to employees of the government, because of the gravity of their position. (What happens
when the Air Force goes on strike?) The Labor Code is itself silent on the issue
Government employees are indeed covered by the prohibition against strikes; their issues are instead
settled through statutes, administrative circulars, rules and regulations.
The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an
injunction may be issued to restrain it. Futile is the SSEAs assertion that the labor dispute falls within the
NLRCs jurisdiction. The Labor Code itself provides that terms and conditions of employment of government
employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, EO
180 vests the Public Sector Labor-Management Council with jurisdiction over unresolved labor disputes
involving government employees. Clearly therefore, the NLRC has no jurisdiction over the dispute. (SSS
Employees Assn v CA, 1989)
Government agency, may not strike. The National Parks Devt Committee is a govt agency, hence its
employees have no right to strike. While NPDC employees are allowed under the Constitution to organize
and join unions of their choice, there is as yet no law permitting them to strike. In case of a labor dispute
between the employees and the government, EO 180 provides that the Public Sector Labor-Management
Council, not the Department of Labor and Employment, shall hear the dispute. (Republic v CA, 1989)
Employees in the public service, unlike those in the private sector, do not have the right to
strike, although guaranteed the right to self-organization to petition Congress for the
betterment of employment terms and conditions. "Mass actions" may be considered a strike when
they constitute a concerted and unauthorized stoppage of, or absence from, work which it was the
teachers' duty to perform, undertaken for essentially economic reasons. This case illustrates the error of
recourse to the SC, especially when numerous parties disparately situated, as far as the facts are
concerned, gather under the umbrella of a common plea, and generalization becomes unavoidable. The
teachers' obvious remedy was not to halt the administrative proceedings but to take part, assert and
vindicate their rights, see those proceedings through to judgment and if adjudged guilty, appeal to the
CSC; or if, pending said proceedings, immediate recourse to judicial authority was believed necessary
because the Secretary was acting without GADALEJ, to apply, not directly to the SC, but to the RTC, where
there would be an opportunity to prove the relevant facts warranting corrective relief. (Manila Public
Schools Teachers Assn v Laguio, 1991)
The evil sought to be prevented. The right of civil servants to organize themselves has been
positively recognized. But there are standards for allowable limitations such as the legitimacy of the
purposes of the association, the overriding considerations of national security and the preservation of
democratic institutions. The Constitution itself qualifies the exercise of the right to strike with the proviso
" in accordance with law." The state may, by law, regulate the use of this right, or even deny certain
sectors such right. In general, workers in the public sector do not enjoy the right to strike.
Petitioners, who are public schoolteachers and thus government employees, insist that their absences were
a valid exercise of their constitutional rights and that their gathering was not a strike, therefore their
participation therein constituted no offense. But the mass action or assembly staged by the petitioners
resulted in the non-holding of classes in several public schools, resulting in the deprivation of students of
education, for which they were responsible. The grievances for which they sought redress concerned the
alleged failure of public authorities, essentially, to fully and justly implement certain laws and measures
intended to benefit them materially. Had petitioners availed themselves of their free time - recess, after
classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper authorities
within the bounds of law, no one could have held them liable for the valid exercise of their constitutionally
granteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily
disrupted public services, the very evil sought to beforestalled by the prohibition against strikes by
government workers. Their act by its nature was enjoined by the Civil Service law, rules and regulations.
(Jacinto v CA, 1997)
Mass Actions = strikes. In an earlier case, we denied the claim that the public school teachers were
thereby denied their rights to peaceably assemble and petition the government for redress of grievances
reasoning that this constitutional liberty, to be upheld like any other liberty, must be exercised within
reasonable limits so as not to prejudice the public welfare. The public school teachers did not exercise
their constitutional rights within reasonable limits. On the contrary they committed acts prejudicial to the
best interest of the service by staging the mass protests on regular school days, abandoning their classes
and refusing to go back even after they had been ordered to do so.
As regards the payment of back salaries during the period of suspension of a member of the civil service
who is subsequently ordered reinstated, the payment of back wages may be decreed if 'he is found innocent
of the charges which caused the suspension and when the suspension is unjustified.' Where the teachers
have given cause for their suspensioni.e., the unjustified abandonment of classes to the prejudice of their
studentsthey were not fully innocent of the charges against them although they were eventually found
guilty only of conduct prejudicial to the best interest of the service and not grave misconduct or other
offenses warranting their dismissal from service; 'being found liable for a lesser offense is not equivalent to
exoneration." They were not completely exculpated of the charges against them, as they were adjudged
guilty of committing acts prejudicial to the best interest of the service. Consequently, with the ground for

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their suspension duly stated, the denial of their prayer for exoneration and payment of back wages is in
order. (Secretary of Education, Culture, and Sports v CA, 2000)
1.11 Implementing Agency: Public Sector Labor-Management Council Powers and Composition
VII. Public Sector Labor-Management Council
Sec. 15. A Public Sector Labor Management Council, hereinafter referred to as the Council, is hereby constituted
to be composed of the following:
1) Chairman, Civil Service Commission Chairman
2) Secretary, Department of Labor and Employment Vice Chairman
3) Secretary, Department of Finance Member
4) Secretary, Department of Justice Member
5) Secretary, Department of Budget and Management Member
The Council shall implement and administer the provisions of this Executive Order. For this purpose, the Council
shall promulgate the necessary rules and regulations to implement this Executive Order.
BLR with jurisdiction to call for and conduct the election of officers of an employees association in
the public sector. The authority of the BLR in assuming jurisdiction over a certification election, or any interunion or intra-union conflicts, is found in Article 226. Clearly, the BLR has the original and exclusive jurisdiction
on all inter-union and intra-union conflicts. An intra-union conflict would refer to a conflict within or inside a
labor union, and an inter-union controversy or dispute, one occurring or carried on between or among unions.
The subject of the case at bar, which is the election of the officers and members of the union, is, clearly, an
intra-union conflict, being within or inside a labor union. It is well within the powers of the BLR to act upon.
(Bautista v CA, 2005)

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