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LABOR LAW REVIEW 2017

 Majority of the topics included here that were not discussed in class were If the proper disciplinary authority does not finally decide the administrative case within a period
sourced from: of 90 days from the start of preventive suspension pending investigation, and the respondent
 Notes of Ate Anna Patricia Bravo is not a presidential appointee, the preventive suspension is lifted and the respondent is
 SLU Reviewer 2010 "automatically reinstated” in the service.
 Chan Pre-Week Reviewer 2015
 Chan Reviewer 2016 In the case of presidential appointees, the preventive suspension pending investigation shall be
 I had no time to proofread so please watch out for corrections. If there are "for a reasonable time as the circumstances of the case may warrant.
errors, kindly inform us.
 Refer to other reviewers for supplement. Baculi should be paid his back salaries and other benefits for the entire time that he should have been
 Cases assigned were not included here. automatically reinstated at the rate owing to his position that he last received prior to his
 You can share this to our refreshers  preventive suspension on September 4, 1992.

Review: Such time corresponded to the period from December 4, 1992 until June 25, 2003, but excluding the
interval from March 12, 2001 until December 31, 2001 when he was briefly reinstated.
Preventive suspension both in public and private sectors
Private
RIGHT TO SELF-ORGANIZATION
 Preventive: not a sanction but a remedial measure undertaken in order not to hamper
an investigation of an alleged misconduct of an employee Lecture:
 Not all employees may be subject of preventive suspension.  Right to self-organization includes the right not to self-organize. It is not something that
 If the subject employee is a clerical employee, one who is not in a position to the employer may impose upon the employee.
hamper the conduct of the investigation, then it is not proper to subject him to  Violation of this right: may amount to unfair labor practice.
preventive suspension.

If he is preventively suspended and it is not appropriate according to the Legal Bases


circumstances, it is an illegal act, and the employee may be subject to liability 1. Section 3, Article XIII (2nd paragraph), Constitution
such as payment of wages. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
 If valid and legal suspension: the employer is not under obligation to pay wages of the and peaceful concerted activities, including the right to strike in accordance with law. They shall be
employee during the period of suspension provided that it does not exceed 30 days. entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate
 If after 30 day period, investigation is not yet terminated and employee is continuously in policy and decision-making processes affecting their rights and benefits as may be provided by law.
placed in preventive suspension: it will be subject to liability of employer to pay benefits
and wages during the suspension. 2. Section 8, Article III, Constitution
 Indefinite suspension is NOT allowed. By then it will be tantamount to preventive The right of the people, including those employed in the public and private sectors, to form unions,
suspension. Hence, it cannot go beyond the period of 6 months associations, or societies for purposes not contrary to law shall not be abridged.
 Suspension beyond 6 months: allowed if it is imposed as a sanction, after compliance
with the due process requirements of notice and hearing.
If an employer can validly terminate, he can also validly suspend. 3. Section 2, Article IX-B, Constitution
(5) The right to self-organization shall not be denied to government employees.
Public
1. Preventive suspension pending investigation 4. Non-abridgement of the right to self-organization (Art. 246), Labor Code
2. Preventive suspension pending appeal It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to self-organization. Such right shall include the
Allowed period of preventive suspension: right to form, join, or assist labor organizations for the purpose of collective bargaining through
 For non-presidential appointees: 90 days. Beyond this, it is already illegal. There has representatives of their own choosing and to engage in lawful concerted activities for the same purpose
to be payment of wages for their mutual aid and protection, subject to the provisions of Article 264 of this Code. (As amended
 For presidential appointees: no definite period referred to under the rules. by Batas Pambansa Bilang 70, May 1, 1980)
“Reasonable period of time”
Purposes
Francisco Baculi vs Office of the President, GR No. 188681, 08 March 2017  Collective Bargaining through representatives of their own choosing;
Preventive suspension is of two kinds:  To engage in lawful concerted activities for the same purpose; or
a) preventive suspension pending investigation  For their mutual aid and protection
b) preventive suspension pending appeal where the penalty imposed by the disciplining
authority is either suspension or dismissal but after review the respondent official or employee is
exonerated.

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 They shall be working with alien employment permit. Without this, even if they
Coverage are victims of illegal dismissal, they cannot expect any relief to be granted from
our country.
I. INCLUSIONS
 Government Employees
A. GENERAL  Except those members of AFP and PNP.
 E.O. 180: governs right of workers to self-organize.
FORMAL SECTOR (CIA-CREM)  May organize, unionize and may negotiate Collective Negotiation Agreements or
MOA only on conditions NOT FIXED BY LAW for furtherance and protection of
their interests but not for collective bargaining.
ALL PERSONS employed in:  All other employees in the CSC shall have the right to form Associations for
purposes not contrary to law.
 Commercial Enterprises  Charitable  All rank-and-file employees of all branches, subdivisions, instrumentalities, and
 Industrial Enterprises  Religious agencies of government, including government-owned and/or controlled
 Agricultural Enterprises  Educational corporations with original charters, can form, join or assist employees’
 Medical organizations of their own choosing.
Institutions, for profit or not.
 New Employees
Purpose:
 For collective bargaining, including staging of collective actions such as strikes.
 Iglesia Ni Kristo Members – Religious Sects
 For mutual aid and protection
 Religious organizations which prohibit them from exercising the right to self-
organize
INFORMAL SECTOR: (AIR WIS)
 They have the right to self-organize, but they choose not to exercise such right.
 Ambulant workers
 Intermittent workers
 Rural Workers
 Security guards
 may join Labor Organization of rank-and-file or supervisory union depending on
 Workers with no definite employers (e.g. industrial homeworkers)
rank
 Itinerant workers  They used to be exempted because they also bear arms. Now they are already
 Self-employed entitled to this right.
Purpose: For their mutual aid and protection
II. EXCLUSIONS (HEMACEN)
B. SPECIAL (STAG NIS)
 High level government employees
 Managerial employees
 Supervisory Employees  Those engaged in policy-making functions
 Supervisory employees shall not be eligible for membership in a labor union of  Confidential employees
the rank-and-file employees but may form, join or assist separate labor unions of  Employees of Cooperatives who are members
their own.  Not all employees of cooperatives are members
 Is mixed membership of supervisors and rank-and-file union in one union a  If they are simply employees, there is no prohibition
ground to cancel its registration?  If they are members, their interest is also the same as the cooperative. It is as if
No. In case there is mixed membership of supervisors and rank-and-file they are the employers. They cannot self-organize against themselves.
employees in one union, the new rule enunciated in Article 245-A of the Labor  Managerial Employees
Code, unlike in the old law, is that it cannot be invoked as a ground for the  AFP and Police personnel
cancellation of the registration of the union. The employees so improperly  By nature of their functions, they bear arms.
automatically deemed removed from the list of members of said union. Their
removal from the said list is by operation of law.
 Confidential Employees
 This evolved by way of adoption or application of principle of necessary
implication. They are likened to managerial employees in terms of function and
 Terminated Employees who are contesting their termination affinity of employer
Requisites:  What the law has expressly exempted may necessarily apply to confidential
1. That their termination is a subject of a pending case employees as the evil sought to be avoided might be obtained
2. They have not subsequently an equivalent employment.  Employees of International Organizations with immunity
e.g. those attached to the United Nations
 Aliens who have obtained and alien employment permit  Non-employees
 If his country of origin also recognizes the right of our Filipino migrant workers
there to self-organize.
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3. The names of all its members comprising at least 20% of the employees in the
LABOR ORGANIZATIONS Bargaining Unit;

 Bargaining Unit: either all of the employees sought to be represented by the Labor
Definition organization for purposes of collective bargaining and negotiations
Any union or association of employees which exists in whole or in part for the purpose of collective  There must be commonality or mutuality of interest which could be best promoted by the
bargaining or of dealing with employers concerning terms and conditions of employment labor organization as long as the same will not undermine or oppress the employer.

Legitimate Labor Organization Q: Should this 20% be maintained all through the life of the labor organization to continuously
Any labor organization duly registered with the DOLE and includes any branch or local thereof maintain the legitimacy of the labor organization? If this 20% was lost, can the union be divested
of this legitimate personality?

Kinds of Labor Organizations A: No. This is not one of the grounds to revoke the legitimate personality of a labor organization. It is
*based on our notes from 2nd year* necessary only to be met at the time of registration. If it is a continuing requirement to attain
legitimacy, it should have been one of the grounds to cancel the registration of the union.
Trade Union Center
any group of registered national unions or federations organized for the mutual aid and protection of 4. The annual financial reports if the applicant has been in existence for one or more
its members, for assisting such members in collective bargaining, or for participating in the
years, unless it has not collected any amount from its members, in which case, a
formulation of social and employment policies, standard and programs and is registered by the BLR.
statement to this effect shall be included in the application; and
Alliance
5. The applicant’s constitution and by- laws, minutes of its adoption or ratification and
 Loose association formed by labor organizations made for specific purpose only; it
cannot represent the members; it cannot engage in collective bargaining the list of the members who participated in it.

 The list of ratifying members shall be dispensed with where the constitution and
Company union
 company- dominated union under the influence of the employer; by- laws was ratified or adopted during the organizational meeting. In such a
 may amount to unfair labor practice since labor organizations must be independent case, the factual circumstances of the ratification shall be recorded in the
minutes of the organizational meeting;
Chapter
 Labor organization which is a member of a federation 6. Registration fee

Chartered local 7. Attestation of the President of the Labor Organization


 Member of a federation, especially one issued a charter certificate. The same with chapter

Workers’ association WHERE TO FILE:


 Organization of employees whether in the public or private sector which are organized  Regional Office where the principal office is located
primarily for the protection and mutual aid of members only and not for collective
bargaining and negotiation. WHAT IF SOME REQUIREMENTS ARE NOT COMPLIED WITH?
 The Regional Office shall notify the applicant within one day after the receipt of the
REGISTRATION OF LABOR ORGANIZATIONS application and shall direct it to complete the same within 30 days
 If the same has not been complied still, disapprove the application
How to attain legitimate personality?
1. Independent registration NOTE: If there is continuous inaction on the part of the hearing officer, the proper action is
2. Chartering mandamus and not certiorari

WHERE TO APPEAL
Independent Labor Organization  Bureau of Labor Relations
Requirements for Registration
1. The name of the applicant labor union, its principal address, the names of its officers When is legitimate personality vested?
and their respective addresses, approximate number of employees in the Bargaining  Upon the issuance of the certificate of registration as a legitimate
Unit where it seeks to operate, with a statement that it is not reported as a chartered labor organization.
local of any federation or national union;

2. The minutes of the organizational meeting and the list of employees who participated Federation
in the meeting; WHERE TO APPLY: BLR
APPEAL: Secretary of Labor and Employment

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4. All the foregoing supporting requirements shall be certified under oath by the
Requirements secretary or treasurer of the chapter and attested by the President
1. A statement indicating the name of the applicant labor union, its principal address,
the name of its officers and their respective addresses; In chartering, they will acquire legitimate personality in two instances:
2. The minutes of the organizational meeting and the list of employees who participated 1. Provisional: upon the issuance of the charter certificate
in the same;  Loss of legitimate personality- upon revocation of the charter

3. The annual financial reports if the applicant union has been in existence for one or 2. Complete: upon the submission of the required documents
more years, unless it has not collected any amount from the members, in which case,
a statement to this effect shall be included in the application; Revocation of charter certificate
 Through a resolution passed by the Board of the Federation which issued the charter
4. The applicant union’s constitution and by- laws, minutes of its adoption or certificate.
ratification, and the list of the members who participated in it. The list of ratifying  Effectivity: Upon giving notice of revocation to be served upon the union and submitted
members shall be dispensed with where the constitution and by- laws was ratified or to the Regional office where the documents for chartering have been submitted.
adopted during the organizational meetings. In such case, the factual circumstances  Grounds:
of the ratification shall be recorded in the minutes of the organizational meetings; 1. Disloyalty
2. Other grounds under the Constitution and By-Laws of the Federation, National
5. The resolution of affiliation of at least ten LLO, whether independent union or Union or Worker’s Association
chartered locals, each of which must be a duly certified or recognized bargaining
agent in the establishment where it seeks to operate; and Affiliation
6. The name and addresses of the companies where the affiliate operate and the list of  The affiliate which enters an agreement of affiliation to the federation
 Affiliate would pertain to:
all the members in each company involved.
1. An independent union affiliated with a federation or national union; or
2. A local chapter which has been subsequently granted independent registration but did
7. A listing of the member organization including their addresses, the name of the
not disaffiliate from the federation or national union which created it.
president of the member LO;
Requirements:
8. If it is an industry union, the type of industry it operates
1. Resolution of the Labor union’s board of directors approving the affiliation;
2. Minutes of the general membership meeting approving the affiliation;
3. The total number of members comprising the labor union and the names of
Chartering members who approved the affiliation;
 Short-cut procedure 4. The certificate of affiliation issued by the federation in favor of the
 Process whereby legitimate personality is extended to a chartered local by mere issuance independently registered labor union; and
of a charter certificate by a federation and reporting and submission of required 5. Written notice to the employer concerned if the affiliating union is the
documents to the regional office or the BLR. incumbent bargaining agent
 Provisional Legitimate Personality: The mere act of issuance of a charter certificate
by a federation or national union to a local chapter clothes legal personality to the NOTES (from 2nd year lecture)
latter but only for one purpose, that is, to file a petition for certification  The affiliate and the mother union must both approve as to the affiliation. Then a certificate
election which it may validly do from the date it was issued such charter certificate. At of affiliation will be issued upon the compliance of the requirements
that point, the local chapter has not yet fully acquired its legal personality as would invest  Affiliation can be done anytime
it with all the rights and privileges to which a LLO is entitled.  Relationship of the affiliate and the federation: Principal (affiliate) - Agent (federation)
 Complete legal personality: only attained upon compliance with the submission of the relationship.
required documents in addition to its charter certificate.
Disaffiliation
Requirements for chartering: Disaffiliation can only happen in two instances:
1. The charter certificate issued by the federation or national union indicating the 1. During the 60- day period immediately preceding the expiration of CBA; and
creation or establishment of the local/ chapter; 2. Even before the onset of the freedom period when such disaffiliation is effected by the
majority of the members of the labor organization.
2. The names of the chapter’s officers, addresses, and the principal office of the chapter;
and
Effects of Disaffiliation:
3. The chapter’s constitution and by-laws; provided that where the chapter’s SLU Reviewer
constitution and by-laws is the same as that of the federation or national union, this 1. If the union is not independently registered, it is not entitled to the rights and privileges
fact shall be indicated accordingly. granted to legitimate labor organization

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2. The federation is entitled to receive the dues from the employer ONLY as long as the union Source: SLU Reviewer 2010
is affiliated with the federation. Without said affiliation, the employer has no link with the
federation REGISTRATION OF AN INDUSTRY OR TRADE UNION CENTER
3. The CBA continues to bind the members of the new or disaffiliated and independent union 1. List of its member organizations and their respective presidents;
up to the CBA’s expiration date (Substitutionary Doctrine) 2. Resolution of membership of each member organization;
 Under this doctrine, the employees cannot revoke the validly executed CBA with their 3. Name and Principal Address of the Applicant;
employer by the simple expedient of the changing of the bargaining agent. The new agent 4. Officer’s names and their addresses;
must respect the contract 5. Minutes of the organizational meeting; and
6. Constitution and By-Laws
Lecture:
 Affiliation may be had anytime  To be filed with the BLR.
 In an organized establishment, it can be done during the freedom period
 How to effect affiliation: by decision of majority of members of the affected labor REGISTRATION OF WORKER’S ASSOCIATION
organization. 1. Members’ names and addresses;
 Issues on affiliation usually appear in petitions for certification election. 2. Principal office of the applicant;
 If a certification election is held with the members of a bargaining unit believing that their 3. Minutes of the organization meetings;
choice of a union was affiliated and found out that there is already disaffiliation that may 4. Constitution and By-Laws.
affect the vote of the members, that may be assailed (?) *di ko to nagets, tinranscribe ko lang
sinabi nya*  To be filed with the Regional Office where it operates.

Merger and Consolidation From 2nd year lecture:


Q: What is the effect of Cancellation of Registration? Will it serve as a basis for
 Merger: a process where a labor organization absorbs another, resulting in the cessation
disestablishment/non-existence of the Organization?
of the absorbed labor organization’s existence and the continued existence and the
A: NO. What is lost is just registration. The Labor Organization continues to exist. Except that
continued existence of the absorbing organization.
the Labor Organization cannot continue to exercise the rights of a LLO
 Consolidation/Amalgamation: creation or formation of a new union arising from the
unification of two or more unions. This process usually occurs between two unions that are
Q: What about the union members? Can they continue to exercise the rights of union members?
approximately of the same size.
A: Yes, they continue to exercise their rights as union members, for what is lost is only the right
 Effect: Rights and obligations are absorbed by surviving labor organization.
of a legitimate labor organization as provided for by law.

Cancellation of Union Registration RIGHTS OF A LEGITIMATE LABOR ORGANIZATION


“ART. 239. Grounds for Cancellation of Union Registration. — The following may constitute Art. 242. Rights of legitimate labor organizations. A legitimate labor organization shall have
grounds for cancellation of union registration: the right:
(a) Misrepresentation, false statement or fraud in connection with the adoption or 1. To act as the representative of its members for the purpose of collective bargaining;
ratification of the constitution and by-laws or amendments thereto, the minutes
2. To be certified as the exclusive representative of all the employees in an appropriate
of ratification, and the list of members who took part in the ratification;
bargaining unit for purposes of collective bargaining;
(b) Misrepresentation, false statements or fraud in connection with the election of officers, 3. To be furnished by the employer, upon written request, with its annual audited financial
minutes of the election of officers, and the list of voters; statements, including the balance sheet and the profit and loss statement, within thirty
(30) calendar days from the date of receipt of the request, after the union has been duly
recognized by the employer or certified as the sole and exclusive bargaining representative
(c) Voluntary dissolution by the members. of the employees in the bargaining unit, or within sixty (60) calendar days before the
 ART. 239-A. Voluntary Cancellation of Registration. — The registration of a legitimate expiration of the existing collective bargaining agreement, or during the collective
labor organization may be cancelled by the organization itself:
bargaining negotiation;
 Provided, That at least two-thirds of its general membership votes, in a meeting
duly called for that purpose to dissolve the organization: 4. To own property, real or personal, for the use and benefit of the labor organization and
 Provided, further, that an application to cancel registration is thereafter its members;
submitted by the board of the organization, attested to by the president thereof. 5. To sue and be sued in its registered name; and
6. To undertake all other activities designed to benefit the organization and its members,
WHERE TO FILE including cooperative, housing, welfare and other projects not contrary to law.
 For federation and similar bigger organizations: BLR
 For small basic organization operating at a firm level: Regional office of the DOLE or the Notwithstanding any provision of a general or special law to the contrary, the income and the
Med-Arbiter properties of legitimate labor organizations, including grants, endowments, gifts, donations and
contributions they may receive from fraternal and similar organizations, local or foreign, which are
Others not discussed: actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and

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other assessments. The exemptions provided herein may be withdrawn only by a special law expressly b. Right to require that the account be duly audited and verified by affidavit and a
repealing this provision. (As amended by Section 17, Republic Act No. 6715, March 21, 1989) copy thereof be furnished to the DOLE secretary

c. Right to inspect the books of accounts and other financial records of the union
and to require full and detailed reports from their offices and representatives on
RIGHTS GIVEN TO UNION MEMBERS all financial transactions as provided for in the constitution and by- laws of the
Source: class lecture and notes from 2nd year organization

1. Decision making rights which includes: d. Right to be informed of the provisions of the constitution and by-laws, CBA, the
 Right to participate in decision making processes involving policies involving their rights prevailing labor relations system and all their rights and obligations under
through secret ballot; if not possible, through their representative existing labor laws through the medium of labor relations seminars or other labor
 Examples: education activities; and
 the decision to or not to engage in a strike
 the decision on disaffiliation e. Right to seek investigation of any irregularity
 the right to initiate and participate in impeachment or expulsion proceedings
against an erring officer or member of the union
4. Political Rights

a. Right to vote and be voted for as an officer of the union, subject to the
2. Fiscal Rights qualifications and disqualifications, mentioned in article 241 of the LC (old
numbering)
a. Right against arbitrary, oppressive or excessive fees, fines and forfeitures;
b. Right to be appointed to appointive positions in the organization, subject to the
b. Right to full and detailed reports on all financial transactions in accordance with
qualifications and disqualifications mentioned in article 241 of LC
the constitution and by-laws of the union;
Lecture:
c. Right against unauthorized collection of any fees, dues or other contributions;
 Qualification to VOTE: membership in good standing
 Qualifications to be VOTED UPON:
d. Right to claim receipt for every payment of fees, dues or other contributions;
 Not involved in subversive organizations
e. Right to prevent funds of the organization from being applied for any purpose or  Not convicted of crime of moral turpitude
 It is a labor dispute when one questions on the conduct of election
object other than those expressly provided by the union’s constitution and by-
Intra-union dispute: may amount to violation of rights of union members which is a
laws or allowed expressly by written resolution adopted by the majority of the political right
members at a general meeting duly called for the purpose;  General Rule on Elections: follow which is provided for under constitution and by-
laws. Otherwise, follow the rules prescribed under the IRR of the Labor Code.
f. Right to demand or require that every income or revenue as well as every
expenditure of the union shall be recorded or receipted, which record or receipt
shall form part of the financial records of the union; Derivative Right
 Given to participate in decisions affecting matters of organization of common importance
g. Right against unauthorized check- off for special assessments, attorney’s fees, e.g. Decision to stage or not to stage a strike
negotiation fees or any other extraordinary fees without an individual written How exercised? Through secret ballot.
authorization duly signed by the employee;  Right to information
 Obligation of the officers of the labor organization: to give proper information
h. Right to vote on the compensation of union officers; and  To some extent, this is also an obligation of the employer, because under the law
he is obligated to check off from wages of employees and members and remit the
i. Right against unreasonable assessments to finance labor relations seminars and same to labor organization to defray fees to seminars
other labor education activities.  What must be informed:
 Of the financial standing of the labor organizations, which
3. Right to information  Or any other existing labor relations system

a. Right to require the treasurer and the other officers of the union responsible for
the account of the union as well as for the collection, management, disbursement,
Money Matters
 If a money comes into the labor organization, it is the obligation of financial officer to report
custody or control of the funds, moneys and other properties, to render a true and in detail such revenues, indicating therein the date, source, and amount.
correct account thereof, at least once a year within 30 days after the close of its  That is to be duly recorded in books of accounts
fiscal year and at such other times as may be required by a resolution of the  Disbursements shall be detailed in the books of accounts
majority members of the union and upon vacation his office;  Date,

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 purpose, Take note for requirements for affiliation
 amount, and  From passage of board resolution allowing the affiliation of federation with a specified local
 must be covered by receipts union up to acceptance of board resolution passed by the smaller unions of such affiliation
 Union members may demand this recording in details with the federation.
 Disbursements of union funds: must be in consonance with the constitution and by-laws of
the labor organization.
 You can disburse these funds on items that are allowed for purposes covered by COLLECTIVE BARGAINING
constitution and by-laws.
 If no provisions are in the constitution, disbursement may be made as long as Legitimate Labor Organizations are organized for a purpose: one is to represent them for purposes of
same is covered by a duly passed and ratified resolution of board of directors. collective bargaining.
 Any disbursement outside of these is invalid and will subject the union officers
concerned with appropriate sanctions.
 Collection of union dues
Bargaining Unit
 The officer must be guided with standards of what is reasonable. It should not be  Cluster of workers sought to be represented by a legitimate labor organization
 Appropriate Bargaining Unit: establish commonality of interest or mutuality between
arbitrary.
and among members so that these legitimate labor organizations will be in a better to
 It should be done with due consideration to the amount of salaries of the
represent them.
employees.
 Limitation: the same should not be unduly disadvantageous or oppressive to the
 Another consideration: applicable rates collected by the labor organizations employer.
under similar industries in the same locality or near such locality. E.g. cannot merge rank and file and supervisory
 Agency fee: collected from non-union members, conditioned on their receipt of benefits
from a CBA that was negotiated by the bargaining agent with the employer.
 The amount of agency fees should atleast be equal to the union dues collected. How to determine appropriate bargaining unit?
When there is no obligation to pay union dues, no authority may be given to
union to collect agency fees from non-union members, 1. Mutuality of Interest
 Special assessment: may be made as long as there is a special or general meeting held  They seek to establish some common factors or interest that would unite these
for such purpose, which is ratified or approved by atleast majority of the members of the members of the bargaining unit for easier representation in dealing with the
organization. employer.
 To be validly levied and check off from the salary, there shall be individual
written authorization coming from them. 2. Globe Doctrine
 Financial officer’s duty: Give reports to members  Determination of the will of the members of the bargaining unit
 Upon his assumption of office
 upon vacating office and
3. Common Geography or Location
 other times when required.
 Factors considered:
 Check-off: refers to the process by which he employer effects deductions from the wages  How they are paid wages
and benefits of the union members who are employees  Nature of functions
 Union Dues: the individual members should be able to give written authorization
 Agency fees: no need to give individual written authorization because law allows such and 4. Common Bargaining History Rule
usually provided in a union security agreement contained in the CBA.  This principle puts premium to the prior collective bargaining history and affinity
of the employees in determining the appropriate bargaining unit. However, the
Q: May the labor organization as matter of right demand from employer to be furnished copies of existence of a prior collective bargaining history has been held as neither decisive
audited financial statement from employer? nor conclusive in the determination of what constitutes an appropriate
A: Yes, in connection with the exercise with right to self-organization. Prior to collective bargaining bargaining unit.
and negotiation, the same may be demanded so that members will be in a proper position to make
negotiations even as early as formulation of proposal at the start of collective bargaining negotiations.  All tests may be subsumed under the general and acknowledged test which is
mutuality of interest rule. Others are just factors that may establish common
 Honorarium interest among employees.
 If there are adjustments made by current officer, they cannot benefit from such
adjustments Determination of Majority Representation Status
 The next officers will benefit from the increases
1. SEBA Certification (Sole and Exclusive Bargaining Agent)
2. Certification Election
Q: Will the non-registration of the labor organization result to its disestablishment?
3. Run-off, Consent, Re-run Election
A: No

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SEBA CERTIFICATION Organized vs. Unorganized Establishments
 To the BLR or Regional Office
 Applies both to organized or unorganized establishment  ORGANIZED: it will be automatically conducted. It will be allowed as a matter of course.
 In reality: it may just pertain to application of SEBA in an unorganized establishment, Meaning, there is no labor organization representing the bargaining unit in that part
If it is organized and you apply for SEBA with the BLR, it will refer you back to the process establishment. There is no CBA. What is acknowledged is proper representation and
of certification election. organization of workers, for stronger power of workers.
 Acquisition of SEBA Certificate  UNORGANIZED: may go to hearing in an appropriate case
 Application
 Grant
 If single legitimate labor organization pertaining in an unorganized establishment provided Requirements for Filing
of course that that the Labor Organization is also supported by members of that bargaining Petition, filed by the labor organization, containing the following:
unit. 1. The name of petitioner and its address and affiliation, if any;
 Difference with voluntary recognition: in here, initiative is purely on the labor organization. 2. Name, address and nature of the employer's business;
There is no need for participation of the employer 3. Description of the bargaining unit which shall be the employer unit unless circumstances
otherwise require; and provided further, that the appropriate bargaining unit of the rank-
CERTIFICATION ELECTION and-file employees shall not include supervisory employees and/or security guards;
4. Appropriate number of the employees in the alleged bargaining unit;
5. Names and addresses of other legitimate labor organizations in the bargaining unit;
“Certification election” refers to the process of determining through secret ballot the sole
6. In an organized establishment, the signatures of at least twenty-five (25%) percent of all
and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of
employees in the appropriate bargaining unit; and
collective bargaining or negotiations.
7. Other relevant facts.
Chan, 2015
Petition, when filed by an employer, shall contain the following:
What are the requisites for the validity of the petition for certification election? 1. The name, address and general nature of the employer's business;
The following requisites should concur: 2. Names and addresses of the legitimate labor organizations involved;
1. The union should be legitimate which means that it is duly registered and listed in the 3. Approximate number of the employees in the appropriate bargaining unit;
registry of legitimate labor unions of the BLR or that its legal personality has not been 4. Description of the bargaining unit which shall be the employer unit unless circumstances
revoked or cancelled with finality. otherwise required; and provided further, that the appropriate bargaining unit of the rank-
and-file employees shall not include supervisory employees and/or security guards;
2. In case of organized establishments, the petition for certification election is filed during 5. Other relevant facts.
(and not before or after) the 60-day freedom period of a duly registered CBA.
NOTE: The labor organization, in order to be a petitioner, must be a legitimate labor organization.
3. In case of organized establishments, the petition complied with the 25% written support
of the members of the bargaining unit. Q: If it is not a legitimate labor organization, is that a ground for dismissing?
4. The petition is filed not in violation of any of the four (4) bar rules A: Yes. If:
1. The petition is not included in the roster of legitimate labor organizations filed under the
Principles: BLR; or
2. It used to be a legitimate organization but there is final judgement of cancellation of
 The pendency of a petition to cancel the certificate of registration of a union registration, or proof of revocation with finality of its charter certificate.
participating in a certification election does not stay the conduct thereof.
 The pendency of an unfair labor practice case filed against a labor organization Q: What if upon filing a petition for certification election, the employer also filed a petition for
participating in the certification election does not stay the holding thereof. cancellation for union registration. What is the effect of the latter?
 Direct certification as a method of selecting the exclusive bargaining agent of the A: None. It is not a prejudicial question. While it is true that legitimacy may only be directly assailed
employees is not allowed. This is because the conduct of a certification election is through a petition for cancellation of union registration, until that has been granted with finality and
still necessary in order to arrive in a manner definitive and certain concerning the therefore registration is cancelled, the labor organization which filed the petition and whose legitimacy
choice of the labor organization to represent the workers in a collective bargaining is in question may continue to exercise all rights and privileges that may accrue to such labor
unit. organization.
 The No Union vote is always one of the choices in a certification election.
 Where majority of the valid votes cast results in―No Union‖ obtaining the majority, Q: Once it is cancelled, will the effect of the cancellation retroact to the date of issuance of certificate
the Med-Arbiter shall declare such fact in the order. of registration?
 Only persons who have direct employment relationship with the employer may A: No. There are vested rights that in the meantime has been acquired and adversely affected. It will
vote in the certification election, regardless of their period of employment be prospective in effect.

If in the meantime, it lost such that its registration is now cancelled, it cannot participate anymore in
the certification election

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If there are intervenors such as other legitimate labor organizations in that bargaining unit, as long as
they comply with the requirements of a valid certification election, then the proceedings must Contract Bar Rule: there can be no petition for certification election
continue. during the life of a validly subsisting registered CBA, except only within
the freedom period
Who may file  If not registered/ if defective/ if concluded: anytime as long as
 ORGANIZED ESTABLISHMENT: anytime, by any interested party, especially the labor other bars do not apply
organization  Contract bar rule does not apply here.
General Rule: A non-legitimate labor organization cannot file
Except: if in the meantime it is issued a charter certificate which gives it provisional
legitimacy for purposes of filing petition for certification election. Bar Rules
1. Certification year bar rule
 UNORGANIZED ESTABLISHMENT:  A petition for certification election may not be filed within one (1) year:
 Legitimate labor organization a. from the date the fact of voluntary recognition has been entered; or
 Employer, where requested to bargain collectively. b. from the date a valid certification, consent, run-off or re-run election has been
Note: if establishment is organized where there is bargaining agent, the employer conducted within the bargaining unit.
cannot initiate. (lecture)
2. Negotiations bar rule
Bystander Rule  No petition for certification election should be entertained while the sole and exclusive
 General Rule: employer is merely a bystander bargaining agent and the employer have commenced and sustained negotiations in good
 Exception: his participation is limited to the following faith within the period of one (1) year from the date of a valid certification, consent, run-
1. Being notified or informed of the petitions for certification election; and off or re-run election or from the date of voluntary recognition.
2. Submitting the list of employees during the pre-election conference should the Med-  Once the CBA negotiations have commenced and while the parties are in the process of
Arbiter act favorably on the petition. negotiating the terms and conditions of the CBA, no challenging union is allowed to file a
petition for certification election that would disturb the process and unduly forestall the
Q: Can the employer move for dismissal of the petition for certification election based on alleged early conclusion of the agreement.
lack of legal personality of petitioner?
A: No, because of the bystander rule. 3. Bargaining deadlock bar rule
 A petition for certification election may not be entertained when a bargaining deadlock to
But if really there is no legitimate personality, the Supreme Court in a lot of cases has allowed the which an incumbent or certified bargaining agent is a party has been submitted to
employer to so participate, limited in the following circumstances: conciliation or arbitration or has become the subject of a valid notice of strike or lockout.
1. If the labor organization is not in the roster of the legitimate labor organizations; or
2. The labor organization used to be a legitimate one but lost such legitimacy through final 4. Contract bar rule
revocation or judgment cancelling the union registration.  A petition for certification election may not be filed when a CBA between the employer and
 In a way this is an exception to the rule that the employer is a mere bystander. a duly recognized or certified bargaining agent has been registered with the BLR.
When somebody else move for dismissal grounded on lack of legal personality under these two  Where the CBA is duly registered, a petition for certification election may be filed only
circumstances, it is not seeking an order declaring that this labor organizations shall lose legitimate within the 60-dayfreedom period prior to its expiry. The purpose of this rule is to ensure
personality. It is just pointing to a recognition of existing fact: that it has no legitimate personality. 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.
If what is sought is cancellation of legitimate personality
 Direct verified petition must be filed before the Regional Office of the DOLE for smaller  The contract bar rule does not apply in the following:
organizations, or Med-arbiter in the region. 1. Where there is an automatic renewal provision in the CBA but prior to the date
 For federations or bigger organization, petition is filed to the BLR. when such automatic renewal became effective, the employer seasonably filed a
manifestation with the Bureau of Labor Relations of its intention to terminate the
When Filed said agreement if and when it is established that the bargaining agent does not
represent anymore the majority of the workers in the bargaining unit.
 UNORGANIZED ESTABLISHMENT: Can be filed any time 2. Where the CBA, despite its due registration, is found in appropriate proceedings that
a. It contains provisions lower than the standards fixed by law; or
 ORGANIZED ESTABLISHMENT: b. The documents supporting its registration are falsified, fraudulent or
tainted with misrepresentation.
 Without CBA: anytime as long as the bars do not apply 3. Where the CBA does not foster industrial stability, such as contracts where the
*bars are to be discussed later* identity of the representative is indoubt since the employer extended direct recognition
 With CBA to the union and concluded a CBA therewith less than one (1) year from the time a
 If validly registered/effective: within the 60-day freedom period certification election was conducted where the ―no union‖ vote won. This situation
prior to the expiration of the CBA

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obtains in a case where the company entered into a CBA with the union when its status Can the parties agree to the conduct of consent election even during the pendency of
as exclusive bargaining agent of the employees has not been established yet. certification election?
4. Where the CBA was registered before or during the last sixty (60) days of a
subsisting agreement or during the pendency of a representation case. It is well-settled Yes. The Med-Arbiter is required to determine if the contending labor unions are willing to
that the 60-day freedom period based on the original CBA should not be affected by submit themselves to a consent election. And if they do, the Med-Arbiter should conduct consent
any amendment, extension or renewal of the CBA for purposes of certification election election instead of certification election

Possible Motions  IF CONSENT ELECTION IS AGREED UPON


1. Motion for intervention. The Petition will no longer be heard. They will go straight to Pre-Election Conference.
 Other legitimate labor organizations within the same bargaining unit which may want
to participate  IF CONSENT ELECTION IS NOT AGREED UPON
 The incumbent bargaining agent is an automatic intervenor. They are required to submit position papers.
 The motion for intervention in certification election proceedings shall be filed before
the Med-Arbiter assigned to the case. The mere filing of said motion, however, will not
suspend the holding of the certification election without an order issued by the Med- HEARINGS AND PLEADINGS
Arbiter. SLU Reviewer:
 Med Arbiter may conduct as many hearings as may be deemed necessary
2. Motion for inhibition.  The conduct of the hearing cannot exceed fifteen days from the date of the scheduled
 Must be verified and based on specific grounds or circumstances directly related to or preliminary conference
arising from the dispute under consideration.

3. Motion to dismiss Purpose of Hearing


 No motion to dismiss may be filed on the ground that the labor organization has no 1. Arriving at stipulation of facts
legal personality, except under the two grounds: 2. Determining parties to the election
a. The petition is not included in the roster of legitimate labor organizations filed 3. Getting the parties to agree to a consent election
under the BLR; or 4. Asking clarificatory questions; and
b. It used to be a legitimate organization but there is final judgement of cancellation 5. Defining or limiting the issues.
of registration, or proof of revocation with finality of its charter certificate.
DECISION ON THE PETITION
PRELIMINARY CONFERENCE
 The first preliminary conference shall be scheduled within 10 days from the receipt of  Shall be issued within 10 days from date of the last hearing
the petition.
 Within three days from receipt: there must be service of the notice of the preliminary IF GRANTED
conference
Contents of the Decision
1. Names of the contending unions, which shall appear as follows:
Matters Determined: a. Petitioner union
1. Bargaining unit to be represented b. Forced intervenor
2. Contending labor union c. No union
3. Possibility of consent election 2. Name of the employer;
4. Existence of bars to certification election 3. Description of the bargaining unit,
5. Such other matters as may be relevant to the final disposition of the case 4. Statement that none of the grounds for dismissal exists; and
e.g. inclusion and exclusion of voters according to their qualifications. 5. Directive upon the employer and the contending labor union to submit within 10 days from
receipt of the order the certified list of the employees in the bargaining unit, or the payrolls
covering the members of the bargaining unit for three (3) months prior to the issuance of
CONSENT ELECTION the order.
 A consent election‖ refers to the process of determining through secret ballot the
sole and exclusive representative of the employees in an appropriate bargaining  Election officer is assigned and pre-election conference will be conducted.
unit for purposes of collective bargaining and negotiation.
 mutually agreed upon by the parties, with or without the intervention of the IF DENIED
DOLE to determine the issue of majority representation of all the workers in an Grounds for Denial of Petition
appropriate collective bargaining unit
1. Petitioner is not listed in the Department’s registry of legitimate labor unions or that its
legal personality has been revoked or cancelled with finality.
2. The petition was filed before or after the freedom period of a duly registered collective
bargaining agreement.
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3. The petition was filed within one (1) year from the entry of voluntary recognition or valid
certification, consent or run-off elections and no appeal is pending. INSPECTION OF POLLING PLACE
4. A duly certified union has commenced and sustained negotiations with the employer or
there exists a bargaining deadlock, which has been submitted to conciliation and mediation
or has become the subject of a valid notice of strike or lockout. ELECTION PROPER
5. In organized establishment, failure to submit twenty-five percent (25%) support
requirement The process of certification election requires two (2) kinds of majority votes, viz.:
1. Number of votes required for the validity of the process of certification
Appeal of Order Denying or Granting the Petition election itself. In order to have a valid certification election, at least a majority of all
 In an unorganized establishment: the order granting the petition is not subject eligible voters in the appropriate bargaining unit must have cast their votes.
to appeal. Any issue may be raised by means of protest. 2. Number of votes required to be certified as the collective bargaining agent.
 Appeal should be verified under oath and consists of the memorandum of appeal To be certified as the sole and exclusive bargaining agent, the union should obtain a
stating the grounds relied upon by the appellant with the supporting argument and majority of the valid votes cast.
evidence
 WHERE to File: SOLE (Lecture) WHEN: Election shall be set during a regular business day of the company
 UNLESS otherwise agreed upon by the parties.
Take note: in certification election, whether it comes from regional office or
med-arbiter, appeal is to the SOLE WHERE: Within company premises
 UNLESS circumstances otherwise require, as determined by the election officer.
 If no appeal is filed within the ten (10)-day period, the Med-Arbiter shall enter the
finality of the order or decision in the records of the case and cause the transmittal of Abstention
the records of the petition to the Regional Director.  Refers to a blank or unfilled ballot validly cast by an eligible voter. It is not
considered as a negative voter. It shall however be considered a valid vote for
PRE-ELECTION CONFERENCE purposes of determining a valid election. (DO 40-1-2015)
The pre-election conference shall set the mechanics for the election and shall determine, among
others, the following: Spoiled Ballot
1. List of qualified voters;  A ballot that is torn, defaced, or contains markings which can lead another to clearly
2. The date, time and place of the election; identify the voter who casts such vote
3. Names of watchers and representatives;  Even those who participated through spoiled ballots are counted as participants, for
4. The number and location of polling places or booths; the purpose of determining if majority of the employees in the bargaining unit have
5. The number of ballots to be prepared; and participated in the election.
6. Mechanics and guidelines of the election.  However, spoiled ballots are not counted in determination of valid votes cast
WHO are qualified to vote? All employees who are members of the appropriate bargaining unit Illustration:
sought to be represented by the petitioner at the time of the certification or consent election shall 1000 members
be qualified to vote. 900—participated,
Of this 900, 100 are spoiled ballots.
NOTES What is the majority vote necessary to elect one of the choices as the winning choice?
 Contested voters shall be allowed to vote; however, their votes shall be segregated and  Exclude the spoiled ballot in counting for the valid votes cast
sealed in individual envelopes.  900 – 100 (spoiled ballots) = 800; majority of which is 401.
 A dismissed employee whose dismissal is being contested in a pending case shall be
allowed to vote.
 Probationary employees have substantial interest in the selection of the bargaining Possible Controversies
representative, hence they are allowed to vote. 1. ON-THE-SPOT Questions
 IGLESIA NI KRISTO believers may vote.  The election officer may rule on any question relating to and arose during the
(Source: SLU Reviewer) conduct of election. In no case, however, shall the election officer rule on any of the
grounds for challenge of votes.
POSTING OF NOTICES
WHEN: At least 10 days prior to the election 2. CHALLENGE of Votes
WHERE: Two (2) conspicuous places in the company premises;  An authorized representative of any of the contending parties may challenge a vote
WHAT MUST BE CONTAINED: before it is deposited in the ballot box ONLY on any of the following grounds:
1. Date and time of election; a. There is no employer-employee relationship between the voter and the
2. Description of bargaining units and the list of Eligible voters and challenged voters; company; and
3. Names of all contending unions.

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b. The voter is not a member of the appropriate bargaining unit which petitioner CANVASSING OF VOTES
seeks to represent.
Done in the presence of the representatives of the contending unions. Upon completion, the election
 When a vote is properly challenged, the election officer shall place the ballot in an officer shall give each of the representatives a copy of the minutes of the election proceedings and
envelope, which shall be sealed in the presence of the voter and the representative of results of the election. The tally sheets and the ballots shall be sealed in an envelope, signed by the
the parties. election officer and the representatives, and transmitted to the Med-Arbiter.
 When the enveloped may be opened: Only if opening would alter the result of the
election.
PROCLAMATION AND CERTIFICATION
3. PROTEST BY ELECTION OFFICER
 Any party-in-interest may file a protest based on the conduct or mechanics of the
election. Protests not so raised are deemed waived. Protesting party must formalize Upon completion of the canvass and there being a valid election, the election officer shall proclaim
its protest with the Med-Arbiter, with specific grounds, arguments and evidence and certify as winner the union which obtained a majority of the valid votes cast under any of the
therefore, within 5 days after the close of the proceedings. following conditions:

Possible Results of the Election 1. No protest has been filed or, even if one is filed, the same was not perfected within the five
(5)-day period for perfection of the protest;
2. No challenge or eligibility issue was raised or, even if one was raised, the resolution of the
1. FAILURE OF ELECTION same will not materially change the result.
 The total number of valid votes cast in a certification or consent election is LESS than
the majority of all the eligible employees in the bargaining unit. BY MED-ARBITER
 NOTE: Failure of election shall not bar the filing of a petition for the immediate When a protest has been perfected or any challenged or eligibility issue has been raised which, if
holding of another certification or consent election. resolved, can materially change the result, only the Med-Arbiter can proclaim and certify the winner.
2. RUN-OFF ELECTION
 An election between the labor unions receiving the two (2) highest number of votes in
APPEAL AS TO RESULT OF ELECTION
The decision of the Med-Arbiter may be appealed to the Sec. Of Labor ONLY on the grounds of
a certification election or consent election with three (3) or more choices, where such
violation of Sec. 9, Rule XII, IR Bk V regarding challenging of votes or of serious errors of fact or law
a certification election or consent election results in none of the three (3) or more
in the resolution of the protest.
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.
Requisites
DUTY TO BARGAIN
a. A valid election took place because majority of the CBU members voted; Collective Bargaining
b. The election presented at least three choices; Collective Bargaining is the performance of the mutual obligation of the employer and the sole
c. Not one of the choices obtained the majority of the valid votes; bargaining representative to meet promptly, expeditiously, and in good faith, agree on
d. The total votes of the unions is at least 50% of the votes cast; Wages, Hours of Work and Other terms and conditions of employment (WHO) including
e. There is no unresolved challenge of voter or election protest; proposals for adjusting any grievances or questions arising under such agreement and executing
 WHO Participates: The participants are the members of the labor unions receiving a contract incorporating such agreements if requested by either party but such duty does not compel
the two highest numbers of votes. any party to agree to a proposal or to make any concession.

3. RE-RUN ELECTION 1. As a RIGHT


 Refers to an election conducted to break a tie between contending unions including 2. As a DUTY
between ―no union‖ and one of the unions. It shall also refer to an election  Must be done promptly, expeditiously and in good faith
conducted after a failure of election has been declared by the officer and or affirmed  Distinguish between organized and unorganized establishment
by the mediator-arbiter.  Duties on an unorganized:
 A re-run election may be justified if certain irregularities have been committed  agree on Wages, Hours of Work and Other terms and conditions
during the conduct of the certification election such as, inter alia, disenfranchisement of employment (WHO)
of the voters, lack of secrecy in the voting, fraud or bribery, in which case, the  proposals for adjusting any grievances or questions
certification election should be invalidated. Such invalidation would necessitate the  executing a contract incorporating such agreements
conduct of a re-run election among the contending unions to determine the true will  Duties on an organized:
and desire of the employee-electorates.  agree on Wages, Hours of Work and Other terms and conditions
of employment (WHO)
 proposals for adjusting any grievances or questions
 executing a contract incorporating such agreements
 duty to respect validly subsisting CBAs

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3. As a PROCESS
 It is a mechanism in the settlement of labor dispute Procedure Proper (Art. 250)
 Take note of Labor Protection Clause in the Constitution which mentions this right
 Must be done collectively by workers through organization. It cannot be asserted by an 1. Written demand/ notice upon the employer with statement of
individual employee proposal.
 Aim: promotion of industrial peace  If the employer agrees with the proposal
 Mechanism which seeks to adjust terms and conditions of employment including  then CBA will be executed
grievance machinery in settlement of dispute within the establishment.  Posting,
 Publication,
Substitutionary Doctrine  Ratification by members.
It refers to the substitution of the bargaining agent by a newly certified agent which defeated in in the
certification election. As new bargaining agent, it is duty-bound to respect the existing CBA but it can 2. If the employer does not agree, employer will submit counter-
renegotiate for new terms and conditions therein. proposal.
 Employer replies by submitting counterproposal to union
Lecture:  When? Within 10 days.
 The mere fact that there is a new CBA will not yield to a situation where the new
agent will disregard a validly CBA. This has to be respected. Q: If employer is unable to reply within 10 days, can union file case of ULP?
 New right to new CBA agent— the right to request or negotiate for shortening of life A: It depends. If the delay is unfounded, unreasonable or unjustified, that act of
of CBA to pave the way for re-negotiation of another CBA delaying the process of CBA and negotiation is considered an act hampering the
exercise of right to collectively bargain which is part of its right to self-organization.
SOURCE: APCB Notes Hence, it is considered as ULP.

Effect of substitutionary doctrine on the deposed union’s personal undertakings.  Where to file ULP in this case?
In case of change of bargaining agent under the substitutionary doctrine, the new bargaining agent Labor Arbiter office within period of 1 yr from the cause of action.
is not bound by the personal undertakings of the deposed union like the no strike, no lockout‖
clause in a CBA which is the personal undertaking of the bargaining agent which negotiated it.  The counterproposal may be accepted by the union
 Execution of CBA based on such counterproposal.
Principles on substitutionary doctrine.
 The substitutionary doctrine cannot be invoked to subvert an existing CBA, in 3. If still no agreement was arrived at, there is now DEADLOCK.
derogation of the principle of freedom of contract. The substitution of a bargaining  Deadlock: when neither party would adjust from their respective position such that
agent cannot be allowed if the purpose is to subvert an existing CBA freely entered they are unable to come up with their mutual terms and conditions of the envisioned
into by the parties. Such act cannot be sanctioned in law or in equity as it is in collective bargaining agreement
derogation of the principle underlying the freedom of contract and good faith in  Remedies
contractual relations. a. Conciliation to NCMB, upon request or motu proprio by NCMB if to prevent
 The substitutionary doctrine is applicable also to a situation where the local union, strike and lockout.
which was created through the process of chartering by the mother union, b. Voluntary arbitration, through an arbitrator chosen by the parties either in the
disaffiliates from the latter after it secured an independent registration. The local CBA or through process determined in such CBA
union will thus be substituted to that of the federation which negotiated the CBA c. Submit the same as an issue or ground in a notice of strike or lockout.
as in Elisco-Elirol Labor Union v. Noriel, where petitioner union was created d. If employer is engaged in business that affects national security or economy and
through the mode of chartering by the National Federation of Labor Unions vested with national interest, the remedy of the employer is to petition for
(NAFLU) and later, it secured its independent registration with the BLR and assumption of jurisdiction either by office of president or SOLE.
disaffiliated with NAFLU by virtue of a resolution by its general membership.  This is essentially a remedy in order to prevent escalation of any labor
dispute or dispute especially industries affected with national interest
NOTE: Pendency of a petition for cancellation of union registration is not a and regarding strikes and lockouts issue. It would hamper economic
prejudicial question before CBA negotiation may proceed. activities in the country.
REMINDER: Take note of rules, doctrines, principles related to topics. Own lookout na po ito ha  Effect of Assumption of Jurisdiction by President or SOLE
a. When they intervene, they issue assumption of jurisdiction order,
b. They may also issue a return to work order.
Procedures When these are issued, what is being ordered to be done by employer and
Jurisdictional Preconditions workers?
1. Possession of majority representative status;  Workers are ordered to go back to their former jobs without loss of
2. Proof of majority representative status; seniority rights
3. Written Demand of Bargain collectively.  Employers are ordered to accept them to their former positions
4. Employer and employee relationship (According to other authors; but this is c. Also carries with it prohibition or warning not to undertake any act that would
already given) exacerbate the situation

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 In effect the status quo prevailing prior to the dispute must be observed 6. Ratification Process
 The agreement negotiated by the employees bargaining agent should be ratified or
Q: Can the employees be reinstated only in the payroll? approved by the majority of all workers in the bargaining unit, not just the members
A: No. Unless that is the prevailing condition prior to the dispute. of the bargaining union.
 The process of ratification renders the CBA effective even to those who did not ratify
Notes: the same
 When there is return to work order, the reinstatement of the worker should be in those  Ratification is mandatory (Chan 2015)
position and under those situations prevailing prior to the dispute subject of the Except: Ratification of the CBA by the employees in the bargaining unit is not needed
assumption of jurisdiction order or even of the return to work order. when the CBA is a product of an arbitral award by appropriate government authority
 Assumption of jurisdiction order: immediately executory or by a voluntary arbitrator

Manggawa ng Komunikasyon sa Pilipinas v. PLDT, Co. Inc., 7. Registration of CBA


GR No. 190389, 19 April 2017  Purpose: monitoring and regulation by the State and to maintain the stability of
Are the affected and striking employees entitled to reinstatement and backwages from January labor management relations by putting in effect the contract bar rule
2, 2003 when the SOLE directed the striking employees to return to work, up to April 29, 2006,  Where? BLR, as part of its administrative function
when the NLRC’s resolution upholding the validity of PLDT’s redundancy program became SLU Reviewer: Regional Office; they have concurrent jurisdiction
final and executory?  Registered CBA would give rise to application of contract bar rule in certification
election proceedings.
No. There is no order of reinstatement from a Labor Arbiter in the case at bar, instead, what
is at issue is the return-to-work order from the Secretary of Labor and Employment. An order of 8. Implementation and Interpretation of CBA
reinstatement is different from a return-to-work order. The award of reinstatement, including  By whom?
backwages, is awarded by a Labor Arbiter to an illegally dismissed employee pursuant to Article a. Employer; and
294 of the Labor Code. b. Sole and exclusive bargaining agent
 Problems on interpretation or implementation of CBA: Voluntary Arbitrators.
On the other hand, a return-to-work order is issued by the Secretary of Labor and Employment
when he or she assumes jurisdiction over a labor dispute in an industry that is considered
indispensable to the national interest.
When is CBA effective?
 If it is the first time that they have a CBA, it can be immediately effective. The parties
obviously will not delay the implementation of such CBA.
Return-to-work and reinstatement orders are both immediately executory; however, a return- to-
 There is problem when there is prior CBA and the new CBA is subject of re-negotiation.
work order is interlocutory in nature, and is merely meant to maintain status quo while the
main issue is being threshed out in the proper forum. In contrast, an order of reinstatement is
a judgment on the merits handed down by the Labor Arbiter pursuant to the original and 1. It depends on when the New CBA has been negotiated
exclusive jurisdiction provided for under Article 224(a) of the Labor Code. Clearly, there is no
basis to reinstate the employees who were terminated as a result of redundancy Old CBA ---------------- New CBA-------------6 months

within 6 months
Reinstatement Order Return to Work Order
Premised upon a finding of illegal dismissal Follows assumption of jurisdiction by SOLE or
President Will it be effective on the first day immediately following the expiration of the old CBA?
Entitlement to Backwages No entitlement to backwages Yes, if this is negotiated within 6 months following the expiration of old CBA, it will retroact as
provided for by the law to the first day immediately following the expiration of the old CBA without
 When strikers are asked to go back to their formal position, this is without entitlement need of the parties to agree thereon.
to backwages, unless they are victims of ULP committed by employers and not just
sympathizers, or they are strikers not engaged in economic strike but in ULP strike. In Old CBA ---------------- 6 months --------------New CBA
this case, they are entitled to backwages. Otherwise, they are not.
Beyond 6 months
4. Once deadlock is broken, they can now come up with CBA.
But if the new CBA was concluded beyond the 6 month period following expiration of the old CBA, it
5. Posting and Publication of CBA depends on the agreement of the parties. They can agree to have it retroact to the day immediately
following the old CBA or have it effective prospectively.
 In two conspicuous places within establishment for 5 consecutive days
 Purpose: to inform the members of the contents or the terms and conditions
Q: What is more beneficial to the workers?
contained in the CBA so that they know what they will be ratifying since it is the process
A: Apply it retroactively, if we operate under the premise that a newly concluded CBA most often has
of ratification that renders it effective.
terms more beneficial to the employees.

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prior to its expiration date. It shall be the duty of both parties to keep the status quo
2. IF CBA concluded is based on arbitral award and to continue in full force and effect the terms and conditions of the existing
 When parties are unable to negotiation by themselves for the new CBA. agreement during the 60-day period and/or until a new agreement is reached by the
 Rather they have to seek help of third person, either by parties.
 conciliations of NCMB or
 voluntary arbitrator or Freedom Period
 by SOLE upon assumption or office of president  The last sixty (60) days of the 5-year lifetime of a CBA immediately prior to its
 Effectivity: determined by the hearing officer. expiration is called the ―freedom period.‖ It is the only time when the law allows the
 E.g. by SOLE, President, or NLRC if under assumption of jurisdiction parties to freely serve a notice to terminate, alter or modify the existing CBA. It is also
Why NLRC? SOLE or President may choose not to decide the same but refer it to the time when the majority status of the bargaining agent may be challenged by
the NLRC (Certification to NLRC) another union by filing the appropriate petition for certification election.
 Depending on the records submitted for its resolution, they can look into bargaining history
if they are traditionally applying for retroactive application of new CBAs. Purposes of the Meeting
1. Negotiate an agreement over WHO including proposals for adjusting grievances or
questions arising under such agreement;
Term of CBA 2. To execute a CBA, and
Source: SLU Reviewer
3. To respect and allow the old CBA to have force and effect, if a new CBA is forged.
 Economic and Non-Economic Life: Three (3) Years.
 Political Life (Representation aspect: identity and majority status of the union that
negotiated the CBA as EBR of the bargaining unit concerned): Five (5) Years.
 Automatic Retroaction: Any agreement entered within six (6) months COLLECTIVE BARGAINING AGREEMENT
from the date of expiry of the term shall retroact to the date immediately CBA refers to a contract executed upon request of either the employees or the EBR of the employees
following such date. incorporating the agreement reached after negotiations with respect to wages, hours of work and all
 If the agreement is beyond six (6) months, there would be an automatic other terms, and conditions of employment, including proposals for adjusting grievances or questions
retroaction. The date of the contract will be left to the parties. under such agreement. CBA is also a means of ensuring workers are entitled to participate in decision-
 Automatic Renewal deemed incorporated in all CBAs: An existing making.
CBA is automatically renewed until the parties reached an agreement.
Essential Requisites of Collective Bargaining
Pending the renewal of the CBA, the parties are bound to keep the status quo and to treat the terms
Prior to any collective bargaining negotiations between the employer and the bargaining union, the
and conditions embodied therein still in full force and effect during the 60-day freedom period and/or
following requisites must first be satisfied:
until a new agreement is negotiated and ultimately concluded and reached by the parties.
1. Employer-employee relationship must exist between the employer and the members of the
bargaining unit being represented by the bargaining agent;
SOURCE: APCB Notes, Chan Reviewer & SLU Reviewer
2. The bargaining agent must have the majority support of the members of the bargaining unit
Phases of Collective Bargaining
established through the modes sanctioned by law; and
1. Legislative Phase
3. A lawful demand to bargain is made in accordance with law.
a. Negotiation and perfection of CBA.
2. Executive Phase
b. CBA administration. Contents of CBA
3. Judicial Phase 1. Enumeration or Reservation of Management Rights
c. Application and interpretation. 2. Union Recognition and Security
3. Wage and Fringe Benefits and its Administration
Two Situations when the Duty to Bargain Exists 4. Physical Working Conditions
5. Selected Personnel Management and Plant Operation Practices
A. When there is NO CBA (Art. 251) 6. Grievance and Arbitration
 Purposes of the Meeting: 7. Duration of Contract
1. Negotiate an agreement over WHO including proposals for adjusting
grievances or questions arising under such agreement; and
2. To execute a CBA. Mandatory Stipulations of the CBA
 Limitation: It does not compel any party: Chan 2015
1. To make an agreement, or The Syllabus mentions 4 provisions that are mandatorily required to be stated in the CBA, to wit:
2. To make concession. 1. Grievance Procedure;
2. Voluntary Arbitration;
B. When there is CBA (Art. 253) 3. No Strike-No Lockout Clause; and
 When there is a CBA, the duty to bargain collectively shall mean that neither party 4. Labor-Management Council (LMC)
shall terminate nor modify such agreement during its lifetime. However, either party  If these provisions are not reflected in the CBA, its registration will be denied by the BLR.
can serve a written notice to terminate or modify the agreement at least sixty (60) days

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Mandatory Subjects of Bargaining  Non-impairment of obligations of contract. A contract is the law between the
Source: SLU Reviewer 2010 parties and courts have no choice but to enforce such contract so long as it is not contrary
1. Wages and hours of work to law, morals, good customs or public policy. Otherwise, courts would be interfering
2. Other terms and conditions with the freedom of contract of the parties.
3. Other modes of compensation  CBA is not an ordinary contract as it is impressed with public interest.
4. Work shifts  Automatic Incorporation Clause –law is presumed part of the CBA.
5. Vacation and holidays  The benefits derived from the CBA and the law are separate and distinct from each other.
6. Bonuses  Workers are allowed to negotiate wage increases separately and distinctly from
7. Pensions and retirement plans legislated wage increases. The parties may validly agree in the CBA to reduce wages
8. Seniority and benefits of employees provided such reduction does not go below the minimum
9. Transfers standards.
10. Lay-offs  Ratification of the CBA by majority of all the workers in the bargaining unit
11. Workload makes the same binding on all employees therein.
12. Work rules and regulations  Employees entitled to CBA benefits. The following are entitled to the benefits of
13. Rent of company houses the CBA:
14. Union security agreements (1) Members of the bargaining union;
(2) Non-members of the bargaining union but are members of the bargaining unit;
(3) Members of the minority union/s who paid agency fees to the bargaining union; a
 These are mandatory subjects of negotiations. If employer hesitates to negotiate, it is ULP (4) Employees hired after the expiration of the CBA.
 If workers insist in negotiation on non-mandatory provisions of the CBA, it is also ULP  CBA should be construed liberally. If the terms of a CBA are clear and there
committed by the labor organization is no doubt as to the intention of the contracting parties, the literal meaning of its
 Note. Mandatory provisions are based on economic provisions. stipulation shall prevail.
 KIOK LOY DOCTRINE.
Concepts in CBA This doctrine is based on the ruling In Kiok Loy v. NLRC, where the petitioner, Sweden
Ice Cream Plant, refused to submit any counterproposal to the CBA proposed by its
employees’ certified bargaining agent. The employer had thereby lost its right to bargain
1. Hold-over or Maintenance of Status Quo the terms and conditions of the CBA. Thus, the CBA proposed by the union was imposed
 An old CBA is in application pending the negotiation of a new CBA lock, stock and barrel on the erring company.
 Until and unless a new CBA has been successfully renegotiated and executed by and The case epitomizes the classic case of negotiating a CBA in bad faith consisting of the
between the parties, then that should remain employer’s refusal to bargain with the collective bargaining agent by ignoring all notices
 Maintenance of the status quo is included in the duty to bargain collectively for negotiations and requests for counter-proposals. Such refusal to send a
counterproposal to the union and to bargain on the economic terms of the CBA
2. Blue-sky Bargaining constitutes an unfair labor practice under Article 248(g) of the Labor Code.
 Making exaggerated or unreasonable proposals.  Suspension of CBA for a period longer than 5 years, held valid.
 This kind of unfair labor practice act may only be committed by the bargaining union The case of Rivera v. Espiritu, it was held here that the suspension of the CBA between
PAL and PALEA for ten (10) years in order to resolve the strike is not violative of the
3. Surface Bargaining Constitution or the law. This is so because the right to free collective bargaining includes
 Going through the motions of negotiating without any legal intent to reach an agreement. the right to suspend it. There is nothing in Article 253-A which prohibits the parties
 This kind of unfair labor practice may only be committed by the employer. from waiving or suspending the mandatory timetables and agreeing on the remedies to
enforce the same.
4. Boulwarism The agreement sought to promote industrial peace at PAL during its rehabilitation. The
 Bargaining in bad faith in “take-it-or-leave-it” bargaining suspension agreement is a valid exercise of the freedom to contract.
5. Topdown CBA/ Sweetheart CBA
 Does not substantially improve the employee's wages and benefits. UNFAIR LABOR PRACTICE
 It is a juicy sweet deal between the employer and the union bargainers/dealers. That is also
an act of ULP. The union is not really vigilant of the rights of the members. (Not discussed in UNFAIR LABOR PRACTICES are:
make-up class; From 2nd year lecture) (1) Violations to the Constitutional rights of workers and employees to self-organization
(2) Inimical to the legitimate interests of both labor and management, including their right to
Principles on Collective Bargaining bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual
Chan 2015 respect;
 CBA is the law between the parties during its lifetime and thus must be complied with (3) Disruptions to industrial peace; and
in good faith. (4) Hindrance the promotion of healthy and stable labor management relations and mutual respect
 Being the law between the parties, any violation thereof can be subject of redress in [unstable labor management relations] (Article 247).
court.

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Lecture, 2nd year • Prescriptive Period: One (1) year from accrual of ULP.
 ULP is an act that violates the constitutional right to self-organization which is inimical • During the pendency of the administrative proceeding, the running of the prescriptive
to labor and management and the right to collectively bargain. period for the criminal aspect of ULP is interrupted.
 The nature is civil or criminal. Recovery of civil liability in the administrative • The final judgment in the administrative proceedings shall not be binding in the
proceeding is a bar to the recovery under Civil Code. There could be no criminal criminal prosecution nor considered as an evidence of guilt, it is a mere proof of
prosecution without final judgment in the Labor/Civil Case finding that there is indeed compliance with procedural requirements.
ULP.
UNFAIR LABOR PRACTICES OF EMPLOYERS
Q: Can the decision rendered in the labor case be used as evidence in the criminal case to
determine the culpability of the criminal act? GENERAL RULE
A: No. It can only be considered as compliance with the requirement. It is the prerogative of the company to promote, transfer or even demote its employees to other
position when the interest of the company demands it.
Q: Why is there a requirement that there should first be a labor case before the criminal case?
Since these are two different proceedings, can’t they proceed independently? EXCEPTION
A: No. There is a requirement of prior labor case in order to prevent undue harassment that the  When there is a clear interference by the employer of the employee’s right to self-
union may use against the employers if there will be no check on the filing of the criminal case. organization.
However, this has been criticized in several books and by several authors. Nevertheless, the law
remains valid which we must follow. Principles:
 The grant of profit sharing benefits to non-union members is not ULP; it is within the
Q: What is the prescriptive period of filing for ULP case? prerogative of the management.
A: 1 year. This period will include as well the filing of the criminal case.  FORCED vacation leave without pay in view of the economic crisis is not ULP.
 An employer does not commit an ULP by discharging employees who engage in a slowdown.
Q: What if the case would take several years? How will the prescriptive period be applied? SLOWDOWN occurs when employees continue working on their own terms and rejecting
A: The filing of the civil aspect would suspend the running of the prescriptive period. When there the standards desired by the employer.
is already an entry of judgment, that is when you will start to resume counting the prescriptive
period again. Article 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the
following unfair labor practice:

Administrative Process (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;
 Before Labor Arbiter (b) To require as a condition of employment that a person or an employee shall not join a labor organization or
shall with-draw from one to which he belongs;
 Parameters:
(c) To contract out services or functions being performed by union members when such will interfere with,
1. Existence of Employer – Employee Relationship; · restrain or coerce employees in the exercise of their rights to self-organization;
2. Act done is expressly defined in the Code as ULP (Arts. 248 and 249). (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor
 Restrictive application rule: Only those acts specified in the law as ULP organization, including the giving of financial or other support to it or its organizers or supporters;
may be considered as such (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to
 Any act though illegal but outside of enumeration in the law cannot be encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall
considered ULP stop the parties from requiring membership in a recognized collective bargaining agent as a condition for
employment, except those employees who are already members of another union at the time of the signing of
the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the
Two Aspects of ULP recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees
 Civil Aspect paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits
• Includes claims for actual, moral, exemplary, and other forms of damages, attorney’s under the collective bargaining agreement: Provided, that the individual authorization required under Article
242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;
fees, and other affirmative relief.
(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being
• Under the jurisdiction of the Labor Arbiters, they are bound to resolve the civil aspect about to give testimony under this Code;
within 30 days from the time they are submitted for decision. (g) To violate the duty to bargain collectively as prescribed by this Code;
• Recovery of civil liability in the administrative proceedings shall bar recover under the (h) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue
Civil Code. in collective bargaining or any other dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations,
 Criminal Aspect associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall
• No criminal prosecution may be instituted without a final judgment first obtained in be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981).
the administrative proceeding finding that a ULP was committed.

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1. INTERFERENCE  Persistent interrogation of employees to elicit information as to what had happened at
 To interfere with, restrain, or coerce employees in their exercise of the right to self- union meetings and the identity of the active union employees.
organization.  Outright and unconcealed intimidation.
 Interference: actions of an employer that would affect the employee’s membership or  Espionage and surveillance or ―spying on employees
non-membership in the union  Economic inducements.
 Interference need not be physical. It can be by words or expressions  A violation results from an employer’s announcement of benefits prior to a representation
 Coercion: employment of force that would in effect vitiate the will of the employees in election, where it is intended to induced the employee to vote against the union.
their organization  The conferral of employee benefits for the employees to vote against the union while a
 Restrain: opposite of coercion; for example, giving them additional compensation to representation election is pending.
prevent them in joining.
NOTE: Restraint and coercion are sometimes accompanied by rewards. Doctrine of Successor-in-Interest or Successor Employer
 The new employer (being the successor-in-interest), who succeeds a previous employer
Tests of interference with an existing CBA and who is in good faith, has no liability to the employees in
a. Direct: done by the employer himself continuing employment and the collective bargaining agreement because these contracts
b. Indirect: if the employer does interference through an agent or through somebody else. are in personam.
 General Rule: NO DUTY TO BARGAIN
Totality rule Labor contracts are in personam. Hence, the doctrine of successor employer, in cases of
 Whether or not the remarks constitute ULP depends on the totality of the remarks and
closure and sale to another, is not applicable.
contemporaneous conducts and actions including collective bargaining history.
Exceptions: where there is substantial continuity in the identity of the
 The culpability of employer’s remarks were to be evaluated not only on the basis of their
enterprise
implications, but against the background of and in conjunction with collateral
 If there is a written agreement between the employer and the employees to the
circumstances.
effect that successor employer shall be held liable for previous employer’s
 The mere fact that employer utters anti-union sentiments would not mean that it is ULP.
liabilities;
It may just be valid utterance of the employer in exercise of the freedom for expression. It
is ULP if it starts to infringe upon the exercise to right of self-organization.  Piercing the corporate veil.

Question, 2nd year lecture 2. “YELLOW DOG” CONTRACT


Employers cannot come up with written policy ruling out unionism (since this is not allowed by  It is a contract that requires a condition of employment that a person or an employee shall
law). Sometimes what they do is make side remarks by clearly making known in a verbal manner not join a labor organization or shall withdraw from one to which he belongs. It is also a
their disinterest of forming labor organization. Assuming that the remarks are really intended to promise exacted from workers as a condition of employment that they are not to belong to
affect the workers’ right to self-organization, what happens if these are remarks not uttered or attempt to foster a union during their period of employment.
by employers but by managerial or supervisory employees?
 Contents of the Contract
A: It should be established first that the remarks of the managerial/supervisory employee was made 1. A representation by the employee that he is not a member of a labor union.
with the full consent or through the order of the employer, before the employer will be held 2. A promise by the employee not to join a labor union.
liable for ULP. This is especially true if the managerial/supervisory employee uttered the remarks in 3. A promise by the employee that, upon joining a labor union, he will quit his
the presence of the employer and the latter did not do anything to prevent such remarks. employment.

If the employer has no knowledge or did not give his consent to uttering of remarks, or if he prevented
such uttering, he could not be held liable since there is no connection between him and the remarks. 3. CONTRACTING OUT
 Contracting out is to control out services or functions being performed by union members
Lecture: so that the management could to interfere with, restrain, or coerce employees in the exercise
 Interference, restraint or coercion may be committed by the employer of their right to self-organization.
 Restraint or coercion may also be a form of ULP committed by LABOR ORGANIZATION.  It is the right to management prerogative for purposes of having more economical, effective
It cannot be by way of interference and efficient operation of business. As long as there is legitimate business purpose, it
As to labor organizations, they have the right to interfere with regards to the interest of remains as valid management prerogative.
members. This is NOT ULP. But they cannot prevent members from doing what they want  It becomes ULP if the purpose is to constrain the right to self-organization.
nor coerce them.
Runaway Shop (ULP)
Examples of employer’s act of interference
 Giving bonus not to join union

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An industrial plant moved by its owners from one location to another to escape union regulation or  The Union Security Clause is recognized by jurisprudence. The labor organization which
state laws, but the term is also used to describe a plant removed to a new location in order to terminated a member due to valid grounds may even recommend to the employer the
discriminate against employees at the old plant because of their union activities. termination of the employment of such member but subject to the following conditions:
a. Determination first of the applicability of the union security clause;
b. Written demand by the labor organization to terminate the employment
4. COMPANY DOMINATION OF UNION c. Independent investigation determining the veracity of the acts of the union in
 To initiate, dominate, assist or otherwise interfere with the formation or administration of
expelling the member.
any labor organization, including the giving of financial or other support to it or its
organizers or supporters.
 Regardless of intention SLU Reviewer
Discrimination by Blacklisting
Forms A BLACKLIST is a list of persons marked out for special avoidance, antagonism, or enmity on
 Initiation of company union idea. the part of those who prepared the list, or those among whom it is intended to circulate.
 Outright formation by the employer or his representatives.
Test of Discrimination
 Employee formation on outright demand or influence by the employer.
It is necessary that the underlying reason for the discharge be established.
 Managerially motivated formation by employees.
 Financial support to the union. Employer defrays the union expenses or pays the attorney
Constructive Discharge
who drafted the CBA of the union.
Where an employer prohibits employees from exercising their rights, on pain of discharge, and
 Employers encouragement and assistance.
the employee quits as a result of the prohibition, a constructive discharge occurs, which may be
 Immediately granting the union exclusive recognition as a bargaining agent without remedied in a ULP proceeding.
determining whether the union represents the majority of employees.
 Supervisory assistance. Valid Discrimination
 Soliciting membership, permitting union activities during working time, or coercing Where Management and Union enters into a CBA containing ―union security clause‖.
employees to join the union by threats of dismissal or demotion.
Union Security
5. DISCRIMINATION FOR OR AGAINST UNIONISM Union security is a generic term which is applied to and comprehends
 This is an act of discrimination concerning wages, hours of work and other terms, and  closed shop
conditions of employment in order to encourage or discourage membership in any labor  union shop
organization.  maintenance of membership‖ or any other form of agreement which
imposes upon employees the obligation to acquire or retain union
 General Rule: Employer cannot encourage or discourage a particular labor membership as a condition affecting employment.
organization.
KINDS of Union Security Agreements
Exception: Once there is union security clause agreed upon and included in the CBA, it SLU Reviewer
is not an illegal act of discrimination. It is now valid. a. Closed Shop
Only union members can be hired and workers must remain as union members to retain
2nd year lecture: employment.
Q: Why would the act of encouraging membership in labor organization constitute a form of ULP
when in fact you are encouraging employees to exercise their right to self-organization by being b. Union Shop
members of a union? Non-members may be hired, but to retain employment must become union members after
a certain period.
A: The right to self-organization includes also the right not to join a union or organization.
Encouraging membership in a specific union (which is contemplated by this provision) deprives the c. Modified Union Shop
employees of their right to choose. What the right to self-organization entails is the right of an Employees who are not union members at the time of signing the contract need not join
employee to choose any labor organization and not to be forced to a particular organization or union. the union, but all workers hired thereafter must join.

The only exception wherein the encouragement of membership in a labor organization is valid is in d. Maintenance of Membership Shop
the presence of a union security clause No employee is compelled to join the union, but all present or future members, as a
condition of employment, must remain in good standing in the union.

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e. Exclusive Bargaining Shop
The union is recognized as the exclusive bargaining agent for all employees whether union CLOSED SHOP shall not be Applicable to:
members or not.  Any employee who at the time the close shop agreement takes effect is a bona fide
member of religious organization, which prohibits its members from joining union on
religious grounds.
f. Bargaining for Member Only  Employees already in the service and already members of a labor union or unions
A union is recognized as the bargaining agent only for its own members. other than the majority union at the time the closed shop agreement took effect.
 Supervisors ineligible under the Act to join the majority union because of the
g. Agency Shop Agreement or Maintenance of Treasury Shop membership therein of employees under their supervision.
An agreement whereby employees must either join the union or pay to the union as  Confidential employees who are excluded from the rank and file bargaining unit; and
exclusive bargaining agent a sum equal to that paid by the members.  Employees excluded from the closed shop by express terms of the agreement.

OTHERS: DISMISSAL pursuant to a closed shop agreement must clearly appear in the contract.
h. Hiring Shop Agreement
Membership in a union is required before hiring an employee, even though he need not
maintain this membership 6. DISCRIMINATION BECAUSE OF TESTIMONY
 To dismiss, discharge or otherwise prejudice or discriminate against an employee for
i. Closed Shop with Closed Union
having given or being about to give testimony under the Labor Code.
j. Closed Shop with Open Union
 Indirect Discrimination
*please look for these; might be asked in the exam.*
Slight modification will change the name.
It shall be ULP for an employer to dismiss or discriminate against an employee for having
filed charges or for having given or about to give testimony under said Act.
 Outside of union security clauses, any act of the employer in encouraging or discouraging
membership in union organization is ULP
7. VIOLATION OF THE DUTY TO BARGAIN
 To violate the duty to bargain collectively as prescribed by the Code.
VALIDITY of Closed Shop Agreements
A closed-shop agreement is one whereby an employer binds himself to hire only members of the
contracting union who must continue to remain members in good standing to keep their jobs. It is 8. PAID NEGOTIATION
the most prized of unionism. Another reason for enforcing the closed-shop agreement is the  To pay negotiation or attorney’s fees to the union or its officers or agents as a part of the
principle of sanctity or inviolability of contracts guaranteed by the Constitution. settlement of any issue in collective bargaining or in any other dispute.
 No matter how good the intention of the employer is, it is looked at unfavorably.

ADVANTAGES of Closed Shop Agreement


 It increases the strength and bargaining power of labor organizations.
9. VIOLATION OF THE CBA
 To violate a collective bargaining agreement.
 It prevents non-union workers from sharing in the benefits of the union’s activities
 The violation must be GROSS in order to constitute as ULP.
without also sharing its obligations.
 It prevents the weakening of labor organizations by discrimination against union
members. Lecture:
 It eliminates the lowering of standards caused by competition with non-union workers.  QUALIFY HERE!
 It enables labor organizations effectively to enforce collective agreements.  If the violation of the CBA amounts to a violation of the economic provisions of such CBA,
 It creates harmonious relations between the employer and the employee. it is ULP. Thus, there is a need to determine if the provision subject of controversy had
economic repercussions or entirely a non-economic provision of the CBA.
DISADVANTAGES of Closed Shop Agreement
 It results in monopolistic domination of employment by labor organization.  NON-Economic provisions: Provision on management prerogative
 It interferes with the freedom of contract and personal liberty of the individual worker.
 It compels employers to discharge all non-union workers regardless of efficiency, length Silva vs. NLRC
of service, and others.  There was total negation of the CBA. There is no specific provision of the CBA that was
 It facilitates the use of labor organizations by unscrupulous union leaders for the violated, except that the employer REFUSES to implement the CBA concluded by the
purpose of extortion, restraint of trade, and others. parties. The Court says that this is ULP. If violation of the economic provision is ULP, how
 It denies to non-union workers equal opportunity for employment much more if it is a total negation?
 It enables union to charge exorbitant dues and initiation fees.

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2nd year lecture The provisions of the preceding paragraph notwithstanding, only the officers, members of
governing boards, representatives or agents or members of labor associations or organizations
Economic provisions: who have actually participated in, authorized or ratified unfair labor practices shall be held
mandatory provisions of the CBA on criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981).
 wages,
 hours of work, Lecture
 benefits arising from employer-employee relations.  Interference is not one of the acts of ULP that may be committed by Labor Organizations.

Non-economic provisions:
 provision on grievance machinery, Featherbedding
 voluntary arbitration, Under Article 249(d), it is ULP for a labor organization, its officers, agents or representatives to cause
 a “no-strike-no-lockout” clause of the CBA or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things
 listing of different managerial prerogatives 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.
 Violation of non-economic provision would not constitute ULP
This practice of the union is commonly known as “featherbedding” as it unduly and
Q: If for example, the CBA and company policy provides for seniority as basis for promotion unnecessarily maintains or increases the number of employees used or the amount
but this was not followed by the employer. Can it constitute ULP? 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
A: Tip in answering: Determine first if the provision violated is an economic safety standards, among other justifications. These featherbedding practices have been found to
provision. If it is economic provision, violation of such would be a form of ULP. be wasteful and without legitimate justifications

In this case, the provision is economic. Seemingly it would appear that is not an economic DEMAND FOR PAYMENT OF STANDBY SERVICES.
provision since it only provides criteria in promotion of employees. But if you look on the effects A union commits an unfair labor practice under this provision by causing or attempting to cause an
of the implementation of such provision, there would be economic benefits (since the one employer to pay or agree to pay for standby services. Payments for “standing-by,” or for the
promoted will have a bigger salary). The Supreme Court said that it is economic provision and thus substantial equivalent of “standing-by,” are not payments for “services performed” within the
violation of such would be a form of ULP. meaning of the law. When an employer received a bona-fide 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.

UNFAIR LABOR PRACTICE OF THE LABOR ORGANIZATION Lecture


 Acts of Featherbedding
Article 249. Unfair labor practices of labor organizations. - It shall be unfair labor practice for a  Spreading of work
labor organization, its officers, agents or representatives:  Unnecessarily increasing number of employees or the work hours
 These are acts of extortion in the part of the labor organization when they spread work no
(a) To restrain or coerce employees in the exercise of their right to self-organization. However, longer needed to cover more employees than what is needed.
a labor organization shall have the right to prescribe its own rules with respect to the acquisition
or retention of membership; Is there a ULP that may be committed by employer that has nothing to do with right
(b) To cause or attempt to cause an employer to discriminate against an employee, including to self-organization?
discrimination against an employee with respect to whom membership in such organization has  When employer commits retaliatory actions against employee who testifies against him
been denied or to terminate an employee on any ground other than the usual terms and conditions under any or in connection of any provision of the Labor Code.
under which membership or continuation of membership is made available to other members;  This is the only one.
(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the
representative of the employees;
(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any
money or other things of value, in the nature of an exaction, for services which are not performed
or not to be performed, including the demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorney’s fees from employers as part of the settlement
of any issue in collective bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.

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STRIKES AND LOCKOUTS All the foregoing requisites, although procedural in nature, are mandatory and failure of the
union to comply with any of them would render the strike illegal.
STRIKE: any temporary stoppage of work by the concerted action of the employees as a result of an
industrial or labor dispute. 1. Submission of Notice of Strike
 Notice of strike (or lockout), with the required contents, should be filed with the DOLE,
LOCKOUT: the temporary refusal by an employer to furnish work as a result of an industrial or labor
specifically the regional branch of NCMB, with a copy furnished to employer or the union,
dispute.
as the case may be.
 Contents
It consists of the following:
a. Names and addresses of the employer and union involved
1. Shutdowns;
b. Nature of the industry of employer
2. Mass retrenchment and dismissals initiated by the employer.
c. Number of union members and workers in the bargaining unit
3. The employer’s act of excluding employees who are union members.
d. Other relevant data that may facilitate the settlement of the dispute
e.g. brief statement or enumeration of all pending labor dispute involving the parties.
PICKETING: the act of workers in peacefully marching to and fro before an establishment involved (Chan 2016 Reviewer)
in a labor dispute generally accompanied by the carrying and display of signs, placards and  Who files? If it is a labor organization, notice of strike shall be filed by the legitimate labor
banners intended to inform the public about the dispute. organization
 Other rules:
When is a strike valid? a. If the reason is bargaining deadlock, only the sole and exclusive bargaining agent has
1. When it is peaceful the legal right to file a notice of strike.
a. It is peaceful when there is no duress, force, violence, undue influence, intimidation b. If ULP: any other affected legitimate labor organizations
and application of vices of consent c. If LOCKOUT: it can be the employer
b. No blocking of ingress to or egress from the employers premises, or of the public
thoroughfares Grounds for a valid strike
a. Collective bargaining and deadlock
2. When it compliant with the statutory requirements b. ULP

Others (not discussed in make-up class but mentioned on 2nd year) Q: What happens when a strike is based on ULP but it turns out there is no actual ULP? Meaning,
3. When it is not in violation of the power of assumption of jurisdiction by the there was no basis for the staging of the strike. Is it still a valid strike?
SOLE or President and the orders that may be issued A: Yes. As long as there is good faith. The strike must be based on a valid ground for staging a strike
4. When it is not in violation of the contractual prohibitions even though it turns out not to be a valid one. Good faith may be a defense.
e.g. “No strike, no lockout” clause  Maam: But there was one case saying that it is still an illegal strike.

Cooling-off Period
PROCEDURAL REQUIREMENTS  Time gap to cool-off tempers between the filing of notice and the actual execution of the
strike
REQUISITES FOR A VALID STRIKE.  THE Cooling – Off Period is:
Chan 2015  In case of BARGAINING DEADLOCK: 30 Days
 In case of ULP: 15 Days
In accordance with Article 263 and pertinent prevailing jurisprudence, a strike, in order to  Union Busting
be valid and legal, must conform to the following procedural requisites:  In the face of UNION BUSTING where the union’s existence is threatened, the
1st requisite- It must be based on a valid and factual ground; cooling – off period need NOT be observed.
2nd requisite - A notice of strike must be filed with the NCMB-DOLE;  UNION Busting Exists When:
3rd requisite- A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior  The union officers are being dismissed;
to the taking of the strike vote by secret balloting, informing said office of the decision to conduct  Those officers are duly elected in accordance with the union
a strike vote, and the date, place, and time thereof; Constitution and By-Laws;
4th requisite- A strike vote must be taken where a majority of the members of the union obtained  The existence of the union is threatened.
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; 2. 24-Hour Prior Notice for Strike-Voting
6th requisite- Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair  To NCMB
labor practices of the employer, or 30 days, in case of collective bargaining deadlock, should be  NOTE: the notice here is on the conduct of the strike-voting.
fully observed; and  Whether NCMB will act on such notice does not matter.
7th requisite- The 7-day waiting period/strike ban reckoned after the submission of the
strike vote report to the NCMB-DOLE should also be fully observed in all cases.

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6. If there are other attempts for dispute resolution.
3. Strike-Vote  Such as when submitted for compulsory arbitration.
 The DECISION to declare a strike requires the secret – ballot approval of majority (50% + 7. Ongoing conciliation mediation proceedings on attempt to settle dispute
1) of the total union membership in the bargaining unit concerned. 8. Submission for voluntary arbitration
 A LOCKOUT needs the secret ballot concurrence of majority of the directors or partners.
OTHER CLASS DISCUSSIONS
4. Strike (or Lockout) Vote Report
 The result of the strike vote (or lockout vote) should be reported to the NCMB at least seven
(7) days before the intended strike or lockout, subject to the cooling – off period.
Tests on Determination of a Valid Strike
 STRIKE BAN: After the strike vote is taken, seven (7) days must pass before the union 1. Lawful Purpose
can actually commence the strike. A strike held within the seven (7) – day waiting period is  The law does not expressly ban strikers except when enjoined against by the
plainly illegal. court; but if a striker is declared for a trivial, unjust, or unreasonable purpose, or
if it is carried out through unlawful means, the law will not sanction it and the
Computation court will declare it illegal, with the adverse consequences to the strikers.
 Seven days are added to the 15-day or 30-day period. 2. Lawful Means
 No person engaged in picketing shall:
Strike ban  Commit any act of violence, coercion or intimidation, or
 7 days from the submission, not from strike voting  Obstruct the free ingress to or egress from the employer’s premises for
lawful purposes, or
Total period to be observed before a valid ULP strike, counted from the notice of strike:  Obstruct public thorough fares
15 days (cooling-off period) + 7 days (strike ban) = 22 days
Q: What is the consequence of staging an illegal strike?
Illustrations:
(i) October 1: notice of strike IF BY A UNION OFFICER
October 10: submission of strike vote results  He may be terminated if he participated in an illegal strike knowingly.
TAKE NOTE: KNOWINGLY!!!!!
When can there be a valid strike?  If he just happens to be there, it is the burden of the employer who seeks to terminate him
Count 22 days from October 1. The strike should be on the 23 rd day. Hence, it is on to prove that he knowingly participated.
October 24.  It must be purposely done to participate in the conduct of illegal strike

(ii) October 1: notice of strike IF BY A UNION MEMBER


October 31: strike votes result was submitted  He must have committed any acts prohibited under the law
e.g. blocking the ingress and egress, committing violence
When can you hold the strike?
November 8 (yung bilang ko) Q: Before the employer can terminate a union officer for participating in an illegal strike, should
Pero sabi ni Maam November 9? there be first determination by the LA that such strike is really illegal?
A: NO. The employer can himself make such assessment if the strike is illegal.
If you count 22 days from October 1, it will give you October 24. But at that time you
cannot stage a strike since you have to wait for 7 days from the submission of the strike Q: May a police or law enforcers participate during strikes?
vote report. In this case, no such report was submitted in October 24. Thus, count 7 A: There is limitation as to the extent of their allowable participation.
days from the submission on October 31.  They can escort or arrest violators.
 They can detain these violators.
7 days (strike ban) from October 31= November 7. You cannot stage a strike within this
ban. Stage the strike on the next day (on the 8th day)  They CANNOT serve as security guards of the premises.

WHEN NO STRIKE CAN BE STAGED


Q: May a foreigner engage in a strike?
A: QUALIFY
1. Assumption of Jurisdiction  If a resident alien with permit to work and whose country is bound by reciprocity rule, he
 Staging of trike cannot be made when there is pending labor dispute subject of the notice of can exercise right to self-organization
strike, which dispute has been submitted to SOLE or President under assumption of  If a non-resident alien, he cannot exercise such right no matter how good his intentions are.
jurisdiction on cases involving national interest
2. Issuance of return to work order by SOLE or President
3. Issuance of injunction order by SOLE or President
4. Issuance of Temporary Restraining Order by SOLE or President.
5. Certification Order to the NLRC

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TOPICS NOT DISCUSSED IN CLASS 3. Sympathetic Strike
One in which the striking employees have no demands or grievances of their own, but strike
for the purpose of directly or indirectly aiding others, without direct relation to the
Strike, when illegal: advancement of the interest of the strikers.
2nd year lecture
1. Contrary to law WELGA NG BAYAN—In the nature of a general strike which is but an extended
2. Staged without necessary strike vote sympathetic strike; it is work stoppage affecting numerous employers including a particular
3. Staged without compliance to cooling-off period or strike ban employer who has no dispute with his employees regarding their terms and conditions of
4. Staged in contravention with orders: employment.
a. Assumption of jurisdiction
b. Return to Work Order D. As to Purpose / Nature of Employee Interest
c. Others
1. Economic Strike
Kinds of Strike This is a strike held to force wage or concessions from the employer, which he is not required
A. As to Extent by law to grant.

1. General Strike The CONVERSION Doctrine


Extends over a whole community, province, state, or country. A strike that may start as an economic strike and then as it progresses, becomes an ULP, or vice versa.

2. Local / Particular Strike NOTE: Strikers who are permanently replaced during the economic phase of the strike are not entitled
One undertaken by workers in a particular enterprise, locality, or occupation, it usually to immediate reinstatement, while strikers replaced after the date of conversion are entitle to
involves only one union or only one industry. reinstatement.

2. ULP Strike
B. As to the Nature of the Act Called against the unfair labor practices of the employer, usually for making him desist from
further committing such practice.
1. Strike Proper
2. Sit-Down Strike
A strike that is provoked or prolonged by a refusal to bargain or a discriminatory discharge or any sort
Occurs when a group of employees or other interested in obtaining a certain objective in a
of ULP by the employer.
particular business forcibly take over possession of the property of such business, establish
themselves within the plant, stop its production and refuse access to the owners or the
ULP Strike in Good Faith
others desiring to work.
If the management performed acts, which under the circumstances, the strikers believed were ULP on
the part of the management, although they were not, the court ruled that the strike cannot be held
3. Slowdown
illegal. However, the union’s belief needs some rational basis.
Willful reduction in the rate of work by a group of employees for the purpose of restricting
the output of the employer
TWO Tests in Determining the Existence of ULP Strike
1. OBJECTIVE
4. Partial/Quickie Strike
When the strike is declared in protest of ULP that is found to have been actually committed;
Takes the form of intermittent, unannounced work stoppage, including slowdowns,
2. SUBJECTIVE
unauthorized extension of rest periods and walkouts for portions of a shift or for entire
When a strike is declared in protest of what the union believed to be ULP committed by the
shifts.
management, and the circumstances warranted such belief in good faith, although found
subsequently as not committed.
WILDCAT Strike—work stoppage that violates the labor contract and is not authorized by the union.
It is sudden and without compliance with the procedure.
Protection of Strike
 It is generally not subject to labor injunction.
C. As to Degree of Employee Interest  Employees may not be discriminated against merely because they have exercised the right
1. Primary Strike to strike.
One declared by the employees who have a direct and immediate interest, whether  The use of strike-breakers is prohibited.
economic or otherwise, in the subject of the dispute, which exist between them and their
employer. STRIKE–BREAKER
A person who obstructs, impedes, violence, coercion, threats or intimidation any peaceful picketing
2. Secondary Strike by employees during any labor controversy affecting wages, hours or conditions of work in the exercise
Coercive measure adopted by the workers against an employer connected by product or of right of self-organization or collective bargaining Mere participation in a strike does not sever the
employment with alleged unfair labor condition or practice. employment relationship.

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Role of the Police Requisites
The involvement of the AFP / PNP shall be limited to maintenance of peace and order, enforcement 1. Notice of intention to declare a lockout has been filed with the DOLE;
of laws and legal orders of duly constituted authorities and the performance of the specific functions 2. At least 30 days has elapsed since the filing of notice before lockout is declared;
as may be provide by law. 3. An impasse had resulted in the negotiations; and ·
4. Lockout is not discriminatory.
Penalty NOTE: Lockout is valid where, in the course of a labor dispute, it is undertaken as a defensive
The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person weapon, or in pursuance of the employer’s interest.
who, for the purpose of organizing, maintaining or preventing coalitions of capital or labor, strike
oflaborers or lockouts of employers shall employ violence or threats in such a degree as to compel or Unlawful Lockout
force the laborers or exercise of their industry or work, if the act shall not constitute a more serious Where it is declared in order to defeat organizational and bargaining right employees.
offense in accordance with the provision of the Code‖.

NOTE: EVEN if the purpose of a strike is valid, the strike may be held invalid where the means Prohibited Activities
employed are illegal.  No labor organization or employer shall declare a strike or lockout without first having
bargained collectively in accordance with Title VII of this Book or without having filed the
required notice or without the necessity strike or lockout vote first having been obtained
Injunction and reported.
No temporary or permanent injunction or restraining order in any case involving or growing out of  No strike or lockout shall be declared after assumption of jurisdiction by President or the
labor disputes shall be issued by any court or other entity, except as otherwise provided in Article 218 Sec of Labor or after certification or submission of the dispute to compulsory/ voluntary
and 264 of this Code (Art.254). arbitration or during the pendency of cases involving the same grounds for the strike or
lockout.
Article 218 (e) empowers the NLRC to enjoin or restrain any actual or threatened commission of any  No person shall obstruct, impede or interfere with by force, violence, coercion, threats or
or all prohibited or unlawful acts to require the performance of a particular act in any labor dispute, intimidation any peaceful picketing by employees during any controversy or in the exercise
or in cases involving ―national interest‖ as provided in Article 263 (g). of the right to self-organization or collective bargain or shall aid or abet such obstruction or
interference.
Automatic Injunction  No employer shall use or employ any strikebreaker, nor shall any person be employed as a
Injunction in ―national interest‖ cases is expressly allowed, in fact, an injunction may be issued strikebreaker.
automatically, that is even if none of the parties asks for it.  No public official or employee, including officers and personnel of the AFP or the PNP, or
armed person shall bring in, introduce or escort in any manner any individual who seeks to
Assumption of Jurisdiction and Certification to the NLRC replace strikers in entering or leaving the premises of a strike area, or work in place of the
When, in his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an strikers. The police force shall keep out of the picket lines unless or other criminal acts occur
industry indispensable to the national interest, the Secretary of Labor may assume jurisdiction over therein. Nothing herein shall be interpreted to prevent any public officer from taking any
the dispute and decide it or certify the same to the NLRC for compulsory arbitration. measure necessary to maintain peace and order, protect life and property, and/or enforce
the law and legal order.
Effect of Assumption or Certification  No person engaged in picketing shall commit any act of violence, coercion or intimidation
Such assumption or certification has the effect of automatically enjoining the intended or impending or obstruct the free ingress or egress from the employer’s premises for lawful purposes, or
strike or lockout as specified in the assumption or certification order. If the one has already taken obstruct public through fares.
place at the time of assumption or certification, all striking or locked out employees shall immediately
return to work and the employer shall immediately resume operations and readmit all workers under  PENALTY FOR VIOLATION
the same terms and conditions prevailing before the strike or lockout. Any person violating the above provisions shall be punished by a fine of not less than P1,000.00 nor
more than P10,000.00 and/or imprisonment for not less than 3 months. Nor more than 3 years, or
Striking workers must cease and/or desist from all acts that tend to, or undermine the authority of the both such fine and imprisonment, at the discretion of the court.
Secretary of Labor, once the assumption and/or certification order is issued. They cannot ignore
return-to-work orders, citing ULP on the part of the company, to justify their actions. Prosecution under Article 272 of the LCP shall preclude prosecution for the same act under the RRC,
and vice versa.
If it is an economic strike, the strikers are bound to the provision but if it is a ULP strike, the strikers
are not bound to such provision.
Consequences of Strike and Lockout
 Strikers’ Retain their Employment
Lockout Strikers remain as employees while they are on strike; the effects of employment are merely suspended
Means the temporary refusal of any employer to furnish work because of an industrial or labor dispute. during that time. When the strike is over, the employees go back to work and the effects of employer
– employee relationship are resumed.
Grounds for Lockout
• Collective Bargaining Deadlock
• ULP Act of a Union

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 Striker’s Lose their Employment
IF Striker is a UNION MEMBER, there must be proof that he committed illegal acts during a
Picketing
strike. Mere participation of an ordinary worker in an illegal strike cannot be a ground for The presence of striking workers or their union brothers who pace back and forth before the place of
termination of his or her employment. business of an employer considered ―unfair to organize labor‖ in the hope of being able to persuade
peacefully other workers not to work in the establishment, and customers not do business there.
NOTE: Mere participation of a worker in a lawful strike shall not constitute sufficient ground for
termination of his employment, even if the employer had hired a replacement during such lawful Limitations
strike.  Picketing conducted as to amount to a nuisance is unlawful. Picketing maybe considered as
a nuisance if it constitutes an obstruction to the free use of property, so as substantially to
IF Striker is a UNION OFFICER, s/he may be terminated from work when s/he knowingly participates interfere with the comfortable enjoyment of life or property, or if it constitutes an unlawful
in an illegal strike, or when s/he commits an illegal act during the strike. obstruction to the free passage or use, in the customary manner of a street.
 Picketing carried on with intimidation, threats, coercion, or force is unlawful however
 The penalty of dismissal for participating in an illegal strike is limited ONLY to the union laudable the strikers’ motive or purpose, and regardless of whether the intimidated persons
leaders. Penalty may be scaled down to suspension. are their employers, co-employees, or customers.
 Vandalism and acts of a less terroristic nature that are designed to cause physical discomfort
WHO Dismisses Illegal Strikers? to the employer’s customers are also unlawful.
The law grants the employer the option of declaring a union officer who participated in an illegal strike  Untruthful picketing is unlawful even though its purpose is valid.
as having lost his employment.  False statements are not constitutionally protected free speech.

Claim of Back Wages in an Economic Strike  The PUBLIC EASEMENT OF WAY and PASSAGE permits of pickets to parade in front of
The strikers are NOT entitled to back wages on the principle that ―a fair day’s wage‖ accrues only for or near the picketed establishment. As members of the general public, they have the right,
a ―fair day’s labor‖ (no work, no pay policy). as one of passage – a pedestrian right. It does not create the additional right of squatting or
Exception: assembly on this portion of the employer’s land.
 The strike is legal;
 There is an unconditional offer to return to work; and Other Concerted Activities
 There is a refusal on the part of the employer to accept strikers to work. 1. Collective Letter
Constitutes an informal action participated in by at least two employees for ―mutual aid or protection‖
 In a ULP Strike in regard to their interests.
Strikers who were discriminatorily dismissed OR affected by the ULP are ENTITLED to back wages.
The law on illegal dismissal applies. 2. Publicity
Members of a labor union may make known the facts of a labor dispute by sign, handbill, or newspaper
 In a LOCKOUT advertisement as a legitimate means of economic coercion.
Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be
ENTITLED to reinstatement with full back wages. NOTE: It is unlawful for a labor organization in a radio broadcast to express its honest opinion as to
the fairness of an employer toward organized labor and to advise the public and friends of labor not
EMPLOYER’S RIGHT TO HIRE REPLACEMENTS DURING STRIKE OR to patronize him. HOWEVER, the use of loud speakers in front of a picketed place of business has
REINSTATEMENT OF STRIKERS been condemned as form of intimidation.
During the pendency of an economic strike, the employer may hire replacements on a permanent basis
and is not bound to discharge such permanent replacement in the event that strikers resume to work. 3. Boycott
An attempt, by arousing a fear of loss, to coerce others, against their will to withhold from one
While replacement may also be hired by the employer to take the places left vacant by employees denominated ―unfriendly to labor‖ their beneficial business intercourse.
engaged in an ULP strike, such replacements are not permanent and their employer is under the duty
to dismiss them as soon as the strikers request reinstatement in their previous positions.  Kinds of Boycott
a. Primary Boycott
IMPROVED OFFER OR REDUCED OFFER BALLOTING (ART. 265) Applied directly and alone to the offending person by withdrawing from him all
The DOLE shall conduct a referendum by secret balloting on the improved offer of the employer on or business relations on the part of the organization that initiated the boycott.
before the 30th day of strike. When at least a majority of the union members vote to accept the
improved offer, the striking workers shall immediately return to work and the employer shall b. Secondary Boycott
thereupon readmit them upon the signing of the agreement. A combination not merely to refrain from dealing with a person, or to advise or by
peaceable means persuade his customers to refrain, but to exercise coercive pressure
In cases of lockout, the DOLE shall also conduct a referendum by secret balloting on the reduced offer upon such customers, actual or prospective, in order to cause them to withhold or
of the union on or before the 30th day of the lockout. When at least a majority of the board of directors withdraw patronage from him through fear of loss or damage to themselves should
or trustees or the partners holding the controlling interests in the case of a partnership vote to accept they deal with him.
the reduced offer, the workers shall immediately return to work and the employer shall thereupon
readmit them upon the signing of the agreement.

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 Means and Methods “Trade Union Activities”
Boycott maybe lawful or unlawful depending on the means and methods employed and the ends The phrase shall mean:
intended to be accomplished. Its lawfulnessmay also depend upon whether it is used against the  Organization, formation and administration of labor organizations;
industrial antagonist directly or against an outsider because of his influence on or connection with the  Negotiation and administration of CBA;
industrial antagonist.  All forms of concerted union activities;
 Organizing, managing, or assisting union conventions, meeting rallies, referenda, teach –
Maybe in the form of a refusal of a labor union to allow its members to handle products of the employer ins, seminars, conferences and institutes; · Any form of participation or involvement in
or to work on materials from non – union shops, or to work on a job upon which a contract or with representation proceedings, representation proceeding, representation elections, consent
whom they are at variance in an existing labor dispute. elections, union elections; and
 Other activities or actions analogous to the foregoing.
4. Slowdown
Method by which one’s employees without seeking a complete stoppage of work, retard production
and distribution in an effort to compel compliance by the employer with the labor demands made
upon him. CASES

Arrest and Detention Cancellation of Union Organization


EXCEPT on the grounds of national security and public peace, or in case of commission of crime, no De Ocampo Memorial Schools, Inc. vs. Bigkis ng Manggagawa sa De Ocampo
union members or union organizers may be arrested or detained for union activities with previous Memorial School, Inc. GR No. 192648, 15 March 2017
consultation with the Secretary of Labor. Is the lack of mutuality and/or communality of interest a ground for cancellation of
union registration?

Foreign Involvement in Trade Union Activities The only grounds on which the cancellation of a union's registration may be sought are those found in
 PROHIBITION AGAINST ALIENS Article 247 of the Labor Code. . Pursuant to paragraphs (a) and (b) of Article 247 of the Labor
ALL ALIENS, natural or juridical, as well as foreign organizations are strictly prohibited from Code, it must be shown that there was misrepresentation, false statement or fraud in connection
engaging directly or indirectly in all forms of trade union activities without prejudice to normal with:
contracts between Philippine Labor Unions and recognized international labor centers
(1) the adoption or ratification of the constitution and by-laws or amendments thereto;
 EXCEPTIONS 2) the minutes of ratification;
Aliens working in the country with valid permits issued by the DOLE may exercise the right to self- (3) the election of officers;
organization and join or assist labor organizations of their own choosing for purposes of collective (4) the minutes of the election of officers; and (5)the list of voters.
bargaining.
Failure to submit these documents together with the list of the newly elected- appointed officers and
Said aliens are nationals of a country which grants the same or similar rights to Filipino Workers. their postal addresses to the BLR may also constitute grounds for cancellation, lack of mutuality of
interests, however, is not among said grounds.
 REGULATION OF FOREIGN ASSISTANCE
No foreign individual, organization or entity may give any donations, grants or other forms of
assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any Agency Fees
auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education, Peninsula Employees Union vs Michael Esquivel,
or communication, in relation to trade union activities without prior permission by the Secretary of GR No. 218454, 01 December 2016
Labor.
The recognized collective bargaining union which successfully negotiated the CBA with the employer
NOTE: This prohibition shall equally apply to foreign donations grants or other forms of assistance, is given the right to collect a reasonable fee called "agency fee" from non- union members who are
in cash or in kind, given directly or indirectly to any employer or employer’s organization to support employees of the appropriate bargaining unit, in an amount equivalent to the dues and other fees
any activity or activities affecting trade unions paid by union members, in case they accept the benefits under the CBA

The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and Three (3) documentary requisites in order to justify a valid levy of increased union
receiving of such donations, grants, or other forms of assistance, including the mandatory reporting dues:
of amounts of donations or grants, the specific recipients thereof, the projects or activities proposed a. an authorization by a written resolution of the majority of all the members at
to be supported and their duration the general membership meeting duly called for the purpose;
b. the secretary's record of the minutes of the meeting, which shall include the list
of all members present, the votes cast, the purpose of the special assessment or fees and
the recipient of such assessment or fees; and
c. individual written authorizations for check-off duly signed by the employees
concerned.

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LABOR LAW REVIEW 2017
backwages, is awarded by a Labor Arbiter to an illegally dismissed employee pursuant to Article
Unfair Labor Practice 294 of the Labor Code: Article 294.
SONEDCO Workers Free Labor Union (SWOFLU) et al vs Universal Robina Corp,
Sugar Division-Southern Negros Dev’t Corp (SONEDCO) ‣ On the other hand, a return-to-work order is issued by the Secretary of Labor and
GR No. 220383, 05 October 2016 Employment when he or she assumes jurisdiction over a labor dispute in an industry that is
considered indispensable to the national interest.
‣ If, as a result of the certification election, respondent union or a union other than petitioner
union which executed the interim agreement, is certified as the exclusive bargaining representative ‣ Return-to-work and reinstatement orders are both immediately executory; however, a
of the rank and file employees of respondent company, then, such union may adopt the interim return- to-work order is interlocutory in nature, and is merely meant to maintain status quo while
collective bargaining agreement or negotiate with management for a new collective bargaining the main issue is being threshed out in the proper forum. In contrast, an order of reinstatement is
agreement. a judgment on the merits handed down by the Labor Arbiter pursuant to the original and exclusive
jurisdiction provided for under Article 224(a) of the Labor Code. Clearly, there is no basis to
‣ An employer who refuses to bargain with the union and tries to restrict its bargaining power reinstate the employees who were terminated as a result of redundancy.
is guilty of unfair labor practice. In determining whether an employer has not bargained in good
faith, the totality of all the acts of the employer at the time of negotiations must be taken into
account. Bargaining Unit
‣ That it chose to refuse negotiations and instead entered into an agreement with its Erson Ang Lee Doing Business as “Super Lamination Services” v. Samahang
Manggagawa ng Super Lamination (SMSLS-NAFLU-KMU),
employees to essentially waive negotiations for 2007 and 2008 betrays its intention of limiting
GR No. 193816, 21 November 2016
petitioners' bargaining power. 

May separate corporations with related businesses be treated as a single bargaining
unit although these companies are indubitably distinct entities with separate juridical
Guagua National Colleges v. Guagua National Colleges Faculty Labor Union and personalities?
Guagua National Colleges Non-Teaching and Maintenance Union,
GR No. 204693, 13 July 2016 ‣ Yes, by way of exception. A settled formulation of the doctrine of piercing the corporate veil
‣ In the absence here of an express stipulation in the CBA that GNC and respondents agreed
is that when two business enterprises are owned, conducted and controlled by the same parties,
both law and equity will, when necessary to protect the rights of third parties, disregard the legal
to submit cases of unfair labor practice to their grievance machinery and eventually to voluntary fiction that these two entities are distinct and treat them as identical or as one and the same.
arbitration, jurisdiction over the parties' dispute does not vest upon the voluntary arbitrator.
‣ It has been held that while the phrase "all other labor dispute" or its variant "any other
‣ This was proper under the circumstances where the three corporations had the same
lamination business, share a common human resource department, employees were constantly
matter or dispute" may include unfair labor practices, it is imperative, however, that the agreement rotated and assigned to the 3 corporations, the common HR imposed disciplinary sanctions of all
between the union and the company states in unequivocal language that the parties conform to the the subject employees, Super Lamination registered all the employees with the SSS as its own and
submission of unfair labor practices to voluntary arbitration. 
 signed the IDs of all these employees, and they were represented by the same counsel. 


Violation of the Duty to Bargain Collectively Would the rank-and-file employees of the three companies constitute an appropriate
Guagua National Colleges v. Guagua National Colleges Faculty Labor Union and bargaining unit despite their different geographical location?
Guagua National Colleges Non-Teaching and Maintenance Union ‣ Yes. The basic test for determining the appropriate bargaining unit is the application of a
GR No. 204693, 13 July 2016 standard whereby a unit is deemed appropriate if it affects a grouping of employees who have
‣ Here, the collective conduct of GNC is indicative of its failure to meet its duty to bargain in substantial, mutual interests in wages, hours, working conditions, and other subjects of collective
good faith. Badges of bad faith attended its actuations both at the plant and NCMB levels. bargaining.
‣ Due to its bad faith in bargaining, the final CBA draft submitted by respondents to the ‣ Geographical location can be completely disregarded if the communal or mutual interests
NCMB was correctly imposed by the NLRC as the parties’ CBA for the period June 21, 2009 to May of the employees are not sacrificed.
31, 2014. This is on the premise that the said employers, by their acts which bespeak of insincerity, ‣ In the present case, there was communal interest among the rank-and-file employees of the
had lost their statutory right to negotiate or renegotiate the terms and conditions contained in the three companies based on the finding that they were constantly rotated to all three companies,
unions' proposed CBAs. and that they performed the same or similar duties whenever rotated.
‣ Therefore, aside from geographical location, their employment status and working
Return to Work Order conditions were so substantially similar as to justify a conclusion that they shared a community of
Manggawa ng Komunikasyon sa Pilipinas v. PLDT, Co. Inc., interest. 

GR No. 190389, 19 April 2017
Are the affected and striking employees entitled to reinstatement and backwages from
January 2, 2003 when the SOLE directed the striking employees to return to work, up
to April 29, 2006, when the NLRC’s resolution upholding the validity of PLDT’s
redundancy program became final and executory?
‣ No. There is no order of reinstatement from a Labor Arbiter in the case at bar, instead, what
is at issue is the return-to-work order from the Secretary of Labor and Employment. An order of
reinstatement is different from a return-to-work order. The award of reinstatement, including

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LABOR LAW REVIEW 2017
CASES TO READ
In addition to those in the powerpoint

G.R. No. 207971— ASIAN INSTITUTE OF MANAGEMENT vs.


ASIAN INSTITUTE OF MANAGEMENT FACULTY ASSOCIATION

G.R. No. 202091 –SUMIFRU (PHILIPPINES) CORP vs. NAGKAHIUSANG


MAMUMUO SA SUYAPA FARM1

GR No. 220383, Oct 05, 2016 –SONEDCO WORKERS FREE LABOR UNION v.
UNIVERSAL ROBINA CORPORATION

[ GR No. 207898, Oct 19, 2016 ] ERROL RAMIREZ v. POLYSON INDUSTRIES

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