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AN
APPROPRIATE
OR
MUTUALITY
OF
INTEREST
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SOLE
AND
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CERTIFICATION ELECTION
UNION, NOT VALID.
FILED
BY
ANOTHER
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rule was not applied here because for more than four (4)
years after it was certified as the exclusive bargaining agent
of all the rank-and-file employees, it did not take any action
to legally compel the employer to comply with its duty to
bargain collectively, hence, no CBA was executed. Neither
did it file any unfair labor practice suit against the employer
nor did it initiate a strike against the latter. Under the
circumstances, a certification election may be validly ordered
and held.
Even if there is no actual deadlock, if the
circumstances are similar to a deadlock, the
bargaining deadlock bar rule applies.
The case in point is Capitol Medical Center
Alliance of Concerned Employees-Unified Filipino
Service Workers v. Laguesma.106- Distinguishing this case
from said case of Kaisahan, the High Court cited the fact that
the bargaining agent here has taken legal actions to legally
coerce the employer to comply with its statutory duty to
bargain collectively. It has charged the employer with unfair
labor practice and conducted a strike to protest the
employers refusal to bargain. It is only just and equitable
that the circumstances in this case should be considered as
similar in nature to a bargaining deadlock when no
certification election could be held. This is also to make sure
that no floodgates will be opened for the circumvention of the
law by unscrupulous employers to prevent any certified
bargaining agent from negotiating a CBA.
4. CONTRACT BAR RULE.
a. Concept.
Under this rule, a petition for certification election
may not be filed when a CBA between the employer and a
duly recognized or certified bargaining agent has been
registered with the Bureau of Labor Relations (BLR) in
accordance with the Labor Code.107 Where the CBA is duly
registered, a petition for certification election may be filed
only within the 60-day freedom period prior to its expiry. 108
The purpose of this rule is to ensure stability in the
relationship of the workers and the employer by preventing
frequent modifications of any CBA earlier entered into by
them in good faith and for the stipulated original period.109
b. Justifications for the rule.
The reasons for this rule are as follows:
1. Certification election may only be entertained
within the 60-day freedom period. Any petition
filed before or after this period should be
dismissed outright.110
2. When there exists a CBA, it is the duty of both
parties to keep the status quo and to continue in
full force and effect the terms and conditions
thereof during the 60-day freedom period and/or
until a new agreement is reached by them.111
3. At the expiration of the 60-day freedom period,
the employer should continue to recognize the
majority status of the incumbent bargaining
agent where no petition for certification election
challenging such majority status is filed by any
other union.112
c. When contract bar rule does not apply.
The contract-bar rule does not apply in the following
cases:
1. Where there is an automatic renewal provision in
the CBA but prior to the date when such
automatic renewal became effective, the
employer seasonably filed a manifestation with
the Bureau of Labor Relations of its intention to
terminate the said agreement if and when it is
established that the bargaining agent does not
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(e)
CONSENT ELECTION
1. CONSENT ELECTION, MEANING.
A consent election refers to the process of
determining through secret ballot the sole and exclusive
representative of the employees in an appropriate bargaining
unit for purposes of collective bargaining and negotiation. It
is voluntarily agreed upon by the parties, with or without the
intervention of the DOLE.154
affiliate.
Based on the above definition and description,
technically, a local chapter created through the mode of
chartering by a mother union162 under Article 234-A of the
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by
Disaffiliation terminates the right to checkoff federation dues. The obligation to check-off
federation dues is terminated with the valid
disaffiliation of the affiliate union from the
federation with which it was previously
affiliated.183
Disaffiliation does not affect the CBA. It does
not operate to amend it or change the
administration of the contract.184
As a general rule, a labor union may disaffiliate
from the mother union to form an independent
union only during the 60-day freedom period
prior to the expiration of the existing CBA. It is
not, however, legally impossible to effect the
disaffiliation prior to the freedom period,
provided that the same is approved by the
majority of the members of the bargaining unit.
Under this situation, the CBA continues to bind
the members of the new or disaffiliated and
independent union up to the expiration
thereof.185
Disaffiliating from the federation and entering
into a CBA with the employer does not
constitute an unfair labor practice.186
Disaffiliation is not a violation of the union
security clause.187
Election protest involving both the mother
federation and local union is not a bar to
disaffiliation.188
The issue of affiliation or disaffiliation is an
inter-union conflict the jurisdiction of which
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REPRESENTATIVE
Based
on
Philippine
jurisprudence,
the
substitutionary doctrine was conceived during the time when
the law has not fixed the lifetime of the CBA as is now
provided in Article 253-A of the Labor Code. The uncertainty
on when and how should the majority status of the
bargaining agent may be challenged by way of a certification
election was thus the lingering problem hounding the labor
front.
Thus, in General Maritime Stevedores Union of
the Philippines v. South Sea Shipping Line, 190 the July 28,
1957 CBA between respondent company and the United
Seamens Union of the Philippines (USUP) , has been
continuously automatically renewed after every two years so
much so that at the time of the writing of the High Courts
decision in this case, it would appear that the CBA will still be
effective up to July 28, 1961, that is to say, about a year
therefrom. According to the claim of the petitioners, the
bargaining agreement of July 28, 1957 was but a renewal of
the same or similar agreement of July 1955, so that the
bargaining agreement has been in existence for about five
years, which is too long a period within which a certification
election has not been held. And because of the automatic
renewal clause provided in the CBA, the time when the
challenge should be made continues to pose a problem. This
led the Supreme Court to analyze cases decided by the
National Labor Relations Board (NLRB) of the United States,
which was the equivalent at that time of the Court of
Industrial Relations (CIR) and the present-day National
Labor Relations Commission (NLRC) . It thus concluded:
After reviewing the cases decided by the
NLRB of the United States and our own cases,
we have arrived at the conclusion that it is
reasonable and proper that when there is a
bargaining contract for more than a year, it is
too early to hold a certification election within a
year from the effectivity of said bargaining
agreement; also that a two-year bargaining
contract is not too long for the purpose of
barring a certification election. For this purpose,
a bargaining agreement may run for three,
even four years, but in such case, it is equally
advisable that to decide whether or not within
those three or four years, a certification election
should not be held, may well be left to the
sound discretion of the CIR, considering the
conditions involved in the case, particularly, the
terms and conditions of the bargaining contract.
We also hold that where the bargaining
contract is to run for more than two years,
the principle of substitution may well be
adopted and enforced by the CIR to the effect
that after two years of the life of bargaining
agreement, a certification election may be
allowed by the CIR; that if a bargaining agent
other than the union or organization that
executed the contract, is elected, said new
agent would have to respect said contract, but
that it may bargain with the management for
the shortening of the life of the contract if it
considers it too long, or refuse to renew the
contract pursuant to an automatic renewal
clause.191
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(b)
UNION DUES AND SPECIAL ASSESSMENTS199
(i)
REQUIREMENTS FOR VALIDITY
1. RIGHT OF UNION
ASSESSMENTS.
TO
COLLECT
DUES
AND
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WRITTEN
AUTHORIZATION,
WHEN
cases,
individual
written
ON
UNION
DUES
AND
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------------oOo-----------Chapter Seven
B.
RIGHT TO COLLECTIVE BARGAINING
1. CONSTITUTIONAL FOUNDATION.
The right of all workers to collective bargaining and
negotiations
is
right
duly
guaranteed
under
the
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Automatic
renewal
clause
incorporated in all CBAs.
deemed
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2.
COLLECTIVE BARGAINING AGREEMENT (CBA)
1. CBA.
A Collective Bargaining Agreement or CBA for
short, refers to the negotiated contract between a duly
recognized or certified exclusive bargaining agent of workers
and their employer, concerning wages, hours of work and all
other terms and conditions of employment in the appropriate
bargaining unit, including mandatory provisions for
grievances and arbitration machineries.24 It is executed not
only upon the request of the exclusive bargaining
representative but also by the employer.25
2.
ESSENTIAL
REQUISITES
OF
COLLECTIVE
BARGAINING.
Prior to any collective bargaining negotiations
between the employer and the bargaining union, the
following requisites must first be satisfied:
not
The benefits derived from the CBA and the law are
separate and distinct from each other.38
Workers are allowed to negotiate wage increases
separately and distinctly from legislated wage
increases. It is provided under Article 125 of the Labor
Code that no Wage Order should be construed to
prevent workers in particular firms or enterprises or
industries from bargaining for higher wages with their
respective employers. This is usually the case because
all CBA negotiations are conducted for the purpose of
effecting increases in wages and other benefits over and
above the rates provided for by law. Obviously, the
parties do not sit down and negotiate a CBA for the
purpose of reducing existing benefits way below what
the law mandates.
The parties may validly agree in the CBA to reduce
wages and benefits of employees provided such
reduction does not go below the minimum
standards. 39
Entering into a CBA which contains terms and
conditions of employment below minimum standards
established by law shall, despite its registration, not
constitute a bar to the conduct of a certification election.
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terms grievance
machinery may be used
(ii)
VOLUNTARY ARBITRATION
1. VOLUNTARY ARBITRATION.
Voluntary arbitration refers to the mode of
settling labor-management disputes in which the parties
select a competent, trained and impartial third person who is
tasked to decide on the merits of the case and whose
decision is final and executory.56
2. VOLUNTARY ARBITRATOR.
A Voluntary Arbitrator refers to any person who
has been accredited as such by the National Conciliation and
Mediation Board (NCMB or Board) , or any person named
or designated in the CBA by the parties as their Voluntary
Arbitrator, or one chosen by the parties with or without the
assistance of the NCMB pursuant to a selection procedure
agreed upon in the CBA or one appointed by the NCMB in
case either of the parties to the CBA refuses to submit to
voluntary arbitration. This term includes a panel of Voluntary
Arbitrators.57
(i)
(iii)
GRIEVANCE PROCEDURE
1. GRIEVANCE OR GRIEVABLE ISSUE.
A grievance or grievable
issue is
any
question raised by either the employer or the union regarding
any of the following issues or controversies:
1. The interpretation or implementation of
the CBA;
2. The interpretation or enforcement of company
personnel policies; or
3. Any claim by either party that the other party
is violating any provisions of the CBA or
company personnel policies.51
In order to be grievable, the violations of the CBA
should be ordinary and not gross in character; otherwise,
they shall be considered as unfair labor practice
(ULP). Gross violation of the CBA is defined as flagrant
and/or malicious refusal by a party thereto to comply with the
economic provisions thereof. 52 If what is violated, therefore,
is a non-economic or a political provision of the CBA, the
same shall not be considered as unfair labor practice and
may thus be processed as a grievable issue in accordance
with and following the grievance machinery laid down in the
CBA.
2. GRIEVANCE MACHINERY.
Grievance machinery refers to the mechanism
for the adjustment and resolution of grievances arising from
the interpretation or implementation of a CBA and those
arising from the interpretation or enforcement of company
personnel policies.53
3. GRIEVANCE PROCEDURE.
Grievance procedure refers to the internal rules
of procedure established by the parties in their CBA with
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in
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(b)
(b)
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OF
UNION
SECURITY
is
maintenance
of
membership
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during the life of the CBA. This form of union security clause
259(e) [248(e)
arrangement.
of
the
Labor
Code
validates
this
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(b)
REFUSAL TO BARGAIN
1. FAILURE OR REFUSAL OF MANAGEMENT TO GIVE
COUNTER-PROPOSALS TO THE UNIONS DEMANDS.
The failure of the employer to submit its counterproposals to the demands of the bargaining union does not,
by itself, constitute refusal to bargain. 135 However, it is
different if the employer refuses to submit an answer or
reply to the written bargaining proposals of the certified
bargaining union. In this case, unfair labor practice is
committed. While the law does not compel the parties to
reach an agreement, it does contemplate that both parties
will approach the negotiation with an open mind and make a
reasonable effort to reach a common ground of
agreement.136
In General Milling Corporation v. CA, 137 the
Supreme Court found the petitioner guilty of unfair labor
practice under Article 248 [g] for refusing to send a counterproposal to the union and to bargain anew on the economic
terms of the CBA.
Similarly, in the earlier case of Colegio de San
Juan de Letran v. Association of Employees and Faculty
of Letran,138 the petitioner school was declared guilty of
unfair labor practice when it failed to make a timely reply to
the proposals of the certified bargaining union more than a
month after the same were submitted to it. In explaining its
failure to reply, the school merely offered the feeble excuse
that its Board of Trustees had not yet convened to discuss
the matter. Clearly, its actuation showed a lack of sincere
desire to negotiate the CBA thereby rendering it guilty of
unfair labor practice.
2. REFUSAL OF A PARTY TO SIGN THE CBA.
(c)
INDIVIDUAL BARGAINING
1. EMPLOYERS ACT OF NEGOTIATING WITH UNION
MEMBERS INDIVIDUALLY, A ULP.
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(e)
SURFACE BARGAINING
1. CONCEPT.
Surface bargaining is defined as going through
the motions of negotiating without any legal intent to reach
an agreement. This kind of unfair labor practice may only be
committed by the employer.
According to the same case of Standard Chartered
Bank, it involves the question of whether an employers
conduct demonstrates an unwillingness to bargain in good
faith or is merely hard bargaining. There can be no surface
bargaining, absent any evidence that management had done
acts, both at and away from the bargaining table, which tend
to show that it did not want to reach an agreement with the
union or to settle the differences between it and the union.
Here, admittedly, the parties were not able to agree and thus
reached a deadlock. However, it must be emphasized that
the duty to bargain does not compel either party to agree to
a proposal or require the making of a concession. Hence,
the parties failure to agree does not amount to an unfair
labor practice under Article 248(g) of the Labor Code.147
5.
UNFAIR LABOR PRACTICE
(ULP)
(a)
NATURE OF ULP
1. WHEN AN ACT CONSTITUTES ULP.
2. Criminal aspect.
The civil aspect of an unfair labor practice includes
claims for actual, moral and exemplary damages, attorneys
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(b)
(b)
To require as a condition of
employment that a person or an
employee shall not join a labor
organization or shall withdraw from one
to which he belongs;
INTERFERENCE,
RESTRAINT
OR
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Labor Code.
In General
Milling
Corporation
v.
indicate that the employer had interfered with the right of its
employees to self-organization. Because of such act, the
employer was declared guilty of unfair labor practice.
In Hacienda Fatima v. National Federation of
Services, Inc. (FISI) since the 1980s and have since been
rather shut down than deal with the union. The company had
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of a labor organization.
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COMPANY UNION
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200
been committed
to encourage or
DISCRIMINATION
1. CONCEPT.
not non-unionists.
In Manila Railroad Co. v. Kapisanan ng mga
Manggagawa sa Manila Railroad Co., 202 the nonregularization of long-time employees because of their
affiliation with the union while new employees were
immediately regularized was declared an act of
discrimination.
In Luzon Stevedoring Corporation v. CIR,203 it
was pronounced that the disapproval of the application for
leave of absence with pay does not necessarily indicate
discrimination, unless it could be shown that such
disapproval was due to the employees union membership or
activity.
In AHS/Philippines
Employees
Union
v.
NLRC,204 the employer transferred the union president from
the main office in Manila to Cebu at the time when the union
was still being organized. It was held that the uneven
application of its marketing plan resulting in the said transfer
of the union president is patently an act of discrimination
constitutive of unfair labor practice.
2.
DISCRIMINATION
DISTINGUISHED.
Discrimination
AND
should
be
CLASSIFICATION,
distinguished
from
PURPOSE
OF
ALLEGED
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IV.
ANTI-FEATHERBEDDING DOCTRINE
1. CONCEPT.
Under Article 249(d) , it is ULP for a labor
organization, its officers, agents or representatives 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.
This practice of the union is commonly known as
featherbeddingas it unduly and unnecessarily maintains or
increases the number of employees used or the amount of
time consumed to work on a specific job. This is done by the
employees to unduly secure their jobs in the face of
technological advances or as required by minimum health
and safety standards, among other justifications. These
featherbedding practices have been found to be wasteful and
without legitimate justifications.
2. DEMAND FOR PAYMENT OF STANDBY SERVICES.
A union commits an unfair labor practice under this
provision by causing or attempting to cause an employer to
pay or agree to pay for standby services. Payments for
standing-by, or for the substantial equivalent of standingby, are not payments for services performed within the
meaning of the law. When an employer received a bonafide offer of competent performance of relevant services, it
remains for the employer, through free and fair negotiation,
to determine whether such offer should be accepted and
what compensation should be paid for the work done.245
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provision that can hold them therefor. The silence of the law
on this point can only be construed that they are not so liable
therefor.
------------oOo-----------Chapter Seven
LABOR RELATIONS LAW
TOPICS PER SYLLABUS
C. Right to peaceful concerted activities
1. Forms of concerted activities
2. Who may declare a strike or lockout?
3. Requisites for a valid strike
4. Requisites for a valid lockout
5. Requisites for lawful picketing
6. Assumption of jurisdiction by the DOLE Secretary
or Certification of the labor dispute to the NLRC
for compulsory arbitration
7. Nature of assumption order or certification order
8. Effect of defiance of assumption or certification
orders
9. Illegal strike
a) Liability of union officers
b) Liability of ordinary workers
c) Liability of employer
d) Waiver of illegality of strike
10. Injunctions
a) Requisites for labor injunctions
b) Innocent bystander rule
C.
RIGHT TO PEACEFUL CONCERTED ACTIVITIES 1
1. CONSTITUTIONAL FOUNDATION.
The following constitutional tenets are relevant in
connection with the exercise of workers of their right to strike
and picket:
1. Section 18, Article II [Declaration of Principles
and State Policies], 1987 Constitution:
The State affirms labor as a primary
social economic force. It shall protect the
rights of workers and promote their welfare.
2. Section 4, Article III [Bill of Rights], 1987
Constitution:
No law shall be passed abridging the
freedom of speech, of expression, or of the
press, or the right of the people peaceably
to assemble and petition the government for
redress of grievances.
3. Section 3 (Labor) , Article XIII [Social Justice and
Human Rights], 1987 Constitution:
The State shall xxx guarantee the rights
of all workers to self-organization, collective
bargaining and negotiations, and peaceful
concerted activities, including the right
to strike in accordance with law. xxx
2. STATE POLICY ON FREE TRADE UNIONISM AND
FREE COLLECTVE BARGAINING.
It is the policy of the State to encourage free trade
unionism and free collective bargaining. Pursuant thereto,
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b. Grounds.
The employer may declare a lockout based on any
of the two (2) grounds that may similarly be invoked by the
union in staging a strike, i.e., (1) bargaining deadlock; and/or
(2) unfair labor practice.34
3. WHO MAY STAGE A PICKET?
Although not mentioned in the syllabus, it is
important to discuss this point. Distinctively, in case of
picketing, the absence of employment relationship between
the employer and the picketers or some of them does not
affect its validity. Picketing, if peacefully carried out, cannot
be prohibited even in the absence of employer-employee
relationship.35
3.
REQUISITES FOR A VALID STRIKE
1. REQUISITES FOR A VALID STRIKE.
a. Procedural but mandatory requisites.
In accordance with Article 263 and pertinent
prevailing jurisprudence, a strike, in order to be valid and
legal, must conform to the following procedural requisites:
1st requisite -
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VII.
SEVENTH REQUISITE:
7-DAY WAITING PERIOD OR STRIKE BAN
1. PURPOSE OF THE 7-DAY WAITING PERIOD OR
STRIKE BAN.
The seven (7) day waiting period is intended to give
the NCMB-DOLE an opportunity to verify whether the
projected strike really carries the approval of the majority of
the union members.59
2. WAITING PERIOD/STRIKE BAN VS. COOLING-OFF
PERIOD.
The 7-day waiting period or strike ban is a distinct
and separate requirement from the cooling-off period
prescribed by law. The latter cannot be substituted for the
former and vice-versa.60
The cooling-off period is counted from the time of
the filing of the notice of strike. The 7-day waiting
period/strike ban, on the other hand, is reckoned from the
time the strike vote report is submitted to the NCMB-DOLE.
Consequently, a strike is illegal for failure to comply
with the prescribed mandatory cooling-off period and the 7day waiting period/strike ban after the submission of the
report on the strike vote.61
3. BOTH MUST BE COMPLIED WITH SEPARATELY AND
DISTINCTLY FROM EACH OTHER.
The requirements of cooling-off period and 7-day
waiting period/strike ban must both be complied with. The
labor union may take the strike vote and report the same to
the NCMB-DOLE within the statutory cooling-off period. In
this case, the 7-day waiting period/strike ban should be
counted from the day following the expiration of the coolingoff period. A contrary view would certainly defeat and render
nugatory the salutary purposes behind the distinct
requirements of cooling-off period and the waiting
period/strike ban.62
Example: In a case where the notice of strike
grounded on ULP is filed on October 1, 2014, and the strike
vote is taken within the cooling-off period, say, on October 5,
2014 and the strike vote report showing majority support for
the intended strike is submitted to the NCMB-DOLE the
following day, October 6, 2014, the question is when can the
union legally stage the strike?
Following the above principle, the answer obviously
is on October 24, 2014 or any day thereafter. This is so
because the 15-day cooling-off period for ULP expires on
October 1663 and adding the 7-day strike ban which should
be counted from the day following the expiration of the
cooling-off period, the 7th day would be on October 23, 2014.
Obviously, the strike cannot be conducted on the 7 th day but
rather after the lapse thereof; hence, it is only on October
24, 2014 and onwards that the union may lawfully conduct
the strike.
4. SOME PRINCIPLES ON COOLING-OFF PERIOD AND 7DAY WAITING PERIOD.
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Section
16.
Industries
Indispensable to the National Interest.
For the guidance of the workers and
employers in the filing of petition for
assumption of jurisdiction, the following
industries/services are hereby recognized
as deemed indispensable to the national
interest:
a. Hospital sector;
b. Electric power industry;
c. Water supply services, to
exclude small water supply
services such as bottling and
refilling stations;
d. Air traffic control; and
e. Such other industries as may
be recommended by the
National Tripartite Industrial
Peace Council (TIPC) .
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a. University of San Agustin Employees UnionFFW v. The CA. 110 - The period of defiance was
less than nine (9) hours from 8:45 a.m. to 5:25
p.m. on September 19, 2003.
EFFECT OF DEFIANCE OF
ASSUMPTION OR CERTIFICATION ORDERS
1. DEFIANCE OF THE ORDER, A VALID GROUND TO
DISMISS.
The defiance by the union, its officers and
members of the Labor Secretary's assumption of jurisdiction
or certification order constitutes a valid ground for
dismissal.106
The following are the justifications:
1. A strike that is undertaken after the issuance by
the DOLE Secretary of an assumption or
certification order becomes a prohibited
activityand thus illegal. The defiant striking
union officers and members, as a result, are
deemed to have lost their employment statusfor
having knowingly participated in an illegal
strike.
2. From the moment a worker defies a return-towork order, he is deemed to have abandoned
his job.107
3. By so defying, the workers have forfeited their
right to be readmitted to work.108
2. ALL DEFIANT STRIKERS, REGARDLESS OF
WHETHER THEY ARE OFFICERS OR ORDINARY
MEMBERS, ARE DEEMED DISMISSED.
Once the DOLE Secretary assumes jurisdiction
over a labor dispute or certifies it to the NLRC for compulsory
arbitration, such jurisdiction should not be interfered with by
the application of the coercive processes of a strike or
lockout. Any defiance thereof is a valid ground for the loss
of employment status.109
3. PERIOD OF DEFIANCE OF THE RETURN-TO-WORK
ORDER, NOT MATERIAL.
The length of time within which the return-to-work
order was defied by the strikers is not significant in
determining their liability for the legal consequences thereof.
The following cases are illustrative of this rule:
ILLEGAL STRIKE
1. WHEN IS A STRIKE CONSIDERED ILLEGAL?
A strike is illegal if it is declared and staged:
1)
2)
3)
4)
wage
orders
(wage
5)
6)
7)
8)
9)
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10)
11)
12)
13)
14)
By a minority union.136
15)
By an illegitimate union.137
16)
By dismissed employees.138
17)
18)
19)
20)
(b)
(c)
(d)
(e)
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(2)
(3)
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In Toyota
Motor
Phils.
Corp.
Workers
Association [TMPCWA] v. NLRC,198 the High Court
refrained from awarding separation pay or financial
assistance to union officers and members who were
separated from service due to their participation in or
commission of illegal acts during the strike.
In Pilipino Telephone Corporation v. Pilipino
Telephone Employees Association (PILTEA) , 199 the
validity of the dismissal of the union officers who participated
in the illegal strike and openly defied the assumption order
issued by the DOLE Secretary was upheld and
consequently, no separation pay or financial assistance was
granted.200
In Sukhothai Cuisine and Restaurant v. CA, 201 the
strike was held illegal because it violated the agreement
providing for arbitration. The union officers who participated
in, and the union members who committed illegal acts during
the illegal strike were declared to have lost their employment
status and were not awarded any separation pay or financial
assistance.202
In Grand Boulevard Hotel v. Genuine Labor
Organization of Workers in Hotel, Restaurant and Allied
Industries, 203 the validity of the dismissal of the union
officers who participated in the illegal strike without awarding
separation pay was affirmed, despite the urging by the NLRC
that the company should give financial assistance to the
dismissed employees.
In Interphil Laboratories Union-FFW v. Interphil
Laboratories, Inc. ,204 the legality of the dismissal of the
union officers who led the concerted action in refusing to
render overtime work and causing work slowdowns was
affirmed and no separation pay or financial assistance was
allowed.
In Chua v. NLRC,205 the Supreme Court deleted the
NLRCs award of separation benefits to an employee who
participated in the unlawful and violent strike which resulted
in multiple deaths and extensive property damage.
c. Separation pay in lieu of reinstatement by
reason of considerable lapse of time.
While reinstatement is the standard relief for an
illegally dismissed employee, however, because of the
considerable period that had elapsed from the time of the
illegal dismissal, separation pay of one (1) month salary for
each year of service but without backwages, should be
awarded instead. This was the standard ruling in the
following illustrative cases:
(1) G & S Transport206 where seventeen (17) years
had elapsed since respondents were illegally dismissed;
(2) Association of Independent Unions in the
Philippines [AIUP] v. NLRC,207 where more than eight (8)
years had passed since the petitioners therein staged a
strike and were found to have been unlawfully terminated;
(3) Abaria v. NLRC,208 where 15 years had
elapsed from the onset of the labor dispute, not to mention
the strained relations that ensued plus the fact that
replacements have already been hired by the employerhospital.
3. BACKWAGES IN STRIKE CASES.
a. Award of backwages, discretionary on labor
court.
Albeit generally, the strikers are not entitled to
backwages, however, the labor court has the discretion to
determine whether or not to grant it depending on the
peculiar circumstances of each case. This is so because the
right to backwages is not absolute.209
b. If the strike is illegal, no backwages should
be paid.
Thus,
in
the
case
of Arellano
210
University
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(a)
REQUISITES FOR LABOR INJUNCTIONS
1. INDISPENSABLE CONDITIONS FOR GRANT OF
INJUNCTIVE RELIEF.
The following are the indispensable conditions for
granting the temporary injunctive relief:
(a) That the complaint alleges facts which appear to
be satisfactory to establish a proper basis for
injunction; and
(b) That on the entire showing from the contending
parties, the injunction is reasonably necessary to
protect the legal rights of the plaintiff pending the
litigation.259
It must be further emphasized that injunction may
only issue upon strict compliance with the statutory
requirements.260
2. EXISTENCE OF A LABOR DISPUTE NECESSARY.
The case of Ravago v. Esso Eastern Marine,
Ltd. ,261 is instructive in that the law proscribes the issuance
of injunctive relief only in those cases involving or growing
out of a labor dispute. The petitioners complaint merely
revolves around the issue of his alleged dismissal from
service and his claim for backwages, damages and
56
NLRC,
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