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By: Prof. Joselito Guianan Chan
(These Notes, consisting of 8 parts, are supplementary to the authors book entitled 2012 Bar Reviewer on Labor Law)

1. Who may unionize for purposes of collective bargaining? - The following are eligible to join,
form or assist a labor organization:
a. All persons employed in commercial, industrial and agricultural enterprises;
b. Employees of religious, charitable, medical or educational institutions, whether operating
for profit or not;
c. Alien employees with valid working permits who are nationals of a country which grants the
same right to self-organization to Filipino citizens as certified by the Philippine Department of
Foreign Affairs (DFA) or which has ratified either ILO Convention No. 87[1] or ILO Convention No.
d. First-line managers or supervisors. For purposes of joining a union, there are three (3)
kinds of managerial employees: (1) Top Managers; (2) Middle Managers; and (3) First-Line
Managers or Supervisors. Only First-Line Managers or supervisory employees may form their
own union. They are, however, not allowed to become members of a rank-and-file union. In
case of mixed membership of supervisors and rank-and-file employees in one union, the new
rule enunciated in Article 245-A of the Labor Code is that it cannot be invoked as a ground for
the cancellation of the registration of the union. The employees so improperly included are
automatically deemed removed from the list of members of the union by operation of law.






corporations without


charters established under the Corporation Code;

f. In

the government

sector, all rank-and-file employees





instrumentalities, and agencies of government, including government-owned and/or controlled

corporations with original charters, can form, join or assist employees organizations of their
own choosing for the furtherance and protection of their interests.[3]

Employees who are allowed to organize a labor organization only for mutual aid and
protection but not for collective bargaining purposes. - Ambulant, intermittent and other
workers, the self-employed, rural workers and those without any definite employers may form
labor organizations for their mutual aid and protection and other legitimate
purposes except collective bargaining. The reason for this rule is that these persons
have no employers to collectively bargain with.
Any employee, whether employed for a definite period or not, shall, beginning on the first
day of his service, be eligible for membership in any labor organization.
2. Who cannot form, join or assist labor organizations. The following are not allowed to
a. Top Managers and Middle Managers. They are absolutely prohibited from forming,
joining or assisting a labor organization.
b. Alien employees with no valid working permit or who are nationals of a country which
does not grant the same right to self-organization to Filipino citizens.
c. Confidential employees who (1) assist or act in a confidential capacity; (2) to persons or officers
who formulate, determine, and effectuate management policies specifically in the field of
labor relations.These two (2) criteria are cumulative and both must be met if an employee is to
be considered a confidential employee under the Confidential Employee Rule. These
confidential employees may either be rank-and-file or supervisory employees but because
they have access to confidential information in the field of labor relations, they are not eligible
to form, join or assist a labor organization. The rationale is to avoid conflict of interest since they
may obtain advance information on the companys position with regard to collective bargaining
negotiations, the disposition of grievances, or other labor relations matters.
d.In the government sector, the following are not eligible to form employees organizations:
a. High-level employees whose functions are normally considered as policy-making or
managerial or whose duties are of a highly confidential nature are not eligible to join the
organization of rank-and-file government employees;
b. Members of the Armed Forces of the Philippines;
c. Police officers;
d. Policemen;
e. Firemen; and
f. Jail guards.
3. Bargaining unit. It refers to a group of employees sharing mutual interests within a given
employer unit, comprised of all or less than all of the entire body of employees in the employer

unit or any specific occupational or geographical grouping within such employer unit. It may also
refer to the group or cluster of jobs or positions within the employers establishment that supports
the labor organization which is applying for registration.
(a) Tests to determine the constituency of an appropriate bargaining unit. There is no
hard and fast rule to determine the valid formation of a bargaining unit. However, the
following four (4) doctrines may be used to determine its validity:
(1) Substantial mutual interest doctrine. - The employees sought to be represented by the
collective bargaining agent must have substantial mutual interest in terms of employment
and working conditions as evinced by the type of work they perform. It is characterized by
similarity of employment status, same duties and responsibilities and substantially similar
compensation and working conditions.
(2) Globe doctrine. - The determination of the bargaining unit is based on the will of the
employees. It is called Globe doctrine because this principle was first enunciated in the
United States case ofGlobe Machine and Stamping Co., [3 NLRB 294 (1937)] where it
was ruled, in defining the appropriate bargaining unit, that in a case where the companys
production workers can be considered either as a single bargaining unit appropriate for
purposes of collective bargaining or as three (3) separate and distinct bargaining units, the
determining factor is the will or desire of the workers themselves.
(3) Collective bargaining history doctrine. - This principle puts premium to the prior
collective bargaining history and affinity of the employees in determining the appropriate
bargaining unit. However, the existence of a prior collective bargaining history has been
held as neither decisive nor conclusive in the determination of what constitutes an
appropriate bargaining unit.
(4) Employment status doctrine. - The determination of the appropriate bargaining unit is
based on the employment status of the employees. For example, casual employees and
those employed on a day-to-day basis do not have the mutuality or community of interest
with regular and permanent employees. Hence, their inclusion in the bargaining unit
composed of the latter is not justified.
4. Bargaining agent. The sole and exclusive bargaining agent is chosen through any of the
following modes:
a. Voluntary recognition. It refers to the process by which a legitimate labor union is
voluntarily recognized by the employer as the exclusive bargaining representative or agent in a
bargaining unit. It is proper only in cases where there is only one legitimate labor
organization existing and operating in a bargaining unit. It cannot be done in case there are
two or more unions in contention.

b. Certification election. It refers to the process of determining through secret ballot the sole
and exclusive bargaining agent of the employees in an appropriate bargaining unit for
purposes of collective bargaining negotiations. A certification election is conducted only upon
the order of the Med-Arbiter of the Bureau of Labor Relations (BLR).
(i) In an unorganized establishment. - In case of a petition filed by a legitimate organization
involving an unorganized establishment, the Med-Arbiter is required to immediately order
the conduct of a certification election upon filing of a petition for certification election by a
legitimate labor organization. The twenty-five percent (25%) minimum support of the
employees in the bargaining unit which is required in organized establishments is not
necessary in the case of unorganized establishments.
(ii) In an organized establishment. The Med-Arbiter is required to automatically order the
conduct of a certification election by secret ballot in an organized establishment as soon as
the following requisites are fully met:
1. That a petition questioning the majority status of the incumbent bargaining agent is filed
before the DOLE within the 60-day freedom period;
2. That such petition is verified; and
3. That the petition is supported by the written consent of at least 25% of all the
employees in the bargaining unit.
Two (2) kinds of majorities required in the process of certification election. - The
process of certification election requires two (2) kinds of majority votes, viz:
1. To have a valid certification election, at least a majority of all eligible voters in the
bargaining unit should cast their votes; and
2. To win and be certified as the sole and exclusive bargaining agent in the
certification election, the union should garner the majority vote of the valid votes
c. Run-off election. It refers to an election between the labor unions receiving the two (2)
highest number of votes in a certification election or consent election with three (3) or more
choices, where such a certification election or consent election results in none of the three (3)
or more choices receiving the majority of the valid votes cast, provided that the total number
of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.
d. Re-run election. - This mode of choosing the sole and exclusive bargaining unit is not
expressly provided in the Labor Code or in its implementing rules. The circumstances which
would justify the holding of a re-run election are not set out in the law. However, a re-run
election may be justified if certain irregularities have been committed during the conduct of

the certification election such as, inter alia,disenfranchisement of the voters, lack of
secrecy in the voting and bribery, in which case, the certification election should be
invalidated. Such invalidation would necessitate the conduct of a re-run election among the
contending unions to determine the true will and desire of the employee-electorates.
Example: National Federation of Labor v. The Secretary of Labor, [G.R. No. 104556, March
9, 1998, 287 SCRA 599, 607].[4]
A certification election was conducted on November 12, 1988, among the rank-and-file employees of the Hijo
Plantation, Inc. resulting in the choice of no union. However, on July 3, 1989, on allegations that the company
intervened in the election, the BLR Director nullified the results of the certification election and ordered a new one to be
held. The new election was held on August 20, 1989 under the supervision of the DOLE Regional Office in Davao City
with the following results: Total Votes cast -1,012; Associated Trade Unions (ATU) 39 votes; TRUST KILUSAN - 5 votes;
National Federation of Labor (NFL) 876 votes; Southern Philippines Federation of Labor 4 votes; SANDIGAN
6 votes; UFW 15 votes; No Union 55 votes; and Invalid votes 13.
Private respondent-employer HPI alleged that the certification election was marred by massive fraud and
irregularitiesand that out of 1,692 eligible voters, 913, representing 54% of the rank-and-file workers of private
respondent, were not able to vote, resulting in a failure of election. Upon the order of the DOLE Secretary, the MedArbiter conducted an investigation on the companys claim that 54% of the rank-and-file workers were not able to vote
in the certification election.
In a resolution dated February 14, 1991, the DOLE upheld the August 20, 1989 certification election. The DOLE gave no
weight to the report of the Med-Arbiter that the certification election was marred by massive fraud and irregularities.
Although affidavits were submitted showing that the election was held outside the company premises and private
vehicles were used as makeshift precincts, the DOLE found that this was because respondent company did not allow
the use of its premises for the purpose of holding the election, company guards were allegedly instructed not to allow
parties, voters and DOLE representation officers to enter the company premises, and notice was posted on the door of
the company that the election had been postponed.
Nor was weight given to the findings of the Med-Arbiter that a majority of the rank-and-file workers had been
disfranchised in the August 20, 1989 election and that the secrecy of the ballot had been violated, first, because the NFL
was not given notice of the investigation nor the chance to present its evidence to dispute this finding and, second, the
Med-Arbiters report was not supported by the minutes of the proceedings nor by any record of the interviews of the
315 workers. Moreover, it was pointed out that the report did not state the names of the persons investigated, the
questions asked and the answers given. The DOLE held that the report was totally baseless.
Accordingly, the Labor Secretary denied the petition to annul the election and instead certified petitioner NFL as the
sole and exclusive bargaining representative of the rank-and-file employees of private respondent HPI.
However, on motion of HPI, the Secretary of Labor, on August 29, 1991, reversed his resolution of February 14, 1991. In
this resolution of August 29, 1991, the Secretary of Labor said he was reversing his earlier resolution because workers
of Hijo Plantation, Inc. have deluged this Office with their letter-appeal, either made singly or collectively expressing their

wish to have a new certification election conducted and that as a result the firm position we held regarding the
integrity of the electoral exercise had been somewhat eroded by this recent declaration of the workers, now speaking
in their sovereign capacity.
In upholding this reversal of his earlier resolution by the DOLE Secretary, the Supreme Court ratiocinated, thus:
It is clear from this, that what the DOLE Secretary considered in reversing its earlier rulings
was not the petition of the employer but the letter-appeals that the employees sent to his office
denouncing the irregularities committed during the August 20, 1989 certification election. The petition of
private respondent was simply the occasion for the employees to voice their protests against the
election. Private respondent HPI attached to its Supplemental Appeal filed on September 5, 1989 the
affidavits and appeals of more or less 784 employees who claimed that they had been disfranchised, as a
result of which they were not able to cast their votes at the August 20, 1989 election. It was the protests
of employees which moved the DOLE to reconsider its previous resolution of February 14, 1991,
upholding the election.
In this case, petitioner maintains that private respondent did not make any protest regarding
the alleged irregularities (e.g., massive disfranchisement of employees) during the election. Hence, the
appeal and motions for reconsideration of private respondent HPI should have been dismissed
The complaint in this case was that a number of employees were not able to cast their votes
because they were not properly notified of the date. They could not therefore have filed their protests
within five (5) days.At all events, the Solicitor General states, that the protests were not filed within five (5)
days, is a mere technicality which should not be allowed to prevail over the workers welfare. As this
Court stressed in LVN Pictures, Inc. v. Phil. Musicians Guild, [1 SCRA 132 (1961)], it is essential that the
employees must be accorded an opportunity to freely and intelligently determine which labor
organization shall act in their behalf. The workers in this case were denied this opportunity. Not only
were a substantial number of them disfranchised, there were, in addition, allegations of fraud and other
irregularities which put in question the integrity of the election. Workers wrote letters and made
complaints protesting the conduct of the election. The Report of Med-Arbiter Pura who investigated
these allegations found the allegations of fraud and irregularities to be true.
In one case (citing Confederation of Citizens Labor Unions v. Noriel, G.R. No. L-56902. September
21, 1982, 116 SCRA 694), this Court invalidated a certification election upon a showing of
disfranchisement, lack of secrecy in the voting and bribery. We hold the same in this case. The workers
right to self-organization as enshrined in both the Constitution and Labor Code would be rendered
nugatory if their right to choose their collective bargaining representative were denied. Indeed, the policy
of the Labor Code favors the holding of a certification election as the most conclusive way of choosing
the labor organization to represent workers in a collective bargaining unit. In case of doubt, the doubt
should be resolved in favor of the holding of a certification election.

Re-run election distinguished from failure of election. - In re-run election, there was
a valid certification election but because of certain circumstances, the election is nullified and
another one is ordered to truly reflect the will and sentiment of the electorate-employees in
the choice of their bargaining representative. In failure of election, the number of votes cast
in the certification or consent election is less than the majority of the number of eligible voters
and there are no challenged votes that could materially change the results of the election.
[5] Consequently, a motion for the immediate holding of another certification or consent
election within six (6) months from the date of declaration of the failure of election may be
e. Consent election. - It refers to the process of determining through secret ballot the sole and
exclusive representative of the employees in an appropriate bargaining unit for purposes of
collective bargaining or negotiation. It is voluntarily agreed upon by the parties, with or without
the intervention of the Department of Labor and Employment.
Consent election and certification election, distinguished. - A consent election is one
mutually agreed upon by the parties, with or without the intervention by the DOLE, its
purpose being merely to determine the issue of majority representation of all the workers in
an appropriate collective bargaining unit; while a certification election is one which is
ordered by the DOLE and is aimed at determining the sole and exclusive bargaining agent of
all the employees in an appropriate bargaining unit for the purpose of collective bargaining.
From the very nature of consent election, it is a separate and distinct process and has
nothing to do with the import and effect of a certification election. In fact, aconsent election
may be conducted even during the pendency of a certification election by mutual
agreement of the contending unions. Consequently, the Med-Arbiter is not allowed to issue
a formal order calling for the conduct of a certification election. Instead, he should enter the
fact of the agreement in the minutes of the hearing which should then be signed by the
parties and attested to by the Med-Arbiter. The results thereof shall constitute a bar to the
holding of a certification election forone (1) year from the holding of such consent election.
Where an appeal has been filed from the results of the consent election, the running of the
one-year period is suspended until the decision on appeal has become final and executory.
5. Affiliation of the local union with a mother union. - Affiliation with a federation or a national
union is principally for the purpose of strengthening the collective bargaining leverage of
the affiliate. An affiliaterefers to (a) an independent union affiliated with a federation or a
national union; or (b) a local chapter(formerly known as chartered local) which has been
subsequently granted independent registrationbut did not disaffiliate from the federation or
national union which created it. Technically, a local chapter created through chartering under
Article 234-A of the Labor Code cannot be properly called an affiliate of a federation or a
national union if it has not acquired any independent registration of its own.

Some principles on affiliation.

1. The relationship between the affiliate union (independent union) and the mother union
(federation or national union) is that of principal-agent relationship. The affiliate union is
the principal and the mother union, the agent. This principle applies in the case of a
local chapter created by a federation or a national union.
2. Affiliation does not give the mother federation the license to act independently of the affiliate
union. It only gives rise to a contract of agency, where the former acts in representation of
the latter.
3. The appendage of the federations acronym to the affiliate unions name in the registration
with the Bureau of Labor Relations does not change the principal-agent relationship
between them. Such inclusion of the acronym is merely to indicate that the local union is
affiliated with the federation or national union at the time of the registration. It does not
mean that the affiliate union cannot independently stand on its own.
6. Disaffiliation of the local union from the mother union. The right of the affiliate union to
disaffiliate from its mother federation or national union is a constitutionally-guaranteed right which
may be invoked by the former at any time. An affiliate union is a separate and voluntary
association free to serve the interest of all its members - consistent with the freedom of
association guaranteed in the Constitution.
Some principles on disaffiliation.
1. Disaffiliation should be approved by the majority of the union members.
2. Disaffiliation does not divest an affiliate union of its legal personality.
3. Disaffiliation of an affiliate union is not an act of disloyalty.
4. Disaffiliation for purposes of forming a new union does not terminate the status of the
members thereof as employees of the company.
5. Disaffiliation terminates the right to check-off federation dues.
6. Disaffiliation does not affect CBA. It does not operate to amend it or change the
administration of the contract.
7. Substitutionary doctrine. At any time during the 5-year lifetime of the CBA, the
bargaining agent may lose its majority status as when there exists a union schism or split which
completely changes the situation of the employer and the bargaining agent in terms of the latters
membership, structure and others. To determine majority support of the members of the
bargaining unit being represented by the bargaining agent, a petition for certification election may
be filed to determine which of the unions has the majority status. The union certified as the new

sole and exclusive bargaining agent will thus substitute the previous one as a party to the
existing CBA. This is allowed under this doctrine.
8. Union dues and special assessments. - All unions are authorized to collect reasonable
amounts formembership fees, union dues, assessments and fines . This is done
through check-off which is the method of deducting by the employer from the employees pay
at prescribed periods, of any amount due for such fees, fines or assessments.
Requirements for validity. To be valid, the following requisites should be complied with:
(1) Authorization by a written resolution of the majority of all the members at a general
membership meeting duly called for the purpose;
(2) Secretarys record of the minutes of said meeting; and
(3) Individual written authorizations for check-off duly signed by the employees concerned.
The law strictly prohibits the check-off from any amount due an employee of any special
assessment, attorneys fees, negotiation fees or any other extraordinary fees without the
individual written authorization duly signed by the employee. Such authorization must
specifically state the amount, purpose and beneficiary of the deduction. The purpose of the
individual written authorization is to protect the employees from unwarranted practices that
diminish their compensation without their knowledge or consent.
9. Agency fees. This term refers to the reasonable dues and other fees that may be collected by
thebargaining agent from non-members who availed of the benefits from the CBA which
said agentsuccessfully negotiated and concluded with the employer. It is called agency fee
because it is paid to such bargaining agent of which they are not members but which
represented them in the CBA negotiations. Thelegal basis of the bargaining agents right to
agency fees is neither contractual nor statutory, but quasi-contractual , deriving from the
established principle that non-bargaining union employees may not unjustly enrich
themselves by benefiting from employment conditions negotiated by the bargaining agent.
Some principles on agency fees.
1. No individual written authorization is required to check-off agency fees. The fact of
acceptance by the non-bargaining agent members is all that is required to justify such
check-off of agency fees.
2. Employer has the duty to check-off agency fees.
3. Non-members of the bargaining agent need not become members thereof. Their
acceptance of the benefits flowing from the CBA and their act of paying the agency fees do
not make them members thereof.

1. Duty to bargain collectively. - The duty to bargain collectively means the performance of
a mutual obligation to meet and convene promptly and expeditiously in good faith for the
purpose ofnegotiating an agreement with respect to wages, hours of work and all other terms
and conditions of employment including proposals for adjusting any grievances or questions
arising under such agreement and executing a contract incorporating such agreements if
requested by either party but such duty does not compel any party to agree to a proposal
or to make any concession.
(a) When there is absence of CBA. - In the absence of an agreement or other voluntary
arrangement providing for a more expeditious manner of collective bargaining, it shall be the
duty of employer and the representatives of the employees to bargain collectively in
accordance with the provisions of the Labor Code.
(b) When there is a CBA. - When there is a CBA, the duty to bargain collectively shall mean that
neither party shall terminate nor modify such agreement during its lifetime. However, either
party can serve a written notice to terminate or modify the agreement at least sixty (60)
days prior to its expiration date. It shall be the duty of both parties to keep the status
quo and to continue in full force and effect the terms and conditions of the existing
agreement during the 60-day period and/or until a new agreement is reached by the parties.
The said 60 days is called the freedom period because it is the only time when the law
allows the parties to freely serve a notice to terminate, alter or modify the existing CBA. It is
also the time when the majority status of the bargaining agent may be challenged by another
union by filing the appropriate petition for certification election.
2. Collective Bargaining Agreement (CBA). It refers to the negotiated contract between a
dulyrecognized or certified exclusive bargaining agent of workers and the employer concerning
wages, hours of work and all other terms and conditions of employment in the appropriate









machineries. During its lifetime, the CBA is considered the law between the parties - the
collective bargaining agent and its members, on the one hand, and the employer, on the other.
a. Mandatory provisions of CBA. The following are mandatorily required to be embodied in
the CBA:
(1) Grievance Procedure. It refers to the internal rules of procedure established by the
parties in their CBA with voluntary arbitration as the terminal step, which are intended to
resolve all issues arising from (1) the interpretation or implementation of their CBA or (2)
the interpretation or enforcement of company personnel policies. It is that part of the CBA
which provides for a peaceful way of settling differences and misunderstanding between
the parties.

(2) Voluntary Arbitration. It refers to the mode of settling labor-management disputes in

which the parties select an impartial third person called Voluntary Arbitrator who is
tasked to decide on the merits of the case and whose decision is final and executory.
(3) No Strike-No, Lockout Clause. It is a clause in the CBA which indicates the respective
commitments of the parties thereto not to stage a strike, on the part of the union, and not
to conduct a lockout, on the part of the employer, during the lifetime of the CBA. This
clause may be invoked to baran economic strike/lockout but not an unfair labor
practice strike/lockout.
(4) Labor-Management Council. It is mandated to be created in every establishment
pursuant to the constitutional grant[7] to employees of the right to participate in policy
and decision-making processes in all matters affecting their rights, duties, benefits and
welfare. It is composed of representatives of the employer and the employees of the







Committee (GC). - These two (2) bodies may be differentiated from each other as
1. Constitutional basis. As distinguished from LMC, the creation of the GC is based on
a different constitutional principle, that is, the preferential use of voluntary modes of
settling disputes.[8]
2. Legal basis. - The creation of LMC is provided under Article 255 of the Labor Code;
while the formation of GC is mandated under Article 260 of the same Code.
3. Purpose. - The LMC is created for the purpose of affording workers the right to
participate in policy and decision-making processes in matters affecting their rights,
benefits and welfare; while that of the GC is to resolve grievances involving (1) the
interpretation or implementation of the CBA or (2) the interpretation or enforcement
of company personnel policies.
4. Nature. - The LMC is more of a preventive measure; while a GC is necessary when
there is already the occurrence of a grievance ripe for adjudication.
5. Classification of the establishment. The classification of the establishment,
whether organized or unorganized, is not material as far as LMC is concerned since it
is required to be established in all establishments; while the GC is required only in
case of organized establishments since it is required to be stipulated in the CBA.
6. Function. The function of the LMC is non-adjudicatory in nature, that is, to make
policies or decisions on matters affecting the workers rights, benefits and welfare;

while that of the GC is adjudicatory in character, that is, to resolve and decide on
7. Nature of issues. The issues presented to the LMC is non-adversarial; while those
submitted to the GC are adversarial.
8. Composition. - The representatives of the workers to the LMC may or may not be
nominated by the bargaining agent, depending on whether the establishment is
organized or unorganized. Inorganized establishments, the workers representatives











In establishments where no legitimate labor organization exists, the workers

representative should be elected directly by the employees at large; while those in the
GC are nominated solely by the bargaining agent.
9. Appeals. Any decision made by the LMC is not appealable to any office or
authority; while the decision of the GC should be elevated to voluntary arbitration if
not resolved with finality by the GC.
b. Duration of CBA. A CBA has a lifetime of 5 years reckoned from the effectivity of the
CBA. The following principles are worthy of note:
1. As far as the right of the bargaining agent to represent the employees covered by the
bargaining unit (representation aspect of the CBA) 5 years.
2. All other provisions of the CBA (both economic and non-economic provisions) Should
be re-negotiated, except said representation aspect, after the lapse of the first 3 years
of the 5-year lifetime thereof. Such re-negotiation, however, should only pertain to the
terms and conditions of the parties relationship for the last remaining 2 years of the
CBAs 5-year term.
3. Freedom period refers to the last 60 days immediately preceding the expiry date of
the 5-year term of the CBA when the majority status of the existing bargaining agent
which concluded the CBA may be challenged by another union/s by filing a petition for
certification election.
3. Union security clause. It is a stipulation in a CBA which requires mandatory membership in
the sole and exclusive collective bargaining agent which successfully negotiated said CBA as a
condition for continued employment. The purpose of a union security arrangement is to
guarantee the continued existence of the union through enforced membership for the benefit
of the workers. All future hirees (new employees) are mandatorily required to join the
bargaining agent as a condition for their continued employment.
Excepted from this provision are the following:

1. Employees who, at the time the union security agreement takes effect, are bona-fide members
of areligious organization which prohibits its members from joining labor unions on religious
grounds[Religious Objectors].
2. Employees already in the service and already members of a union other than the
bargaining agent at the time the union security agreement took effect.
3. Confidential employees who are excluded from the rank-and-file or supervisory bargaining
4. Employees excluded from the union security clause by express terms of the agreement.
Classification of union security agreements.
1. Closed shop agreement - It is a scheme in which, by agreement between the employer and
its employees or their representatives, no person may be employed in any or certain agreed
departments of the enterprise unless he or she is, becomes, and, for the duration of the
agreement, remains a member in good standing of a union entirely comprised of or of which
the employees in interest are a part.
2. Union shop agreement - There is union shop when all new regular employees are required
to join the union within a certain period as a condition for their continued employment. The
role of a Union Shop provision is to compel the membership of those who are not yet union
members. Under this scheme, the employer is given the freedom to hire and employ any
person who is not a member of the bargaining agent. Once such person becomes an
employee, he is required to become a member of the bargaining agent and to remain as such
member in good standing for the whole period of the effectivity of the CBA as a condition for
his continued employment.
3. Modified union shop agreement - Employees under this arrangement who are not union
members at the time of the signing or execution of the CBA are not required to join the
bargaining union. However, any and all workers hired or employed after the signing or
execution of the CBA are required to join the bargaining union.
4. Maintenance of membership agreement - There is maintenance of membership shop
when employees, who are union members as of the effective date of the agreement, or who
thereafter become members, must maintain union membership as a condition for continued
employment until they are promoted or transferred out of the bargaining unit, or the
agreement is terminated.
4. Unfair Labor Practice (ULP) in Collective Bargaining.
(1) Bargaining in bad faith. Bad faith is a question of fact the determination of which will
depend upon the circumstances of each case. Good faith bargaining requires that claims

made by either bargainer should be honest claims. It would not be far-fetched to reach the
conclusion that bargaining lacks good faith when an employer mechanically repeats claim of
inability to pay without making the slightest effort to substantiate the claim. Once proved, the
bad faith of the party will make it liable for ULP. It must be noted that:
a.Parties have no obligation to precipitately agree to the proposals of each other.
b. Making a promise during the CBA negotiations, not an indication of bad faith.
c. Adamant stance resulting in an impasse, not an indicium of bad faith.
d. Allegations of bad faith wiped out with the signing of the CBA.
(2) Refusal to bargain. - The employers refusal to submit an answer or reply to the written
bargaining proposals of the certified bargaining union is ULP. 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
General Milling Corporation v. CA, [G.R. No. 146728, February 11, 2004] - The
Supreme Court found the petitioner guilty of ULP for refusing to send a counter-proposal to
the union and to bargain anew on the economic terms of the CBA.
Colegio de San Juan de Letran v. Association of Employees and Faculty of
Letran, [G.R. No. 141471, September 18, 2000] - 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 an unfair labor practice.
(3) Individual bargaining. The employers act of negotiating with individual members of the
bargaining agent is ULP. This is so because once a bargaining agent has been recognized or
certified, the employer should bargain only therewith and not with the individual members
(4) Blue sky bargaining. - This means making exaggerated or unreasonable proposals. This kind
of ULP can only be committed by the bargaining agent.
(5) Surface bargaining. - This means going through the motions of negotiating without any
legal intent to reach an agreement. This kind of ULP can only be committed by
the employer.

5. Unfair Labor Practice. Not all unfair acts constitute ULP. The act complained of as ULP must
have a proximate and causal connection with the exercise of the employees right to selforganization and collective bargaining or to the observance of a CBA. Sans this connection,
the unfair acts cannot be considered ULP.
(a) Nature of ULP. - It is both civil and criminal in nature. Its civil aspect includes claims for
actual, moral and exemplary damages, attorneys fees and other affirmative reliefs. The Labor
Arbiters have jurisdiction over the civil aspect; while the regular courts have jurisdiction over
the criminal aspect.
(b) ULPs of employers. The following are the ULPs of employers under Article 248 of the
Labor Code:
(a) To interfere with, restrain or coerce employees in the exercise of their right to selforganization;
(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 (YELLOW DOG
(c) To contract out services or functions being performed by union members when such will
interfere with, restrain or coerce employees in the exercise of their rights to selforganization (CONTRACTUALIZATION);
(d) To initiate, dominate, assist or otherwise interfere with the formation or administration of
any labor organization, including the giving of financial or other support to it or its
organizers or supporters(COMPANY UNION);
(e) To discriminate in regard to wages, hours of work and other terms and conditions of
employment in order to encourage or discourage membership in any labor
organization (DISCRIMINATION).
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 (UNION SECURITY).
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 nonunion









agreement: Provided, that the individual authorization required under Article 250 [241],
paragraph (o) of this Code shall not apply to the non-members of the recognized
collective bargaining agent (AGENCY FEE)

(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for

having given or being about to give testimony under this Code (THIS IS THE ONLY ULP
(g) To violate the duty to bargain collectively as prescribed by the Labor Code;
(h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute; or
(i) To violate a CBA but only when the violation is gross in character which means flagrant
and/or malicious refusal by the employer to comply with the economic provisions of
the CBA.
(c) ULPs of labor organizations. Under Article 249 of the Labor Code, it shall be unfair labor
practice for a labor organization, its officers, agents or representatives:
(a) To restrain or coerce employees in the exercise of their right to self-organization.
However, a labor organization shall have the right to prescribe its own rules with respect
to the acquisition or retention of membership;
(b) To cause or attempt to cause an employer to discriminate against an employee, including
discrimination against an employee with respect to whom membership in such
organization has been denied or to terminate an employee on any ground other than
the usual terms and conditions under which membership or continuation of
membership is made available to other members;
(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the
representative of the employees;
(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any
money or other things of value, in the nature of an exaction, for services which are not
performed or not to be performed, including the demand for fee for union
negotiations (ANTI-FEATHER BEDDING);
(e) To ask for or accept negotiation or attorneys fees from employers as part of the
settlement of any issue in collective bargaining or any other dispute; or
(f) To violate a CBA but only when the violation is gross in character which means flagrant
and/or malicious refusal by the labor organization, its officers, agents or
representatives to comply with the economic provisions of the CBA.

1. Forms of Concerted Activities. - There are three (3) forms of concerted activities,
(a) Strike - means any temporary stoppage of work by the concerted action of the employees as
a result of an industrial or labor dispute. It encompasses slowdowns, mass leaves, sitdowns,
overtime boycott, attempts to damage, destroy or sabotage plant equipment and facilities
and similar activities andsporting by the workers of closely cropped hair or cleanly
shaven heads after their union filed a notice of strike as a result of a CBA deadlock. [9]
(b) Lockout - means the temporary refusal of an employer to furnish work as a result of an
industrial or labor dispute. It consists of shutdowns, mass retrenchment and dismissals or
the employers act of excluding employees who are union members.
(c) Picketing means the act of workers in peacefully marching to and fro before an
establishment involved in a labor dispute generally accompanied by the carrying and display
of signs, placards and banners intended to inform the public about the dispute.
2. Who may declare a strike? Only a duly recognized or certified bargaining agent may declare
a strike. A minority union can never declare a strike. In unorganized establishments, any
legitimate labor organization in the establishment may declare a strike but only on the ground of
3. Who may declare a lockout? The employer can declare a lockout.
4. Requisites


a valid









but mandatory requisites:

1st requisite - It must be based on a valid and factual ground;
2nd requisite - A notice of strike must be filed with the NCMB-DOLE;
3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior
to the taking of the strike vote by secret balloting, informing said office of the decision to conduct
a strike vote, and the date, place, and time thereof;
4th requisite - A strike vote must be taken where a majority of the members of the union
obtained by secret ballot in a meeting called for the purpose, must approve it;
5th requisite - A strike vote report should be submitted to the NCMB-DOLE at least seven (7)
days before the intended date of the strike;
6th requisite - Except in cases of union-busting, the cooling-off period of 15 days, in the case
of unfair labor practices, or 30 days, in the case of collective bargaining deadlock, should be
fully observed; and

7th requisite - The 7-day waiting period or strike ban reckoned after the submission of a
strike vote report to the NCMB-DOLE should also be fully observed in all cases.
5. Requisites


valid lockout.








but mandatory requisites:

1st requisite - It must be based on a valid and factual ground;
2nd requisite - A notice of lockout must be filed with the NCMB-DOLE;
3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior
to the taking of the lockout vote by secret balloting, informing said office of the decision to
conduct a lockout vote, and the date, place, and time thereof;
4th requisite - A lockout vote must be taken where a majority of the members 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 the purpose, must approve it;
5th requisite - A lockout vote report should be submitted to the NCMB-DOLE at least seven (7)
days before the intended date of the lockout;
6th requisite - The cooling-off period of 15 days, in the case of unfair labor practices, or 30 days,
in the case of collective bargaining deadlock, should be fully observed; and
7th requisite - The 7-day waiting period or lockout ban reckoned after the submission of the
lockout vote report to the NCMB-DOLE should also be fully observed in all cases.
6. Requisites for a lawful picketing. The only requisite for the lawful conduct of picketing is that it
should be peacefully carried out. There should be no violence, coercion or intimidation attendant
thereto. This is so because it is fully guaranteed under the freedom of speech and of expression
and to peaceably assemble to air grievances under Section 4, Article III (Bill of Rights) of the
constitution, unlike strike which finds its constitutional basis in the grant to workers of the right to
conduct peaceful concerted activities under Section 3, Article XIII thereof. The requisites for the
conduct of a valid strike are therefore not applicable to lawful picketing.
When picket becomes a strike. - In distinguishing between a picket and a strike, the totality of
the circumstances obtaining in a case should be taken into account.
Leyte Geothermal Power Progressive Employees Union-ALU-TUCP v. Philippine National Oil Company Energy
Development Corporation, [G.R. No. 170351, March 30, 2011] - Petitioner union contends that there was no
stoppage of work; hence, they did not strike. Euphemistically, petitioner union avers that it only engaged in picketing, and
maintains that without any work stoppage, [its officers and members] only engaged in xxx protest activity. The Supreme

Court, however, ruled that it was a strike and not picketing or protest activity that petitioner union staged. It found the
following circumstances in support of such finding:
1. Petitioner union filed a Notice of Strike on December 28, 1998 with the DOLE grounded on respondents purported
unfair labor practices, i.e., refusal to bargain collectively, union busting and mass termination. On even date, petitioner
Union declared and staged a strike.
2. The DOLE Secretary intervened and issued a Return-to-Work Order dated January 4, 1999, certifying the labor dispute to
the NLRC for compulsory arbitration. The Order indicated the following facts: (1) filing of the notice of strike; (2) staging of
the strike and taking control over respondents facilities of its Leyte Geothermal Project on the same day petitioner union
filed the notice of strike; (3) attempts by the NCMB to forge a mutually acceptable solution proved futile; (4) in the
meantime, the strike continued with no settlement in sight placing in jeopardy the supply of much needed power supply in
the Luzon and Visayas grids.
3. Petitioner union itself, in its pleadings, used the word strike.
4. Petitioner unions asseverations are belied by the factual findings of the NLRC, as affirmed by the CA thus: The failure to
comply with the mandatory requisites for the conduct of strike is both admitted and clearly shown on record. Hence, it is
undisputed that no strike vote was conducted; likewise, the cooling-off period was not observed and that the 7-day strike
ban after the submission of the strike vote was not complied with since there was no strike vote taken.
In fine, petitioner unions bare contention that it did not hold a strike cannot trump the factual findings of the NLRC that
petitioner union indeed struck against respondent. In fact, and more importantly, petitioner union failed to comply with the
requirements set by law prior to holding a strike.
Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils., Inc., [G.R. Nos. 164302-03, January 24,
2007] - Petitioners contend that what they conducted was a mere picketing and not a strike. In disagreeing to this
contention, the High Court emphasized that it is not an issue in this case that there was a labor dispute between the parties
as petitioners had notified the respondent of their intention to stage a strike, and not merely to picket. Petitioners
insistence to stage a strike is evident in the fact that an amended notice of strike was filed even as respondent moved to
dismiss the first notice. The basic elements of a strike are present in this case: 106 members of petitioner Union, whose
respective applications for leave of absence on September 21, 1999 were disapproved, opted not to report for work on
said date, and gathered in front of the company premises to hold a mass protest action. Petitioners deliberately absented
themselves and instead wore red ribbons and carried placards with slogans such as: YES KAMI SA STRIKE, PROTESTA
marched to and fro in front of the companys premises during working hours. Thus, petitioners engaged in a concerted
activity which already affected the companys operations. The mass concerted activity obviously constitutes a
strike. Moreover, the bare fact that petitioners were given a Mayors permit is not conclusive evidence that their
action/activity did not amount to a strike. The Mayors description of what activities petitioners were allowed to conduct is
inconsequential. To repeat, what is definitive of whether the action staged by petitioners is a strike and not merely a picket
is the totality of the circumstances surrounding the situation.

7. Assumption of jurisdiction by the Secretary of Labor or Certification of the Labor dispute

to the NLRC for compulsory arbitration. - When in the opinion of the DOLE Secretary, the
labor dispute causes or will likely to cause a strike or lockout in an industry indispensable to the
national interest, he is empowered to do either of two (2) things:
1. He may assume jurisdiction over the labor dispute and decide it himself; or
2.He may certify it to the NLRC for compulsory arbitration, in which case, it will be the NLRC
which shall hear and decide it.
This power may be exercised by the DOLE Secretary even before the actual staging of a strike or
lockout sinceArticle 263 [g] does not require the existence of a strike or lockout but only of a
labor dispute involving national interest.
8. Nature of Assumption Order or Certification Order. - It is in the nature of a police
power measure. This is done for the promotion of the common good considering that a
prolonged strike or lockout can be inimical to the national economy. The DOLE Secretary is
mandated to act to maintain industrial peace. Thus, his assuming jurisdiction over a labor dispute
or his certification thereof to the NLRC for compulsory arbitration is not intended to impede the
workers right to strike but to obtain a speedy settlement of the dispute. It is confined only in labor
disputes involving industries indispensable to the national interest. A prolonged strike or
lockout in such industries can be inimical to the national economy and, therefore, the situation is
imbued with public necessity and involves the right of the State and the public to self-protection.
Effects of certification of labor disputes to the NLRC, similar to those assumed directly
by the DOLE Secretary. - The following are the effects of both assumption or certification of
labor disputes:
a. On intended or impending strike or lockout . Upon assumption or certification, the
intended or impending strike or lockout is automatically enjoined, notwithstanding the filing
of any motion for reconsideration of the certification order or the non-resolution of any such
motion which may have been duly submitted to the Office of the DOLE Secretary.
b. On actual strike or lockout. If a work stoppage has already taken place at the time of the
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.
c. On cases already filed or may be filed. All cases between the same parties, except where
the assumption or certification order specifies otherwise, the issues submitted for
arbitration which are already filed or may be filed and are relevant to or are proper incidents
of the certified case, shall be considered subsumed or absorbed by the assumed or certified

case, and shall be decided by the DOLE Secretary or, in certified cases, by the appropriate
Division of the NLRC.
d. On other pending cases. The parties to an assumed or certified case, under pain of
contempt, are required to inform their counsels and the DOLE Secretary or NLRC Division
concerned, of all cases pending with the Labor Arbiters and Voluntary Arbitrators relative or
incident to the assumed or certified case before it.
9. Effect of defiance of Assumption or Certification Orders. - The defiance by the union, its
officers and members of the DOLE Secretary's assumption of jurisdiction or certification order
constitutes a valid ground for dismissal. The following are the justifications for the defiant
employees dismissal:
1. A strike that is undertaken after the issuance by the DOLE Secretary of an assumption or
certification order becomes a prohibited activity and thus illegal. The striking
union officers and members, as a result, are deemed to have lost their employment
status for having knowingly participated in an illegal strike.
2. From the moment a worker defies a return-to-work order, he is deemed to have abandoned
his job.
3. By staging a strike after the assumption or certification for compulsory arbitration, the
workers forfeit their right to be readmitted to work, having, in effect, abandoned their
Some principles on defiance of the assumption/certification order.
1. All defiant strikers, regardless of whether they are officers or ordinary members, are
deemed dismissed.
2. The assumption/certification order may be served at any time of the day or night.
3. The refusal to acknowledge receipt of such orders and other processes is an apparent
attempt to frustrate the ends of justice, hence, invalid. The union cannot be allowed to
thwart the efficacy of the assumption and return-to-work orders issued in the national
interest through the simple expediency of refusing to acknowledge receipt thereof.
4. Period of defiance, not material; defiance of less than one (1) day, sufficient to effect
termination of defiant strikers. (University of San Agustin Employees Union-FFW v. The
CA, [G.R. No. 169632, March 28, 2006], the period of defiance was from 8:45 a.m. to
5:25 p.m. onSeptember 19, 2003).
10. Illegal Strike. In case of illegal strike the liabilities are as follows:
(1) Liability of officers of the unions. - The mere finding or declaration of illegality of a strike
will result in the termination of all union officers who knowingly participated therein. It is not
required that the officers should commit an illegal act during the strike.

(2) Liability of ordinary workers. The mere finding or declaration of illegality of a strike will
not result in termination of ordinary union members. For an ordinary union member to
suffer termination, it must be shown that he has committed illegal acts during the strike.
Liability for illegal acts should be determined on an individual basis. In all cases, the erring
strikers must be identified individually and the specific illegal acts they each committed
should be described with particularity.
(3) Liability of employer. The employer is liable to pay backwages, damages and other
affirmative reliefs, including criminal prosecution in case of defiance of return-to-work order.
(4) Waiver of illegality of strike. The employer may waive expressly or impliedly the illegality
of the strike. An employer may be considered to have waived its right to proceed against the
striking employees for alleged commission of illegal acts during the strike when, during a
conference before the Chairman of the NLRC, it agreed to reinstate them and comply fully
with the return-to-work order issued by the DOLE Secretary.[10]
11. Injunctions. The rule is no temporary or permanent injunction or restraining order in any
case involving or growing out of labor disputes shall be issued by any court or other
entity, except as otherwise provided in Articles 218 (referring to the injunction power of the
NLRC) and 264 (referring to the prohibited activities during a strike or lockout) of the same Code.
(a) Requisites for Labor Injunctions. - A preliminary or permanent injunction may be granted
only after hearing the testimony of witnesses and with opportunity for cross-examination in
support of the allegations of the complaint or petition made under oath, and testimony by
way of opposition thereto, if offered, and only after a finding of fact by the Commission
(a) That prohibited or unlawful acts have been threatened and will be committed and will be
continued unless restrained, but no injunction or temporary restraining order shall be
issued on account of any threat, prohibited or unlawful act, except against the person
or persons, association or organization making the threat or committing the prohibited
or unlawful act or actually authorizing or ratifying the same after actual knowledge
(b) That substantial and irreparable injury to petitioner's property will follow;
(c) That as to each item of relief to be granted, greater injury will be inflicted upon the
petitioner by the denial of relief than will be inflicted upon respondents by the granting
of relief;
(d) That petitioner has no adequate remedy at law; and
(e) That the public officers charged with the duty to protect petitioner's property
are unable or unwilling to furnish adequate protection.

Can the strike itself be enjoined? - In some cases, injunctions issued to enjoin the
conduct of the strike itself and not only the commission of illegal or prohibited acts in the
course thereof, were held to be valid.
San Miguel Corporation v. NLRC, [G.R. No. 119293, June 10, 2003] . - The Supreme
Court ruled that injunction may be issued not only against the commission of illegal acts in
the course of the strike but against the strike itself. In this case, the notice of strike filed by
the union has been converted into a preventive mediation case. Having been so converted,
a strike can no longer be staged based on said notice. Upon such conversion, the legal effect
is that there is no more notice of strike to speak of. When the NCMB ordered the preventive
mediation, the union had thereupon lost the notice of strike it had filed. However, the NCMB
which effected the conversion has, under the law, no coercive powers of injunction.
Consequently, petitioner company in the instant case sought recourse from the NLRC. The
NLRC, however, issued a TRO only for the free ingress to and egress from petitioners plants,
but did not enjoin the conduct of the unlawful strike itself. It ignored the fatal lack of notice
of strike consequent to the conversion thereof into a preventive mediation case. Article 264
[a] of the Labor Code explicitly states that a declaration of strike without first having filed the
required notice is a prohibited activity, which may be prevented through an injunction in
accordance with Article 254 of the same Code. Clearly, public respondent should have
granted the injunctive relief to prevent the grave damage brought about by the unlawful
San Miguel Corporation v. NLRC, [G.R. No. 99266, March 2, 1999, 304 SCRA 1] - In this
case, the same issue of NLRCs duty to enjoin an unlawful strike was raised. The Supreme
Court ruled that the NLRC committed grave abuse of discretion when it denied the petition
for injunction to restrain the union from declaring a strike based on non-strikeable grounds.
ILaw at Buklod ng Manggagawa [IBM] v. NLRC, [G.R. No. 91980, June 27, 1991, 198
SCRA 586] - It was held here that it is the legal duty and obligation of the NLRC to enjoin a
partial strike staged in violation of the law. Failure to promptly issue an injunction by the
NLRC was likewise held therein to be an abuse of discretion.
(b) Innocent Bystander Rule. This rule is applicable to picketing which adversely affect
third party-employers or innocent bystanders not involved in the labor dispute. Under
this rule, the third party-employers who have no employer-employee relationship with
the picketers, may apply for injunction with the regular courts to enjoin the conduct of
the picket. Absent such employer-employee relationship, it is the regular court and not
the NLRC which has jurisdiction to entertain such application for injunction from
innocent bystanders. If it is the employer which applies for injunction, the NLRC,
and not the regular court, which has jurisdiction thereover since there exists an
employer-employee relationship between the employer and the picketers.

When picketing may be enjoined. -As a general rule, injunction cannot be issued
against the conduct of picketing by the workers. Under our constitutional set up,
picketing is considered part of the freedom of speech duly guaranteed by the
Constitution. However, excepted from this legal proscription is when picketing is carried
out through the use of illegal means[11] or where picketing involves the use of violence
and other illegal acts.[12]