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LABREL 3rd Exam

September 11
Wednesday September 11,2013 5pm

Today we begin with unfair labor practice. Special


Law. (Distribute father ng hand outs).
So what is unfair labor practice? unfair labor
practice depends on WHO commits it. This is the
unlawful intervention in an employees exercise of
the right to self organization. The concept of
unfair labor practice is found in Article 257.
Article 257 states: 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)
"Unfair labor practice violate the constitutional
right of workers and employees to self
organization"- this is WRONG! It is not
constitutional it is STATUTORY. If you remove Book
V, there is no right to self- organization even if it
exists in Article 13 Sec 3 of the Constitution.
Why?
Because
it
requires
implementing
legislation. Can you ask and go to congress, ask
SC for an order to command congress to pass
legislation for the right to self organization? You
CANNOT! It is as stupid as going to the SC asking
the court for an order to stop congress from
legislating pork barrel. You know very very well
that is a stupid suit. Why? You cannot answer if it
you do not know the Constitution. Makaluloy ka.
Wala ka nakasabot. Legislative power is plenary.
Walay makapugong ana. Only the Bill of Rights.
All the other rights mentioned outside the Bill of
Rights, they are NOT rights, they are policies.
Why? It needs implementing legislation.
So,
"Unfair
labor
practice
violate
the
constitutional right of workers and employees to
self organization, are inimical to the legitimate
interest
interest
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".
"Unfair labor practices, therefore, 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 277 and 278 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, attorney's fees and other affirmative
relief, shall be under the jurisdiction of the Labor
Arbiters. The Labor Arbiter shall give outmost
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."
So, unfair labor practices,as a concept is a
violation of the right to self-organization and the
right to management. It can be committed
against management. But it is not only violation
of private lands, it is also a criminal offense.
However, in the succeeding paragraphs, you will
see that no criminal prosecution may be
instituted without a final judgment finding that an
unfair labor practice was committed, having been
obtained in the preceding paragraph. That is the
administrative aspect. During the pendency of
such administrative proceeding, the running of
the period of prescription of the criminal offense
herein penalized shall be considered interrupted.
So, final judgement in the administrative
proceeding shall NOT be binding in the criminal
case nor shall be considered as evidence of guilt
but merely as proof of compliance of the
requirements therein set. So first, you have to go
through administrative proceeding. If you want to
file a criminal proceeding that is unfair labor
practice, you must first go to the administrative
proceeding. If the administrative proceeding is
dismissed, you can NEVER file a criminal
proceeding. But if there is a finding that an unfair
labor practice was committed, then now, you can
proceed to file a criminal proceeding.
Can you use the judgment in the administrative
proceeding? NO. You have to start from zero. AB
OVO. Go to the fiscal, the prosecutors office, hold
the preliminary investigation, before you can file
a criminal case. So, if you ask me, these first two
paragraphs are ---. There is no decided case of
criminal judgment in unfair labor practice. By the
time na human ka sa imong administrative
proceeding, na hurot na imong witnesses, pag file
nimo criminal, wala na. Bahao na imong
evidence. That is the sad part.
"No criminal prosecution under this Title may be
instituted without a final judgement, 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."

Now if you are asked, you know, there are


commentators who would say that there are only
two characters can commit unfair labor practiceeither you are the employee or the employer. A
third party neither an employee nor employer
cannot commit unfair labor practice. Why?
Because of the definition of employer under
Article 219e.
Article 219 e states that:
So, if there is a person who acts against the
employee, it means he is in favor to the
employer. So, these commentators say, that
makes him an employer. So they say, you are
either an employer or an employee when it
comes to unfair labor practice. If you persecute
and employee to prevent him from organizing a
union, are you not acting in favor of the
employer? That makes you an employer because
of this definition. So therefore, there are only two
camps according to some commentators. Sadly,
they are misguided :) . They are misguided
because of Article 256.
Articlec 256 states that: Non-abridgment of
right
to
self-organization. It
shall
be
unlawful for any person to restrain, coerce,
discriminate against or unduly interfere
with employees and workers in their
exercise of the right to self-organization.
Such right shall include the right to form,
join, or assist labor organizations for the
purpose of collective bargaining through
representatives of their own choosing and
to engage in lawful concerted activities for
the same purpose for their mutual aid and
protection, subject to the provisions of
Article 264 of this Code. (As amended by
Batas Pambansa Bilang 70, May 1, 1980)
So it says, it shall be UNLAWFUL FOR ANY
PERSON to restrain, coerce, discriminate against
or unduly interfere with employees and workers
in their exercise of their right to self organization.
Lets
take
a
look
at
Article
258.
Article 258 states that: Unfair labor
practices of employers. It shall be unlawful
for an employer to commit any of the
following unfair labor practice:
To interfere with, restrain or coerce
employees in the exercise of their right to
self-organization;
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;

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;
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;
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;
To
dismiss,
discharge
or
otherwise
prejudice
or
discriminate
against
an
employee for having given or being about
to give testimony under this Code;
To violate the duty to bargain collectively as
prescribed by this Code;
To pay negotiation or attorneys fees to the
union or its officers or agents as part of the
settlement of any issue in collective
bargaining or any other dispute; or
To
violate
a
collective
bargaining
agreement.
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)

"To interfere with restrain or coerce employees in


the exercise of their right to self organization".
The character now here is the employer. The

character before was any person. If any person,


how do you commit unfair labor practice?
Restrain, coerce, discriminate against or unduly
interfere. (Article 256)
If you are an employer, how do you commit unfair
labor practice? interfere with restrain or coerce
employees in the exercise of their right to self
organization.
(Article
258).
If you are the union, how do you commit unfair
labor practice? To restrain or coerce employees in
the exercise of their right to self organization.
(Article 259)
Article 259 states:
Only to restrain or coerce employee. In terms of
scope, which is the broadest in terms of the
commission of unfair labor practice? It is the
EMPLOYER. If you are an employer, you just
interfere, sa ato pang pinulongang na dinka.an
kanang naang interfere with, paglabot-labot.
Kung ikaw ay makikialam ( wow father tagalog,
bigyan ng jacket! Haha) Kung makikialam ka,
unfair labor practice na if you are an employer.
That is very broad. interfere with restrain or
coerce employees in the exercise of their right to
self organization. (Article 258).
If you are third party, any person, neither an
employer or labor organization, Article 256 says
that it shall be UNLAWFUL FOR ANY PERSON to
restrain, coerce, discriminate against or unduly
interfere with employees and workers in their
exercise of their right to self organization. You can
interfere but NOT UNDULY. Kinsa man ni si Duly?
(Acheche) unduly interfere.
If you are a labor organization, it is unfair labor
practice for a labor organization, its officers,
agents and representative to restrain or coerce
employees in the exercise of their right to self
organization. (Article 259). Why are you allowed
to interfere? Because of you are not allowed to
interfere, you cannot campaign.
Alright, I am distributing to you Rules on
Solicitation because these are not widely known
in Philippine jurisprudence. An employer can
commit unfair labor practice by establishing
policies and rules that interferes with the right to
self organization . ( Barbie's note: I incorporated
the Rules on Solicitation here with the
discussions :) )
What is the first rule?
1.

NO-SOLICITATION

RULE

OF

UNION

MEMBERSHIP OR THE PROHIBITION AGAINST


DISTRIBUTION
OF
UNION
LITERATURE
DURING "WORKING HOURS" OR "WORKING
TIME" OR WITHIN COMPANY PROPERTY IS
PRESUMPTIVELY INVALID.

employees to engage during working hours in


extensive solicitation for charitable or other
purposes, or in solicitation on behalf of only a
certain union or unions among a group of rival,
competing unions or in anti union activities.

Why? Because the rule is overly broad. The rule is


susceptible of an interpretation by employees
that they were prohibited from engaging in
protective activity during their free time, like
break periods or meal times or neutral areas like
comfort rooms, cafeteria, dressing or locker
rooms.

Discussion:

Discussion:
when you say that no solicitation during working
hours, the working hours of 8am-5pm working
day, not all every minute is working hour, there
are rest periods. There is a meal period. And
during those rest periods, you cannot be
controlled as to what will you say to your coemployee. Buyagon ba diay ka kung makigstorya
ka about pacific rim nag sumbagay mga robot?
That is not about work. That has nothing to do
with your job. And yet the employer cannot
interfere you and stop you from doing that. He
cannot stop you from soliciting your own voice. If
he stops you then he is interfering with your right
to self organization. Because he has no legitimate
business in the first place. If it is an assembly
line, nag sit mo nagbuhat mo ug watches na
timex, you are actually working, you are doing
your work, and then you say, mag union ta ha.
The employer can stop you because you are
actually doing your work. But NOT during break
periods, NOT in so called neutral areas. When you
are out against the wall and watering that white
labalo there ( father sounds so conyo, cute
kaau..haha!) and you tell the one standing next
to you: as the color of my urine is
white/transparent as yours, lets join the union.
Will you be prevented in campaigning? You
CANNOT. There is no legitimate business. That is
why, this law is overly broad. If you say: NO
SOLICITATION.
2.EVIDENCE
MAY
BE
PRESENTED
TO
OVERCOME THE PRESUMPTIVE INVALIDITY
OR VALIDITY OF A NO-SOLICITATION OR NODISTRIBUTION RULE.
Example1:
if
solicitation
causes
constant
bickering and dissension between pro-union and
anti-union
employees,
evidence
may
be
introduced to show that the rule os necessary to
maintain
production
or
discipline.
Example2: a valid no-solicitation rule may e
unlawful if the employer simultaneously permits

Example: just as workers get out of the company


premises, kanang mag gawas na sila, mag atang
man ang mga union organizers nga naay union
literature, mga hand bills ba. "Panahon na! Kung
hindi ngayon, kelan pa?!" Attention grabbing.
Phrases that are already jaded. Overused. ( like
im sorry and i promise?!.lamona, bet! Haha)
(father talked about Mahatir Mohammad) The
underlying accountability that is necessary for a
democracy is not for the officials, it is for the
voters. The voters should be accountable for their
choice. That is the rockbottom of accountability.
Tan.awa, c ERAP, convicted na, gi.elect lang
gihapon. BONG-BONG MARCOS, wala pa gani
siluti, re.elect lang ghpaon. Buang man ang nag
boto. Edi luto.on sa kaugalingong mantika...
(Hahaa. brutally honest!) Look for nowhere, It is
in our stars :) (talked about democracy in Spain).
Now, go back to the second rule:) . Even if it is
presumed invalid, you are distributing papers just
as the employees get out. Tier last step, they are
already outside the company premises. Can you
stop the union organizers? There is a sign there:
No distribution of any materials. Is that valid?
That is presumptively invalid because that is no
longer company premises. But what happens?
There are so many who just throw it away.
Magkatag lang na dinha, tapos mag taligsik
gamay, naay ma slide. Ma dak-dak ang sampot
(whats sampot, butt?) Ma liable pa ang employer
so the employer prohibits. Is that valid rule now?
YES. That is a decided case in the US. It
presupposes a natural ----. So ha, overboard rule
may otherwise be rendered as valid upon
presentation of evidence to the contrary.
3. IN DEPARTMENT STORES, THE GENERAL
RULE AGAINST APPLYING NO-SOLICITATION
RULES TO EMPLOYEES NON-WORKING TIME
DOES
NOT
APPLY.
Reason: Presence of customers in the
working
area.
Discussion:
Alright. Again, there are workplaces where a
general NO SOLICITATION RULE CAN BE HELD
VALID. Like in department stores. You can be
prohibited from soliciting for union membership in
neutral places and in neutral areas of the

workplace. Why? Because these neutral areas are


accessible to third parties especially the
customers. And the customers when they hear
talks about union formation, they maybe alarmed
that there is conflict. They will not go to the
supermarket. So they they can be legitimately
prohibited even in neutral places since they are
accessible to third parties.
4. HOSPITALS ARE JUSTIFIED IN LIMITING
EMPLOYEE SOLICITATION AND DISTRIBUTION
RIGHTS EVEN DURING NON-WORKING TIME,
BUT ONLY IN PATIENT CARE AREAS.

right to self organization vis a vis the employer,


you
must
have
the
employer-employee
relationship.
So,
union
organizer
maybe
prevented from get going inside the premises.
What is the exception?

Reason: Need to provide a tranquil atmosphere


for
its
patient.

7. IN SITUATIONS WHERE THE COMPANY


PROPERTY IS ISOLATED FROM A LARGER
COMMUNITY, AS IN THE CASE OF COMPANYOWNED TOWNS, SHIPS, LUMBER CAMPS,
AND THE LIKE, AND EMPLOYEES CANNOT BE
REACHED OUTSIDE THE PREMISES, UNION
ORGANIZERS
MUST
BE
ALLOWED
REASONABLE
ACCESS
TO
COMPANY
PROPERTY.

What is "patient care area"?

Discussion:

- according to the US supreme court, a hospital


could prohibit union activity in corridors and
sitting rooms in areas near patient's room, or
operating and therapy rooms , but it could NOT
prohibit solicitation activity in a cafeteria, gift
shop, and lobbies which were not frequented by
patients.

The exception to Rule No.6 is isolated work


places. Mining areas, agricultural businesses that
are located in isolated places away from urban
center. They live in areas where they work. So, if
organizers are not allowed to go in there, there
(employees) right to self organization will be
rendered nugatory. The union organizers MUST be
allowed to enter inside the premises.

Discussion:
Why? Because the patient, their visitors have
access. And they will be alarmed.
5. DISTRIBUTION OF UNION LITERATURE BY
EMPLOYEES ON COMPANY PROPERTY MAY
NOT BE PROHIBITED BY RULE IN IN NONWORKING
AREAS
AND
DURING
NONWORKING TIME.
Discussion:
Exception: there are safety concerns.

6. DISTRIBUTION OF UNION LITERATURE BY


NON-EMPLOYEE UNION REPRESENTATIVE
WITHIN
COMPANY
PREMISES
MAYBE
PROHIBITED.
The US Supreme Court has ruled that a retail
store's parking lot- even if it is open for public-- is
not in the nature of public property, and a union
does not have a free-speech right to enter it to
solicit employees.
Discussion:
Why? They are non-employees. These union
organizers do not have the right to selforganization vis a vis the employer. To have a

If you are here in the city, you cannot be


approached by the union organizer inside the
workplace. All they have to do is to make atang
sa gawas. Pag.gawas nimo, thats the time they
can talk to you. Or they will go through telephone
directory. They will look for your house, your
telephone. Just like the call agents. So these are
the rules on solicitations. These serves to further
the right to self organization without defeating
the legitimate business ends of the employer.
Now, i will give you an example of a Third Party
committing unfair labor practice.
Let us say here is a Mayor who is known for his no
nonsense stance on disturbance to peace and
order. Say he is called by his sister and the sister
tells him, you know, you have a nephew that you
stood for in baptism but look what happened it to
him. It took him 6years to finish high school and 6
years in college but did not finish it. Do you have
any way of getting him to find work engagement
because if you do not, you might end up arresting
him. So the mayor told the sister, do not worry.
Will recommend him to a job. So the Mayor called
one of his contacts- hydro carbons, makers of gas
mask. Gas mask, sa atong yanong pulong, naga
baligya oling pero sa abroad baligya. The nephew
was accepted. The nephew became regularized,
permanent. The mayor taught he solved the
problem. But the manager called him saying:
Mayor, naunsa man ning imong gi recommend,
nag una-una mag union. Nag hatag nag notice na
mag strike sila. Nag unsa man diay na siya? Cgeg

absent kai attend union meeting. Asa man siya


karon? Nag meeting. So the mayor went to there
and removed the nephew from the union
meeting, put him in the police car to the police
and puts him in jail. Police were instructed not to
give him any food or drink. He is fighting the
hands that feed him. What is that? RESTRAINT.
Crime against the fundamental law. If you prevent
someone from joining a meeting and you are a
public official, you are guilty of committing a
felony.

kai mag abot ra ang panahon ninyo. What is that?


Threat of reprisal. That cannot be. That is unfair
labor practice right away. Your speech must not
contain any promise of reward or threat of
reprisal.

Can you say he (mayor) employer? No. He is a


third party. What can you do against that mayor?
You can include him in a case of Unfair Labor
Practice. First, you have to file administrative
unfair labor practice case. After 10years, then
you can file a criminal case.

UNFAIR LABOR PRACTICE

Unfair labor practice -LA-NLRC- CA- SC.


10years in our judicial system is not that bad :)
So, that is what happens. What the mayor has
done is restraint. He restrained an employee from
exercising his right to self organization. This act
was made unlawful by Article 256.
Now, it is very easy of you are given facts and
you see restraint or coercion. That is very easy to
see. How about in words? When is employer's
speech interference? The landmark case is
INSULAR LIFE AND EMPLOYEES VS INSULAR
LIFE. I hope you read that. In this case SC laid
down the rule for employer's speech NOT TO BE
unfair labor practice, for it to escape the taint of
unfair labor practice, IT MUST NOT CONTAIN
ANY PROMISE OF REWARD OR THREAT OF
REPRISAL.
Suppose the employer calls the employee, we
have heard that you are forming a union, we are
one big family here, why are you forming a
union? We are family, i am your father, you are
my children. What do you want? Just tell me. And
they say: we want a raise. Pila man ang raise?
20php a day. That is what you want? Naa koi e
hangyo ninyo, akong e hatag kai katunga sa. I the
employer allowed to that, using PERSUASIVE
POWERS? NO, YOU CANNOT. You are putting a
promise of reward. That is INTERFERENCE. If your
speech contains a promise of reward, that is
already
interference.
THREAT OF REPRISAL. Tawag niya ang mga
employees. Naka dungog na mo anang union,
kabalo mi. Mga problemado naga duol sa union.
Naay mga kauban ninyo na naga ingon sa akoa.
Walay inyong gi.hagawhaw sa ngit-ngit na dili
nako mahibsl.an sa kahayag. Pag bantay lang mo,

We will continue next meeting:)


September 12 part 1
September 12, 2013 1 st Period 5pm to
6pm

Essentially it is a violation of the the employees


right to selfe organization. Then the possible
actors
in
this
violation,
there
can
be
management, there can be a labor ________, that
can violate the right of the employee to serve self
organization. Why? Because the right to self
organization is personal. The union does not out
the right to self organization. Secondarily, it
represents the right to self organization of itself. It
is not right because it does not have the
employer-employee relationship. Remember, an
employee can only be a natural person. If you
really felt for some, that cannot be an employee.
How can it sure a good work if youre a juridical
person? It cannot sure a good work. That is why
the reason of an employer-employee relationship.
That is the juridical person renders service and
later on he will find out that there is some sustain
as a management contract. A juridical person can
render service to another person by way of
managing that juridical person. But that is the
corporation involved. And that
is not the
______________
jurisdiction
of
they
call
__________________________________________________
______.
(Tanang mga balaod naa sa inyong ulo .Nya
maminaw ka sa storya sa imung client aron
mahibaw kag asa ka padulong. Naay maghilak
hilak, mag suko suko. You have to react to the
emotional part. Its only me who can afford to tell
that to the client. I will tell you the unadored truth
which you will never feel from anybody. Why?
Because I could not correct any feelings. So if you
want to know the truth, go to that man there
because he will tell you. )
Its headed by th past and present members of
the organization. Every administration cannot
account to respond.
The first accountability is the voter. He must be
man of himself. There are certain people that will
never be straight. We might be one of them.
UNFAIR PRACTICE OF SPEECH

Supposed an employer delivers his speech that is


made by the lawyer who knows the law. And his
speech is carefully acted such that it does not
contain any promises. (boarder line speech). How
will you characterized that speech? That is when
Juris Prudence says there is boarder line speech
specially to captive audience so called active
audience. The speech shall be characterized
according to the context and history of the
employer. If the employer in the past has been
speaking about preventing union organization or
persecuting leaders, the character of the speech
will be untied.
RULES ON EVIDENCE
You are taking at evidence. There is an action
intelligence which is called the evidence that one
take portraited to at one value is not evidence.
What is that called? res inter allus acta rule. Is the
law of the school in contervention with that
partamental action continue? Namely that
boarder line speech atTains the color of the
history of the employer that matters the
management. That is the exception of the true
intervalue contract. You cannot use evidence of
wrong doing in another occasion as the evidence
of wrong doing in the present. What was used
was the past history of the employer. That is the
tanor of the speech. It is not a violation of res
inter allus acta rule. It is the use of the history
context in order to prove an act. THE RULING OF
THE COURT IN CASES OF BOARDER LINE
SPEECH.-- BOARDER LINE SPEECH ATTAINS THE
COLOR OF THE HISTORY OF THE MANAGEMENT
THAT MATTERS. THE HISTORY OF THE EMPLOYER
IS USE TO GAINING WITH UNIONS IN THE PAST TO
SHOW AN IMPROPER ACT. The speech which
would otherwise be innocent speech is no longer
innocent. It attains the color of undelivered
speech.
The Supreme Court has said, the near
interrogation of an employee as to his lineant
activity is already unfair labor practice. You are
already intervening. That is if you actually
interrogate. That suppose, you make the
employees believe that there are those among
them that are spying. What is that? That is unfair
labor. That is a threat. If you make the employees
feeling that there are spies around to shadow
them as to their union activities, then that is
unfair labor practice.
Suppose you only make them believe, that there
is no actual spy, is that unfair labor practice? YES!
Suppose an employer or his representative
participate threat which obviously he cannot
carry out unless threatening an employee, is that
still an unlabor practice? YES!

What is the measure of an unfair labor practice?


The measure is the same as the dangerous
tendency. When the words in itself carry
the
threat, it can be. Then, it is already unfair labor
practice because it is unfair to inquire that that
which the law seeks to prevent. The threatening
must first occur in order to evaluate.
The landmark is the case of insular life of
employees person. This has happened in early
1960s. Ayala Avenue.
To interfere in the exercise of the rights of the
organization means acting positively and
negatively. It is prohibited to create a so called
company union. If the company organizes the
union itself, that is intervening. So what is your
posture? Bi-standard!
If youre not neutral, you distruct the union
activity, the union can prove that you are not
neutral. Then you will be held to have committed
unfair labor practice.
Normally, when the uion organizes activities,
there is what is called a road sack phase
underground. And then they will go underground.
What is the role of the organization? ---To identify
an issue!
Ex. Employees uniform prescribed by the
management (having adjustments) . You are
being discriminatory to the union. If your
management are allowed to have an addition to
the atire without acting on it, by the time union
use it, you can no longer act on it. Why? Because
you are discriminating.
RULE: kindness is not recorded by law.
Generousity is not recorded by law. Kindness and
generousity in employer-employee relationship
only comes in literally at a point of time.
September 12 part 2
The concept of Unfair labor practice committed
by third persons, unfair labor practice committed
by management, ULP by labor organizations
.
What is the nature of the list of 258? It is
exhaustive, if it is not found here, it is not ULP.
The SC said, no, it is a list of the most common
ULP not exhaustive. In the beginning, the
formation of the union was outlawed by the
provision in your revise penal code. They say, its
an illegal to stop a business that is legitimate.
When all the employees are convinced they will
not work unless they receive this much. That is
an illegal monopoly, according to lawyers. At that
time they did not call it a strike, it call it a turn-

up. So, once people organize they say we will not


work unless you give us this much, they were
sued for illegal machinations. They were arrested.
Now, the decisions of SC affirmed that but there
was a lone dissenting opinion. His opinion later on
became the material. His argument is very
simple, if it is not a crime for one man to say I will
not work if I am not given this much, why is it a
crime all of the sudden if everybody says so?
Labor is not supposed to be placed in a
disadvantage position just because it is
secondary to capital. Capital is still primary,
because its yesterdays labor which has not been
consumed. And if it is secondary, nonetheless it is
necessary. So just as capital want more profit, so
also labor should be doled out more.
These are the basic sins of capital, listed in 258,
these are not exhaustive. The generic way by
which the employers commit ULP is letter A of
258. To interfere with, restraint or coerce
employees in the exercise the right to self
organization. The most critical is this. The second
is to require as a condition of employment that a
person shall not join an organization or resign
from one. The short cut for that is the Yellow dog
contract.
Third to contract out services for functions being
performed by union members when such will
interfere with, restrain or coerce employees in the
exercise of the right to self organization. Shell Oil
company, fired all its security guards, then
contracted it out to an agency. This was the
before the 1973 constitution. And the SC held
that that is ULP. This is separate and distinct
illegal
contracting
from
the
labor
only
contracting. What is labor only contracting? If
what is contracted out are jobs that are directly
related to the principal business and the one
whom is contracted is a labor only contractor. If
you contract out jobs in order to stop or because
they are exercising the right to self-organization,
this is the offense, 258 letter B.
Suppose you have security guards and all of them
are employees of the company but then as they
retire, you replace them with agencies, is that
illegal contracting? No. the reduction in security
guard is the result of attrition, retirement.
In subsequent decided cases, SC has said, if a
department is legally closed all the workers are
separated from service and they are given
separation pay, then subsequently contract
workers are brought in to fill in those jobs? Is the
a mark of ULP? The SC has said, for as long as the
separation was legal, let us say uhhhhhh, lay off
or to reduce costs, that is not ULP.

Then the 13th, to initiate, dominate, assist or


otherwise interfere with the formation or
administration of a labor organization including
the giving of financial or other support to it or its
organizers. This is the creation of a company
union. I told you that interference with the right
to self-organization can be negative and can be
positive. Now what happens, youre the
employer, youre the personnel manager, pasko,
duol and union, mangayo ug contribution lechon
kay mag.party, and yet good relationship with the
union goes a long way to establish the work
force.
How do you help the union without running about
on 258 letter D and the answer is you provide for
it in the CBA. If you provide it, the more
particularized it is, management agree to provide
the union with space, and etc., that legal. Now if
you do not want to be committed to the union,
how do you make your aid to the union not an
ULP as it is said in 258 D but a compliance with
the CBA? You put a general clause. Management
agrees to provide the union with such assistance,
financial, in kind, moral, in such manner and such
quantity as is agreeable to the union. So that
covers all that things. It does not become ULP. It
becomes a matter of compliance with a provision
in the CBA.
258 E, to discriminate, in regard to wages, hours
of work and other terms and condition of
employment in order to encourage or discourage
membership in any labor organization. Suppose
you provide transportation, you stop that kay
nasuko ka. You run afoul with art. 258, you cannot
discriminate. You change your behavior towards
the union because of their exercise. You cannot
do that.
What is the exception? The next sentence is the
exception, nothing in this code or in any other
laws
shall
stop
parties
from
requiring
membership in a recognized CB agent as a
condition
for
employment
except
those
employees who are members of another union at
the time of the signing of the CBA.
That is not considered as discriminatory, it is
allowed. However even if you have valid union
shop agreement, what are the exceptions to the
coverage? At least three.
1st, those who are already members of another
union before the encumbent begin an exclusive
bargaining. You cannot force them to be member
of the exclusive bargaining agent if they are
already members of another union.

2nd, the exception given in Victoriano vs. Elizalde,


if you belong to a religious group whose
tenement prohibit you from joining a union. The
case of Iglesia ni Cristo. Why? SC said, that
freedom of religion, right to choose ones religion
is more superior. But here comes the case of
Rufina vs. Secretary, what happens tthere, in the
first certification election, members of INC said
we are not going to join because we are not
allowed to join. So they did not join. They were
not
forced
to
become
union
members.
Subsequently, the 60 day freedom period, the INC
formed a union, and they file a certification
election, and they won. So, there was aprotest.
The SC said, there is nothing objectionable, if
they break their religion, that is between them
and their religion. They can subscribe to what the
law grants.
We have discussed already agency clause, that is
also a form of union security clause. Now, letter F,
to dismiss, discharge or otherwise prejudice or
discriminate against an employee for having
given testimony under this code. If you are
complaining in labor standards, you go to 118. if
you are dismissed for money claims for being
underpaid. If you are fired or discharged because
of exercise of the right to self organization, you
go to 258. the trouble is 258F prescribes in 1
year. 118 non-payment or underpayment
prescribes in 3 years if it is money claims. If it is
dismissal, it is 4 years.
This is the difference. Now what happens if you
are discharged because of your exercise of the
right and you are not able to file an illegal
dismissal case, within 1 yr? you can still file a
case, this time based on ordinary illegal dismissal
under the 279 which is now 293. in cases of
regular employment the employer shall not
terminate except for a just cause. When you are
dismissed because of the right to exercise selforganization, that is without cause, that is ULP. If
you file it, but it you cannot, you cannot, you still
have still 3 years to go. To file an ordinary illegal
dismissal case. But mind you, the transformation
is only one way. An ULP dismissal can be made to
an ordinary dismissal case, but an ordinary illegal
dismissal cannot be made to ULP dismissal.

settlement of any issue in CB or any other basic


right. An employer who has something to give but
does not want to be saddled with a permanent
obligation, he gives it as a signing bonus. That is
not illegal. What is sought to be stopped here, is
naglisod namo ug bargain, unya nakahibawo ka
nga ang union president nagtukod diay ug balay
unya naundang ang construction, padala daun
kag truck nga hollowblocks. 259E, ULP committed
by labor organization, to ask negotiation or atty
fees from an employer as part of settlement, the
moment the union officers ask for something for
themselves, they are already committing ULP. If
management will propose that, its ULP, if
management pays, igo sila sa 258 H, but to the
union it is to ask for.
Letter I, to violate the duty of the bargaining
agreement, to be ULP and it is a violation of a
bargaining agreement, it must be gross. It means,
flagrant or malicious refusal to comply with the
economic provisions of the CBA. Art. 238,
privilege
communication
informational
statements made at concialtion proceeding shall
be treated as such and shall not be used as
evidence in the NLRC. Concialators and similar
officials shall not testify in any court or body
regarding any matter taken at concialation
proceedings conducted. Usually when there is a
labor dispute, and they cannot agree, the NCLB
immediately steps in and hold concialation
proceedings. They do not decide, they help the
parties to arrive at a mutually agreeable solution.
That is not arbitration. That is confidential. If you
are the employer and you want to threathen, that
is the time you do it. 238. why because it cannot
be used in the commission. The conciliators who
are there cannot testify. So if you are asked, when
can you utter ULP speech that maintains any
promise of reward or threat of reprisal, this is it.
September 18
Wednesday September 18,2013 5pm
Alright, we will finish unfair labor practice this
afternoon.

Letter G, to violate the duty to bargain


collectively as prescribed by this code. Duty to
bargain, remember, it is not a violation of the
duty to bargain if you keep insisting that you do
not want to bargain even a mandatory subject of
bargaining agreement. That is a legitimate
position as to continue to bargain that you do not
want to bargain. They call it stone walling.

I told you that 90% of unfair labor practice is


unfair labor practice by the employer. Article 259
is ULP by the Labor Organization. Unlike the
employer, the labor organization is authorized to
intervene/ interfere in the exercise of the right to
self organization. So, there remains just two ways
by which a labor organization commits unfair
labor practice and that is by way of restraint or
coercion.

Letter H, to pay negotiation and attorneys fees in


the union or its officers or agents as part of the

Article 259 says: Unfair labor practices of

labor organizations. It shall be unfair labor


practice for a labor organization, its
officers, agents or representatives:
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;
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;
To violate the duty, or refuse to bargain
collectively with the employer, provided it is
the representative of the employees;
To cause or attempt to cause an employer
to pay or deliver or agree to pay or deliver
any money or other things of value, 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;
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
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)
Discussion:

those who will not join, we will not talk to you


anymore, we will not consider you as our friends .
If something happens to you, we will just leave
you. What is that? Is that unfair labor practice? Is
that a way of coercion? You know, not every
threat is an actionable threat. From your RPC, you
know that light, grave threatens depends on the
legal characterization of the threat itself. If you
threaten somebody with death, that is grave
threat because the threat is grave, if what was
told to you is ---, that is light threat. Even beyond
those kind of threats, there are many threats that
are not actionable. When the wife threatens the
husband that she will not talk to him, you know
what is the remedy of the husband, certainly not
judicial. (Oiiee.father!) so also in labor relations.
When the union threatens an employee for it to
be unfair labor practice, the threat must be itself
illegal. But if the threat is dili naka tingugan, dili
naka apil sa kalihukan, those kinds of threats are
not unfair labor practice. Those are just ways of
interfering, soliciting, convincing employees to
join the union. And that is allowed on the part of
the union and its officers. So likewise,if the union
leaders stands up and makes a promise which
really cannot be complied with, union leaders tell
the the employees you better enroll in the driving
school because the moment we win, we will ask
the management is a car for every worker. When
they that, obviously, that cannot be granted. Is
that unfair labor practice? I do not think so. That
will only be interpreted in the Civil Code as
exaggeration of ----. Why? Because the moment
you put reasonableness as a yardstick, you
render it impossible for the standards of labor to
be improved. You must remember that any one
time the standards were not like that until
somebody will think of the impossible. That what
JBL Reyes says in LA SUERTE VS CA. At any one
time, the things that labor enjoys today were
once impossible dream until somebody comes up
and makes it a demand. So if you put a
demarcation of acceptability or demarcation of
realism, then you are limiting what labor can
aspire to and you will not be improved.

Article 259a states: 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;

Once again, there is a big leeway to labor speech.


A leeway which is not enjoyed by management.
Remember management cannot talk to labor in a
way that contains any promise of reward or threat
of reprisal. Labor can talk that way to its audience
which are the same audience of management.
They can talk that way and it does not constitute
as unfair labor practice speech.

Suppose one of the employees who has already


joined the union is soliciting union membership
and the non-union member is not convinced.
Suppose the union member tells this non-union
members that if our squad, we will vote for the
union in the coming certification election. For

Article 259b states: o 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;
The short hand for this is unlawful use of the
union security clause. You have seen the decided
cases. GENERAL MILLING VS CASIO, EDU VS
NLRC. The union's action which is arbitrary
against a union member, what is the remedy of
the union member? The remedy is to being a
complaint against the union on the strength on
the rights and conditions of membership in a
labor organization. Where does he brings the
complaint? He brings the complaint with the BLR,
the Med Arbiter. He DOES NOT bring it to the
Labor Arbiter. He brings it to the BLR.
If management comes in, and becomes a party to
the discriminatory application of the union
security clause, what happens? There is a
violation of the employee employer contract. So
now the union can sue management.unfair labor
practice dismissal or simple illegal dismissal.
Where does he bring the action? With the Labor
Arbiter. On the basis of the jurisdiction of the
Labor Arbiter which is found in Article 224 sub par
A
par
1.
Unfair
Labor
Practices.
Article 224 states: Jurisdiction of the Labor
Arbiters and the Commission.
Except as otherwise provided under this
Code, the Labor Arbiters shall have original
and exclusive jurisdiction to hear and
decide, within thirty (30) calendar days
after the submission of the case by the
parties for decision without extension, even
in the absence of stenographic notes, the
following cases involving all workers,
whether agricultural or non-agricultural:
Unfair labor practice cases;
Termination disputes;
If
accompanied
with
a
claim
for
reinstatement, those cases that workers
may file involving wages, rates of pay,
hours of work and other terms and
conditions of employment;
Claims for actual, moral, exemplary and
other forms of damages arising from the
employer-employee relations;
Cases arising from any violation of Article
264 of this Code, including questions
involving the legality of strikes and
lockouts; and
Except claims for Employees Compensation,
Social Security, Medicare and maternity
benefits, all other claims arising from
employer-employee
relations,
including
those of persons in domestic or household

service, involving an amount exceeding five


thousand pesos (P5,000.00) regardless of
whether accompanied with a claim for
reinstatement.
The Commission shall have exclusive
appellate jurisdiction over all cases decided
by Labor Arbiters.
Cases arising from the interpretation or
implementation of collective bargaining
agreements and those arising from the
interpretation or enforcement of company
personnel policies shall be disposed of by
the Labor Arbiter by referring the same to
the grievance machinery and voluntary
arbitration as may be provided in said
agreements. (As amended by Section 9,
Republic Act No. 6715, March 21, 1989)
Remember Article 224 a 1 Jurisdiction of the
Labor Arbiter and the Commission unfair labor
practice. You bring an action against the
management for terminating you by wrongly and
illegally applying the union security clause
together with management is impleaded with the
union. Does the Labor Arbiter now have
jurisdiction with the union? YES. Because the
main cause of action is now unfair labor practice
and termination. 1 & 2 of Article 224 and
incidental to that is the union being a co principal
with management in the termination that is an
unfair labor practice, you bring that with the
Labor Arbiter.
If management is still not included, you have a
compliant against union, that is called an intraunion controversy. Where do you bring that
action? You bring it with the Med Arbiter. What is
the duty of management? First, He must make
sure that the union security clause is up ----.
Second,
That
the
union
has
compelled
management in writing to apply the union
security clause. And third, that the union has
substantial evidence to terminate the employee.
If it does not have then management should not
go along in the request of the union. If he goes
along, even if there is no substantial evidence, he
commits unfair labor practice against the
employee and the union too commits unfair labor
practice. On the part of the union, he is guilty of
unfair practice under Article259 b.
Now what about disloyalty to the union. Because
when the union member is expelled for disloyalty,
and
subsequently
he
is
terminated
by
management at the insistence of the union that
the union security clause is not applicable, that is
when there is a correct application of the union
security clause. The wrongful application of the
union security clause ends up in unfair labor
practice. The correct use in a finding that the

union member is guilty of disloyalty. If you want


to find out what is the correct application of the
union security , you read the case of VILLAR VS
INCHONG April 20,1983. Inchiong is not a lawyer
but he prided himself of knowing labor law like
aback of his hand. So many lawyers are so
ignorant of the labor code. And he is correct
because labor ony became a bar examination
subject matter already in the late 1960. Being the
Deputy or Undersecretary of Labor, he was
reviewing so many labor decisions of the NLRC
because at that time, decisions of the NLRC was
still reviewable by the Secretary. He is the same
ad Blas Ople. Blas Ople was worst. He was neither
a lawyer nor did he even finished college. But he
was vice president of the International Labor
Organization. He wrote so many treaties.
Article 259c states: To violate the duty, or
refuse to bargain collectively with the
employer, provided it is the representative
of the employees;
Representatives of the employees of the
bargaining unit that makes him the exclusive
bargaining agent. So you commit this unfair labor
practice if you refuse to bargain and you are an
exclusive bargaining agent. What os an example?
Suppose you abandon the union after the signing
of the CBA, you go to management and you say, I
want the union dues in advance for 5years. If you
give it to us, we sill not bother you anymore.
So management give union dues in advance. The
union disappears. What happens to the
employees? They have no union anymore who
will espouse their grievances. That is when many
employees in the bargaining unit will universally
abandon also the union. Ky they will disaffiliate
and find a new federation to espouse their cause.
Now, what happens when the new federation
comes around and asks management for the
monthly check off of the union dues?
Management will say, gihatag n,ana namo. WHAT
MANAGEMENT DID, IT DID IT AT ITS OWN RISK.
So, remember when there is refusal to meet for
grievances that is part still of collective
bargaining. According to the Sc in REPUBLIC
SAVINGS BANK vs CIR, collective bargaining
does not end with the signing of the CBA. You
continue to bargain, you continue meet promptly
and expeditiously to adjust grievances. So, a
union that abandons is guilty of refusing to
bargain under Article 259c.
Duty to bargain. Violation of the duty to bargain.
If a union insist on bargaining about the nonmandatory subject of bargaining. And it makes it
a condition for sitting at a bargaining period then
that is a violation of the duty to bargain. But if
you insist on barging on a non mandatory subject

of bargaining and you continues to bargain, it is


still not a violation of the duty to bargain. Hangyo
na
nah.
Article 259d states: 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;
These are kickbacks. I told you that the teamsters
in the USA is the most associated with the mafia.
They got guns. In Labor, they don't have guns,
they have numbers or warm bodies. They came
to influence the labor movement especially the
unskilled labor and stevedore. Ever since there
has been these containerized ports, the ports has
now become one of the skilled industry. Kanang
mga crate operators unionized na sila, unsy
tawag sa karganahan sa cartoon. Unsay tawag
ana? Crates sa english. Sa bisaya. Unsa man na?
Tarima. Kung nalimping and nido ug milo, pag
deliver sa nccc, dili dawaton kai lumping. Ibutang
na nimo sa stante, wala nay mag get ana. Edi lost
na. Unsay gamit ans? Ibaligya sa subasta at a
lower price. Unsaon pagdakop na naigo man. Mo
nay sabotahe, for services not rendered. Dili nako
lumpingon ang imong kargamento, hatag na
dayon ug kickbacks. For services not rendered.
Sometimes this can be very disastrous. So that is
kickbacks.
Article 259e states: 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;
I discussed this already with you when we were
talking about unfair labor practice on the part of
the employer. On the part of the employer, it is
unfair labor practice to pay, on the part of labor
organization, it is unfair labor practice to ask.
Remember, they are asking from the union or the
officers, they are NOT asking for everybody. This
is called FEATHER BEDDING. The trouble of this is
it is a medieval figure of speech. When you
feather bed with something, you try to make the
bed comfortable. Dapat dili ghi. Ang sulod sa
kutchon, feathers. Pagmahumok or makatulog ka,
mao nay feather bedding. Mangayo gani kag
negotiation fee, ayon malumo imong kaing
kasing, and mag agree ka sa negotiations. Pero
atong analogy dinhi, atong figures of speech,
unsa man? Pang padulas. Feather bedding. To
grease with oil so that the machine will run well.

That is the american ordinary analogy, figures of


speech. Pangpadulas.Lagay. Anong ilagy jan?
Pngpadulas. Aron mag dagan or maglihok. Sa
tagalog, lagay.(hahaaa UNLI sa lagay father?!)
Article 259h states: To violate a collective
bargaining agreement.
It must an economic provision and the violation
must be gross in nature. It is flagrant or malicious
refusal of the economic provision.
Final paragraph of Article 259 states: 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)

Alright we are doney with unfair labor practice.


We now begin with strikes and lock outs.

STRIKES AND LOCKOUTS


Strikes and
provisions.

lockout

are

made

up

of

four

We now begin with strikes. Article 277- strikes,


picketing and lock-outs. Article 278- prohibited
activities. Article 279- improved offer balloting.
Article
280rendered
unconstitutional.
Article 277 states: Strikes, picketing and
lockouts.
It is the policy of the State to encourage
free trade unionism and free collective
bargaining.
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.
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)
The notice must be in accordance with such
implementing rules and regulations as the
Minister of Labor and Employment may
promulgate.
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.
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)
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.
Before or at any stage of the compulsory
arbitration process, the parties may opt to
submit
their
dispute
to
voluntary
arbitration.
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)
Article 278 states: Prohibited activities.
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.
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.
No employer shall use or employ any strikebreaker, nor shall any person be employed
as a strike-breaker.
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)
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)

Article
279
states:
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)

Article 280 states: 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.

Let us go to the definition of a Strike found n


Book V, Chapter 1, Article 219o.
Article 219o states: "Strike" means any
temporary stoppage of work by the
concerted action of employees as a result
of an industrial or labor dispute.
There are three elements in that decision:
A. Temporary stoppage of work.
B.
By the concerted actions of the
employees.
C.
It is a result of an industrial or labor
dispute.
Discussion:
A. Temporary stoppage of work
B. By the concerted actions of the
employees
- So the perpetrators/actors of the strike cannot
be one. It mist be concerted. Or such a number
that it should put a stop.
C. It is a result of an industrial or labor
dispute
- what is an industrial or labor dispute? Look at
Article219l.
Article219l states: Labor dispute- includes any
controversy or matter concerning terms or
condition 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.
So, labor dispute involves either terms or
conditions of work or the right to self
organization. If it dies not involve that, it is not a
labor dispute. If you have a fight with
the employer on that then the result is not a
strike. Piston, that is the organization of the PUJ
drivers. Every time the price of gasoline goes up,

they declare a so called strike. And they meet


with the operators and then, together with the
operators, they go and meet with the Secretary of
the Department of Labor. Now, they stopped
working. Is there a temporary stoppage of work?
Yes,there is. Is it by concerted action? Yes, all of
them or a good number of them. Is there a labor
dispute? THERE IS NO LABOR DISPUTE. The price
of petroleum products is not terms and conditions
of work neither it is a question of the right to self
organization. Before one of their favorite issues
for calling a general strike is US bases. Karon na
wagtang, wala lang gihapon. Amerikano lang
gihapon ang kontra. Kay si Pnoy tuta sa
amerikano.mga kalihukan, mas daghan pa
bandera kay sa tao. Ngano maabot man ug TV.
Kai naa may selga sa abs cbn sa gma, Wala pa
edi wala na. Sa kada newspaper naa na sila. Mao
ng naa gihapon casitas. Mga karaan ba.
The issue as to the definition of strike is: is the
right to strike is in the unnamed or the
unincorporated collective of the workers or is it in
the collective that has a personality known as the
union. Is it the union that has the right to strike?
Or it is the aggrupation of employees that has the
right to strike? Why? Take a look at Article277b.
Article277b states: 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.
Look at the last sentence. However, no labor
union may strike and no employer may declare a
lockout on grounds involving inter-union and
intra-union disputes. This sentence implies that it
is the labor union that has the right to strike.
The sentence before that says that the right of
legitimate labor organizations to strike and picket
and of employers to lock out, consistent with the
national interest, shall continue to be recognized
and respected. Again, the implication is, it is the
union that has the right to strike. You take a look
at the definition. Take a look at Article 219o.
Article 219o states: "Strike" means any
temporary stoppage of work by the
concerted action of employees as a result
of an industrial or labor dispute.

It seems that it is the employees that has the


right to strike. So who is correct? Article 219o or
Article277b? At sometime the SC will have to
decide as to who has the seat of the right to
strike? Among the workers or the union.
We will continue:)
September 19 part 1
September 19, 2013 1 st Period 5pm to
6pm
Yesterday we discussed the Elements of Strike.
Strike is just one of the concerted activities that a
union may undertake. Concerted activity is the
activity directed of the welfare of the union
members. The three elements should be the
basis for us to recognize whether this pride is
indeed accurate. Because there often was
visually the pedestrian thinks that this evidence
describe is not strike. The moment you see
people in a workplace, carrying placards, you
conclude that this is strike, you are not judging it
according to the legally significant requirements
of the definition in Context to be 2011202 level O
which is now is the 219 level O. It can happen let
just say that a workplace is on a three shift basis.
The first shift is at 7 in the morning and exactly in
the afternoon. The third shift ends at 7 in the
morning but 11 in the evening. So what is the
third shift starts picketing? And then when the
second shift ends they take over the picketing.
What you can see is that they just always picket.
What if their work stops it? No! there is no
stopping because they did not stop working.
Theyre just picketing. Picketing is not a labor
right. Picketing is a constitutional right.
The origin of the strike is the right to self
organization.
Picketing
flows
from
the
constitutional right with freedom of expression. It
is a privilege right. Before you can go on strike,
there are pre-requisites that you have to comply
with in accordance with the law. Picketing cannot
be subjected to pre-requisites. Constitutional law
states that any sort of censorship, requirement,
anything that curtails freedom of speech as a law
organization goes before the court with a heavy
burden of proving its validity. That is the only kind
of registration that is presumed illegal or
unconstitutional not presumed as illegal. That is
the holding of our Court. What is the big
difference? as to its legal basis, strike has the
right to self authorization whereas picket has a
freedom of speech. As to who exercises, strike
requires a plurality of persons. You cant do it
alone. You are expressing your freedom. Picketing

is privilege. While strike is covered with prerequisites, picketing is not. While strike may be
enjoined, picketing cannot be enjoined. It is on
the essence. On the very rare instances when
your speech is not covered by freedom of speech,
for because it is pornography, for it is libelous,
then it may be enjoined. But these days it is very
difficult to prove pornography. The fiction of sex
would totally devoid the social beginning value in
accordance with the community where it is
presented. If your community is the Netherlands,
prostitution, marijuana is legal, same sex
marriage is allowed, theres nothing we can do.
But the community with monks is difference.
Those are the only kinds of expressions that may
be enjoined.
If there is an abuse according to the freedom of
speech, the only remedy is more speech.
As a right, what is the difference in status
between strike and picketing? Strike is a
protected right. Picketing is a privilege right. The
state shall protect labor, local or overseas,
organized or unorganized, and shall ensure the
rights of the labor go just the main condition of
work, right to self organization and the right to
strike in accordance with law. Maybe protected
but concretely still has some amount of
discretions to legislative picketing But you cannot
legislate the freedom of speech.
Three requisites of strike. There is a law which
has not been amended, Presidential Decree 845,
amending Presidential Decree 823, Section 2. The
term strike shall comprise not only of concerted
work strategies but also slow downs, mass
leaves, attempts to damage or destroy, sabotage
plant, equipment and facilities and the like. The
work is stopped because of a repair. That is the
meaning of this Presidential decree. It is meant to
answer attempts at circumventing the provisions
of strikes in certain industries.
Workers Union vs. MRC page -95494 Sept. 7,
1955.
Supreme Court says our laws regulate the right to
strike within reason balancing the interest of
labor and management together with the over
arching public interest. There are three interests
that you have to balance: Right of the workers,
the
legitimate
business
interest
of
the
management and the public. And because strike
is to create public disturbance, that is the only
kind of labor legislation which in case of doubt, is
not interpreted in freedom of labor. Doubt has
came from two sources: texture doubt the doubt
on the text of the note on whatever
pronouncement is made; structure doubt . Did
they or did they not go on strike? These doubts
are
interpreted
against
the
involved.

(Constitutional case of PBM employees vs. PBM


scheme in 1973.) The right to disagree to
assemble and petition to government for income
occupies the highest position in the hierarchies of
Constitutional Law. Not all constitutional rights
are equal importance. There is a hierarchy. The
higher is this. to be able to petition the
government or representatives. On that is guilt,
republic democracy
that
goes constantly
governed with the consent of the government. If
one citizens right to peacefully assemble and
petition the government for is not allowed to be
exercise, then the rights of all are in danger. The
freedom of one is the freedom of all.
Supreme Court asks was there work stoppage?
Yes. There was work stoppage. Was there a
strike? Supreme Court says there was no strike
because the work stoppage occurred while the
workers were doing a legal right. It tells you that
aside from decree requisites listed in the law
namely: temporary work stoppage, concerted
activity of the workers, you may add - the work
stoppage must be directly intended by the
workers. If it is not, originally, there was work
stoppage. Second, it is a concerted activity. Third,
there was an issue about what to do on what
happened to them while they were exercising the
right to strike.
If you do something legal and lawful and there is
work stoppage, it would be dismissed so
therefore the leaders that would dismiss would
dismiss without cause. (GSIS case: Winston
Garcia)
Please read Article 278- Article 279. This is the
most high profiled part of labor.
1.
In the bar examination, 50% of
the questions are included.
2.
In
the
bar
examination,
questions are hardly asked
about strike.
September 19 part 2
Sept. 19 / 8-9pm
Who can file a notice of strike? The federation
because the federation has personality. After it
has filed a notice of strike, those in the bargaining
unit begin to receive a ----. Out of fear, they
disaffiliate from the union, from the federation.
And they ask an NGO to help them go to the
process of filing for an independent ----. While
they do that, they look for another federation that
will receive them, a federation that is known for
being aggressive. They are still convinced that
they have to go on strike because if they don't,
management will be emboldened to prosecute
them just like Assad in Syria.

Do they need to file a new notice of strike since


they are no longer with the federation who filed
the notice? If you say the order of the right to
strike is the union, then you have to say that they
have to file another notice. If you say that the
right to strike is vested on the warm bodies that
compose the bargaining unit, the workers, then
you don't have to file a new notice. It has not
been settled. There will be a case and the SC will
have to decide when the right stands because
there is as much evidence in the red letter of the
law that says it is the union that has the right to
strike. There is also in the red letter of the law
that says it is the workers who make up the union
where the right to strike is ultimately vested.

Example: wage distortion. It is a serious issue


that affects everybody. Yet the SC has said in IBM
vs. NLRC, 198 SCRA 586 (1991) that the strike is
illegal because even if the ground is serious it is
not a ground for strike. Because Art. 124 provides
for a particular method or procedure on how to
deal with this, effectively eliminating strike as a
way of addressing this.
2 kinds of strikes:
1. Economic Strike - strike waged by the union to
demand from management some benefit which
management is not under obligation to grant.
2. Unfair Labor Practice Strike (ULP)- strike the
ground of which is a commission on the part of
management of an unfair labor practice act.

Requisites of a strike: Art. 277 and Art. 278


A. Substantial Requisites:
1. Negative
a.) The strike must not be based upon an
intra or inter union dispute.
Art. 277(b) xxx no labor union may strike and no
employer may declare a lockout on grounds
involving inter-union and intra-union disputes.
Example: In a certification election, the
incumbent loses to a newcomer who becomes the
exclusive bargaining agent. The old union officer
says, let us send a message to the management
that we are still a force to reckon with. Dili na usa
ra ang sabot2on sa management, duha na. Tanan
nakadaog ug kita because we still have a
substantial number. How do we prove that? Let's
go on strike. So nag file sila ug notice of strike.
Can that be a ground? NO. Inter-union dispute.
Ang kalagot nimo sa pikas union cannot be a
ground for strike. So intra and inter-union
disputes cannot be a ground for strike.
Immediately, the strike is illegal.

Suppose the demand of the union is highly


unrealistic, does that make the ground for the
strike trivial? NO. In the case of San Carlos
Milling Co. vs. CIR, L-15463 and L-15723 [March
17, 1961]. The legality of a strike does not
depend on the reasonableness of the economic
demand.

b.) The strike must not be based on a plain


violation of the CBA except when the
violation is gross in character. That is,
flagrant and/or malicious refusal to comply with
the economic provisions of such agreement. That
is in Art. 273.
c.) The strike must not be based on a trivial
ground. It might be about working conditions
dispute, it might be an honest to goodness labor
dispute, but if it is trivial it cannot be a ground.
Walay hinungdan. Example: Reliance Surety and
Insurance Co., Inc. vs. NLRC, et al., 193 SCRA 365
(1991). What is the workplace of an insurance
company? Just one giant hall, so many desks
lined
up,
people
are
pushing
papers.
Management found out that people have become
too friendly and were working slower and slower,
so they re-arranged the desks. The president of
the union, didto na sa likod duol sa kasilyas... he
resented this. They filed a notice of strike. This is
a trivial ground. It must be a serious ground.

2. Positive
a.) The strike must be based either a CBA
deadlock or an unfair labor practice. So
either economic strike or ULP strike. San Miguel
Corporation v. NLRC, 304 SCRA 1. Deadlock is
defined as the situation between labor and
managent of a company where there is failure in
the collective bargaining negotations resulting in
a stalemate. CAPITOL MEDICAL CENTER vs
laguesma, February 4, 1997, 267 SCRA 503:
When there is a complete blocking or stoppage
resulting from the action of equal and opposing
forces, there is a deadlock. The word is
synonymous with the word "impasse" which
presupposes reasonable effort that would create
bargaining and which despite noble intentions,
does not conclude in agreement between the
parties. Positively, you must be able to tell
whether it is bargaining deadlock or ULP. It must
be either, it cannot be both.
b.) The ground for a strike must be a
serious ground. Something that affects
everybody, something that drastically affects the
working conditions. Or if it doesn't affect
everyone, it affects someone fatally (like
dismissal).
c.) The purpose and the means of the strike
must be lawful. Here we come face to face with
the question of violence. It's very easy for a strike
to turn violent. The SC has said, it is not whether
a strike becomes illegal by the occurrence of
violence. It is very easy at a deadlock that you
begin to throw each other hot words, and from
hot words you have action. The occurence of
violence is not enough to make a strike illegal. It

must be pervasive violence not sporadic violence.


When is it pervasive? Violence becomes
pervasive when it becomes the general mood of
the strikers and they are posturing either to
initiate of perpetuate violence.
It must be either economic strike or ULP strike. It
must be serious and both the purpose and means
must be lawful. If your means is unlawful and
your purpose is lawful, the strike is illegal. If your
purpose is illegal like intercorooprate dispute,
even if your means is legal, the strike is still
illegal.
The
two
must
be
legal.
The
transformation, if the strike begins legal and turns
into overwhelming violence, it becomes illegal
even if you comply with all the requisites. The
moment a strike becomes violent, can you
transform it and make it legal? No more, you
cannot. The best that you can hope for is what is
called pari delicto when management also
commits illegal acts.
B. Procedural Requisites
1. Negative
a.) There must be no violation of the duty to
bargain on the part of the union. You must at
least go though the motions of trying to adjust
your complaint, trying to find an amicable
settlement. SC says a strike is not the remedy of
first choice. It is the last remedy, it is the ultimate
remedy.
INSUREFCO Paper Pulp & Project Workers Union
vs. Insular Sugar Refining Corp., 95 Phil. 61
(1954) SC said: A strike declared by the union to
enforce a demand without first having given
management reasonable time and opportunity to
act on them has been held as premature and
illegal.
The supervisor is so cruel, so
unreasonable, they wanted him out. Management
would not dismiss the supervisor, so they went on
strike.
b.) There must be no compulsory or
voluntary arbitration over the ground for
strike. Example: A
union is organized.
Management finds out who the leader is and
immediately dismisses him. That is dissmisal of
union leaders which puts in danger the existence
of the union. You can go on strike without
observing the ----? The union leaders file an illegal
dismissal complaint. Can you still go on strike? No
you can't. Because the dispute is already
submitted to the compulsory arbtirator. If you
agree to voluntary arbitration on the very ground
for the strike, the legal effect is that you waived
your right to strike because you're submitting it
for resolution to a third party. You cannot have
your cake and eat it too.
Can you go on strike if there is compulsory
arbitration? If the compulsory arbitration is the

same subject matter as the ground for your


strike, then you can no longer go on strike.
c.) There must be no violation of the nostrike clause. If there is a CBA and there is a nostrike clause, you cannot go on strike violating
the clause. A no-strike clause covers only
economic strikes. It doesn't cover ULP strikes. If
otherwise, SC says that it will be a license for
management to be as cruel as they want to be, to
be as oppressive as they are capable of. Because
they can commit ULP with impunity. So a no-strike
clause covers only bargaining demands.
2. Positive
a.) Strike notice. You must file a strike notice. If
the strike notice is grounded on ULP, it must
contain the recitation of acts or omissions that
constitute ULP. You must recite there in detail the
acts/omission that constitute ULP. Where should
you file? Rule 77 says you file it with the Ministry,
the Dept. of Labor. The primer of the Dept. of
Labor says you file it with the NCMB. Who is
correct? If asked in the bar exam, you say there
that the primer of the DOLE says NCMB. But can
they determine the sufficiency of a strike notice?
They cannot. So the correct place to file is with
the Ministry. PAL vs NLRC, the SC said the strike is
illegal because the NCMB downgraded the strike
from a notice of strike to a recommendation for
preventive conciliation. Art. 238... it is now
privileged communitcation.
Information and
statements made at conciliation proceedings
shall be treated as privileged communication...
b.) After filing the notice you must serve
cooling-off period. If it is a economic or
deadlock strike, it is 30 days. If ULP strike, it is 15
days. So you cannot begin to strike until the
cooling-off period is at least consumed.
c.) Strike vote by secret ballot. Before you
conduct it, you must give notice of 24 hours to
the DOLE so that they will supervise it. They may
or may not supervise it but you must conduct it
and it must be by secret ballot. The majority of all
those in the bargaining unit must vote for the
strike. You must report the result to the DOLE, if
you don't, the strike is illegal. That is the holding
in Samahan ng Manggagawa sa Moldex vs NLRC:
Without submission of the results of the strike
vote, the strike is illegal. After taking the vote,
you must observe a waiting period of 7 days. Is it
in addition to the cooling-off period or is it
included in the cooling off period? DOLE primer
says it is IN ADDITION TO. But SC in the case of
National Federation of Sugar Workers (NFSW) v.
Ovejera, G.R. No. 59743, May 31, 1982, 114 SCRA
354 has said, if taken during the cooling off
period, the strike vote and the waiting period that
follows can be deemed counted after ---? If it
exceeds the cooling off period, then that is the

number of days you have to add to the cooling off


period. After the period, you must be open to
conciliation and regulation proceedings.
September 25
Wednesday, September 25, 2013 5pm

Today we will have assumption of jurisdiction.


Article
277e.
Article 277e states: 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.
Just a few loose ends with respect to the
requisites for the strike. For how long is a strike
vote
valid?
That
is
Article
277f.
Article 277f states: 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)
You take a strike vote. After you have observed
the 7 day waiting period. After if you have
observed the 15days or 30days cooling of period.
Are you obliged to go on strike otherwise you will
forfeit your compliance with the procedural

requirement? The answer is in Article 277f. The


strike vote is valid for the duration of the dispute
on substantially the same grounds. If the ground
for which you have filed the notice of strike is
settled but then there is another issue that crops
up. And you want to strike on that issue and that
issue is strikeable because it is a deadlock or
unfair labor practice rhen you have to comply
with the strike requirements again. File notice of
strike, observe cooling period, waiting period,
strike vote. But for as long as the cause is the
obtaining, then even if it last for a whole year,
your
compliance
with
the
procedural
requirements will srill be good.
Now, suppose the strike is already launch after
the observance of the procedural requirement,
and there is a ground or strikeable cause. Then all
of a sudden, when a strike is going on, the union
just serve notice to the management: we are
lifting our picket lines, tomorrow we will all report
for work. Management says, agad-agad. Buang
buang mo, strike2 mo tapos balik2 mo. Pabilin mo
dinha, dili na mo dawaton. Can they do that? NO.
They are to accept. That tells you that that: THE
ER-EE IS NOT SEVERED BY THE STIRKE. IT IS NOT
EVEN SUSPENDED BY THE STRIKE. Why? Because
the right to strike is granted by law. For as long as
it is lawful, it does not affect the er-ee
relationship. So, please remember that! If they
say: we will lift picket line and return to work
unconditionally, the employer has to accept that.
What happens if the employer does not accept
that, what is that called? It is called ILLEGAL LOCK
OUT. it is as if that is the equivalent the employer
striking before the employees. Before employer
can withhold the employees return to work, they
mist observe the procedural requirements. File a
notice of lockout, observe cooling of period, get a
lock out vote.
What is the so called PRIVILEGE OF GOOD FAITH
ERROR? That is the doctrine originally laid down
by the Sc in a 1951 case and they explained that
well in PNOC BACKYARD vs NLRC 291 scra 231
1998. It says: The strike is valid of the strikers
believe in good faith that the act of the employer
constitutes unfair labor practice although it was
not and that the strike was necessary in order to
arrest the evil effects upon the union. Take note,
the PRIVILEGE OF GOOD FAITH ERROR does NOT
apply to an ECONOMIC STRIKE. It is only
applicable in a Unfair labor practice strike. And it
is enough that the union is in good faith when it
holds strike.EVEN IF in fact there is NO unfair
labor practice was committed but in outward
appearance a unfair labor practice maybe
concluded by a reasonable mind, then the union
has the PRIVILEGE OF GOOD FAITH ERROR.
Example management before has acted in many

arbitrary ways. Now that the union is formed, all


of a sudden, the president is dismissed after an
investigation of an alleged wrong doing. The
members say, all these allegations of wrong
doing and these investigations are just show for
management. Now let us say the union president
is charged with theft. Can there be unfair labor
practice despite the investigation. Why? Because
of the expedience in the past. Let us later on, it
turned out that the union is really guilty of theft.
Therefore, there is no ground for strike. But
because the basic facts presented can make a
reasonable mind conclude that an unfair labor
practice is committed, that is called PRIVILEGE OF
GOOD FAITH ERROR. The workers and the leaders
cannot be penalized for conducting a strike. You
read that case.
Now, strike and so called libel. May strikers be
held liable for libel for derogatory accusations in
placards and banners? The example is PCI BANK
vs PNB EMPLOYEES ASSOCIATION 105 scra
315, 1981 case. This what happened. PNB
employees went on strike. One of the placards
shows: PCI Bank bad debts, transfer and
absorbed by PNB and IBC. PCI Bank sued the
union for libeling it. Did the libel suit prosper? It
was shut down and the Sc said, everybody knows
that those placards are products of raged
emotions. Do you find loving words in placards?
NO, you do not. You expect HOT words, not HOT
people carrying it, but HOt words. ( hahaa. Define
HOT father. Chos!) thats what the SC said. Bunga
sa kalagot ang placards. You will not find kind,
loving words on them. So hardly can you libel
somebody by carrying placards during strike.
Kinsa man mag tuo ana? Wala!
Remember the Water gate case, where Nixon was
nearly impeached. In the heat of that, there was
a company that put out a poster. There was a
picture of a girl scout having a box of
brownies/cookies. It is obvious from the picture
that this girl scout is pregnant. Down below is the
caption: Nixon's the one! The girl scouts of
America got so mad so they filed a libel suit for
libeling the girl scout. Nobody is libeling no one.
Everybody knows the that the girl scouts of the
USA are so wholesome. Ingon ka, ang president
sa inyong so and so, barat! Do you libel him? No!
Nobody believes you. That is called in industrial
psychology the ping-pong effect. What is the ping
pong effect? Makakita kag sign sa strike, ingon
ka, hala tinuod na, dili. Tan.aw pa ka sa other
side.
Alright. Are strikers entitled to strike duration
pay? ---vs CIR where the c said: Strikers are NOT
entitle to strike duration pay even if the strike
is,legal, they followed all the requirements, the
employer in fact committed unfair labor practice.

Why? This is the rule which is taken form Torts


and Damages. When a loss occurs, and it is from
doing a lawful act like a strike, each parties
sustains a loss. The employee (strikers) they
loose their pay since they are not working. The
employer
looses
because
they
cannot
manufacture goods. Both sustain loss. The
attitude of the law is, the law will leave them as
they are. Each may shoulder his own loss. Thats
the law.
Now,
PROHIBITED
ACTIVITIES
STRIKE.
Article

DURING
278.

Article 278 states: Article 278 states:


Prohibited activities.
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.
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.
No employer shall use or employ any strikebreaker, nor shall any person be employed
as a strike-breaker.
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)
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)
PROHIBITED ACTIVITIES DURING STRIKE
1. Striking without first bargaining.
2. Striking without first filing a notice of strike.
3. Striking without conducting a strike vote.
4. Striking after an assumption of jurisdiction or
certification of dispute from the Secretary.
5. Striking after the dispute is submitted to
compulsory or voluntary arbitration.
6. Obstructing or Impeding the picket lines.
7. While picketing shall commit acts of violence,
coercion or intimidation or obstruct the free
ingress or egress from the employers premises
for lawful purposes or obstruct public
thoroughfare. Article 278
8. Employing strikebreakers or allowing oneself to
be employed as strike breaker.
Discussion
6. Obstructing or Impeding the picket lines.
- The strikers are picketing. They are moving back
and forth. Remember a picket can only be
conducted outside the premises of the employer.
You do not have any right to be in the premises of
the employer UNLESS he allows you. Now, what is
the closest area to the owner's premises?
Normally the sidewalk. The sidewalk is ca.led the
res nullius. No one owns it! Everyone is supposed
to have access on it but no one can own it. It
cannot be subject for commerce. So you cannot
picket and stand there. Because if you do, you
are appropriating to yourself the space where you
are standing. You must act as if you are oneo f
those who have access since it is a passage way.

Mura kag nag agi agi lang ka ba. So kelangan


naga lihok ang picket. It must be a moving picket.
Ngano man mo dinhi? Nigamit lang mi dinhi sama
sa kadaghanan sa katawhan nga dunay katungod
na mugamit na mag lakawlakaw. E parking na
nimo imong bisekleta magpanit2 naka, sulod
nimo plastic, bubuoan nimo suka, unsa man na?
(Mangga! Eeerr.) unsa man na? You are
appropriating it that corner. Who makes it illegal,
not the national law. The municipal, the
sangunian ordinance. Angay ka dakpon. Mga side
walk vendor, angay na sila dakpon. Ingon ka,
maluoy man tawon ka. Ang bala.od alang sa
tanan. Dili alang sa angay kaluoy.an. (May
malaking pink ka ne check, father!) Kanang mga
pungkol, naa sa sidewalk. They are violating the
law, notwithstanding they have no feet by
appropriating the particular portion of the
sidewalk.
If your picket is continuously moving and is
disturbed, then the one who disturbs is also
breaking the law. Picket lines are moving. Mao
nay wala na sabtan sa union. (Ako pud
sauna.hahaha)
Ant of these prohibitions ha. Your remedy is a
restraining order. Remember, the LABOR ARBITER
CANNOT ISSUE A RESTRAINING ORDER. Who can
issue? Only the NLRC. So you may file an illegal
strike complaint with the Labor Arbiter BUt When
you ask for restraining order, you have to go up
to the NLRC. Pag abot niom didto. Unsa imong
proof? Naa kay mga pictures. Kini sila wala
naglihok. Pa tapadan dayon nimo nagbasa ug
newspaper, para makita ang petsa to prove it was
taken on that date. So, the NLRC (commission)
will issue a show cause order to the union. Unsay
buhaton sa unoon? Kasagaran ana tawagon nila
ang abscbn ug gma. Adto dayon na sila. Marcha2
dayon union. Pag marcha2 wala na sila ang lihok,
gawas sila sa abs cbn. Mga balita-ha-ha-ha-ha.Init
pa kaau! Nagbabagang balita. (hahaa! super
naka laugh ko that pips in this cafe are looking at
me.. I dont care!) pag abot nila sa commission
unsay buhaton? motion to subpoena gma, to
produce
the
pictures
depicting
the
actions/happenings. They are not stationary, they
are moving.
8. Employing strikebreakers or allowing
oneself to be employed as strike breaker.
What is a STRIKE BREAKER? A striker breaker is
one who breaks, threats, intimidate picketing of
employees during labor controversy or in the
exercise of the right to self organization. That is a
strike breaker. If you are the employer, you are

NOT allowed to hire people to become a strike


breaker. If you are an employee, you are also not
allowed to be employed as a strike breaker.
Now, what is SCAB? Dili na bagong klase sa
kaliskis (kavoang! Haha) Scabs is one who takes
the place of a striking worker in his workplace.
Scab is not prohibited.
What is a prohibited is a strike breaker? And
90% of the time a scab is a strike breaker. ( this is
past exam!) He breaks the picket lines to go there
inside the employer premises to take the place of
the striking workers. He is prohibited because he
breaks the strike not by being a scab. Now, if you
can be a scab without being a strike breaker, if
you ride a broom with special powers, alright!
Kaang mga taga Siquijor, mahimo na sila ana.
(Haha).
Now, you cannot escort those who will replace
the striking workers. You cannot. Even the
military is not allowed. The military CANNOT be in
the striking area. They must be at least 50meters
away from the strike area.
Now,what is a RUNAWAY SHOP? A runaway shop
is place where employer has transferred
equipment and other machineries to continue his
operations while the strike Is going on. I an
employer prohibited from doing so? NO! That is
his freedom as owner to place wherever he will
his machineries. But if you transfer your
equipment to a place that is not your regular
place, that place can also be picketed. So,
drycleaning ka. Nag strike imong mga workers.
Gi.trasfer nimo tanan equipmemt sa inyong balay.
Nag adto ang mga strikers sa inyong house, dili
na sila katulog. The runaway shop can now be
picketed. That is the problem if you engage in
runaway shop.
7. While picketing shall commit acts of
violence,
coercion
or
intimidation
You cannot intimate or coerce or restraint even
the co-employees and so the striking employees.
Since what they are doing is lawful.
What is IMPROVED OFFER BALLOTING?Article
279.
Article
279
states:
mproved
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)
It is a referendum by secret balloting and the
improved offer of the employer on or before the
30th day of strIke to be conducted by the DOLE
and to be decided by the AT AT LEAST MAJORITY F
THE UNION MEMBERS. Take note: this is not
absolute majority. There is a lower quantum of
majority votes needed to accept an improved
offer THAN a strike vote! ( Murag gawas ni sa
exam:) ) the strike vote requires the MAJORITY OF
ALL THOSE IN THE BARGAINING UNIT. here, it is
only the majority of the union members.
**IMPROVED OFFER BALLOTING= AT LEAST
MAJORITY OF THE UNION MEMBERS
**STRIKE VOTE=MAJORITY OF ALL THOSE IN
THE BARGAINING UNIT
Take note that improved offer applies to collective
bargaining strikes and in deadlock strikes. It does
NOT normally apply with UNFAIR LANOR
PRACTICE STRIKES.

WHAT ARE
PROHIBITED

THE

LEGAL REMEDIES
PRACTICES?

OF

1. File a complaint for Unfair Labor Practice


complaint (Article 224 par a 1)
2. File a complaint for violation of Article 278 in
relation to Article 224 par a prohibited practices
3. You can file a criminal case under Article 286any person violating any of the provisions of
Article 279 of this code may be sentenced to 110k fine OR imprisonment of 3months but not
more than 3years.
4. File a petition for injunction to restrain, coerce
or enjoin the prohibited acts whether actual or
threatened under Article 225 e with the NLRC
under Rule 58 Section 10. If you file an injuction-

Bond jud na! Kadto sad ipahunong mag file ug


counterbond.
Now many people mistakes an injunction to stop
a strike and an injunction to stop a prohibited
activity. Very difficult to file a case with the
commission to stop a strike. You can file a petition
to stop a prohibited activity. But, to stop a strike,
what do you do? You go to the Secretary of Labor
and ask him to perform the powers granted to
him under Article 277g.
Article 277g states: 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.
This is equivalently an injunction. Now, there are
at least two industries where it seems to be
automatic. Hospitals (specifically named in Article
278) and Banks (under the General Banking Law
of 2002 Section 32). When there is strike in
banks, the Secretary is urged to assume
jurisdiction. Assumes jurisdiction meaning he will
decide. Certify it to the NLRC meaning the NLRC
will decide the labor dispute. In the meantime
that it is being heard, or the strikes are enjoined,
the employer is mandated to accept all, the
employer cannot refuse this is the assumption of
jurisdiction.
Now, it says, the criterion is, whenever there is a
labor dispute that arises from an industry
indispensable to the national interest, the
Secretary of Labor assumes jurisdiction, is Ateneo
indispensable to the national interest? NO.
Indispensable to the national interest. Mura na ug
hangin na ginginhawa nato. If wala na mamatay
tang tanan.
There was a strike in coca-cola. Secretary of
Labor
assumes
jurisdiction.
Is
coca-cola
indispensable to the national interest? Naay mga
tao na buntag pa lang cole na pangitaon. You
have to read the case of: UNION vs MINISTER
108scra757 enbanc by Chief Justice Fernando
about Article 277g and Article 263g. Fernando
says: if the law precisely entrust that particular
branch of government and do it alone a certain
power, that power when exercised, what will the
court do initially, it beholds upon this court to
approach with becoming modesty the exercise of
the power of the Secretary of Labor to assume
jurisdiction over the labor dispute. Why? Because
it is an equal branch of government. The measure
by which the court acts is grave abuse of
discretion. If none, it is presumed correct because
that is what the law ordains. That is why in the
whole of jurisprudence, there is only one clear
case where the SC said corrected the power of
the
court
assume
jurisdiction.
PINCOM
INDUSTRIES VS BRILLIANTES 304 scra 747
1999. By Justice Purisima who just died
yesterday. Why did Purisima corrected the
Department of Labor? You read that case.
September 26 part 1 NO CLASS
September 26 part 2 NO CLASS
October 2
Wednesday, October 2, 2013 5pm

So we go to the statutory provision that allows for


a structured injunction.
As a general rule, strikes are NOT supposed to be
enjoined. There is supposed to be no injunction
that can be issued with respect to a strike
because a strike os a privilege activity. But Article
277g, grants the Secretary the power to
intervene in a labor dispute. But mind you, the
last paragraph of Article 277g, says "the
foregoing notwithstanding, the president of the
Philippines shall not be precluded from
determining the industries that inhis 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." So, the President has also
the power to intervene in the labor dispute. The
only president I know who exercised such power
is the President which from all appearances is the
least competent to do so. And that is Mr. Joseph
Estrada. Kung dili ka gusto mahibal.an na buslot
imnog karsones, ayaw na pag lakaw lakaw.
Lingkod nalang dinha. Ayaw na saka sa lubi.
Article 277g, says: " When in his opinion".
Whose opinion? The Secretary or the President
because of this last paragraph, there exist 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. This
particular provision originated from General Order
no. 5 during martial law.
General Order no. 5 prohibited all strikes in
industries that are vital to the national interest.
Public utilities, banks and corporations that are
exporting and all companies located within the
Export Processing Zone. They were considered
vital to the national interest. Subsequently, when
the Batas Pambansa was created, they passed a
law, BP 130. They changed the wording from
"vital to the national interest" to "affecting the
national interest". BP 130 was amended by Article
277. It proceeded to me, the industries affecting
the nation interest maybe: public utilities,
companies engaged in the distribution of energy,
banks, hospitals and those within the Export
Processing Zone. Now, here comes the EDSA,
March 21,1989, with the constituted congress
RA6715 which became effective March 21,1989,
amended all the previous one, it became
indispensable to the national interest. How is it
interpreted? Is it literally interpreted? Because if
you do so, you question the opinion of the
Secretary or President. I suggest you read

HOMEWORKERS
UNION
VS
MINISTER
108scra757, 1951 by Chief Justice Fernardo.
Article 277 is NOT an undue delegation of
legislative power. It is again challenged in GTE
DIRECTORIES CORPORATION VS SANCHEZ,
197scra452 1991, enbanc by Justice Narvasa.
Again, the challenged failed. Why? Because this
akin to what is called in your political law, the
POLITICAL QUESTIONS DOCTRINE. Once the
statues grant to the President a particular power
which he and he alone can exercise, then, the
presumption is nobody else can exercise it. If you
review it, then you are invading his prerogative
which is assigned to him by law. So, you cannot
question him. When can you question him? You
have another provision in the Constitution which
says that: The final reviewer of the governmental
acts in cases of grave abuse of discretion is the
Supreme Court. So you can only question the
exercise of Article 277g when there is that narrow
yardstick of grave a use of discretion. So I told
you, Ateneo goes on strike, it is NOT
indispensable to the national interest and yet the
Secretary of Labor assumes jurisdiction. All
strikes are enjoined. Cocal-cola went on strike,
assumed jurisdiction. Alcantara, timber, assumed
jurisdiction.
What constitutes grave abuse of discretion? You
have to read the case of PINCO INDUSTRIES
INCORPORATED VS BRILLIANTES 304scra747
1999. I will give you the ratio of the decision. The
respondent labor and employment secretary,
admits this fact: Expressly declaring that the case
at bar appears on its face not to hold within the
street categorization of cases imbued with
national interest. He nevertheless assumed
jurisdiction over petitioners labor dispute with
PINCO Industries labor association. So therefore,
the basis for the assumption of jurisdiction as an
invalid exercise of power by the Secretary of
Labor is HIS OWN ADMISSION. You can see that, it
is quoted in the whereas provisions. Kinsa man ng
sayop? Sayop sa nag pirma. Pero actually ang
naay sayop ang researcher :) Assumption of
jurisdiction. There has been many cases where
the SC has upheld the action of the Secretary of
Labor and it is very difficult to overturn that. Only
in this case of Brillantes, Labor Secretary
Brillantes.
(Nag illustrate c father) Now,let us say this is the
start of the labor dispute. You can go either two
ways- assumption of jurisdiction or the Secretary
of Labor certifies the dispute to the NLRC.
What is the first effect? All strikes are enjoined
the moment there is an assumption. Let is say
that the assumption order does not contain the
enjoinment of the strike. It does not contain a
return to work order. Does not free the unions

from nit lifting up the picket lines. Does that free


the unions from not lifting the picket lines? Does
that relieve the employer the obligation of
accepting back the strikers? NO! The SC has said
in a decided case. SC said even if the assuming
jurisdiction or order certifying the dispute does
not contain a return to work order, there is still an
obligation to return. Why, since it is already in the
law. That all assumptions of jurisdictions entails a
return to work. Suppose you question the
Secretary's order. You file a motion for
reconsideration with the Secretary asking him to
specify, stay his order assuming jurisdiction. You
put arguments why stay his order or no
assumption. Can you be excused not to return to
work pending your motion? Sc said NO! Why?
Because the law says so. You must IMMEDIATELY
return to work. Even if you are late for 1 day,
what is the effect? It means you are still on strike
even after the assumption of jurisdiction. That is
no longer an illegal strike. What is that? That is a
PROHIBITED ACTIVITY STRIKE. Prohibited strike is
more serious than an illegal strike. An ILLEGAL
STRIKE is one that does not comply with any of
the substantial or procedural requirements of the
strike. What is the consequence of an illegal
strike? All the officers who participate in the
illegal strike or consented loose their employment
status. The ordinary members of union are not
terminated. If it is a PROHIBITED ACTIVITY
STRIKE, the strike that is launched and continued
even after the assumption of jurisdiction of the
Secretary of Labor, then ALL those who
participated
in
the
strike,
looses
their
employment status. Whether you are an officer or
a member. So, that is the consequence.
Second, return to work. Gamay ra kaayo gi
pasaylo sa SC ani. That is the case of NFL case.
The Basilan rubber tackers.Bargaining deadlock,
the quota for an 8hr work day as to the number
of trees. Management is insisting of 250 trees,
the rubber tackers said we cannot do it. Why in
Kidapawan they can do it, why not in Basilan.
Guwang guwang naman ning kahoy dinhi, you
need to use a ladder. So, because of the
deadlock, they did not show for work anymore.
The Secretary assumed jurisdiction over the labor
dispute while they were on strike, they did not
return to work because they will still be subject to
the 250 trees and they said they cannot do it so it
will still be useless. Management went to the
Secretary with a motion to execute order because
they were still on strike, so they will be fired. So
when the Secretary came to oust them in their
bank houses, they went on certiorari to the SC,
and the Sc said,it would be useless to return to
work because the workers are in an impossible
situation.
Another

case

where

the

SC

excused,

she

participated in the strike for the first week. Then


she gave birth. While she was in the hospital, the
Secretary assumed jurisdiction. She said, how can
I return to work? She is excused, Somebody went
on leave and he was far away, he did not know
there is already a return to work order, that is
excuse. But if you are not in those situations, you
will
not
be
excused.
Like The teachers of Saint Scholastica College,
they said, we have filed a Motion for
Reconsideration and we are waiting for such to be
acted upon. In the meantime that it is not yet
acted upon, the status quo, we are still on strike,
so we do not have to return. They lost their jobs.
Even if 1day late, Sc said: THE LAWS ON STRIKES
ARE INTERPRETED STRICTLY because the net
effect is the disturbance in general society. That
is the only provision of the labor code that is
interpreted strictly against labor. So, this is what
happens. You MUST return.
I would like to point out to you cases of return to
work, recent cases. PLDT case. Telephone
operators. The second case is the UIC case.
First is the PLDT case, the older one. This is
2010. Telephone operators are redundant so they
have to be terminated. Why are they redundant?
Since nobody uses telephone operators anymore.
The PLDT uses call agents to answer complaints
but not telephone operators and there is no
equivalent position which can accommodate
them. So they were terminated with benefits.
Their benefits were 2.5 times the standard
benefits. What is the standard benefit for
termination due to redundancy? These are not
retrenchment,these
are
redundancy.
For
retrenchment it is: 1 month salary, or 1/2 salary
for every year of service whichever is greater
fraction of six months considered one year. For
redundancy, 1month salary or 1 month salary for
every year of service whichever is greater
fraction of six months considered one year. 300
telephone operators. How much did PLDT spent?
Over 1billion pesos. Each worker received a
minimum 1million. Union went on strike. Union
did not have the support of the telephone
operators. Now, after the notice of strike because
the thing is they went to conciliation and
mediation proceeding. The conciliation and
mediation went beyond the 30day notice that is
required of termination. Before you can
terminate, you must issue a notice to the
employees and to the --- labor 30days before
termination. After 30days, you pay the benefits.
After that, you can terminate. Since the 30 day
period lapsed, they already paid the telephone
operators at least those who signed. Only 50
refused to signed. The others signed the quit
claim. Dawat nasila sa kwarta, sign sila. And the

union went to strike. 1week after, the Secretary


assumed jurisdiction. The issue is: are the
telephone operators obliged to return to work? Is
the PLDT obliged to accept them back to work.
PLDT says, we already paid them. They signed
the quit claims, ngano pa balikon pa man? The
SC, they are commanded to return to work. Why?
Because the object of the return to work order os
to reinstate the situation prior to the strike, the
status quo, before the controversy. Remember ha.
The cause of the controversy is the termination.
Therefore, there must be made to return to work.
What is the case of UIC? Collective Bargaining.
What does the collective bargaining unit cover?
The stand of the union is it includes head
teachers, year level coordinators, it includes
department heads. Grade6, unom ka section,
naay coordinator, included in the bargaining unit
since he also teaches. He has a lower load
because he supervises, provides/takes place for
those who are absent,management says, it
cannot be included since he is one of those who
evaluates whether or not a teacher in probation
becomes regular. If they are included, then the
union will determine who becomes permanent. It
will not be the interest of the school. Now,
because of this particular deadlock, the parties
submitted the particular issue of inclusion or
exclusion of the department heads, submitted to
voluntary arbitration. NCMB continued to
conciliate and mediate. The voluntary arbitrator
said that they are excluded. The union went on
strike. 15days lapsed from the decision of the
voluntary arbitrator and the union did not appeal.
What is the effect? The voluntary arbitrator's
decision became final and executory. Question.
Are they included in the return to work? SC said,
they are included. What you have to put in mind
is this, What is the rule? What is the situation
before the labor dispute, what is the situation
sought to be restored? Because according to the
SC, the enjoining of a strike is not meant to be in
favor of management. It is not in favor of the
union. In whose favor is it? It is meant in favor of
the entire country because the issue arises from
an industry indispensable to the national interest.
Third effect. All are consolidated with the
secretary, when secretary assumes jurisdiction
with the NLRC, the NLRC assumes jurisdiction.
There is even a decided case, where the NLRC
assumes jurisdiction, the commission that has
jurisdiction of that particular division, designates
the executive labor arbiter for their particular
region that has a jurisdiction of a labor dispute.
The Labor Arbiter, since the situation was so
heated, he modified the order, he said: return to
work only payroll wise, not actual return to work.
The SC said, you cannot do that! The Labor

Arbiter here is not independent, he is with the


Secretary. And yet, if I may point out to you, a
certified dispute, if you take a look at the NLRC,
Article 224, jurisdiction of the Labor Arbiter and
the Commission. Article 224A is the jurisdiction of
the Labor Arbiter. Article 224B is the jurisdiction
of the commission. Take a look. The commission
shall have exclusive appellate jurisdiction over all
cases decided by the Labor Arbiters. Does the
commission have original jurisdiction? Under
Article 224, it does not have. Can you consider
this original jurisdiction. Will the Secretary
certifies the dispute? By virtue of that decision of
the SC, the SC said: the Executive Labor Arbiter
cannot modify the order of the Secretary since
there is no original jurisdiction. The COMMISSION
IS JUST AN EXTENSION OF THE SECRETARY. That is
why he is NOT free in defying or modify the order
of secretary who certifies the dispute. All the
cases are umped together here. Why. For a more
comprehensive resolution of the disputes
between the parties. The union has money claims
complaint with the voluntary arbitrator. The
commission will have the chance to, once and for
all settle the entire dispute between the parties.
Consolidation. Now, after the amendments, IT IS
MY OPINION that once a separate case between
the parties has already reached the Court of
Appeals, it is my submission, it can no longer be
consolidated. If it is consolidated there, it will just
go back to the CA because the decision of the
Secretary is reviewable by the CA. In other words,
you are just delaying. You are not facilitating the
speedy comprehensive resolution of the dispute.
Now, with all the more reason if the case is
already with the SC. I don't think that by virtue of
the decision of the SC requiring consolidation that
it will still be consolidated. The issue is already
decided by CA before it goes to the SC.
Fourth effect. Parties should refrain from any
acts which will aggravate the dispute. During
conciliation and mediation proceedings, parties
must find out if there is any amicable settlement
that
can
be
availed
of.
(Father making illustrations sa board.) The
hearing officer here is the regional director of
labor. The hearing officer when the Secretary
certifies the dispute is the executive labor arbiter.
Finally it is reviewed by the CA. Then the SC.
Remember it is NOT DOLE SECRETARY OR THE
EXECUTIVE LABOR ARBITER THAT DECIDES, they
make findings of facts, recommendation and
submit it to the Secretary. The Secretary who
makes a THE DECISION. if you challenge it, you
go to the CA. Here the executive labor arbiter
makes findings of facts, recommendations and
submit it to the commission, the NLRC. Then after
the commission, appeal it to the CA, then SC.

That is assumption of jurisdiction.

October 3 part 1
October 3, 2013 1st Period 5pm to 6pm
The general rule is that strikes cannot be
enjoined. Technically speaking, the secretary of
labor does not assumed jurisdiction or certify
dispute. Anyway the committee attacks may be
enjoined, not the strike itself. That is the ruling in
Bisig ng mga Manggagawa vs. NRC226-499-1993.
(Art. 14 Sec.03) The constitutional recognition of
the right to strike. It does not say the
constitutional right! The more accurate term is
the right to strike has recognition in the
constitution. It is on the level of the policy. It is a
dictate to the legislative branch of government to
maintain it in law. --That it does not have the
constitutional structure as to be, beyond the
powers of the congress to amend, to eliminate or
to modify. The constitutional recognition of the
right to strike does serve as a reminder that
injunctions should be reduced in the nearest
minimum.
What does that mean? These are the following
exceptions of the injunctions that the court has
allowed. First, you have the Manila Bulletin List.
The ruling in that case is already facie. Why?
Because this was before the passage of the
Herrera Veloso Law on March 21, 1989 R.A.6715
which amended many provisions in the labor
code. Among them are the rights of supervisors
to form unions. Before supervisors will just lump
together with the general category of the
management. And management according to the
code 345, commission was not allowed to strike.
Code 245 was amended. On a subcategory,
supervisors are not allowed to form a union. So
among us, they do not join the right to form a
union and restricting themselves as a separate
bargaining unit imposed by law. Now, this case
happened before that amendment. When the
supervisors of Manila Bulletin formed the union,
the management says you cannot do that. And in
the formation of the union, they launched a strike
what they call strike for recognition of the
union. Manila Bulletin did not waste any time
and go straight to the Supreme Court asking for
an order in Mandamus. Mandamus is a joint
jurisdiction of the RTC of the Supreme Court.
Supreme Court is not supposed to be a trial of
facts. But, Manila Bulletin went straight to the

Supreme Court for an order of Mandamus asking


the secretary of labor to disband the union
because the supervisors do not come. And the
Supreme Court took cognizance of the petition of
Manila Bulletin. That is an unpersiderated act
against the labor. Why? According to Supreme
Court, they are taking cognizance jurisdiction of
this petition of the general grams of equity and
justice.
What was the petition ordered? The labor
secretary to disband the union. And management
could have power to terminate, dismiss all the
supervisors that were forming the union. Why
could the
Manila Bulleting do that? Because
according to the Supreme Court, it is a free right.
It is written in the labor code that supervisors
have no right to self organization. Therefore, they
compliantly asked the Supreme Court for an order
to disband this union.
Is it an exception to the no-injunction rule this
Art. 277-G code. (Labor disputes occurring in
industries) Memorize it!
The third exception is contained in 277-G itself. --In case of hospitals, the secretary may
immediately assume within 24 hours from
knowledge of the occurrence of strike. Not all
workers in the hospital can go on strike. If you are
a health professional, that is a violation of your
oath. What do the nurses and doctors oath to? it
is our duty to do no harm.
Take note! It doesnt even have to ask the
secretary to assume jurisdiction. The secretary
within 24 hours from knowledge, he assumes
jurisdiction. (Art277-G)
Read 2nd paragraph: In line with the last man
concern for the highest respect accorded to the
right of the patients, the right of health, strikes
that rock out in hospitals, clinics and similar
institutions shall, to every extent possible be
avoided on serious efforts by labor and
management but government as well be
exhausted to substantially minimize, if not
prevent, duly exercise however the legitimate by
labor of its right to strike and by management.
Labor disputes at first be effectively continue
operation of medical institutions which shall be
the duty of the striking union or lacking of
employer to provide and maintain an effective
skeletal force of medical and other health
personnel.
In such cases therefore, the secretary of labor
and employment is mandated to immediately
assume within 24 hours from knowledge of the
occurrence of such strike, jurisdiction of the same
for certifying recognition. For this purpose, the
contending parties are strictly combined with
such orders for recognition of injunctions as

issued by the secretary of labor and employment


or the commission under immediate actions
including dismissal for lost of employees, by the
lacking of employer, charges and others..

against is no longer there. The original


Rethreading company had: 1. it formed a new
corporation 60% owned by the old Rethreading
company but 40% by Siang Tire company.

Before exception is contained with Section 22 of


the General Banking Law of 2000, all the Section
22 says, it is solely a labor provision found in a
banking law. There are two provisions: the
enumeration of the particular duties and positions
that may be contracted out by banks because
they are not considered as core duties and
functions. Second, any strike or lack out involving
banks if unsettled after 7 calendar days shall be
reported to the BSP by the secretary of labor who
may assume jurisdiction over the dispute or
decide to certify the same. However, the
president may, at anytime any intervene.

2. it formed another corporation. Siang Cement


is now 40% and there are other local partners.
The old rethreading company is no longer part of
that corporation. The new corporation bought all
the machinery and equipment and fixtures found
on that piece of property that is sold. It now
carries the business of the old rethreading
company.
So strike should be discontinued. The company is
now just a third party, an innocent, by-standard.
They went to the Regular Court because there is
no employer-employee relationship.

If there is a labor dispute in a rural bank (Arakan).


What is the essence of banking? The general
banking law says you become a bank the
moment you accept deposits from the banquet of
at least 20 or more depositors and you also live
out of that depositors. That is the fourth
exception.
The fifth exception is the innocent, by-standard
rule. (Fuentes Tire vs Court of Appeals 311 SCRA
784).
After 3 or 4months of strike, all of a sudden, the
strikers got a notice You are enjoined to stop
your strike. Why? Because one you have strike

The Regular Courts first issued a restraining


order. Subsequently the Regular Court took back
this restraining order and did not issue a
restraining order thats why the new company
fires when the Supreme Court issues. Are they an
innocent, by standard entitle to an injunction to
stop strike. ---You are not a by standard, much
less an innocent. Why? You intend the
transaction! You are still there.
Cases of innocent, by standard rule:
1. Manila Bulletin case
2. Liwayway Publishings
Please read NSF case. This explains the innocent,
by-standard rule.