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TABLE OF CONTENTS i LABOR LAW

No strike-no lockout clause ................... 30


LABOR RELATIONS Check-off ........................................ 31
E. UNFAIR LABOR PRACTICE ................31
I. LABOR RELATIONS ..................................... 1 E.1. NATURE, ASPECTS ........................ 31
A. RIGHT TO SELF-ORGANIZATION .......... 1 Definition and General Concept ............................... 31
BASES OF RIGHT ................................. 1 Requisites of ULP ...................................................... 32
(1) 1987 Constitution ............................................1 General Prohibition ............................ 32
(2) Labor Code ......................................................1 E.2. ULP by Employers......................... 33
(3) International Conventions...............................1 1. Interference, restraint and coercion ..................... 33
EXTENT AND SCOPE OF RIGHT ................. 1 2. YELLOW-DOG CONTRACT ..................................... 34
A.1. WHO MAY EXERCISE THE RIGHT .......... 2 3. Contracting out to discourage unionism .............. 34
1. All employees .....................................................2 4. Company domination of union ............................. 34
2. Employees of government corporations .....2 5. DISCRIMINATION TO ENCOURAGE/DISCOURAGE
3. Supervisors..........................................................2 UNIONISM ................................................................ 34
4. Aliens ....................................................................2 6. Retaliation testimony against employer/indirect
5. Security Guards .......................................................2 discrimination ........................................................... 35
Who cannot form, join or assist labor organizations..3 7. Violation of duty to bargain ................................. 35
A.2. Commingling/Mixture of Membership ... 4 8. Negotiation or attorneys fees .............................. 35
GOVERNMENT REGULATION OF UNIONS ...................5 9. Gross violation of CBA .......................................... 35
A.3. Rights and Conditions of Membership ... 7 E. 3. BY LABOR ORGANIZATIONS ............. 35
ART 241. RIGHTS AND CONDITIONS OF MEMBERSHIP 1. RESTRAINT, OR COERCION ................................... 35
IN A LABOR ORGANIZATION .......................................7 2. DISCRIMINATION: ENCOURAGE/ DISCOURAGE
RIGHTS OF LEGITIMATE LABOR ORGANIZATION (ART UNIONISM [ART. 260 (B)] ......................................... 35
251, LC)........................................................................8 3. VIOLATE DUTY TO BARGAIN OR THE CBA ............ 35
Union-member relations are governed by ..................9 4. FEATHERBEDDING ................................................ 35
LABOR RELATIONS IN PUBLIC SECTOR ........................9 5. ASKING OR ACCEPTING NEGOTIATION AND OTHER
Right To Organize ............................... 9 ATTORNEY'S FEES ..................................................... 36
1. Constitution .............................................................9 6. VIOLATE A COLLECTIVE BARGAINING AGREEMENT
2. Labor Code ..............................................................9 .................................................................................. 36
3. Statutory ...............................................................10 MOTIVE, CONDUCT, AND PROOF ............. 36
4. International Treaties............................................10 ENFORCEMENT, REMEDIES AND SANCTIONS . 36
Officers With Right to Self-Organize .........................10 F. PEACEFUL CONCERTED ACTIVITIES .....37
Protection Of Right ........................... 11 RIGHT TO PEACEFUL CONCERTED ACTIVITIES
1. Non-discrimination ................................................11 ................................................... 37
2. Non-interference in Union Administration............11 BASES OF RIGHT TO ENGAGE IN CONCERTED
Registration .................................... 11 ACTIVITIES................................................................. 37
Registration Agency ..................................................11 Role of Peace Officers During Strikes and Picketing. 38
Effect Of Registration ................................................11 FORMS OF CONCERTED ACTIVITIES ........... 38
Bargaining Unit, Composition ...................................11 F.1. BY LABOR ORGANIZATION ............... 38
Exclusive Representative ...........................................11 F.1.A. STRIKE ............................................................. 38
Settlement Of Work Conditions ................................ 12 Illegal strike .............................................................. 42
Affiliation and disaffiliation of the local union from F.2. PICKET ..................................... 45
the mother union ......................................................12 Slowdown ................................................................. 45
A.3.A NATURE OF RELATIONSHIP..............................12 F.3. BY EMPLOYER ............................. 45
B. BARGAINING UNIT ........................ 14 F.2.A. LOCKOUT ........................................................ 45
C. BARGAINING REPRESENTATIVE ......... 14 F.4. ASSUMPTION OF JURISDICTION .......... 47
C.1. DETERMINATION OF REPRESENTATION
STATUS.......................................... 14
II. Jurisdiction and Remedies............................... 50
Factors.......................................................................14 A. Labor arbiter ..............................50
Methods of Establishing Majority Status ..................15 A.1. Jurisdiction ............................ 50
D. RIGHTS OF LABOR ORGANIZATION .... 21 Labor Arbiter vs. Regional Director .......................... 50
D.1. CHECK OFF, ASSESSMENT, AGENCY FEES A.2. Requirements to perfect appeal to NLRC
................................................... 21 ................................................... 50
Union dues and special assessments ........................21 A.3. Reinstatement pending appeal ......... 51
D.2. COLLECTIVE BARGAINING ............... 22 B. National Labor Relations Commission
D.2. A. DUTY TO BARGAIN COLLECTIVELY .................22 (NLRC) ..........................................51
D.2.B. Collective bargaining agreement (CBA) .........23 B.1. Jurisdiction ................................ 51

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TABLE OF CONTENTS ii LABOR LAW

C. Court of Appeals ......................... 51 H. DOLE SECRETARY .........................53


C.1. Appeal via rule 65, Rules of Court .... 51 H.1. VISITORIAL AND ENFORCEMENT POWERS
D. SUPREME COURT ......................... 51 ................................................... 53
D.1. RULE 45, RULES OF COURT ............. 51 H.2. POWER TO SUSPEND EFFECTS OF
E. BUREAU OF LABOR RELATIONS (BLR).. 52 TERMINATION ................................... 53
E.1. JURISDICTION ............................. 52 H.3. REMEDIES .................................. 54
F. NATIONAL CONCILIATION AND I. VOLUNTARY ARBITRATOR.................54
MEDIATION BOARD ........................... 52 I.1. JURISDICTION .............................. 54
F.1. CONCILIATION vs. MEDIATION .......... 52 I.2. Remedy ..................................... 54
F.2. PREVENTIVE MEDIATION ................. 52 J. Prescription of Actions ...................54
G. DOLE REGIONAL DIRECTORS ............ 52
G.1. RECOVERY/ADJUDICATORY POWER ... 52

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LABOR RELATIONS 1 LABOR LAW

I. LABOR RELATIONS Note: In general, workers without definite employers


Labor Relations may also form labor organizations for their mutual
Labor Relations, defined. aid and protection. The usual purpose of organizing,
The interactions between employer and employees however, is for collective bargaining.
or their representatives and the mechanism by which
the standards and other terms and conditions of (3) INTERNATIONAL CONVENTIONS
employment are negotiated, adjusted and enforced.1
✓ Core conventions of the International Labor
Organization (ILO):
A. RIGHT TO SELF-ORGANIZATION ✓ ILO Convention No. 87 – Freedom of
BASES OF RIGHT Association and Protection of Right to
Organize
(1) 1987 CONSTITUTION ✓ ILO Convention No. 98 – Application of the
RIGHT TO ASSOCIATION Principles of the Right to Organize and
Sec 8, Art III, 1987 Constitution Bargain Collectively
The right of the people, including those employed in
the public and private sectors, to form unions, NON-ABRIDGMENT OF THE RIGHT TO SELF-
associations, or societies for purposes not contrary ORGANIZATION
to law shall not be abridged. Bar 2000
Art 257
RIGHT OF ALL WORKERS TO SELF-ORGANIZATION It shall be unlawful for any person to restrain,
Sec. 3, par 2, Art XIII, 1987 Constitution coerce, discriminate against or unduly interfere with
The state shall afford full protection to labor, local employees and workers in their exercise of the right
and overseas, organized and unorganized, and to self-organization.
promote full employment opportunities for all. It
shall guarantee the rights of all workers to self- EXTENT AND SCOPE OF RIGHT
organization, collective bargaining and negotiations, (1) Right to form, join, or assist labor organizations
and peaceful concerted activities, including the right for the purpose of collective bargaining through
to strike in accordance with law. Xxx representatives of their own choosing. 2
(2) Right to engage in lawful concerted activities
(2) LABOR CODE for the same purpose for their mutual aid and
Art 253: Coverage and employees’ right to self- protection.3
organization (3) Subsumed in the right to join, affiliate with, or
All persons employed in commercial, industrial and assist any union is the right NOT to join, affiliate
agricultural enterprises and in religious, charitable, with, or assist any union; or to leave a union and
medical, or educational institutions, whether join another one. [Heritage Hotel Manila v.
operating for profit or not, shall have the right to PIGLAS- Heritage, G.R. No. 177024 (2009)]
self-organization and to form, join, or assist labor (4) The right to form or join a labor organization
organizations of their own choosing for purposes of necessarily includes the right to refuse or refrain
collective bargaining. from exercising said right. It is self-evident that
just as no one should be denied the exercise of a
Ambulant, intermittent and itinerant workers, self- right granted by law, so also, no one should be
employed people, rural workers and those without compelled to exercise such a conferred right.4
any definite employers may form labor organizations (5) Right to organize regardless of religious
for their mutual aid and protection. affiliations. This Court's decision in Victoriano
v.s. Elizalde Rope Workers' Union, upholding the
Art 254: Coverage and employees’ right to self- right of members of the IGLESIA NI KRISTO sect
organization not to join a labor union for being contrary to
Employees of government corporations established their religious beliefs, does not bar the members
under the corporation code shall have the right to of that sect from forming their own union.
organize and to bargain collectively with their (6) Right of workers to choose their leader. Their
respective employers. freedom organizations would be rendered
nugatory if they could not choose their own
RIGHT TO ORGANIZE leaders to speak on their behalf and to bargain
It is the right of workers to form, join, or assist a for them. [Pan-American World Airways, Inc v.
labor organization and is granted to all kinds of Pan- American Employees Association, G.R. No.
employees (public or private) of all kinds of L-25094 (1969)]
employers (profit or non-profit).
2 Art. 257, Labor Code
1C.A. Azucena, The Labor Code with Comments and Cases, Volume 3 Art. 257 Labor Code
II, 2010, p.10. 4Reyes v Trajano, 209 SCRA 484 (1992).

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Supervisory employee refers to an employee who, in


the interest of the employer, effectively
A.1. WHO MAY EXERCISE THE RIGHT recommends managerial actions and the exercise of
such authority is not routinary or clerical but
(1) All employees
requires the use of independent judgment.
(2) Government employees of corporations created
Art 255
under the Corporation Code
(3) Supervisory Employees XXX Supervisory employees shall not be eligible for
(4) Aliens with valid working permits membership in a labor organization of the rank-and-
(5) Security personnel file employees but may join, assist or form separate
labor organizations of their own. XXX
1. ALL EMPLOYEES
Supervisory employees may join, assist or form
Any person in the employ of an employer. The term
separate labor organizations of their own.
shall not be limited to the employees of a particular
employer, unless the Code so explicitly states. It
Supervisory employees not eligible to join rank-and-
shall include any individual whose work has ceased file labor organization.
as a result of or in connection with any current labor
dispute or because of any unfair labor practice if he
There may arise conflict of interests with rank-and-
has not obtained any other substantially equivalent
file employees in so far as supervisory employees are
and regular employment.5
considered extension of management.
WHO IS AN EMPLOYEE FOR PURPOSES OF
Test of supervisory status. The test of "supervisory"
MEMBERSHIP IN ANY LABOR UNION?
or "managerial status" depends on whether a person
Art 292(c) possesses authority to act in the interest of his
Any employee, whether employed for a definite employer in the matter specified in Article 212 (k) of
period or not, shall, beginning on his first day of the Labor Code and Section 1 (m) of its
service, be considered as an employee for purposes Implementing Rules [now Section 1(t)] and whether
of membership in any labor union. such authority is not merely routinary or clerical in
nature, but requires the use of independent
2. EMPLOYEES OF GOVERNMENT CORPORATIONS judgment. Thus, where such recommendatory
powers as in the case at bar, are subject to
Bar 2004 evaluation, review and final action by the
Art 254: Right of employees in the public service department heads and other higher executives of the
Employees of government corporations established company, the same, although present, are not
under the Corporation Code shall have the right to effective and not an exercise of independent
organize and to bargain collectively with their judgment as required by law.6
respective employers. All other employees in the
civil service shall have the right to form associations 4. ALIENS
for purposes not contrary to law.
GR: All aliens, natural or juridical, as well as foreign
organizations are strictly prohibited from engaging
RIGHT OF EMPLOYEES IN PUBLIC SERVICE
directly or indirectly in all forms of trade union
A. Employees of government corporations established
activities without prejudice to normal contacts
under the Corporation law:
between Philippine labor unions and recognized
• Right to organize
international labor centers.
• Right to bargain collectively XPN: Aliens working in the country can exercise right
to self-organization if: (VR)
B. All other employees in the civil service:
(a) With valid permits issued by the Department of
Right to form associations for purposes not contrary
Labor and Employment, and
to law
(b) Reciprocity -said aliens are nationals of a
country which grants the same or similar rights
3. SUPERVISORS
to Filipino workers.7
Bar 1995, 1996, 1999, 2002, 2003
Art 219(m) 5. SECURITY GUARDS
Supervisory employees are those who, in the interest
of the employer, effectively recommend such The security guards and other personnel employed
managerial actions if the exercise of such authority by the security service contractor shall have the
is not merely routinary or clerical in nature but right:
requires the use of independent judgment.
IR, Book V, Rule I, Sec. 1(xx) 6Franklin Baker Company v Trajano, G.R. No. 75039 (1988).
(More recent citation: Cathay Pacific Steel Corporation vs. CA, G.R.
No. 164561, Aug. 30, 2006)
5 Art 219(f) 7 Art 284

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LABOR RELATIONS 3 LABOR LAW

(1) To form, join, or assist in the formation of a records.xxx By the very nature of their functions,
labor organization of their own choosing for they assist and act in a confidential capacity to, or
purposes of collective bargaining and have access to confidential matters of, persons who
(2) To engage in concerned activities which are not exercise managerial functions in the field of labor
contrary to law including the right to strike. relations. 9
[D.O. No. 14 Series of 2001 Guidelines Governing
the Employment and Working Conditions of
Security Guards and Similar Personnel in the Rationale for exclusion
Private Security Industry) By the very nature of their functions, they assist and
act in a confidential capacity to, or have access to
WHO CANNOT FORM, JOIN OR ASSIST confidential matters of, persons who exercise
LABOR ORGANIZATIONS managerial functions in the field of labor relations.
As such, the rationale behind the ineligibility of
(1) Managerial employees managerial employees to form, assist or join a labor
(2) Confidential employees union equally applies to them.10
(3) Member-employee of a cooperative
(4) Employees of international organizations CONFIDENTIAL EMPLOYEE RULE;
(5) Non-employees Test in determining a confidential employee: The
(6) Members of the AFP, police officers, policemen, confidentiality of the position should relate to labor
firemen and jail guards relations matters.
(7) High-level / Managerial Government Employees
Criteria: Assists or acts in a confidential capacity,
1. MANAGERIAL EMPLOYEES To persons who formulate, determine and effectuate
Bar 1995, 1996, 1999, 2002, 2003 management policies in the field of labor relations.
Art 219(m)
"Managerial employee" is one who is vested with the These two criteria are cumulative.11
powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, NATURE OF ACCESS TEST
suspend, lay-off, recall, discharge, assign or An important element of the “confidential employee
discipline employees. rule” is the employee’s need to use labor relations
Art 245, Labor Code information. Thus, in determining the confidentiality
Managerial employees are not eligible to join, assist of certain employees, a key question frequently
or form any labor organization. xxx considered is the employees’ necessary access to
confidential labor relations information. If access to
Rationale for prohibition confidential labor relations information is to be a
Because if these managerial employees would belong factor in the determination of an employee’s
to or be affiliated with a Union, the latter might not confidential status, such information must relate to
be assured of their loyalty to the Union in view of the employer’s labor relations policies.12
evident conflict of interests. The Union can also
become company- dominated with the presence of FUNCTION TEST: NOMENCLATURE IS NOT
managerial employees in Union membership.8 CONTROLLING
The mere fact that an employee is designated
Managerial functions refer to powers such as to: “manager” does not ipso facto make him one.
(1) Effectively recommend managerial actions; Designation should be reconciled with the actual job
(2) Formulate or execute management policies or description of the employee. [Paper Industries Corp.
decisions; or of the Philippines. v. Laguesma, G. R. No.101738,
(3) Hire, transfer suspend, lay-off, recall, dismiss, 2000]
assign or discipline employees. (San Miguel
Supervisors and Exempt Union v Laguesma, DOCTRINE OF NECESSARY IMPLICATION
1997) While Art 245 of the LC singles out managerial
employees as ineligible to join, assist, or form nay
labor organization, under the doctrine of necessary
implication, confidential employees are similarly
2. CONFIDENTIAL EMPLOYEES
disqualified”13
Bar 1994, 2002, 2009
Who are confidential employees?
Those who by reason of their positions or nature of
work are required to assist or act in a fiduciary 9Metrolab Industries v Confessor, et al., G.R. No. 108855 (1996).
manner to managerial employees and hence, are 10PhilipsIndustrial Dev’t., Inc., v NLRC, 210 SCRA 339 (1992)
11TunaynaPagkakaisangManggagawang Asia Brewery v Asia Brewery,
likewise privy to sensitive and highly confidential
Inc., G.R. No. 162025 (2012).
12San Miguel Corporation Supervisors and Exempt Union, et al. v
8BulletinPublishing Corp. v Hon. Augusto Sanchez, et al., G.R. No. Hon. Laguesma, et al., G.R. No. 110399 (1997)
74425 (1986). 13 NATU v. Torres, G.R. 93468 December 29, 1994.

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LABOR RELATIONS 4 LABOR LAW

Art 245 does not directly prohibit confidential


employees from engaging in union activities. Certification election barred by immunity
However, under the doctrine of necessary A certification cannot be viewed as an independent
implication, such confidential employees, if they or isolated process. It could trigger off a series of
have access to confidential labor relations events in the collective bargaining process together
information, are treated like managers and with related incidents and/or concerted activities,
therefore cannot unionize. Thus, when a confidential which could inevitably involve ICMC in the “legal
employee does not have access to labor relations process”, which includes “any penal, civil, and
information, such employee may still form, join or administrative proceedings.” The eventuality of
assist a union.14 court litigation is neither remote and from which
international organizations are precisely shielded to
3. WORKERS-MEMBERS OF A COOPERATIVE safeguard them from the disruption of their
Bar 2002 functions.
Rationale: A cooperative is by its nature different
from an ordinary business concern being run either Waiver of immunity
by persons, partnerships, or corporations. Its owners Waiver of immunity is discretionary. Without such
and/or members are the ones who run and operate express waiver, the NLRC or its labor arbiters have
the business while the others are its employees.15 no jurisdiction even in cases of alleged illegal
dismissal of any of its employees.17
An employee… of such a cooperative who is a
member and co-owner thereof cannot invoke the 5. NON-EMPLOYEES
right to collective bargaining for certainly an owner Persons who are not employees of a company are not
cannot bargain with himself or his co-owners.16 entitled to the constitutional right to join or form a
labor organization for purposes of collective
May form association bargaining. The question of whether employer-
While the members of a cooperative who are also its employee relationship exists is a primordial
employees cannot unionize for purposes of collective consideration before extending labor benefits under
bargaining, the law does not prohibit them from the workmen's compensation, social security,
forming an association for their mutual aid and Medicare, termination pay and labor relations
protection. law.[Singer Sewing Machine Co. v. Drilon, G.R. No.
91307, 1991]

4. EMPLOYEES OF INTERNATIONAL 6. MEMBERS OF THE AFP, POLICEMEN, POLICE


ORGANIZATIONS OFFICERS, FIREMEN AND JAILGUARDS
A certification election cannot be conducted in an Members of the AFP, Policemen, Police Officers,
international organization which the philippine Firemen and Jailguards are expressly excluded by EO
government has granted immunity from local 180 from the coverage of the law which provides
jurisdiction. guidelines for the exercise of the right to organize of
government employees.
International organization, defined.
The term is generally used to describe an 7. HIGH-LEVEL / MANAGERIAL GOVERNMENT
organization set up by agreement between two or EMPLOYEES
more states. … Such organizations are endowed with High-level employees of the government whose
some degree of international legal personality such functions are normally considered as policy-making
that they are capable of exercising specific rights, or managerial or whose duties are of a highly
duties and powers. confidential nature shall not be eligible to join the
organization of rank- and-file government
Reason for grant of immunity employees. [Sec. 3, E.O. 180]
The assurance of unimpeded performance of their
functions by the agencies concerned.
A.2. COMMINGLING/MIXTURE OF MEMBERSHIP
No deprivation of labor’s basic rights
Bar 2010
The immunity of international organizations from
Art 256
local jurisdiction by no means deprives labor of its
basic rights which are guaranteed by Article II, The inclusion as union members of employees
Section 18, Article III, Section 8 and Article XIII, outside the bargaining unit shall not be a ground for
Section 3 of the 1987 Constitution; and implemented the cancellation of the registration of the union.
by Articles 243 and 246 of the Labor Code. Said employees are automatically deemed removed
from the list of the members of the union.

14 Sugbuanon Rural Bank v. Laguesma, G.R. 116194 (2000).


15Batangas Electric Cooperative v Young, G.R. No. 62386 (1988). 17Callado v International Rice Research Institute, G.R. No. 106483
16 Supra note 10. (1995)

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LABOR RELATIONS 5 LABOR LAW

Comingling in union membership LEGITIMATE WORKERS' ASSOCIATION, DEFINED


The mixture of rank-and-file and supervisory An association of workers organized for mutual aid
employees in union does not nullify its legal and protection of its members or of any legitimate
personality as a legitimate labor organization.18 As purposes other than collective bargaining registered
stated in Article 256 (251-A), the employees that with the Department25
should not have been included in the membership
are automatically deemed removed from the list of COMPANY UNION, DEFINED
membership. Any labor organization whose formation, function or
administration has been assisted by any act defined
LABOR ORGANIZATION, policy as unfair labor practice by this Code26
Art 218 (a), (b), (g)
It is the policy of the State: Art 259(d), Creation of company union is ULP
To promote and emphasize the primacy of free To initiate, dominate, assist or otherwise interfere
collective bargaining and negotiations, including with the formation or administration of any labor
voluntary arbitration, mediation and conciliation, as organization, including the giving of financial or
modes of settling labor or industrial disputes; other support to it or its organizers or supporters.
To promote free trade unionism as an instrument for
the enhancement of democracy and the promotion UNION RATIONALE
of social justice and development; A labor union, (the means of assuring that such
xxx fundamental objectives would be achieved) is the
(g) To ensure the participation of workers in decision instrumentality through which an individual
and policy-making processes affecting their rights, labourer who is helpless as against a powerful
duties and welfare. employer, may through concerted effort and
activity, achieve the goal of economic well-being.27
LABOR ORGANIZATION, DEFINED
Any union or association of employees which exists in GOVERNMENT REGULATION OF UNIONS
whole or in part for the purpose of collective
UNION REGISTRATION, DEFINED.
bargaining or of dealing with employers concerning
terms and conditions of employment.19 IR, Book V, Rule I, Sec. 1 (qq)
Process of determining whether the application for
Any union or association of employees in the private registration of a union or worker’s association and
sector which exists in whole or in part for the collective bargaining agreement complies with the
purpose of collective bargaining, mutual aid, documentary requirements for registration
interest, cooperation, protection or other lawful prescribed in Rules III, IV and XVII.
purposes.20
Registration is basically compliance with
UNION, DEFINED documentary requirements.
Any labor organization in the private sector
organized for collective bargaining and for other Bar 2010
legitimate purposes21 Requirements (Art 240, LC): Application form
(1) Registration fee: fifty pesos (P50.00)
WORKERS' ASSOCIATION, DEFINED (2) Officers' names and addresses, principal address
An association of all workers organized for mutual of the labor organization, minutes of the
aid and protection of its members or for an organizational meetings and the list of workers
legitimate purpose other than collective bargaining22 who participated in such meetings
(3) Names of all its members comprising at least
LEGITIMATE LABOR ORGANIZATION, DEFINED twenty percent (20%) of all employees in the
Any labor organization duly registered with the bargaining unit where it seeks to operate (As
Department of Labor and Employment, and includes amended by EO No. 111, December 24, 1986)
any branch or local thereof23 (4) Copies of its annual financial report; if applicant
Any labor organization in the private sector union has been in existence for one or more
registered or reported with the Department in years
accordance with Rules III and IV of these Rules24 (5) Four (4) copies of the constitution and by-laws
of the applicant union, minutes of its adoption
or ratification, and the list of the members who
18SMCC-SUPER v Charter Chemical and Coating Corp., G.R. No. participated in it
169717 (2011)
19 Art. 219(g) (6) Statement that it is not reported as a local
20 IR, Book V, Rule I, Sec. 1(cc)
21 IR, Book V, Rule I, Sec. 1(zz)
22 IR, Book V, Rule I, Sec. 1(ccc) 25IR, Book V, Rule I, Sec. 1(ff)
23 Art 219(h) 26Art 218(i)
24 IR, Book V, Rule I, Sec. 1(ee) 27Guijarno v. CIR,G.R.Nos.28791-93 (1973).

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LABOR RELATIONS 6 LABOR LAW

chapter or union The decision of the Labor Relations Division in the


regional office denying registration may be appealed
FEDERATIONS OR NATIONAL UNIONS ADDITIONAL by the applicant union to the Bureau within ten (10)
REQUIREMENTS days from receipt of notice thereof.
(1) Proof of affiliation of at least ten (10) locals or
chapters, each of which must be a duly IR, Book V, Rule IV, Sec. 5-7
recognized collective bargaining agent in the Sec. 5:
establishment or industry in which it operates, Grounds for denial:
supporting the registration of such applicant (1) supporting documents are incomplete
federation or national union (2) supporting documents do not contain the
(2) Names and addresses of the companies where required certification and attestation
the locals or chapters operate and the list of all
the members in each company involved. Periods:
(3) Registration requirement for reporting a local (1) Notify the applicant within one (1) day from
chapter receipt of application/notice
(4) Charter certificate Issued by the national (2) Give applicant thirty (30) days from receipt of
federation or union and is all that is needed in notice to complete the necessary requirements;
filing for a petition for certification election. upon prescription of this period, such
application will be denied, or the notice will be
Minimal requirement for local or chapter returned, without prejudice to the filing of a
The law gives this incentive as it favors the creation new application or notice
of chapters/locals than independent labor
organizations. Sec. 6:
Form of denial:
Where to file application for registration In writing, stating in clear terms the reasons for
1. For ILO, Chartered Locals, Workers Association: denial or return
DOLE Regional Office where the labor organization
operates Period for appeal:
Within ten (10) days from receipt of notice
2. For federations or national unions: Directly with to the Bureau if denied by the Regional Office
the BLR or through DOLE Regional Office which will to the Secretary if denied by the Bureau
forward the application to the BLR
Grounds for appeal:
ACTION ON APPLICATION Grave abuse of discretion
Art 242
The Bureau shall act on all applications for Procedure on appeal:
registration within thirty (30) days from filing. (1) File a memorandum of appeal with the Regional
Office or the Bureau that issued the
All requisite documents and papers shall be certified denial/return of notice
under oath by the secretary or the treasurer of the (2) The memorandum, together with the complete
organization, as the case may be, and attested to by records of the application/notice shall be
its president. transmitted by the Regional Office to the
IR, Book V, Rule IV, Sec. 4 Bureau, or by the Bureau to the Office of the
The Regional Office or the Bureau, as the case may Secretary, within twenty-four (24) hours from
be, shall act on applications for registration or receipt of the memorandum of appeal
notice of change of name, affiliation, merger and (3) The Bureau or the Office of the Secretary shall
consolidation within one (1) day from receipt decide the appeal within twenty (20) days from
thereof, either by: receipt of the records of the case

approving the application and issuing the certificate


of registration/acknowledging the notice/report; or
EFFECT OF REGISTRATION
denying the application/notice for failure of the Bar 2003
applicant to comply with the requirements for IR, Book V, Rule IV, Sec. 8
registration/notice. The labor union or workers’ association shall be
deemed registered and vested with legal personality
(As amended by Dept. Order No. 40-D-05, series of on the date of issuance of its certificate of
2005 registration or certificate of creation of charted
local.
DENIAL OF REGISTRATION, APPEAL.
Art 243 Such legal personality may be questioned only

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LABOR RELATIONS 7 LABOR LAW

through an independent petition for cancellation of directors of the organization may make
union registration xxx. the decision in behalf of the general
membership
Registration legitimizes the LO. (e) LO cannot knowingly admit a member or
(1) It grants the union the status of legitimacy of a continue in membership any individual who
labor organization; belongs to a 1) subversive organization or 2) who
(2) Results in the acquisition of legal personality; is engaged directly or indirectly in any
and subversive activity
(3) It becomes entitled to all rights and privileges (f) Person convicted of crime of moral turpitude
granted by law to legitimate labor shall not be 1) eligible for election as union
organizations. officer or 2) for appointment to any position in
the union
Union personality not subject to collateral attack (g) Fees, dues or other contribution for the
The principle that once a union acquires a legitimate organization shall only be collected by one who
status as a labor organization, it continues as such is authorized to do so pursuant to the
until its certificate of registration is cancelled or organization’s constitution and by-laws
revoked in an independent action for cancellation.28 (h) Every payment of fees, dues or other
contributions shall be evidenced by a receipt
ACQUISITION OF LEGAL PERSONALITY and entered into the record of the organization
IR, Book V, Rule III, Sec. 2 (E) (i) Funds of organization shall not be applied to for
For local chapter: only for purposes of filing a any other purpose or object other than those
petition for certification election from the date it expressly provided for by its 1) constitution and
was issued a charter certificate. by-laws or those 2) expressly authorized by
written resolution adopted by the majority of
The report creation of a chartered local shall be the members at a general meeting duly called
accompanied by a charter certificate issued by the for that purpose.
federation or national union indicating the creation (j) Every income and revenue shall be evidenced by
of establishment of the chartered local a record showing its source and every expense
shall be evidenced by a receipt from the person
to whom payment is made. The record or
A.3. RIGHTS AND CONDITIONS OF MEMBERSHIP receipt forms part of the financial records of the
organization
ART 241. RIGHTS AND CONDITIONS ✓ Any action involving the funds of the
OF MEMBERSHIP IN A LABOR organization shall prescribe after 3 years
ORGANIZATION from 1) the date of submission of the
annual financial reports to the DOLE or 2)
(a) No arbitrary or excessive initiation fees, fines from the date it should’ve been submitted
and forfeitures as required by law, whichever comes
(b) Members entitled to full and detailed reports of earlier
financial transactions as provided for in Provided: this provision applies only to a
Constitution/By-Laws legitimate labor organization which has
(c) Members directly elect their officers by secret submitted the financial report requirements
ballot (including the officers of the national (k) Officers shall not be paid any compensation
union/federation, trade center or to any similar other than the salaries/expenses due to their
affiliate) every 5 years positions 1) as provided by its constitution and
✓ Qualification: membership in good standing by laws or 2) in a written resolution duly
and must be employed in the company authorized by the majority of all the members
✓ Report: Labor Sec to be furnished with a at a general membership meeting duly called
list of newly elected officers, appointive for that person
officers/agents who handle funds within 30 (l) Treasurer/any person responsible for the funds
days 1) after election or 2) from occurrence or other property shall render an accounting to
of any change in the list of officers its members and the organization of all the
(d) Members determine by secret ballot any money received and paid by him since the last
question of major policy affecting the entire day on which he rendered such account.
membership of the organization. ✓ Rendering of account shall be made
Exception: secret balloting not required if : (1) At least once a year within 30 days
(i) nature of organization from the close of its fiscal year
(ii) force majeure renders such balloting (2) At such other times as may be required
impractical → in this case, the board of by resolution of the majority of the
28Legend
members
International v. Kilusang Manggagawa ngLegenda, G.R. No.
169754 (2011). (3) Upon vacating his office

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LABOR RELATIONS 8 LABOR LAW

(m) Books of accounts and other records of the the existing collective bargaining agreement, or
financial activities shall be open to inspection by during the collective bargaining negotiation
any officer/member during office hours (4) Right to own property, real or personal
(n) No special assessment/extraordinary fees may (5) Right to sue and be sued in its registered name
be levied unless authorized by a written (6) Right to undertake all other activities not
resolution of a majority of all the members at a contrary to law for the benefit of the
general membership meeting duly called for organization and its members
that purpose
✓ The secretary shall record the minutes of RULE ON INTERVENTION
the meeting including the list of all A labor union is one such party authorized to
members present, the votes cast, the represent its members. This authority includes the
purpose of the special assessment and the power to represent its members for the purpose of
recipient of such assessment. enforcing the provisions of the CBA. A party acting in
✓ This record shall be attested by the a representative capacity, such as a union, may be
President permitted to intervene in a case.
(o) Other than for mandatory activities under this
code, no special assessments, attorney’s fees, A person whose interests are already represented
negotiation fees may be checked off from any will not be permitted to do the same except when
amount due to an employee without his signed there is a suggestion of fraud or collusion or that the
individual written authorization representative will not act in good faith for the
(p) Duty of LO and its officers: inform its members protection of all interests represented by him.29
of C/BL, CBA, Labor relations system and their
rights and obligations EFFECTS OF NON-REGISTRATION
✓ For this purpose, registered labor (1) No acquisition of legal personality
organizations may assess reasonable dues to (2) Union does not become entitled to all rights and
finance labor relations seminars and other privileges granted by law to legitimate labor
labor education activities organization.

Any violation of the above rights and conditions of Being an affiliate union does not mean the affiliate
membership shall be a ground for: cannot stand on its own without the federation.
(1) cancellation of union registration or A local union owes its creation and continued
(2) expulsion of officer from office. existence to the will of its members and not to the
federation. 30
At least 30% of all members of the union or any
member or members specially concerned (if violation When local union may sever its relationship with parent
directly affects the) may report such violation to federation.
the Bureau
In the absence of enforceable provisions in
The Bureau shall have the power to hear and decide federation’s constitution preventing disaffiliation of
any reported violation to mete the appropriate a local union, a local may sever its relationship with
penalty. its parent.31

Summary of rights and conditions CANCELLATION OF UNION CERTIFICATE OF


(1) Political Right (to vote, be voted for) REGISTRATION
(2) Deliberative and Decision Making (vote on policy Cancellation proceedings, defined
issues) Legal process leading to the revocation of the
(3) Rights over money matters legitimate status of a union or workers’
(4) Right to Information association.32

RIGHTS OF LEGITIMATE LABOR GROUNDS FOR CANCELLATION (ART 247, LC):


(1) Misrepresentation,
ORGANIZATION (ART 251, LC) (2) false statement or fraud in connection with the
(1) Right to act as the representative of its adoption or ratification of the constitution and
members in the collective bargaining by-laws or amendments thereto, the minutes of
(2) Right to be certified as the exclusive ratification, and list of members who took part
representative of all the employees in an in the ratification.
appropriate bargaining unit
(3) Right to be furnished by the employer, upon
written request, with its annual audited 29Acedera v. ICTSI, G.R. No. 146073 (2003).
financial statements within thirty (30) calendar 30Tropical Hut Employees Assoc. V. Tropical Hut Food Market, G.R.
days from the date of receipt of the request, or No.L-43495-99 (1990).
31Supra note 18.
within sixty (60) days before the expiration of 32 IR, Book V, Rule I, Sec. 1 (g)

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LABOR RELATIONS 9 LABOR LAW

(3) Misrepresentation, false statements or fraud in ✓ Statutory


connection with the election of officers, ✓ International Treaties
minutes of election of officers, list of voters.
(4) Voluntary dissolution by the members. 1. CONSTITUTION
Comingling not a ground. The rule in Art. 251 of Section 8, Article III, The 1987 Constitution of the
prohibiting the commingling of supervisors with the Philippines: Right to Organize
rank-and-file in a union is not a ground for The right of the people, including those employed in
cancellation of union registration.33 the public and private sectors, to form unions,
associations, or societies for purposes not contrary
For fraud and misrepresentation to be grounds for to law shall not be abridged.
cancellation of union registration under the Labor
Code, the nature of the fraud and misrepresentation Section 3, Article XIII, The 1987 Constitution of the
must be grave and compelling enough to vitiate the Philippines: Labor
consent of a majority of union members.34 The State shall afford full protection to labor, local
and overseas, organized and unorganized, and
Existence of ground does not automatically lead to promote full employment and equality of
cancellation. An overly stringent interpretation of employment opportunities for all.
the statute governing cancellation of union
registration without regard to the surrounding It shall guarantee the rights of all workers to self-
circumstances cannot be allowed. Otherwise, it organization, collective bargaining and negotiations,
would lead to an unconstitutional application of the and peaceful concerted activities, including the right
statute and emasculation of public policy objectives. to strike in accordance with law. They shall be
Worse, it can render nugatory the protection to entitled to security of tenure, humane conditions of
labor and social justice clauses that pervades the work, and a living wage. They shall also participate
Constitution and the Labor Code.35 in policy and decision-making process affecting their
rights and benefits as may be provided by law.
Cancellation of union registration kills the union.
Cancellation of a certificate of registration is the The State shall promote the principle of shared
equivalent of snuffing out the life of a labor responsibility between workers and employers and
organization, for without such registration, it loses the preferential use of voluntary modes in settling
its rights under the labor code.36 disputes, including conciliation, and shall enforce
mutual compliance therewith to foster industrial
UNION-MEMBER RELATIONS ARE peace.
GOVERNED BY
The State shall regulate the relations between
(1) Union constitution and by-laws workers and employers, recognizing the right of
(2) Art 241: Rights and conditions of membership labor to its just share in the fruits of production and
(3) Art 260: ULP of labor organizations the right of enterprises to reasonable returns on
investments, and to expansion and growth.
Art 260(a)
It shall be unfair labor practice for a labor
organization, its officers, agents or representatives: Section 2(5), Article IX-B, The 1987 Constitution of
the Philippines: The Civil Service Commission
To restrain or coerce employees in the exercise of 2(5) The right to self-organization shall not be
their right to self-organization. However, a labor denied to government employees.
organization shall have the right to prescribe its own
rules with respect to the acquisition or retention of
membership; xxx
2. LABOR CODE
LABOR RELATIONS IN PUBLIC SECTOR
Article 254, Labor Code : Right of Employees in the
Public Service
RIGHT TO ORGANIZE Employees of government corporations established
Bases: under the Corporation Code shall have the right to
✓ Constitution organize and to bargain collectively with their
✓ Labor Code respective employers. All other employees in the
civil service shall have the right to form associations
33AirPhil v. BLR,G.R.No.155395 (2006). for purposes not contrary to law.
34Mariwasa v. Sec.Of DOLE, G.R.No.183317 (2009).
35Heritage Hotel Manila v. National Union of Workers, G.R. No.

178296 (2011).
36Supra note 22. EMPLOYER RIGHTS OF EMPLOYEES

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LABOR RELATIONS 10 LABOR LAW

Government Corporation Right to Organize, Right Right to Organize to take legislative measures
organized under the to Bargain Collectively which would prejudice, or to apply the law in
Corporation Code such a manner as to prejudice, the guarantees
(GOCC) provided for in that Convention.
Civil Service Commission Right to Form
Associations for purposes Laws Covering The Right To Self-Organize Of
not contrary to law Government Employees37
(1) Presidential Decree No. 807 creating the CSC,
3. STATUTORY prohibits all government employees from
striking
EO No. 180 (2) The 1987 Constitution
Guidelines for the exercise of the right to organize (3) CSC Memorandum Circular No. 6, enjoins strikes
of government employees, creating a public sector by government officials and employees
labor-management-council. (4) Executive Order No. 180, established the
Public Sector Labor-Management Council
4. INTERNATIONAL TREATIES (PSLMC)
Signatories or members of these international
treatises may prescribe restrictions on the exercise EO NO. 180, SEC 2
of the right by government officials because of Section 2, EO No. 180
public safety. All government employees can form, join or assist
employees’ organizations of their own choosing for
ILO Convention No. 151 Provides for protection of the furtherance and protection of their interests.
the right to organize and procedures for determining They can also form, in conjunction with appropriate
conditions of employment in the Public Service government authorities, labor-management
committees, work councils and other forms of
A. INTERNATIONAL COVENANTS ON ECONOMIC, workers’ participation schemes to achieve the same
SOCIAL AND CULTURAL RIGHTS (ART 8(D)) objectives.
Article 8(d), International Covenant on Economic,
Social, and Cultural Rights Limited Purpose and Rights
The States parties to the present Covenant (1) This is for reasons of security and safety.
undertake to ensure: (2) They are granted the right to organize simply for
“the furtherance and protection of their
(d) The right to strike provided that it is exercised interests.”38
in conformity with the laws of the particular (3) The highest law of the land guarantees to
country. government employees the right to organize and
to negotiate, but not granted the right to
strike.39
B. CIVIL AND POLITICAL RIGHTS (ART 22) (4) Terms and conditions of employment fixed by
Article 22, International Covenant on Civil and law are excluded from negotiations
Political Rights (5) No signing Bonus40
(1) Everyone shall have the right to freedom of Ratio: Because the process of collective negotiations
association with others, including the right to in the public sector does not encompass terms and
form and join trade unions for the protection conditions of employment requiring the
of his interests. appropriation of public funds.41

(2) No restrictions may be placed on the exercise OFFICERS WITH RIGHT TO SELF-
of this right other than those which are ORGANIZE
prescribed by law and which are necessary in a
(1) Rank & file employees-They include those who
democratic society in the interests of national
lost their employment because of a labor
security or public safety, public order, the
dispute OR unfair labor practice
protection of public health or morals or the (2) Temporary Employees
protection of the rights and freedoms of (3) Professors at the University of the Philippines
others. This article shall not prevent the who are not exercising managerial or highly
imposition of lawful restrictions on members of confidential functions are rank-and-file
the armed forces and of the police in their
exercise of this right.

(3) Nothing in this article shall authorize States 37Arizala, etal. vs. CA, etal., GR Nos L-43633-34 (1990)
38Arizala, etal. vs. CA, etal., supra
Parties to the International Labour 39Azucena, Jr., C.A., The Labor Code: With Comments and Cases,
Organisation Convention of 1948 concerning Vol II, p 249
Freedom of Association and Protection of the 40Id, p 251
41Id, p 251

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LABOR RELATIONS 11 LABOR LAW

employees and may unionize separately from REGISTRATION


the non-academic personnel.42
Section 7, EO No. 180: Registration of Employees’
Organization
Government employees’ organizations shall register
PROTECTION OF RIGHT with the Civil Service Commission and the
1. NON-DISCRIMINATION Department of Labor and Employment. The
application shall be filed with the Bureau of Labor
EO No. 180, Sec 5
Relations of the Department which shall process the
Section 5, EO No. 180: Non-Discrimination
same in accordance with the provisions of the Labor
Government employees shall not be discriminated
Code of the Philippines, as amended. Applications
against in respect of their employment by reason of
may also be filed with the Regional Offices of the
their membership in employees organizations or
Department of Labor and Employment which shall
participation in the normal activities of their
immediately transmit the said applications to the
organization. Their employment shall not be subject
Bureau of Labor Relations within three (3) days from
to the condition that they shall not join or shall
receipt thereof.
relinquish their membership in the employees’
organizations.
Section 8, EO No. 180: Registration of Employees’
Organization
Government employees shall not be discriminated
Upon approval of the application, a registration
against for membership or participation in an
employee organization. certificate shall be issued to the organization
recognizing it as a legitimate employees’
Employment cannot be subject to the condition of organization with the right to represent its members
and undertaken activities to further and defend its
non-membership or non-participation.
interests. The corresponding certificates of
registration shall be jointly approved by the
2. NON-INTERFERENCE IN UNION Chairman of the Civil Service Commission and
ADMINISTRATION Secretary of Labor and Employment.
EO No. 180, Sec 6
Section 6, EO No. 180: Non-Intervention
Government authorities shall not interfere in the
establishment, functioning or administration of REGISTRATION AGENCY
government employees’ organizations through acts
“Council” refers to the Public Sector Labor
designed to place such organizations under the
Management Council (PSLMC) created under
control of government authority.
Executive Order No. 18043
Government officials shall not intervene in any
EFFECT OF REGISTRATION
manner in any activity of the employees’
organization even though it is to place them under • Right to be a Bargaining Unit
government authority • To participate in Government Activities

BARGAINING UNIT, COMPOSITION


Section 9, EO No. 180: Sole and Exclusive Employees’
Representative
The appropriate organizational unit shall be the
employers units consisting of rank-and-file
employees unless circumstances otherwise require.

Appropriate Bargaining Unit:


The organizational unit shall be composed of the
rank-and-file employees in a single employer’s unit

UNLESS otherwise required by circumstances

EXCLUSIVE REPRESENTATIVE
Section 10, EO No. 180: Sole and Exclusive
Employees’ Representative

42University of the Philippines vs. Ferrer-Calleja, GR No. 96189,


1992 43 Sec 7, EO No. 180; Rule I(n), IRR

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LABOR RELATIONS 12 LABOR LAW

The duly registered employees’ organization having INDEPENDENT UNION. LOCAL UNION
the support of the majority of the employees in the Refers to a labor organization operating at the
appropriate organizational unit shall be designated enterprise level that acquired legal personality
as the sole and exclusive representative of the through independent registration.47
employees.
CHARTERED LOCAL (LOCAL/CHAPTER)
Conditions: Refers to a labor organization in the private sector
Duly registered organization. Support of majority of operating at the enterprise level that acquired legal
employees in the organizational unit personality through registration with the Regional
office.48
SETTLEMENT OF WORK CONDITIONS
Trade union centers cannot form chapters. No law
NEGOTIABLE MATTERS 44 mentioning a trade union center as being among the
✓ Those NOT fixed by Law labor organizations allowed to charter. 49
✓ Vacation and leave schedules
✓ Work assignment of pregnant TRADE UNION CENTERS
✓ Recreational, social, athletic, and cultural Composed of group of registered national unions or
activities and facilities federations
NON-NEGOTIABLE MATTERS45 AFFILIATE
✓ Those requiring appropriation of funds Refers to an independent union affiliated with a
✓ Those fixed by Law federation, national union or a chartered local which
✓ Increase in salary and allowances was subsequently granted independent registration
✓ Car plan but did not disaffiliate from its federation, reported
✓ Special hospitalization to the regional office and the bureau.50
✓ Medical and dental services
✓ Increase in retirement benefits NATIONAL UNION OR FEDERATION
✓ Those involving exercise of management Refers to a group of legitimate labor unions in a
prerogatives private establishment organized for collective
✓ Appointment bargaining or for dealing with employers concerning
✓ Promotion terms and conditions of employment for their
✓ Assignment member unions or for participating in the
✓ Penalties as disciplinary action formulation of social and employment policies,
standards and programs, registered with the
The employees are no longer entitled to other Bureau.51
monetary benefits because these are already
covered by law (EO 180). Those covered by law Local union separate personality from federation.
CANNOT be subject to CNA.46 A local union maintains its separate personality
despite affiliation with a larger national
federation.52
PSLCM Resolution No. 02 (2003)
Only savings from operating expenses generated A.3.A NATURE OF RELATIONSHIP
after the signing of the Collective Negotiation
Agreement (CNA) can be used to pay for the CNA MEMBER-LABOR UNION, FIDUCIARY
incentive and improvement of benefits. The nature of the relationship between the union
and its members is one which is fiduciary in nature,
AFFILIATION AND DISAFFILIATION and arises out of two factors:
OF THE LOCAL UNION FROM THE (1) one is the degree of dependence of the
individual employee on the union organization;
MOTHER UNION and
AFFILIATION HAPPENS WHEN: (2) the comprehensive power vested in the union
(1) An independent union affiliates with a with respect to the individual.
federation
The union may be considered but the agent of its
(2) A chartered local gets independent registration members for the purpose of securing for them fair
and remains affiliated with the federation and just wages and good working conditions and is

PURPOSE: To increase collective bargaining power 47 IR, Book V, Rule I, Sec 1 (w)
48 IR, Book V, Rule I, Sec 1 (i)
49San Miguel Corp. Employees Union v San Miguel Packing, 533 SCRA

125 (2007).
44Sec.2, Rule VIII, IRR, EO No. 180 50 IR, Book V, Rule I, Sec 1(a)
45Sec. 3, id 51 IR, Book V, Rule I, Sec 1 (kk)
46Abanilla vs. Commission, 468 SCRA 87 (2005) 52Sugbuanon Rural Bank v Laguesma, G.R. No. 116194 (2000).

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LABOR RELATIONS 13 LABOR LAW

subject to the obligation of giving the members as fundamental law.57


its principals all information relevant to union and
labor matters entrusted to it. (Heirs of Cruz v. CIR, DISAFFILIATION
G.R. No. L-23331-32 (1969)) A local union may disaffiliate at any time from its
mother federation, absent any showing that the
FEDERATION-LOCAL RELATIONSHIP, AGENCY. same is prohibited under its constitution or rule.
The mother federation was a mere agent and the Such, however, does not result in it losing its legal
local chapter/union was the principal, personality altogether.
notwithstanding the failure of the local union to
comply with the procedural requirements that would The right of the local members to withdraw from the
make it a legitimate labor organization.53 federation and to form a new local union depends
Federation and union are separate entities. A local upon the provisions of the union's constitution, by-
union does not owe its existence to the federation laws and charter and, in the absence of enforceable
with which it is affiliated. It is a separate and provisions in the federation's constitution preventing
distinct voluntary association owing its creation to disaffiliation of a local union, a local may sever its
the will of its members. Mere affiliation does not relationship with its parent.58
divest the local union of its own personality, neither
does it give the mother federation the license to act Bar 1994
independently of the local union. It only gives rise to A local union has the right to disaffiliate from its
a contract of agency, where the former acts in mother union or declare its autonomy. A local union,
representation of the latter. Hence, local unions are being a separate and voluntary association, is free to
considered principals while the federation is deemed serve the interests of all its members including the
to be merely their agent.54 freedom to disaffiliate or declare its autonomy from
the federation to which it belongs when
Supervisory/Rank and File Union Affiliation circumstances warrant, in accordance with the
Rank-and-file union and supervisory union operating constitutional guarantee of freedom of association.59
within the same establishment may join the same
federation or national union.55 Disaffiliation not considered disloyalty. A local union
which has affiliated itself with a federation is free to
When local supervisors union not allowed to affiliate sever such affiliation anytime and such disaffiliation
with federation of rank-and-file union. To avoid a cannot be considered disloyalty. In the absence of
situation where supervisors would merge with the specific provisions in the federation’s constitution
rank-and-file or where the supervisors' labor prohibiting disaffiliation or the declaration of
organization would represent conflicting interests, autonomy of a local union, a local may dissociate
then a local supervisors' union should not be allowed with its parent union.60
to affiliate with a national federation of unions of
rank-and-file employees where that federation Disaffiliation, however, by a union that is not
actively participates in union activities in the independently registered is suicide.
company.
MASS DISAFFILIATION
Two conditions must concur: Certification election, most expeditious way to
• the rank-and-file employees are directly under determine SEBA after disaffiliation. Once the fact of
the authority of supervisory employees disaffiliation has been demonstrated beyond doubt,
• the national federation is actively involved in as in this case, a certification election is the most
union activities in the company56 expeditious way of determining which labor
organization is to be the exclusive bargaining
The affiliation of two local unions in a company with representative.61
the same national federation is not by itself a
negation of their independence since in relation to PERIOD
the employer, the local unions are considered as the Disaffiliation may be pursued at anytime as long as
principals, while the federation is deemed to be supported by 2/3 vote of general membership. As a
merely their agent. This conclusion is in accord with rule, a labor union may disaffiliate from the mother
the policy that any limitation on the exercise by union only within the freedom period. PD 1391 - “No
employees of the right to self-organization petition for certification election, for intervention
guaranteed in the Constitution must be construed and disaffiliation shall be entertained or given due
strictly. Workers should be allowed the practice of course except within the 60-day freedom period
this freedom to the extent recognized in the
57De La Salle University Medical Center v Laguesma, 294 SCRA 141
(1998).
53Filipino Pipe & Foundry Corp v NLRC, G.R. No. 115189 (1999). 58 Id.
54Coastal Subic Bay Terminal v DOLE, G.R. No. 157117 (2006). 59MSMG-UWP v Ramos, NLRC, G.R. No. 113907 (2000).
55 Article 255, Labor Code 60Supra note 79.
56Atlas Lithographic Services v Laguesma, 205 SCRA 12 (1992). 61Philippine Labor Alliance Council v BLR, 75 SCRA 163 (1977).

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LABOR RELATIONS 14 LABOR LAW

xxx.” However, under the Labor Code Art. 245-A, bargaining unit is the exclusive representative of the
disaffiliation may be carried out by a vote of 2/3 of employees in such unit for the purpose of collective
its general membership in a meeting duly called for bargaining, through CE or voluntary recognition.65
that purpose to dissolve the organization.62
DETERMINATION OF ABU
SUBSTITUTIONARY DOCTRINE Our labor laws do not however provide the criteria
The "substitutionary" doctrine only provides that the for determining the proper collective bargaining
employees cannot revoke the validly executed unit. Jurisprudence/case laws provide for different
collective bargaining contract with their employer by factors.66
the simple expedient of changing their bargaining
agent.63 WHO DETERMINES?
Initially, the members themselves. But if dispute
arises as regards appropriateness of ABU, it may be
B. BARGAINING UNIT referred to the BLR. Appropriateness may also be
resolved in a petition for certification election.
Test to determine the constituency of an
appropriate bargaining unit (ABU)
Art 267: Exclusive bargaining representation and
C. BARGAINING REPRESENTATIVE
workers’ participation in policy and decision-making C.1. DETERMINATION OF REPRESENTATION
The labor organization designated or selected by the STATUS
majority of the employees in an appropriate
collective bargaining unit shall be the exclusive The basic test in determining the appropriate
representative of the employees in such unit for the bargaining unit is that a unit, to be appropriate,
purpose of collective bargaining. However, an must affect a grouping of employees who have
individual employee or group of employees shall substantial, mutual interests in wages, hours,
have the right at any time to present grievances to working conditions and other subjects of collective
their employer. bargaining (citing Smith on Labor Laws, 316-317;
Francisco, Labor Laws, 162).67
BARGAINING UNIT, DEFINED.
Bar 1998 FACTORS
IR, Book V, Rule 1, Sec. 1(d) (1) Globe doctrine - Express will or desire of the
A group of employees sharing mutual interests within employees
a given employer unit, comprised of all or less than (2) Substantial Mutual Interests Rule - Affinity and
all of the entire body of employees in the employer Unity of the employees’ interest, such as
unit or any specific occupational or geographical substantial similarity of work and duties, or
grouping within such employer unit. similarity of compensation and working
conditions
Bar 2000, 2006 (3) Similarity of Employment status.
Exclusive Bargaining representative (4) Bargaining history – prior collective bargaining
refers to a legitimate labor union duly recognized or history
certified as the sole and exclusive bargaining
representative or agent of all the employees in a Bar 2007
bargaining unit. Community of interest
Not exactness of interests. Interrelatedness or
Where a union certified as EBA in a bargaining unit interdependence is sufficient.
had previously filed a case in representation not only
of its members but also of the members of a rival The basic test of an asserted bargaining unit’s
union, the latter’s members cannot subsequently acceptability is whether or not it is fundamentally
claim that they were not parties in the earlier the combination which will best assure to all
case.64 employees the exercise of their CB rights. 68

If union is not the exclusive representative of the The bargaining history factor is the weakest factor in
majority of the employees of petitioner, it cannot determining the bargaining unit. xxx The [Supreme
demand from employer the right to bargain Court] has categorically ruled that the existence of a
collectively in their behalf. xxx Only the labor prior collective bargaining history is neither decisive
organization designated or selected by majority of nor conclusive in the determination of what
the employees in an appropriate collective
65PhilDiamond Hotel v Manila Diamond Hotel EU, G.R. NO.158075
62Allianceof Nationalist v. Samana, 258 SCRA 371 (1996). (2006).
63 Cebu Portland Cement Co. vs. Cement Workers Union, 25 SCRA 66UP v Calleja, 211 SCRA 451 (1992).

504, Nos. L-25032 and L-25037-38 October 14, 1968 67Supra note 26.
68Democratic Labor Assoc. v. Cebu Stevedoring, 103 Phil 1103
64Militante v NLRC, 246 SCRA 365 (1995). (1958).

LA SALLIAN COMMISION ON BAR OPERATIONS


LABOR RELATIONS 15 LABOR LAW

constitutes an appropriate bargaining unit.69 METHODS OF ESTABLISHING MAJORITY


STATUS
What will best assure the employees’ rights to CB is
principal consideration. It is not the convenience of 1. Voluntary Recognition
the employer that constitutes the determinative 2. Certification Election
factor in forming an appropriate bargaining unit.70 3. Consent Election
4. Run-off Election
UNIT SEVERANCE AND GLOBE DOCTRINE
Bar 2007 POLICY/RATIONALE
Globe doctrine. Bargaining units may be formed Article 251.
through separation of new units from existing from A legitimate labor organization shall have the right:
existing ones whenever plebiscites had shown the (b) To be certified as the exclusive representative of
worker’s desire to have their own representatives.71 all the employees in an appropriate bargaining unit
for purposes of collective bargaining;

DUTY OF COURT TO CONDUCT PLEBISCITE 72 IR, Book V, Rule VI, Sec 1


No one would deny court’s right to full investigation Policy: it is the policy of the state to promote free
in arriving at a correct and conclusive finding of fact trade unionism through expeditious procedures
in order to deny or grant the petitions for CE. One governing the choice of an exclusive bargaining
way of determining the will of employees. Plebiscite agent. The determination of such exclusive
not to be conducted by the DOLE but by the court. bargaining agent is a non-litigious proceeding and, as
Order to hold plebiscite in interlocutory. far as practicable, shall be free from technicalities
of law and procedure, provided that in every case,
SIZE OF UNIT AND EFFECT OF SELF- the exclusive bargaining agent enjoys the majority
ORGANIZATION support of all the employees in the bargaining unit.
When confidential employees are few in number and
by practice and tradition identified with the Art 218(A) (b)
supervisors, such identity of interest should allow To promote free trade unionism as an instrument for
their inclusion in the bargaining unit of supervisors- the enhancement of democracy and the promotion
managers for purposes of CB. The breaking up of of social justice and development;
bargaining agents into tiny units will greatly impair
their organizational value – the ineffectiveness of a Constitution Art XIII, Sec 3: Labor
small union with scanty members as bargaining unit. The State shall afford full protection to labor, local
73
and overseas, organized and unorganized, and
promote full employment and equality of
EFFECT OF PRIOR AGREEMENT employment opportunities for all.
Prior agreement not binding to employees of
separate BU. A prior agreement (collective It shall guarantee the rights of all workers to self-
bargaining agreement) does not bind employees of a organization, collective bargaining and negotiations,
separate bargaining unit or if they are indeed part of and peaceful concerted activities, including the right
the bargaining unit. The agreement will not bind to strike in accordance with law. They shall be
subsequent federation or union if it curtails the right entitled to security of tenure, humane conditions of
to self-organization as guaranteed by the work, and a living wage. They shall also participate
Constitution and labor laws.74 in policy and decision-making processes affecting
their rights and benefits as may be provided by law.
DETERMINING AGENCY
BLR no longer handles all labor-management The State shall promote the principle of shared
disputes. Its functions and jurisdiction are largely responsibility between workers and employers and
confined to union matters, collective bargaining the preferential use of voluntary modes in settling
registry, and labor education disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrial peace.

The State shall regulate the relations between


workers and employers, recognizing the right of
69San
labor to its just share in the fruits of production and
Miguel v. Laguesma, G.R. No. 100485 (1994).
70Supra note 70. the right of enterprises to reasonable returns to
71Mechanical Departments Labor Union v. CIR, 24 SCRA 925 (1968). investments, and to expansion and growth.
72KapisananngmgaManggagawasa Manila Railroad Co. v Yard Crew

Union, 109 P 1143 (1960).


73Filoil refinery v. Filoil Supervisory & Confidential Employees

Assoc., G.R. No. L-26736 (1972) An employer does not have the power to declare a
74General Rubber v. BLR, 155 SCRA 283 (1997).

LA SALLIAN COMMISION ON BAR OPERATIONS


LABOR RELATIONS 16 LABOR LAW

union as the exclusive representative of its workers PUBLIC SECTOR


for the purpose of collective bargaining. Voluntary 1. VOLUNTARY RECOGNITION
recognition mere formality. 75 Section 11, EO No. 180: Sole and Exclusive
Employees’ Representative
1. VOLUNTARY RECOGNITION A duly registered employees’ organization shall be
Art 251 (c) accorded voluntary recognition upon a showing that
To be furnished by the employer, upon written no other employees’ organization is registered or is
request, with its annual audited financial seeking registration, based on records of the Bureau
statements, including the balance sheet and the of Labor Relations, and that the said organization
profit and loss statement, within thirty (30) calendar has the majority support of the rank-and-file
days from the date of receipt of the request, after employees in the organizational unit.
the union has been duly recognized by the employer
or certified as the sole and exclusive bargaining Where there is only one registered organization in
representative of the employees in the bargaining the unit, they may be accorded voluntary
unit, or within sixty (60) calendar days before the recognition.
expiration of the existing collective bargaining
agreement, or during the collective bargaining CONDITIONS:
negotiation; Proven that there is no other employees’
organization registered or seeking registration in the
DEFINED unit (based on the records of BLR)
The process by which a legitimate labor union is
recognized by the employer as the exclusive This organization must have the majority support of
bargaining representative or agent in a bargaining the rank-and-file employees in the unit.
unit, reported with the Regional Office in
accordance with rule vii, sec 2 of these rules. 2. CERTIFICATION ELECTION
Bar 2001, 2003, 2004, 2005, 2013
REQUIREMENTS IR, Book V, Rule I, Sec 1 (h)Certificate election or
Unorganized establishment – no certified exclusive consent election
bargaining representative refers to the process of determining through secret
• Only 1 union operating in the bargaining unit ballot the sole and exclusive representative of the
• if more than 1 union, a CE must be conducted employees in an appropriate bargaining unit for
• Union is a majority union (51%) purposes of collective bargaining or negotiation. a
certification election is ordered by the department,
EFFECTS while a consent election is voluntarily agree upon by
(1) The recognized labor union enjoy all rights of an the parties, with or without the intervention by the
exclusive bargaining agent department.
(2) Has the right to compel management to bargain
with it NATURE OF PROCEEDING
(3) One year period bar from entry of voluntary Certification election is not litigation but a mere
recognition will be placed allowing no investigation of a non-adversary character where the
certification election to be filed within that one rules of procedure are not strictly applied. Technical
year. rules and objections should not hamper the correct
ascertainment of the labor union that has the
support of confidence of the majority of the workers
and is thus entitled to represent them in their
dealings with management.76

Bar 2012
WHO MAY FILE
A petition for CE may be filed by a legitimate labor
union in an unorganized establishment.

Med-arbiter must automatically order the conduct of


CE in an unorganized establishment upon filing of a
petition for CE by a legitimate labor union.77

75Samahang Manggagawa sa PREMEX v Sec of Labor, G.R. No. 10772 76Port Workers Union v DOLE, 207 SCRA 329 (1992).
(1998). 77Sugbuanon Rural Bank v Laguesma, G.R. No. 116194 (2000).

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LABOR RELATIONS 17 LABOR LAW

EMPLOYER MAY ALSO BE AN INITIATING PARTY PURPOSE:


(BYSTANDER RULE) • Find out if employees want to be represented;
Bar 1996 • Which union should be certified
Art 270.When an employer may file petition.
When requested to bargain collectively, an employer IN AN UNORGANIZED ESTABLISHMENT
may petition the Bureau for an election. If there is Art 269. Petitions in unorganized establishments.
no existing certified collective bargaining agreement In any establishment where there is no certified
in the unit, the Bureau shall, after hearing, order a bargaining agent, a certification election shall
certification election. automatically be conducted by the Med-Arbiter upon
the filing of a petition by a legitimate labor
All certification cases shall be decided within twenty organization. (As amended by Section 24, Republic
(20) working days. Act No. 6715, March 21, 1989)

The Bureau shall conduct a certification election Article 263 of the Labor Code mandates that a
within twenty (20) days in accordance with the rules certification election shall automatically be
and regulations prescribed by the Secretary of Labor. conducted by the Med-Arbiter upon the filing of a
petition by a legitimate labor organization. Nothing
Art 271. Employer as Bystander. is said therein that prohibits such automatic conduct
In all cases, whether the petition for certification of the certification election if the management
election is filed by an employer or a legitimate labor appeals on the issue of the validity of the union's
organization, the employer shall not be considered a registration.80
party thereto with a concomitant right to oppose a
petition for certification election. The employer’s Since no certified bargaining agent represented the
participation in such proceedings shall be limited to: supervisory employees, PT&T may be deemed an
unorganized establishment within the purview of
being notified or informed of petitions of such Art. 257 of the Labor Code. xxx The fact that
nature; and petitioner's rank-and-file employees were already
represented by a certified bargaining agent does not
submitting the list of employees during the pre- make PT&T an organized establishment vis-a-vis the
election conference should the Med-Arbiter act supervisory employees. After all, supervisory
favorably on the petition. (As amended by Section employees are "not . . . eligible for membership in a
12, Republic Act No. 9481 which lapsed into law on labor organization of the rank-and-file employees."81
May 25, 2007 and became effective on June 14,
2007). IN AN ORGANIZED ESTABLISHMENT
Organized establishment, defined
Employer no standing to question petition for CE. Refers to an enterprise where there exists a
Employer not a party to certification election which recognized or certified sole and exclusive bargaining
is the sole or exclusive concern of the workers agent.82
except when workers request to bargain collectively.
Employer may not question the validity of a CE. 78 PETITION BEFORE FREEDOM PERIOD
Art 264. Duty to bargain collectively when there
Except where the employer has to file a petition for exists a collective bargaining agreement.
certification election pursuant to Article 258 of the When there is a collective bargaining agreement, the
Labor Code because of a request to bargain duty to bargain collectively shall also mean that
collectively, it has nothing to do with a certification neither party shall terminate nor modify such
election which is the sole concern of the workers. Its agreement during its lifetime. However, either party
role in a certification election has aptly been can serve a written notice to terminate or modify
described in Trade Unions of the Philippines and the agreement at least sixty (60) days prior to its
Allied Services (TUPAS) v. Trajano, as that of a mere expiration date. It shall be the duty of both parties
by-stander. It has no legal standing in a certification to keep the status quo and to continue in full force
election as it cannot oppose the petition or appeal and effect the terms and conditions of the existing
the Med-Arbiter's orders related thereto. An agreement during the 60-day period and/or until a
employer that involves itself in a certification new agreement is reached by the parties.
election lends suspicion to the fact that it wants to
create a company union.79

Voting is done by secret ballot ordered by the DOLE.

80Sugbuanon Rural Bank v Laguesma, G.R. No. 116194 (2000).


78Hercules Industries, Inc. v SOLE, 214 SCRA 129 (1992). 81Philippine Telegraphic v Laguesma, 223 SCRA 452 (1993).
79Philippine Scouts, et al., v Torres, 224 SCRA 682 (1993). 82 IR, Book V, Rule 1, Sec. 1 (ll)

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LABOR RELATIONS 18 LABOR LAW

CONTRACT BAR RULE


Bar 1999, 2000 Bar 2009
Contract bar rule. Existing CBA bars any other labor SUBSTANTIAL SUPPORT
organization from filing a petition for CE except 25% consent signatures requirement may be
within 60-day freedom period.83 belatedly submitted. We feel that the administrative
rule requiring the simultaneous submission of the
25% consent signatures upon the filing of petition for
PETITION BEYOND FREEDOM PERIOD certification election should not be strictly applied
Purpose of prohibition of filing petition for CE to frustrate the determination of the legitimate
beyond freedom period. Otherwise put, the rule representative of the workers. Significantly, the
prohibits the filing of a petition for certification requirement in the rule is not found in Article 268,
election during the existence of a collective the law it seeks to implement. This is all the more
bargaining agreement except within the freedom reason why the regulation should at best be given
period, as it is called, when the said agreement is only a directory effect. Accordingly, we hold that
about to expire. The purpose, obviously, is to ensure the mere filing of a petition for certification
stability in the relationships of the workers and the election within the freedom period is sufficient
management by preventing frequent modifications of basis for the issuance of an order for the holding of
any collective bargaining agreement earlier entered a certification election, subject to the submission of
into by them in good faith and for the stipulated the consent signatures within a reasonable period
original period.84 from such filing.87

CBA automatically renewed until new agreement Whether retractions were before or after the filing
reached. It shall be the duty of both parties to keep of the petition for CE has not much relevance. The
the status quo and to continue in full force and rule being followed in case of alleged retractions and
effect the terms and conditions of the existing withdrawals, as appellant correctly pointed out, is
agreement during the 60-day period or until a new that the best forum for determining whether there
agreement is reached by the parties.85 was indeed retractions is the certification election
itself wherein the workers can freely express their
FORM OF PETITION choice in a secret ballot.88
(1) Must be in writing
(2) Verified under oath Forced intervention/Motion for intervention
(3) Members and officers list Incumbent union, forced intervenor. By force of law,
(4) Description of the bargaining unit an incumbent union is automatically impleaded in a
petition for CE as well as other contending choices.
Statement indicating that:
(1) bargaining unit is unorganized or there is no Written consent of at least 20% of the BU applies to
registered collective bargaining agreement; petition for CE only. It is crystal clear from the said
(2) petition is filed within 60-day freedom period, if provisions that the requisite written consent of at
there exists existing CBA; least 20% of the workers in the bargaining unit
(3) petition is filed outside the 1-year period from applies to petitioners for certification election only,
date of recording of voluntary recognition or and not to motions for intervention. Nowhere in the
conduct of CE or run-off and no appeal is aforesaid legal provisions does it appear that a
pending, if another union had been previously motion for intervention in a certification election
recognized voluntarily or certified in a valid must be accompanied by a similar written consent.89
certification. Signature support of at least 25%
of all employees of the APU RESPONSIBLE AGENCIES
• BLR and med-arbiters (original jurisdiction)
Rules of procedure not binding on labor cases. • DOLE (regional offices)
Verification of pleadings is not a formal
jurisdictional requirement. When all requirements REQUISITE FOR VALIDITY OF
have been complied with, it is incumbent upon the ELECTION/FAILURE OF ELECTION
med-arbiter to order a CE to be conducted.86 Majority of all eligible voters must cast their votes.
Less than majority = failure of election. Re-election
may be had upon appeal of any of the unions to be
held within 6 months after the first election.

83Atlantic Gulf and Pacific Co. Manila Inc. v. Laguesma, 212 SCRA Election null and void because members of
281 (1992).
84National Congress of Union in Sugar Industry v Ferrer – Calleja, 205

SCRA 478 (1992). 87Port Workers Union v DOLE, 207 SCRA 329 (1992).
85 Supra note 55. 88Oriental Tin Can Labor Union v SOLE, 294 SCRA 640 (1998).
86National Mines and Allied Workers Union v SOLE, 227 SCRA 821 89Philippine Association of Free Labor Union v Calleja, 169 SCRA 491

(1993). (1989).

LA SALLIAN COMMISION ON BAR OPERATIONS


LABOR RELATIONS 19 LABOR LAW

cooperative (ineligible to vote) were allowed to vote APPEAL


in the election.90 Art 272. Appeal from certification election orders.
Any party to an election may appeal the order or
Effect of private agreement results of the election as determined by the Med-
Private agreement not binding to foreclose the Arbiter directly to the Secretary of Labor and
petition for CE.91 Employment on the ground that the rules and
• Posting notice regulations or parts thereof established by the
• Notice of pre-election conference Secretary of Labor and Employment for the conduct
• Voters’ list of the election have been violated. Such appeal shall
• Optional: sample ballot be decided within fifteen (15) calendar days. (As
amended by Section 25, Republic Act No. 6715,
Posting of notice may not be waived. March 21, 1989)

VOTER'S LIST “Close of election proceedings”, meaning. Period


IR, Book V, Rule IX, Sec 5 from the closing of the polls to the counting and
All employees who are members of the appropriate tabulation of the votes as it could not have been the
bargaining unit sought to be represented by the intention of IR to include the term the period for the
petitioner at the time of the issuance of the order final determination of the challenged votes and
granting the conduct of a certification election shall canvas.94
be eligible to vote. An employee who has been
dismissed from work but has contested the legality NULLIFICATION OF ELECTION RESULTS
of the dismissal in a forum of appropriate A general allegation of duress is not sufficient to
jurisdiction at the time of the issuance of the order invalidate a CE. It must be shown by competent and
for the conduct of a certification election shall be credible proof. xxx One’s religious convictions may
considered a qualified voter, unless his/her dismissal be the basis for an employee joining or refusing to
was declared valid in a final judgment at the time of join a labor union; Exercise of constitutional
the conduct of the certification election. freedom cannot be a ground to invalidate CE.95

In case of disagreement over the voters’ list or over Bar 2011


the eligibility of voters, all contested voters shall be (1) Bar to Certification Election
allowed to vote. But their votes shall be segregated One year bar/certification year rule
and sealed in individual envelopes in accordance CE is barred if there is voluntary recognition or a
with Sections 10 and 11 of this Rule. valid CE, or consent or run-off election within a
year prior to filing of the petition for CE
Employees with questioned dismissal are still (2) Negotiation bar rule
qualified to vote. Need not be resolved before CE be CE barred if union has commenced and
conducted.92 sustained negotiations in good faith within 1
year
Dismissed employees may vote. Without a final (3) Deadlock bar rule
judgment declaring the legality of dismissal, CB deadlock: failure in CB negotiations resulting
dismissed employees are eligible or qualified voters in a stalemate. CE barred if a bargaining
deadlock had been submitted to conciliation or
ELECTION PROCEEDINGS arbitration or had become subject of a valid
refers to the period during a certification election, notice of strike or lockout. Exception: there was
consent or run-off election and election of union no reasonable effort at good faith bargaining
officers, starting from the opening to the closing of (4) Contract bar rule
the polls, including the counting, tabulation and CE barred if outside the 60-day freedom period
consolidation of votes but excluding the period for immediately before the date of expiry of such 5-
final determination of the challenged votes and the year term of the CBA
canvas thereof.
SUSPENSION OF CERTIFICATION ELECTION:
Waiver of protest. Grounds of protests not raised PREJUDICIAL QUESTION
before the close of the proceedings and duly Anterior to the granting of an order allowing a CE, it
formalized within 5 days after the close of the becomes necessary to inquire into the composition of
election proceedings are deemed waived.93 labor organization whenever status of the labor
organization is challenged on the basis of art (
262.96

90Bengeut Electric Coop v Calleja, 180 SCRA 740 (1989).


91PLUM Federation v Noriel, 119 SCRA 299 (1982). 94PhilFruits and Vegetable Industries v Torres, 211 SCRA 95 (1992).
92Transport Corp v Laguesma, 227 SCRA 827 (1993). 95United Employees Union of Gelmart v Noriel, 67 SCRA 267 (1975).
93SamahanngManggagawa v Laguesma, 267 SCRA 303 (1997). 96Dunlop Slazenger v SOLE, G.R. No. 131248 (1998).

LA SALLIAN COMMISION ON BAR OPERATIONS


LABOR RELATIONS 20 LABOR LAW

Opposition CONDITIONS FOR RUN-OFF


Non-submission of books of account is a ground to ✓ Two labor unions receiving highest number of
oppose a petition for CE by the local or chapter votes in a certification or consent election with
concerned.97 3 or more choices;
✓ No labor union receiving majority of the votes
Effect of Petition for Cancellation of Trade Union cast;
Registration ✓ Total number of votes for all contending unions
An order to hold a certification election is proper = at least 50% of the number of votes cast
despite the pendency of the petition for
cancellation of the registration certificate of the
respondent union.xxx The pendency of a petition for 4. CONSENT ELECTION
cancellation of union registration does not preclude Bar 2000, 2004
CB. 98 IR, Book V, Rule VIII, Sec 10. Consent election;
agreement
PUBLIC SECTOR in case the contending unions agree to a consent
RECOGNITION AFTER CERTIFICATION ELECTION election, the med-arbiter shall not issue a formal
Section 12, EO No. 180: Sole and Exclusive order calling for the conduct of certification
Employees’ Representative election, but shall enter the fact of the agreement
Where there are two or more duly registered in the minutes of hearing. The minutes of the
employees’ organizations in the appropriate hearing shall be signed the parties and attested to
organizational unit, the Bureau of Labor Relations by the Med-Arbiter. Med-Arbiter shall, immediately
shall, upon petition, order the conduct of a thereafter, forward records of the petition to the
certification election and shall certify the winner as Regional Director or his/her authorized
the exclusive representative of the rank-and-file representative for the determination the election
employees in said organizational unit. officer by the contending unions through raffle. The
first pre-election conference shall be scheduled
Where there are two or more unions in the within ten days from the date of entry of agreement
bargaining unit, a Certification Election must take to conduct consent election.
place
IR, Book V, Rule VIII, Sec 11. Number of hearings;
CERTIFICATION ELECTION pleadings
“Accreditation” – if the contending unions fail to agree to a consent
• Whoever gets accredited will be the exclusive election during the preliminary conference, the
representative of the unit med-arbiter may conduct as many hearings as
• May be conducted by the BLR he/she may deem necessary, but in no case shall the
conduct thereof exceed 15 days from the date of the
Whether the employees of National Housing schedule preliminary conference/hearing, after
Corporation are covered by the Labor Code or by the which time petition shall be considered submitted
civil service laws, a certification election may be for decision. Med-arbiter shall have control of the
conducted.99 proceedings. Postponements of continuances shall be
discouraged.
3. RUN-OFF ELECTION
Definition Within the same 15-day period within which the
Bar 2000, 2006 petition is heard, the contending labor unions may
Art 268 par 1 penultimate sentence file such pleadings as they may deem necessary for
IR, Book V, Rule I, Sec 1 (ss) the immediate resolution of the petition. Extensions
an election between the labor unions receiving the of time shall not be entertained. All motion shall be
two highest number of votes in a certification or resolved by the med-arbiter in the same order or
consent election with 3 or more choices, where such decision granting or denying the petition
a certified or consent results in none of the 3 or
more choices receiving the majority of the valid vote
cast; provided that the total number of votes for all CONSENT ELECTION
contending unions is at least 50% of the number of • Not ordered by the DOLE
votes cast. • Agreed upon by the parties, with or without the
intervention of the DOLE

EFFECTS
IR, Book V, Rule VIII, Sec 23. Effects of consent
97ProtectionTechnology v SOLE, 242 SCRA 99 (1995).
98Legend International v KilusangManggagawangLegenda, G.R. No.
election
169754 (2011). where a petition for certification election had been
99Trade Unions of the Philippines and Allied Services vs. National filed, and upon the intercession of the Med-Arbiter,
Housing Corporation, GR No. 49677 (1989)

LA SALLIAN COMMISION ON BAR OPERATIONS


LABOR RELATIONS 21 LABOR LAW

the parties agree to hold a consent election, the


results thereof shall constitute a bar to the holding Bar 1997, 2001, 2002
of a certification election for one year from the Art 250 (n), (o)
holding of such consent election. Where an appeal (n) No special assessment or other extraordinary fees
has been filed from the results of the consent may be levied upon the members of a labor
election, the running of the one-year period shall be organization unless authorized by a written
suspended until the decision on appeal has become resolution of a majority of all the members in a
final and executory. general membership meeting duly called for the
purpose. The secretary of the organization shall
Where no petition for certification election was filed record the minutes of the meeting including the list
but the parties themselves agree to hold a consent of all members present, the votes cast, the purpose
election with the intercession of the Regional Office, of the special assessment or fees and the recipient
the result thereof shall constitute a bar to another of such assessment or fees. The record shall be
petition for certification election attested to by the president.

D. RIGHTS OF LABOR ORGANIZATION (o) Other than for mandatory activities under the
Code, no special assessments, attorney’s fees,
D.1. CHECK OFF, ASSESSMENT, AGENCY FEES negotiation fees or any other extraordinary fees may
UNION DUES AND SPECIAL be checked off from any amount due to an employee
without an individual written authorization duly
ASSESSMENTS
signed by the employee. The authorization should
RIGHT OF MEMBERS AS REGARDS UNION FUNDS specifically state the amount, purpose and
(ART 250, LC) beneficiary of the deduction;
✓ To full and detailed financial reports (250-b)
✓ To audited, verified financial statements (250-l) PAYMENT OF ATTORNEYS FEES
✓ To inspect books of accounts (250-m) Art 228 (b) Appearances and Fees
✓ To fiscal officers duly authorized by constitution No attorney’s fees, negotiation fees or similar
and by-laws (250-g) charges of any kind arising from any collective
✓ To fiscal officers reported to the SOLE (250-g) bargaining agreement shall be imposed on any
✓ To fiscal officers who are not scoundrels (250-f) individual member of the contracting union:
✓ To have members payment receipted (250-h) Provided, However, that attorney’s fees may be
✓ To have income and expenses properly charged against union funds in an amount to be
documented (250-j) agreed upon by the parties. Any contract, agreement
✓ To have funds used for authorized purposes only or arrangement of any sort to the contrary shall be
(247-i) null and void. (As amended by Presidential Decree
No. 1691, May 1, 1980)
Bar 2009, 2011
Art. 289. Visitorial power. Payment of attorney’s fees is an obligation of the
The Secretary of Labor and Employment or his duly union, not the employees. Attorney’s fees must be
authorized representative is hereby empowered to charged with the union funds, not on individual
inquire into the financial activities of legitimate members. Art 222 intended to protect employee
labor organizations upon the filing of a complaint against unwarranted practices that would diminish
under oath and duly supported by the written his compensation without his consent.100
consent of at least twenty percent (20%) of the total
membership of the labor organization concerned and REQUIREMENTS FOR SPECIAL ASSESSMENTS
to examine their books of accounts and other ✓ Authorization by written resolution of general
records to determine compliance or non-compliance membership at a general membership meeting
with the law and to prosecute any violations of the ✓ Secretary's record of the minutes
law and the union constitution and by-laws: ✓ Individual written authorization for check-off
Provided, That such inquiry or examination shall not signed by employee
be conducted during the sixty (60)-day freedom
period nor within the thirty (30) days immediately CHECK OFF
preceding the date of election of union officials. (As The method of deducting from an employer's pay,
amended by Section 31, Republic Act No. 6715, the amounts due to the union for fees, fines or
March 21, 1989) assessments
Substantial compliance not sufficient. Failure of the
union to comply strictly with the requirements set
UNION DUES, DEFINED out by the law invalidates the questioned special
Are payments to meet the union’s general and assessment. Substantial compliance is not enough in
current obligations. Payment must be regular,
periodic and uniform.
100Pacific Banking Corporation v Clave, 128 SCRA 112 (1984).

LA SALLIAN COMMISION ON BAR OPERATIONS


LABOR RELATIONS 22 LABOR LAW

view of the fact that special assessment will diminish industrial peace. It is a mutual responsibility of the
the compensation of union members.101 employer and the Union and is characterized as a
legal obligation.103
Attorney’s fees cannot be deducted without
employee’s written consent. Clearly, attorney’s fees CB does not end with negotiation.
may not be deducted or checked off from any Collective bargaining does not end with the
amount due to an employee without his written execution of the agreement. It is a continuous
consent. Xxx No deduction can be made from the process.
salaries of the concerned employees other than
those mandated by law.102 Ensures workers’ participation in decision-making.
CB is a way to ensure workers’ participation in
D.2. COLLECTIVE BARGAINING decision-making. It provides for an orderly procedure
by which each side can seek to present to the other
Art 218-A(a) best possible case for satisfaction of particular
It is the policy of the State: demands and elicits the consent of those who will
To promote and emphasize the primacy of free have to live under the terms of any agreement
collective bargaining and negotiations, including derived from the bargaining process.
voluntary arbitration, mediation and conciliation, as
modes of settling labor or industrial disputes; Xxx WHEN THERE IS ABSENCE OF A CBA
Art 218-B DUTY TO BARGAIN
To encourage a truly democratic method of The mutual obligation of the employer and SEBA to
regulating the relations between the employers and meet and convene
employees by means of agreements freely entered
into through collective bargaining, no court or The purposes of the meeting and convening are:
administrative agency or official shall have the (1) To negotiate an agreement on wages, hours of
power to set or fix wages, rates of pay, hours of work, and all other terms and conditions of
work or other terms and conditions of employment, employment, including mandatory provisions for
except as otherwise provided under this Code. (As grievances and arbitration machineries
amended by Section 3, Republic Act No. 6715, March (2) To execute a contract incorporating such
21, 1989) agreement
Constitution; Article XIII, Section 3
Xxx KIND OF COMPLIANCE
It shall guarantee the rights of all workers to self- “prompt, expeditious, in good faith”
organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right LIMITATIONS
to strike in accordance with law. They shall be “no compulsion on either party to agree to a
entitled to security of tenure, humane conditions of proposal or to make a concession.”
work, and a living wage. They shall also participate
in policy and decision-making processes affecting HOW TO BARGAIN IN GOOD FAITH
their rights and benefits as may be provided by law. To deal with each other, openly, with a sincere
desire to negotiate
The State shall promote the principle of shared
responsibility between workers and employers and “Good faith can be inferred from the totality of the
the preferential use of voluntary modes in settling circumstances involved in the negotiation”
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster EFFECT OF BAD FAITH BARGAINING
industrial peace. The award of adoption of Union proposal as the CBA
Xxx (i.e., Kiok Loy v NLRC, Divine Word v SOLE, General
Milling ILU v General Milling Corp).Must not let
D.2. A. DUTY TO BARGAIN management bargain in bad faith without impunity.
COLLECTIVELY
Refusal to make counter proposal indication of bad
Collective bargaining, democratic means; a mutual faith. Refusal to make a counter proposal to the
obligation of employer and union. Collective union’s proposal for CBA negotiation is an indication
bargaining, which is defined as negotiation towards of its bad faith. Where the employer did not even
collective agreement, is one of the most democratic bother to submit an answer to the bargaining
frameworks under the New Labor Code, designed to proposals of the union, there is a clear evasion of
stabilize the relation between labor and the duty to bargain collectively.104
management and to create a sound and stable
103Kiok
Loy v NLRC, 141 SCRA 179 (1986).
101Palacol v Ferrer-Calleja, 182 SCRA 710 (1990). 104General Milling ILU v General Milling Corp., G.R. Nos.
102Gabriel v Sec of Labor, G.R. No. 115949 (2000) 183122/183889 (2011).

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LABOR RELATIONS 23 LABOR LAW

work or other terms and conditions of employment,


WHEN THERE IS A CBA except as otherwise provided under this Code. (As
Art 264. Duty to bargain collectively when there amended by Section 3, Republic Act No. 6715, March
exists a collective bargaining agreement. 21, 1989)
When there is a collective bargaining agreement, the Constitution; Article XIII, Section 3
duty to bargain collectively shall also mean that Xxx
neither party shall terminate nor modify such
agreement during its lifetime. However, either party It shall guarantee the rights of all workers to self-
can serve a written notice to terminate or modify organization, collective bargaining and negotiations,
the agreement at least sixty (60) days prior to its and peaceful concerted activities, including the right
expiration date. It shall be the duty of both parties to strike in accordance with law. They shall be
to keep the status quo and to continue in full force entitled to security of tenure, humane conditions of
and effect the terms and conditions of the existing work, and a living wage. They shall also participate
agreement during the 60-day period and/or until a in policy and decision-making processes affecting
new agreement is reached by the parties. their rights and benefits as may be provided by law.

DUTY TO BARGAIN The State shall promote the principle of shared


All of the duties where there is no CBA yet, plus the responsibility between workers and employers and
obligation not to terminate or modify the CBA during the preferential use of voluntary modes in settling
its lifetime. disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
CBA is the law between the parties. There can be no industrial peace.
unilateral modifications in the CBA. 105
NATURE AND PURPOSE
Bargaining requires good faith. The duty to bargain Collective bargaining, democratic means; a mutual
requires that the parties deal with each other with obligation of employer and union. Collective
open and fair minds. A sincere endeavor to overcome bargaining, which is defined as negotiation towards
obstacles and difficulties that may arise, so that collective agreement, is one of the most democratic
employer-employee relations may be stabilized and frameworks under the New Labor Code, designed to
industrial strife eliminated, must be apparent. stabilize the relation between labor and
Respondents cannot invoke the beneficial provisions management and to create a sound and stable
of the 1987 CBA but disregard the concessions it industrial peace. It is a mutual responsibility of the
voluntary extended to petitioner. The goal of employer and the Union and is characterized as a
collective bargaining is the making of agreements legal obligation.107
that will stabilize business conditions and fix fair
standards of working conditions.106 CB does not end with negotiation.
Collective bargaining does not end with the
Duty to keep the status quo and to continue in full execution of the agreement. It is a continuous
force and effect the terms and conditions of the CBA process.
during the 60-day period and/or until a new
agreement is reached Ensures workers’ participation in decision-making.
CB is a way to ensure workers’ participation in
D.2.B. COLLECTIVE BARGAINING decision-making. It provides for an orderly procedure
AGREEMENT (CBA) by which each side can seek to present to the other
best possible case for satisfaction of particular
Art 218-A(a) demands and elicits the consent of those who will
It is the policy of the State: have to live under the terms of any agreement
To promote and emphasize the primacy of free derived from the bargaining process.
collective bargaining and negotiations, including
voluntary arbitration, mediation and conciliation, as BARGAINABLE ISSUES
modes of settling labor or industrial disputes; Xxx Art 263 Meaning of duty to bargain collectively.
Art 218-B The duty to bargain collectively means the
To encourage a truly democratic method of performance of a mutual obligation to meet and
regulating the relations between the employers and convene promptly and expeditiously in good faith for
employees by means of agreements freely entered the purpose of negotiating an agreement with
into through collective bargaining, no court or respect to wages, hours of work and all other terms
administrative agency or official shall have the and conditions of employment including proposals
power to set or fix wages, rates of pay, hours of for adjusting any grievances or questions arising
under such agreement and executing a contract
105Faculty
Association of Mapua v CA, 254 SCRA 709 (2007).
106P.I.
Manufacturing Inc. v P.I. Manufacturing Supervisors and
Foremen Association, 543 SCRA 613 (2008). 107Kiok Loy v NLRC, 141 SCRA 179 (1986).

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LABOR RELATIONS 24 LABOR LAW

incorporating such agreements if requested by either plan, is a valid CBA issue.109


party but such duty does not compel any party to
agree to a proposal or to make any concession. Bar 2004
CBA INTERPRETATION
MANDATORY PROVISIONS OF CBA How interpreted. The CBA is the law between the
Bar 1996, 1997 contracting parties — the collective bargaining
Mandatory subjects of bargaining representative and the employer-company.
• Statutory or mandatory proposals Compliance with a CBA is mandated by the
• Employer’s refusal to negotiate mandatory expressed policy to give protection to labor. In the
subjects of bargaining is ULP. same vein, CBA provisions should be "construed
liberally rather than narrowly and technically, and
Examples of mandatory subjects the courts must place a practical and realistic
• Terms and conditions of employment construction upon it, giving due consideration to the
• Wages and other types of compensation context in which it is negotiated and purpose which
• Hours of work it is intended to serve." This is founded on the
dictum that a CBA is not an ordinary contract but
• Vacation and holiday; bonus
one impressed with public interest. 110
• Bonuses
• Pensions and retirement plan
Promise not incorporated in CBA cannot be validly
• Seniority
demanded under the law. It goes without saying,
• Transfer however, that only provisions embodied in the CBA
• Lay-offs should be so interpreted and complied with. Where a
• Employee workload proposal raised by a contracting party does not find
• Work load rules and regulations print in the CBA, it is not a part thereof and the
• Rent of company houses proponent has no claim whatsoever to its
• Union security arrangement implementation.
• Code of conduct
Bar 1999, 2001, 2008
PERMISSIBLE ISSUES The CBA must be implemented in good faith during
When a subject under discussion is NOT MANDATORY, its lifetime, even if the parties are negotiating a new
it may be discussed if both parties agree, BUT a CBA. The implementation may exceed the CBA’s
strike or lockout may not be used to compel lifetime if no CBA was agreed upon in which case the
negotiation or agreement. CBA is automatically renewed.

Wages, hours of work and all other terms and Provisions of the imposed CBA continues to have full
conditions of employment. A collective bargaining force and effect until a new CBA has been entered
agreement refers to the negotiated contract into by the parties. Article 259 mandates the parties
between a legitimate labor organization and the to keep the status quo and to continue in full force
employer concerning wages, hours of work and all and effect the terms and conditions of the existing
other terms and conditions of employment in a agreement during the 60-day period prior to the
bargaining unit, including mandatory provisions for expiration of the old CBA and/or until a new
grievances and arbitration machineries. As in all agreement is reached by the parties.111
other contracts, the parties in a CBA may establish
such stipulations, clauses, terms and conditions as BARGAINING PROCEDURE
they may deem convenient provided they are not Art. 261. Procedure in collective bargaining.
contrary to law, morals, good customs, public order The following procedures shall be observed in
or public policy. Xxx provision in the CBA condoning collective bargaining:
the implementation of the Wage Order is void as When a party desires to negotiate an agreement, it
only the Tripartite Wage Productivity Board of the shall serve a written notice upon the other party
DOLE could approve exemption of an establishment with a statement of its proposals. The other party
from the coverage of a Wage Order.108 shall make a reply thereto not later than ten (10)
calendar days from receipt of such notice;
Retirement plan valid CBA issue. The fact that the
retirement plan is non-contributory, i.e. employees Should differences arise on the basis of such notice
contribute nothing to the operation of the plan, does and reply, either party may request for a conference
not make it a non-issue in the CBA negotiations. xxx which shall begin not later than ten (10) calendar
Since the retirement plan has been an integral part days from the date of request.
of the CBA since 1972, the union’s demand to
increase the benefits due the employees under said
109Union of Filipro Employees-Drug v Nestle, G.R. No. 158930-31
(2006).
110SamahanngManggagawasa Top Form v NLRC, 295 SCRA 171 (1998).
108Manila Fashions, Inc. v NLRC, 264 SCRA 104 (1996). 111Supra note 87.

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LABOR RELATIONS 25 LABOR LAW

December 31, 2011(expiry), the effectivity of the


If the dispute is not settled, the Board shall new CBA shall be from January 1, 2012. End of 6-
intervene upon request of either or both parties or month period of negotiation – June 30, 2012. If the
at its own initiative and immediately call the parties new CBA is agreed upon beyond June 30, 2012, the
to conciliation meetings. The Board shall have the effectivity of the new CBA shall be agreed upon by
power to issue subpoenas requiring the attendance the parties.
of the parties to such meetings. It shall be the duty
of the parties to participate fully and promptly in Conferences may either result in an agreement or a
the conciliation meetings the Board may call; deadlock.
If there is a deadlock, a notice of strike or lock-out
During the conciliation proceedings in the Board, the (NSL) may be filed as the case may be;
parties are prohibited from doing any act which may
disrupt or impede the early settlement of the If no NSL has been filed:
disputes; and ✓ NCMB Conciliation. At the request of any of the
parties, the NCMB may interfere for preventive
The Board shall exert all efforts to settle disputes mediation.
amicably and encourage the parties to submit their ✓ The NCMB shall exert all efforts to settle the
case to a voluntary arbitrator. (As amended by dispute.
Section 20, Republic Act No. 6715, March 21, 1989)
The conciliator is not a judge, he shall not rule on
Art. 262. Duty to bargain collectively in the absence the dispute.
of collective bargaining agreements.
In the absence of an agreement or other voluntary Information obtained in the conciliation proceedings
arrangement providing for a more expeditious are privileged communication. It cannot be used in
manner of collective bargaining, it shall be the duty any NLRC litigation.
of employer and the representatives of the
employees to bargain collectively in accordance with During conciliation, parties are prevented from doing
the provisions of this Code. any acts that could prevent settlement of the
dispute or could be disruptive. This is to give the
conciliator a chance to really settle the dispute.
WHEN TO FILE WRITTEN NOTICE OF INTENT
✓ During the certification period (year) If not resolved in conciliation, the deadlock may
result to:
Notice of intent must be submitted with the Union (1) Voluntary arbitration
proposal. (2) Assumption of jurisdiction (AJ) of the SOLE
(3) Strike or lock out
If there is a CBA in place, written notice must be
served 60 days prior to expiry. Courts are not to interfere until there is a showing
that the SOLE abused his discretion. Bargaining is not
Reply equivalent to an adversarial litigation when the
Employer to reply not later than 10 days after rights and obligations are delineated and remedies
notice of intent to negotiate was served. applied – it is simply a process of finding a
reasonable solution to a conflict and harmonizing
Conferences opposing positions into a fair and reasonable
How many times? As many as needed compromise.112

HOW LONG SHOULD A NEGOTIATION BE? CBA resulting from an AJ or VA, need not ratified.
LC 265. x xx Any agreement on such other provisions But CBA still needs to be posted and registered with
of the CBA entered into within 6 months from the the DOLE.
date of expiry of the term of such other provisions as
fixed in the CBA, shall retroact to the day Art. 265. Terms of a collective bargaining
immediately following such date. If any such agreement.
agreement is entered into beyond six months, the Any Collective Bargaining Agreement that the parties
parties shall agree on the duration of retroactivity may enter into shall, insofar as the representation
thereof x xxx aspect is concerned, be for a term of five (5) years.
No petition questioning the majority status of the
Agreeing first on the effectivity date of the CBA lifts incumbent bargaining agent shall be entertained and
or releases the burden of deadline to reach no certification election shall be conducted by the
agreement. Department of Labor and Employment outside of the

Example: Expiry of the CBA – December 31, 2011 . If 112Caltex Refinery Employees Association v Brillantes.279 SCRA 218
the new CBA is agreed upon within six months from (1997).

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LABOR RELATIONS 26 LABOR LAW

sixty-day period immediately before the date of EXTRINSIC EVIDENCE: Minutes of CBA negotiations
expiry of such five-year term of the Collective Contemporaneous and subsequent practices or acts
Bargaining Agreement. All other provisions of the in the implementation of the CBA
Collective Bargaining Agreement shall be
renegotiated not later than three (3) years after its In case of doubt or ambiguity, apply:
execution. Any agreement on such other provisions Art. 1702 of the Civil Code, which provides that all
of the Collective Bargaining Agreement entered into labor legislation and labor contracts shall be
within six (6) months from the date of expiry of the construed in favor of safety and decent living for the
term of such other provisions as fixed in such laborer, and;
Collective Bargaining Agreement, shall retroact to
the day immediately following such date. If any such Art. 4 of the Labor Code that says all doubts shall be
agreement is entered into beyond six months, the resolved in favor of labor.(Holy Cross of Davao
parties shall agree on the duration of retroactivity College, Inc. v. Holy Cross of Davao College Faculty
thereof. In case of a deadlock in the renegotiation of Union – KAMAPI; Honda Phils., Inc. v. Samahan ng
the Collective Bargaining Agreement, the parties Manggagawa sa Honda)
may exercise their rights under this Code. (As
amended by Section 21, Republic Act No. 6715, Associated Labor Unions – VIMCONTU v NLRC (1991).
March 21, 1989) Unless expressly assumed, labor contracts such as
CBAs are not enforceable against a transferee of an
Purpose of Art. 265: to prevent a situation where no enterprise, labor contracts being in personam, thus
CBA is in force binding only between the parties.

RULES IN THE ADMINISTRATION AND It is the bargaining unit, which is the true party in
IMPLANTATION OF THE CBA interest to a CBA. Thus, a shift in the union's
During the lifetime of the CBA, it is the law between allegiance after the execution of the CBA does not
the parties. Those who are entitled to its benefits affect the binding effect of a contract up to its
can invoke its provisions. (Faculty Assoc. of Mapua v. expiration date.
CA; PI Mfg. Inc. v. PI Mfg. Supervisors and Foremen
Assoc.; Pantranco North Express, Inc. v. NLRC) There must be express assumption of liability for
terms and conditions of CBA for transferee of
But CBA provisions are not beyond judicial enterprise to be liable.
determination if impugned.
CBA ENFORCEMENT
Manila Fashions v NLRC (1996).The CBA may not Art. 267. Exclusive bargaining representation and
provide for substandard benefits. workers’ participation in policy and decision-
making.
Samahang Manggagawa sa Top Form Manufacturing v The labor organization designated or selected by the
NLRC (1998). Only provisions embodied in the CBA majority of the employees in an appropriate
should be so interpreted and complied with. Where collective bargaining unit shall be the exclusive
a proposal raised by a contracting party does not representative of the employees in such unit for the
find print in the CBA, it is not a part thereof and purpose of collective bargaining. However, an
the proponent has no claim whatsoever to its individual employee or group of employees shall
implementation. have the right at any time to present grievances to
their employer.
The provisions of the CBA should be interpreted in
accordance with their literal meaning. (Free and Any provision of law to the contrary
Independent Workers Union v. Norkis Trading notwithstanding, workers shall have the right,
Company, Inc.; Dole Phils. v. Pawisng Makabayang subject to such rules and regulations as the
Obrero) Secretary of Labor and Employment may
promulgate, to participate in policy and decision-
No interpretation of CBA provisions if their meaning making processes of the establishment where they
is clear. are employed insofar as said processes will directly
affect their rights, benefits and welfare. For this
United Kimberly Clark EU v UKC, Inc (2006). In case purpose, workers and employers may form labor-
of ambiguity of the terms of a CBA, and there is management councils: Provided, That the
doubt as to the intention of the parties, resort to representatives of the workers in such labor-
evidence extrinsic of the CBA to determine the full management councils shall be elected by at least the
agreement intended by the parties. Evidence majority of all employees in said establishment. (As
aliunde may consist of the minutes of negotiation, amended by Section 22, Republic Act No. 6715,
contemporaneous and subsequent practices, etc. March 21, 1989)

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LABOR RELATIONS 27 LABOR LAW

personnel policies
MANDATORY PROVISIONS OF CBA
✓ Grievance procedure GRIEVANCE MACHINERY, DEFINED
✓ Voluntary Arbitration “grievance procedure”
✓ No-strike, no-lock out clause Series of formal steps agreed upon by parties to a
CBA for the resolution of grievances
GRIEVANCE PROCEDURE
Art. 273. Grievance machinery and voluntary VOLUNTARY ARBITRATION, DEFINED
arbitration. Reference of a dispute to an impartial third party
The parties to a Collective Bargaining Agreement designated by the parties
shall include therein provisions that will ensure the
mutual observance of its terms and conditions. They List of VAs are found in the NCMB
shall establish a machinery for the adjustment and
resolution of grievances arising from the Disputes that may be brought to VA:
interpretation or implementation of their Collective 1. unresolved grievances by agreement of the
Bargaining Agreement and those arising from the parties
interpretation or enforcement of company personnel 2. ULPs and bargaining deadlocks
policies.
Compulsory Arbitration, defined
All grievances submitted to the grievance machinery The process of settlement of labor disputes by a
which are not settled within seven (7) calendar days government agency which has authority to
from the date of its submission shall automatically investigate and make an award which is binding on
be referred to voluntary arbitration prescribed in the the parties.
Collective Bargaining Agreement.
Consent of the parties is not required.
For this purpose, parties to a Collective Bargaining
Agreement shall name and designate in advance a It is government agency who will hear and rule on
Voluntary Arbitrator or panel of Voluntary the case.
Arbitrators, or include in the agreement a procedure
for the selection of such Voluntary Arbitrator or VOLUNTARY ARBITRATOR, DEFINED
panel of Voluntary Arbitrators, preferably from the refers to any person accredited by the NCMB as such,
listing of qualified Voluntary Arbitrators duly or any person named or designated in the CBA by the
accredited by the Board. In case the parties fail to parties to act as their voluntary arbitrator, or one
select a Voluntary Arbitrator or panel of Voluntary chosen by the parties pursuant to a selection
Arbitrators, the Board shall designate the Voluntary procedure agreed upon in the CBA.113
Arbitrator or panel of Voluntary Arbitrators, as may
be necessary, pursuant to the selection procedure May recourse to grievance procedure be dispensed
agreed upon in the Collective Bargaining Agreement, with?
which shall act with the same force and effect as if Yes. If union is not interested in a particular
the Arbitrator or panel of Arbitrators has been grievance, union should not participate anymore, the
selected by the parties as described above. employee is then allowed to skip the grievance
procedure. 114

HOW ENFORCEMENT/IMPLEMENTATION Notice of strike illegal, dispute may be resolved via


EFFECTED grievance procedure or VA.115
Ordinarily: Through grievance machinery; Voluntary
arbitration Under voluntary arbitration, xxx, referral of a
Extraordinarily: Strike; ULP complaint with the dispute by the parties is made, pursuant to a
NLRC voluntary arbitration clause in their collective
agreement, to an impartial third person for a final
GRIEVANCE, DEFINED and binding resolution.116
Any dispute between employee and union as regards:
Interpretation of the CBA The essence of voluntary arbitration, after all, is
that it is by agreement of the parties, rather than
Interpretation of company personnel policies compulsion of law, that a matter is submitted for
arbitration. 4 It does not matter that the person
Implication: VA still has jurisdiction even if there is chosen as arbitrator is a labor arbiter who, under
no SEBA or CBA.
113 IR, Book V, Rule I, Sec. 1(aaa)
114Atlas Farms v NLRC, G.R. No. 142244 (2002).
Any claim by either party that the other party is 115USAEU-FFW v CA, G.R. No. 169632 (2006).
violating any provision of the CBA or company 116Luzon Dev’t Bank v Assoc of Luzon Dev’t Bank Employees, 249

SCRA 162 (1995).

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LABOR RELATIONS 28 LABOR LAW

Art. 217 of the Labor Code, is charged with the ARBITRABLE ISSUES
compulsory arbitration of certain labor cases. There Bar 2013
is nothing in the law that prohibits these labor Art. 274. Jurisdiction of Voluntary Arbitrators or
arbiters from also acting as voluntary arbitrators as panel of Voluntary Arbitrators.
long as the parties agree to have him hear and The Voluntary Arbitrator or panel of Voluntary
decide their dispute.117 Arbitrators shall have original and exclusive
jurisdiction to hear and decide all unresolved
BASIS AND RATIONALE FOR VOLUNTARY grievances arising from the interpretation or
ARBITRATION implementation of the Collective Bargaining
Art. 273. Grievance machinery and voluntary Agreement and those arising from the interpretation
arbitration. or enforcement of company personnel policies
The parties to a Collective Bargaining Agreement referred to in the immediately preceding article.
shall include therein provisions that will ensure the Accordingly, violations of a Collective Bargaining
mutual observance of its terms and conditions. They Agreement, except those which are gross in
shall establish a machinery for the adjustment and character, shall no longer be treated as unfair labor
resolution of grievances arising from the practice and shall be resolved as grievances under
interpretation or implementation of their Collective the Collective Bargaining Agreement. For purposes of
Bargaining Agreement and those arising from the this article, gross violations of Collective Bargaining
interpretation or enforcement of company personnel Agreement shall mean flagrant and/or malicious
policies. refusal to comply with the economic provisions of
such agreement.
All grievances submitted to the grievance machinery
which are not settled within seven (7) calendar days The Commission, its Regional Offices and the
from the date of its submission shall automatically Regional Directors of the Department of Labor and
be referred to voluntary arbitration prescribed in the Employment shall not entertain disputes, grievances
Collective Bargaining Agreement. or matters under the exclusive and original
jurisdiction of the Voluntary Arbitrator or panel of
For this purpose, parties to a Collective Bargaining Voluntary Arbitrators and shall immediately dispose
Agreement shall name and designate in advance a and refer the same to the Grievance Machinery or
Voluntary Arbitrator or panel of Voluntary Voluntary Arbitration provided in the Collective
Arbitrators, or include in the agreement a procedure Bargaining Agreement.
for the selection of such Voluntary Arbitrator or
panel of Voluntary Arbitrators, preferably from the Art. 275. Jurisdiction over other labor disputes.
listing of qualified Voluntary Arbitrators duly The Voluntary Arbitrator or panel of Voluntary
accredited by the Board. In case the parties fail to Arbitrators, upon agreement of the parties, shall
select a Voluntary Arbitrator or panel of Voluntary also hear and decide all other labor disputes
Arbitrators, the Board shall designate the Voluntary including unfair labor practices and bargaining
Arbitrator or panel of Voluntary Arbitrators, as may deadlocks.
be necessary, pursuant to the selection procedure
agreed upon in the Collective Bargaining Agreement,
which shall act with the same force and effect as if ARBITRATOR
the Arbitrator or panel of Arbitrators has been
selected by the parties as described above. Selection
It does not matter that the person chosen as
arbitrator is a labor arbiter who, under Art. 223 of
The decision of a VA chosen by the parties is final the Labor Code, is charged with the compulsory
and executory and not appealable. This principle arbitration of certain labor cases. There is nothing in
strengthens the purpose of arbitration in preserving the law that prohibits these labor arbiters from also
industrial peace and in avoiding unnecessary acting as voluntary arbitrators as long as the parties
litigation between the parties.118 agree to have him hear and decide their dispute.119

PROCESS ENCOURAGEMENT/PROMOTION Jurisdiction


The original and exclusive jurisdiction of the labor
arbiter over unfair labor practices, termination
disputes, and claims for damages cannot be
arrogated into the powers of voluntary arbitrators in
the absence of an express agreement between the
union and the company.120

117Manila Central Line v Manila Central Line FWU-NFL, 290 SCRA 690 119Manila Central Line FWU v Manila Central Line Corp, 209 SCRA 134
(1998). (2007).
118Eternet Employees v De Veyra, 189 SCRA 752 (1990). 120Lantex Industries v CA, 529 v 631 (2007).

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LABOR RELATIONS 29 LABOR LAW

Labor Arbiter in the region where the movant


The Voluntary Arbitrator or Panel of Voluntary resides, in case of the absence or incapacity of the
Arbitrators will have original and exclusive Voluntary Arbitrator or panel of Voluntary
jurisdiction over money claims 'arising from the Arbitrators, for any reason, may issue a writ of
interpretation or implementation of the Collective execution requiring either the sheriff of the
Bargaining Agreement and, those arising from the Commission or regular courts or any public official
interpretation or enforcement of company personnel whom the parties may designate in the submission
policies', under Article 267."121 agreement to execute the final decision, order or
award.
Unresolved grievances. The law grants to voluntary
arbitrators original and exclusive jurisdiction to hear INTERPRETATION AGREEMENT
and decide all unresolved grievances arising from the It is settled that in order to ascertain the intention
interpretation or implementation of the Collective of the contracting parties, the Voluntary Arbitrator
Bargaining Agreement and those arising from the shall principally consider their contemporaneous and
interpretation or enforcement of company personnel subsequent acts as well as their negotiating and
policies (Art. 274, Labor Code).122 contractual history and evidence of past practices.125

Nature of office and function Awards and orders


Quasi-judicial. A voluntary arbitrator, whether VA may order grant of benefits as part of his
acting solely or in a panel, enjoys in law the status authority to interpret a CBA. Moreover, petitioner-
of a quasi-judicial agency; hence, his decisions and company's objection to the authority of the
awards are appealable to the CA.123 Voluntary Arbitrator to direct the commutation of
the unenjoyed portion of the sick leave with pay
An arbitrator is confined to the interpretation and benefits of intermittent workers in his decision is
application of collective bargaining agreement. 124 misplaced. Article 261 of the Labor Code is clear.
The questioned directive of the herein public
Art. 276. Procedures. respondent is the necessary consequence of the
The Voluntary Arbitrator or panel of Voluntary exercise of his arbitral power as Voluntary Arbitrator
Arbitrators shall have the power to hold hearings, under Article 261 of the Labor Code "to hear and
receive evidences and take whatever action is decide all unresolved grievances arising from the
necessary to resolve the issue or issues subject of interpretation or implementation of the Collective
the dispute, including efforts to effect a voluntary Bargaining Agreement."126
settlement between parties.
It may also be pertinent to state that even if the
All parties to the dispute shall be entitled to attend proceedings herein be considered as in the nature of
the arbitration proceedings. The attendance of any a voluntary arbitration as so held by the Arbitrator in
third party or the exclusion of any witness from the his award, for reasons not quite clear from the
proceedings shall be determined by the Voluntary records, the award appealed from shall be final and
Arbitrator or panel of Voluntary Arbitrators. Hearing binding between the parties. The award of voluntary
may be adjourned for cause or upon agreement by Arbitrators acting within the scope of their authority
the parties. determines the rights of the parties, and their
decisions have the same legal effects as a judgment
Unless the parties agree otherwise, it shall be of the Court. Such decisions on matters of fact and
mandatory for the Voluntary Arbitrator or panel of law are conclusive, and all matters in the award are
Voluntary Arbitrators to render an award or decision thenceforth res judicata, on the theory that the
within twenty (20) calendar days from the date of matter has been adjudged by the tribunal which the
submission of the dispute to voluntary arbitration. parties have agreed to make final as tribunal of last
resort.127
The award or decision of the Voluntary
Arbitrator or panel of Voluntary Arbitrators shall FINALITY AND EXECUTION OF AWARDS
contain the facts and the law on which it is based. It Article 268-A of the Labor Code makes voluntary
shall be final and executory after ten (10) calendar arbitration awards or decisions final and executory.
days from receipt of the copy of the award or 128

decision by the parties.


The award or decision of the Voluntary Arbitrator or
Upon motion of any interested party, the Voluntary panel of Voluntary Arbitrators shall be final and
Arbitrator or panel of Voluntary Arbitrators or the executory after ten (10) calendar days from receipt

121DelMonte v Saldivar, 504 SCRA 192 (2006). 125Lepanto Consolidated v Lepanto Local Staff Union, 562 SCRA 495
122Sanyo Philippines Workers Union v Canizares, 211 SCRA 361 (2008).
(1992). 126Davao Integrated v Abarquez, 220 SCRA 197 (1993).
123Leyte IV Electric Coop v Leyeco IV EU, 537 SCRA 154 (2007).s 127VolkschelLabor Union v NLRC, 98 SCRA 314 (1980).
124Kimberly Clark EU v Kimberly Clark, 484 SCRA 187 (2006). 128Imperial Textile v Sampang, 219 SCRA 651 (1993).

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LABOR RELATIONS 30 LABOR LAW

of the copy of the award or decision by the SUBSTITUTIONARY DOCTRINE


parties.129 New SEBA to implement existing CBA until
negotiations may be validly had.
APPEAL Company may not be compelled to early negotiation.
Appeal to the CA via Rule 43, Rules of Court. The
decision or award of the voluntary arbitrator or WHO BENEFITS FROM EXTENDED CBA?
panel of arbitrators should likewise be appealable to All members of the bargaining unit.
the Court of Appeals, in line with the procedure When a CBA is entered into by union representing
outlined in Revised Administrative Circular No. 1-95, the employees and employer, even non-union
just like those of the quasi-judicial agencies, boards member employees are entitled to the benefits.132
and commissions enumerated therein.130 All members of the BU are included in the CBA. It is
discrimination to exclude them from the application
of the CBA.133
COSTS
Art. 277. Cost of voluntary arbitration and Voluntary ARBITRAL AWARDS
Arbitrator’s fee. Imposed by the NLRC, SOLE, SC
The parties to a Collective Bargaining Agreement
shall provide therein a proportionate sharing scheme Bar 1994, 2001
on the cost of voluntary arbitration including the EFFECTIVITY OF ARBITRAL AWARDS
Voluntary Arbitrator’s fee. The fixing of fee of Retroacts to such time agreed upon by the employer
Voluntary Arbitrators, whether shouldered wholly by and union.
the parties or subsidized by the Special Voluntary
Arbitration Fund, shall take into account the If there is no agreement and awarded beyond the 6-
following factors: month period =First day after the 6-month period
✓ Nature of the case;
✓ Time consumed in hearing the case; If there is no agreement and awarded within the 6-
✓ Professional standing of the Voluntary month period =first day after expiry of the CBA
Arbitrator;
✓ Capacity to pay of the parties; and
✓ Fees provided for in the Revised Rules of Court. Extension of 5-year term of CBA as regards
representation

NO STRIKE-NO LOCKOUT CLAUSE Can parties agree to extend the term for more than 5
years? General Rule: No. Express provision, Art 259-A.
No strike clause applicable only to economic strikes. Exception: In Rivera v Espiritu (2002) ---where PALEA
“no strike, no lock-out” provision in the CBA is a and PAL agreed to suspend the existing CBA between
valid stipulation but may be invoked only by them with the condition, among others, that PALEA
employer when the strike is economic in nature or is to be recognized as SEBA during the period of the
one which is conducted to force wage or other suspension of the CBA --- up to 10 years was allowed,
concessions from the employer that are not by agreement of the parties.
mandated to be granted by law itself. It would
inapplicable to prevent a strike which is grounded on Implications:
unfair labor practice.131 PALEA was recognized as SEBA for 10 years.
Parties by agreement may install the SEBA
DURATION indefinitely.
Bar 2012 Parties by agreement may suspend CBA even for 10
Duration of CBA years.
5 years The right to CB includes the right to suspend it.
term of the bargaining agent (SEBA)
representation aspect/union recognition UNION SECURITY CLAUSES
Bar 1995, 2004, 2011, 2012
3 years Termination of employment pursuant to Union
All other provisions Security Clause; requisites:
the union security clause must be applicable
Bar 2000, 2009
the union is requesting for the enforcement of the
union security provision in the CBA

129Coca-Cola Union v Coca-Cola, 464 SCRA 507 (2005).


130Luzon Dev’t Bank v Assn of Luzon Dev’t Bank Employees, 294
SCRA 162 (1995). 132New Pacific Timber v NLRC, G.R. No. 124224 (2000).
131Panay Electric v NLRC, 248 SCRA 688 (1995). 133Mactan Workers v Aboitiz, 45 SCRA 577 (1972).

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LABOR RELATIONS 31 LABOR LAW

there is sufficient evidence to support union’s submitted for decision.


decision to expel the employee from the union134
Recovery of civil liability in the administrative
Courts must look into substantial evidence to proceedings shall bar recovery under the Civil Code.
warrant the dismissal of an employee pursuant to
Union Security Clause.135 No criminal prosecution under this Title may be
instituted without a final judgment finding that an
unfair labor practice was committed, having been
CHECK-OFF first obtained in the preceding paragraph. During the
pendency of such administrative proceeding, the
No requirement of written authorization from non- running of the period of prescription of the criminal
union employees is needed to effect a valid check offense herein penalized shall be considered
off. LC 259(e) makes it explicit that LC interrupted: Provided, however, that the final
250(o), requiring written authorization, is judgment in the administrative proceedings shall not
inapplicable to non-union members, especially in be binding in the criminal case nor be considered as
this case where the non-union employees receive evidence of guilt but merely as proof of compliance
several benefits under the CBA. 136 of the requirements therein set forth. (As amended
by Batas PambansaBilang 70, May 1, 1980 and later
further amended by Section 19, Republic Act No.
E. UNFAIR LABOR PRACTICE 6715, March 21, 1989)
E.1. NATURE, ASPECTS
DEFINITION AND GENERAL CONCEPT ULP may only be committed in the context of employer-
employee relationship.
Bar 1996, 2005
Art. 219 (k) ULP violates the rights to:
"Unfair labor practice" means any unfair labor ✓ Self-organization
practice as expressly defined by the Code. ✓ Collective bargaining
✓ Concerted activities
Art. 258. Concept of unfair labor practice and
procedure for prosecution thereof. ULPs are not only civil rights violations but are also
Unfair labor practices violate the constitutional right criminal offenses against the State.
of workers and employees to self-organization, are
inimical to the legitimate interests of both labor and ULPs are those expressly defined by the labor code
management, including their right to bargain (LC 219-K):
collectively and otherwise deal with each other in an ✓ Those in LC 259 > ULP of employers
atmosphere of freedom and mutual respect, disrupt ✓ Those in LC 260 > ULP of LOs
industrial peace and hinder the promotion of healthy ✓ Those in LC 263 > violations of CBA gross in
and stable labor-management relations. character

Consequently, unfair labor practices are not only Any violations that relate to the exercise of the right
violations of the civil rights of both labor and to self-organization and collective bargaining
management but are also criminal offenses against
the State which shall be subject to prosecution and ULP VIS-À-VIS MANAGEMENT PREROGATIVE;
punishment as herein provided. EXCEPTION
Art. 278 (g)
Subject to the exercise by the President or by the (g) When, in his opinion, there exists a labor dispute
Secretary of Labor and Employment of the powers causing or likely to cause a strike or lockout in an
vested in them by Articles 263 and 264 of this Code, industry indispensable to the national interest, the
the civil aspects of all cases involving unfair labor Secretary of Labor and Employment may assume
practices, which may include claims for actual, jurisdiction over the dispute and decide it or certify
moral, exemplary and other forms of damages, the same to the Commission for compulsory
attorney’s fees and other affirmative relief, shall be arbitration. Such assumption or certification shall
under the jurisdiction of the Labor Arbiters. The have the effect of automatically enjoining the
Labor Arbiters shall give utmost priority to the intended or impending strike or lockout as specified
hearing and resolution of all cases involving unfair in the assumption or certification order. If one has
labor practices. They shall resolve such cases within already taken place at the time of assumption or
thirty (30) calendar days from the time they are certification, all striking or locked out employees
shall immediately return-to-work and the employer
134Alabang
shall immediately resume operations and readmit all
Country Club v NLRC, 545 SCRA 351 (2008).
135Del Monte v Zaldivar, G.R. No. 158620 (2006). workers under the same terms and conditions
136Del Pilar Academy v Del Pilar Academy EU (2008).

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LABOR RELATIONS 32 LABOR LAW

prevailing before the strike or lockout. The REQUISITES OF ULP


Secretary of Labor and Employment or the
EMPLOYER – EMPLOYEE RELATIONSHIP
Commission may seek the assistance of law
Sterling Products Int’l, Inc. v Sol, 7 SCRA 446
enforcement agencies to ensure compliance with
(1963).FACTS: As a regular radio monitor of
this provision as well as with such orders as he may
petitioners, respondent Sol was directed to listen to
issue to enforce the same.
certain broadcasts and was given instructions when
to listen and what to listen to, petitioner naming the
In line with the national concern for and the highest
stations to be listened to, the hours of broadcasts,
respect accorded to the right of patients to life and
and the days when listening was to be done. HELD:
health, strikes and lockouts in hospitals, clinics and
Mere fact that while performing the duties assigned
similar medical institutions shall, to every extent
to her she was under the supervision of petitioners,
possible, be avoided, and all serious efforts, not only
did not make her an independent contractor,
by labor and management but government as well,
because the latter is one who does not receive
be exhausted to substantially minimize, if not
specific instructions as to what to do and how to do
prevent, their adverse effects on such life and
it. Besides, a contractor is not entitled to vacation
health, through the exercise, however legitimate, by
leave, bonus, and additional wages, and respondent
labor of its right to strike and by management to
Sol’s act in demanding these privileges are
lockout. In labor disputes adversely affecting the
inconsistent with the claim of petitioner that she
continued operation of such hospitals, clinics or
was an independent contractor and not an
medical institutions, it shall be the duty of the
employee.
striking union or locking-out employer to provide and
maintain an effective skeletal workforce of medical
Petitioner is not the employer of the security
and other health personnel, whose movement and
watchmen hired by the Marine Security Agency. It is
services shall be unhampered and unrestricted, as
the agency that recruits, hires, assigns the works of
are necessary to insure the proper and adequate
its watchmen. Hence, a watchman cannot perform
protection of the life and health of its patients, most
any security service for petitioner’s vessels unless
especially emergency cases, for the duration of the
the agency first accepts him as its watchman. With
strike or lockout. In such cases, therefore, the
respect to his wages, the amount to be paid to a
Secretary of Labor and Employment may
security guard is beyond the power of the petitioner
immediately assume, within twenty four (24) hours
to determinate. Xxx it is the agency who quantifies
from knowledge of the occurrence of such a strike or
and pays the wages to which a watchman is entitled.
lockout, jurisdiction over the same or certify it to
Neither does petitioner have the power to dismiss
the Commission for compulsory arbitration. For this
the security guards. 138
purpose, the contending parties are strictly enjoined
to comply with such orders, prohibitions and/or
Act must be specifically defined by law
injunctions as are issued by the Secretary of Labor
and Employment or the Commission, under pain of
immediate disciplinary action, including dismissal or GENERAL PROHIBITION
loss of employment status or payment by the Art 259. ULP of Art 260. ULP of LOs
locking-out employer of backwages, damages and Employers
other affirmative relief, even criminal prosecution a. To interfere a. To restrain or coerce
against either or both of them. with,restrain or coerce employees in the
employees in the exercise of their right to
The foregoing notwithstanding, the President of the exercise of their right to self-organization;
Philippines shall not be precluded from determining self-organization;
the industries that, in his opinion, are indispensable
to the national interest, and from intervening at any Effect of dismissal of union leaders = made union
time and assuming jurisdiction over any such labor leaderless
dispute in order to settle or terminate the same. Dismissal amounted to restrain and the dismissal was
tainted with discrimination. This would constitute
ULP on the basis of Art 259(a) or under general
Law on ULP not intended to hamper management prohibition.139
prerogatives. Law on unfair labor practices is not
intended to deprive employers their fundamental Petitioner is guilty of ULP from its refusal to
right to prescribe and enforce rules as they honestly bargain, to their acts of economic inducements
believe to be necessary to the proper, productive resulting in the promotion of those who withdrew
and profitable operation of their business. 137 from the union, use of armed guards to prevent the
organizers to come in, and the dismissal of the
union officials and members. Once cannot but

138American President Lines v Clave, 114 SCRA 826 (1982).


137Philcom EU v Philcom, G.R. No. 144315 (2006). 139Republic Savings Bank v CIR, 21 SCRA 226 (1967).

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LABOR RELATIONS 33 LABOR LAW

conclude that respondents did not want a union in


their hacienda, a clear interference in the right of (7) To violate the duty to bargain collectively as
the workers to self-organization.140 prescribed by this Code;

Where the ill-timed resignation from the union (8) To pay negotiation or attorney’s fees to the
members indicate that the employer had interfered union or its officers or agents as part of the
with the right of its employees to self-organization, settlement of any issue in collective bargaining
the company may be found guilty of ULP. 141 or any other dispute; or

(9) To violate a collective bargaining agreement.


E.2. ULP BY EMPLOYERS
Bar 1996, 2009, 2011, 2012 1. INTERFERENCE, RESTRAINT AND
Art. 259. Unfair labor practices of employers. COERCION
It shall be unlawful for an employer to commit any An act which restrains, coerces, or interferes with
of the following unfair labor practice: employees in the exercise of their right to self-
(1) To interfere with, restrain or coerce employees organization is an Unfair Labor Practice.
in the exercise of their right to self-
organization; A. INTERROGATION
(2) To require as a condition of employment that a Scotty’s Department Store v Micaller (1956)142.
person or an employee shall not join a labor Employer interrogation of union members while it is
organization or shall withdraw from one to a privilege should not hamper the members’ right to
which he belongs; self-organization.
(3) To contract out services or functions being
performed by union members when such will Philippine Steam Navigation v Philippine Marine
interfere with, restrain or coerce employees in Officers Guild (1965). The rule in this jurisdiction is
the exercise of their rights to self-organization; that subjection by the company of its employees to a
(4) To initiate, dominate, assist or otherwise series of questioning regarding their membership in
interfere with the formation or administration the union or their union activities, in such a way as
of any labor organization, including the giving of to hamper the exercise of free choice of their part,
financial or other support to it or its organizers constitutes ULP. 143
or supporters;
(5) To discriminate in regard to wages, hours of B. SPEECH, ESPIONAGE, ECONOMIC COERCION
work and other terms and conditions of Insular Life Assurance Co EU v Insular Life Assurance
employment in order to encourage or discourage Co., Ltd (1971). 144 It is not necessary that the
membership in any labor organization. Nothing employees are coerced or restrained, the reasonable
in this Code or in any other law shall stop the tendency test will determine whether the employer
parties from requiring membership in a has engaged in the conduct that tends to interfere
recognized collective bargaining agent as a with employees’ free exercise of right to self-
condition for employment, except those organization.
employees who are already members of another
union at the time of the signing of the collective Individual bargaining is not allowed.
bargaining agreement. Employees of an
appropriate bargaining unit who are not When employer negotiates of attempts to negotiate
members of the recognized collective bargaining with his employees individually in connection with
agent may be assessed a reasonable fee changes in the agreement is ULP.
equivalent to the dues and other fees paid by
members of the recognized collective bargaining When act of company president in writing letters to
agent, if such non-union members accept the strikers urging them to return to work is an
benefits under the collective bargaining interference with the right to CB. Individual
agreement: Provided, that the individual solicitation is also interference.
authorization required under Article 242,
paragraph (o) of this Code shall not apply to the C. CONCERTED ACTIVITIES
non-members of the recognized collective Philippine Blooming Mills EO v PBM (1973).145
bargaining agent; Concerted activity need not be rooted in CBA
(6) To dismiss, discharge or otherwise prejudice or matters, but may be by reason of mutual aid and
discriminate against an employee for having protection.
given or being about to give testimony under
this Code;
14299 Phil 762 (1946).
140Hacienda Fatima v National Federation of Sugarcane Workers, 14315 SCRA 174 (1965).
G.R. No. 149440 (2003). 14437 SCRA 243 (1971).
141General Milling v CA, G.R. No. 146728 (2004). 14551 SCRA 189 (1973).

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LABOR RELATIONS 34 LABOR LAW

Employer who refuses its employees to join dismissal of the employees because of union
demonstration against police abuses is guilty of ULP. activities and not because of company’s alleged
losses was adequately proven, the employer is guilty
Employees who demonstrated did not violate CBA, as of ULP.
it was in the exercise of their freedom of expression,
guaranteed by the Bill of Rights. When financial assistance does not constitute union
domination or union interference or ULP:
Company to provide union, a union office
Letter containing promises of benefits to the
employees in order to entice them to return to work Company granting union leaves or privileges
is not protected by the free speech provisions of the
Constitution. Company granting assistance for conduct of union
education seminars
the free speech protection is inapplicable where the
expression of opinion by the employer of his agent For as long as financial assistance is publicly
contains a promise of benefit, threats, or reprisal. disclosed and ratified by the members, it is valid.

Letters should be interpreted according to the


totality of conduct doctrine. 5. DISCRIMINATION TO
ENCOURAGE/DISCOURAGE UNIONISM
2. YELLOW-DOG CONTRACT
What the law prohibits is discrimination to
Non-union membership or withdrawal from encourage or discourage union membership.
membership as a condition of employment
Discouraging membership in a labor organization
Yellow dog contract/stipulation includes not only discouraging adhesion to union
“only a yellow dog (coward) would sign such.” membership but also discouraging participation in
union activities such as a legitimate strike.
A promise exacted from workers as a condition of
employment that they are not to belong to, or ULPs in the form of discriminatory dismissal were
attempt to foster a union during their period of found where only unionists were permanently
employment. dismissed while non-unionists were not.
Visayan Stevedore v CIR (1967).146 Where the Unequal treatment based on union or non-union
workers not admitted to work were union members membership
and the company branch manager had told them
directly that severance of their connection with the Purpose is to ensure that employees are given equal
union was the remedy if they wanted to continue treatment whether they are union members or not.
working with the company, there was unfair labor
practice. TEST OF DISCRIMINATION
It is necessary that the underlying reason for the
3. CONTRACTING OUT TO DISCOURAGE discharge is established.
UNIONISM
Contracting out per se is not ULP. It becomes ULP The discharge must be made with proper motive.
when such interfere with, restrain or coerce
employees in the exercise of their right to self- Where circumstances establish a discriminatory
organization. motive on the part of the employer, the assignment
of a just cause will be unavailing. If it can be
Contracting out if motivated to prevent employees established that the true and basic inspiration for
from exercising RSO. An employer’s contracting out the employer’s act is derived from the employees’
of work is itself an ULP where motivated by the union activities, the assignment by the employer of
desire to prevent his employees from organizing and another reason, whatever its semblance of validity,
selecting a collective bargaining representative, rid is unavailing.
himself of union men, or escape his statutory duty to
bargain collectively with his employees’ bargaining An inference that the discharge of an employee was
representative. motivated by his union activity must be based upon
evidence, direct or circumstantial, not upon mere
suspicion.
4. COMPANY DOMINATION OF UNION
Progressive Development v CIR (1977). Where the

14619 SCRA 426 (1967).

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LABOR RELATIONS 35 LABOR LAW

6. RETALIATION TESTIMONY AGAINST organizations.


EMPLOYER/INDIRECT DISCRIMINATION (1) It shall be unfair labor practice for a labor
organization, its officers, agents or
representatives:
What is prohibited to be done directly shall not be (2) To restrain or coerce employees in the exercise
allowed to be done indirectly. Thus, the following of their right to self-organization. However, a
have been held as ULP: labor organization shall have the right to
(1) Dismissal of a laborer on account of union prescribe its own rules with respect to the
activities of his brother; acquisition or retention of membership;
(2) Discharge of an employee due to union activities (3) To cause or attempt to cause an employer to
of the wife; discriminate against an employee, including
(3) Discharge of a wife to due union activities of the discrimination against an employee with respect
husband to whom membership in such organization has
been denied or to terminate an employee on any
Should the testimony relate to the right of SO and ground other than the usual terms and
CB? conditions under which membership or
2 views: continuation of membership is made available to
(1) Yes. All matters relating to labor other members;
(2) No. Strict view: only those relating to exercise (4) To violate the duty, or refuse to bargain
of right to SO and CB collectively with the employer, provided it is
the representative of the employees;
(5) To cause or attempt to cause an employer to
7. VIOLATION OF DUTY TO BARGAIN pay or deliver or agree to pay or deliver any
Duty to bargain does not end in the execution of the money or other things of value, in the nature of
CBA. Failure to comply with the CBA constitutes an exaction, for services which are not
ULP.147 performed or not to be performed, including the
demand for fee for union negotiations;
If an employer found the union’s demands (6) To ask for or accept negotiation or attorney’s
excessive, its remedy under the law is to refer the fees from employers as part of the settlement of
matter for voluntary arbitration or compulsory any issue in collective bargaining or any other
dispute resolution, not the closure of the dispute; or
establishment.148 (7) To violate a collective bargaining agreement.

The duty to bargain does not include the obligation 1. RESTRAINT, OR COERCION
to reach an agreement.149 “Interfere” not included since any act of a labor
organization is an interference to the right of self-
8. NEGOTIATION OR ATTORNEYS FEES organization.
Sweetheart contracts are favorable both to the union
and the employer at the expense of the employees. 2. DISCRIMINATION: ENCOURAGE/
The settlement of bargaining issues must be made by DISCOURAGE UNIONISM [ART. 260
fair bargaining in good faith, and not through the (B)]
payment of negotiation or attorney's fees which will
ultimately lead to sweetheart contracts. G.R.: it is a ULP for a labor organization to cause an
employer to discriminate against an employee.
XPN: provisions of a valid union security clause and
9. GROSS VIOLATION OF CBA other company policies
TO VIOLATE THE CBA
LC 267 – only gross violations of CBA are to be 3. VIOLATE DUTY TO BARGAIN OR
deemed ULPs; violations which are not gross are THE CBA
mere grievances.

Gross violation of CBA = flagrant and/or malicious 4. FEATHERBEDDING


refusal to comply with CBA’s econ provisions Featherbedding or “make-work” by the union is the
practice of the union asking for money or other
E. 3. BY LABOR ORGANIZATIONS things of value from the employer in return for
Art. 260. Unfair labor practices of labor services which are not performed or are not to be
performed. (Art. 260)
147ShellOil Workers Union v Shell, 39 SCRA 276 (1971).
148St. John Colleges v St. John Faculty and EU, G.R. No. 167892
(2006).
149Union of Filipro Employees v Nestle, G.R. No. 158930 (2008).

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5. ASKING OR ACCEPTING
NEGOTIATION AND OTHER ATTORNEY'S INTERPRETATION
Liberal construction in favor of labor. Statutory
FEES prohibitions construed liberally in favor of employees
Sweetheart Contracts or the act of labor and strictly against the employer. 153
organisations to ask for or accept negotiation or
attorney’s fees from the employer in settling a INTER-RELATIONS OF ULP ACTS
bargaining issue or a dispute. (Azucena p. 257) Republic Savings Bank v CIR, 21 SCRA 226
(1967).FACTS: Respondent wrote and published
6. VIOLATE A COLLECTIVE letter to the bank president, demanding his
BARGAINING AGREEMENT resignation on the grounds of immorality, nepotism,
favoritism and discrimination in the appointment and
Bar 2011 promotion of bank employees. HELD: Assuming that
Violation of CBA must be gross and as regards they acted in their individual capacities when they
economic provisions. To constitute ULP, violations of wrote the letter, they were nonetheless protected
the CBA must be gross, which means, under LC 267, for they were engaged in concerted activity, in their
flagrant and/or malicious refusal to comply with the right of self-organization that includes concerted
economic provisions thereof.150 activity for mutual aid and protection, interference
with which constitutes ULP. The joining in protests
Violations of collective bargaining agreements, or demands by even a small group of employees, if in
except flagrant and/or malicious refusal to comply furtherance of their interests as such, is a concerted
with its economic provisions, shall not be considered activity protected by the IPA. It is not necessary that
unfair labor practice and shall not be strikeable.(IRR) union activity be involved or that CB be
contemplated.
ECONOMIC PROVISIONS, DEFINED.
With reasonable monetary cost Management prerogative and ULPs
The Court recognizes the proprietary right of SanMig
NON-ECONOMIC PROVISIONS, DEFINED. to exercise an inherent management prerogative and
Without or whose monetary cost cannot be its best business judgment to determine whether it
computed, i.e. job security, management should contract out the performance of some of its
prerogatives, grievance machinery work to independent contractors. However, the
rights of all workers to self-organization, collective
If ER refuses to abide by the CBA’s check-off bargaining and negotiations, and peaceful concerted
provision or grievance procedure, is there ULP per activities, including the right to strike in accordance
LC 274? with law, equally call for recognition and
None. They are non-economic provisions. protection.154

Remedy: treat it as violation of the CBA or duty to MOTIVE, CONDUCT, AND PROOF
bargain collectively independently of LC 274. EMPLOYER MOTIVE AND PROOF
Motive is decisive factor in holding an employer
BURDEN OF PROOF guilty of ULP.155
Union with burden of proof to support ULP
allegations. It is the union, therefore, who had the TOTALITY OF EVIDENCE
burden of proof to present substantial evidence to Quantum of evidence for ULP complaint to prosper:
support its allegations of ULP by management. xxx It SUBSTANTIAL EVIDENCE
is not enough that union believed that the employer
committed acts of ULP when the circumstances
clearly negate even a prima facie showing to warrant ENFORCEMENT, REMEDIES AND SANCTIONS
such belief. 151 Party against whom ULP committed
American President Lines v Clave (1982). ULP may
For a charge of ULP to prosper, it must be shown only be committed on an employer or employee.
that (employer) was motivated by ill will, bad faith,
or fraud, or was oppressive to labor, or done in a PARTIES LIABLE FOR ACTS
manner contrary to morals, good customs, or public ULP by employer
policy, and of course, that social humiliation, ✓ Officers of company who participated in the
wounded feelings or grave anxiety resulted. 152 commission of the UL

150ArellanoUniversity EU v CA, G.R. No. 139940 (2006).


151ScheringEmployees Labor Union v Schering Plough Corp, G.R. No. 153Caltex Filipino Managers and Supervisors Assoc., v CIR, 44 SCRA
142506 (2005). 350 (1972).
152Central Azucarera de Bais EU v Central Azucarera, G.R. No. 154SMC-EU v Bersamira, 186 SCRA 496 (1990).

186605 (2010). 155Phil. Metal Foundries v CIR, 90 SCRA 135 (1979).

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LABOR RELATIONS 37 LABOR LAW

ULP by LO It is the policy of the State:


✓ Officers of union who participated in the To promote and emphasize the primacy of free
commission of the ULP collective bargaining and negotiations, including
voluntary arbitration, mediation and conciliation, as
Compromise modes of settling labor or industrial disputes;
ULP cases cannot be compromised for PUBLIC
INTEREST To promote free trade unionism as an instrument for
the enhancement of democracy and the promotion
Bar 2011 of social justice and development;
Remedies and Sanctions
Quadra v CA (2006). In ULP cases, particularly in To foster the free and voluntary organization of a
cases of dismissal, moral and exemplary damages strong and united labor movement;
may be awarded.
Art 278.Strikes, picketing and lockouts.
It is the policy of the State to encourage free trade
F. PEACEFUL CONCERTED ACTIVITIES unionism and free collective bargaining.
RIGHT TO PEACEFUL CONCERTED ACTIVITIES Workers shall have the right to engage in concerted
CONCERTED ACTIVITIES: activities for purposes of collective bargaining or for
✓ Participated in by 2 or more EEs; their mutual benefit and protection. The right of
✓ May be done by one employee legitimate labor organizations to strike and picket
and of employers to lockout, consistent with the
Deemed as concerted activity if aim is to move national interest, shall continue to be recognized
others for purposes of CB or mutual aid or protection and respected. However, no labor union may strike
and no employer may declare a lockout on grounds
For CB or mutual aid or protection; involving inter-union and intra-union disputes.

Through action generally directed at ER or by others


having duties under the law to induce the desired The more common of these concerted activities as
behavior far as employees are concerned are:
1. STRIKES — the temporary stoppage of work
BASES OF RIGHT TO ENGAGE IN as a result of an industrial or labor dispute;
CONCERTED ACTIVITIES picketing — the marching to and fro at the
employer's premises, usually accompanied
1. 1987 CONSTITUTION by the display of placards and other signs
Article XIII, Section 3 making known the facts involved in a labor
The State shall x xx guarantee the rights of all dispute; and
workers to x xx peaceful concerted activities, 2. BOYCOTTS — the concerted refusal to
including the right to strike in accordance with law. patronize an employer's goods or services
and to persuade others to a like refusal.
Injunctions should be reduced to the barest 3. LOCKOUT — the counterpart activity that
minimum. Our Constitutions of 1935 and 1973 did not management may licitly undertake. The
accord constitutional status to the right to strike. temporary refusal to furnish work on
Even the liberal US Federal Constitution did not account of a labor dispute
elevate the right to strike to a constitutional level.
With a constitutional matrix, enactment of a law The right of legitimate labor organizations to
implementing the right to strike was an inevitability. strike and picket and of employer to lockout,
xxx In light of the genesis of the right to strike, it consistent with the national interest, shall
ought to be obvious that the right should be read continue to be recognized and respected.” The
with a libertarian latitude in favor of labor. In the legality of these activities is usually dependent
wise words of Father Joaquin G. Bernas, S.J., a on the legality of the purposes sought to be
distinguished commissioner of the 1987 attained and the means employed therefor.157
Constitutional Commission " . . . the constitutional
recognition of the right to strike does serve as a
reminder that injunctions, should be reduced to the LIMITATIONS
barest minimum".156 Bar 2000
Any violation of legal requirements will render strike
2. STATUTES illegal. The strike is indeed a powerful weapon of
Art 218-A. Declaration of Policy. the working class. But precisely because of this, it

156Bisig
ng Manggagawa sa Concrete Aggregates v NLRC, 226 SCRA
499 (1993). 157Ilaw at Buklod ng Manggagawa v NLRC, 198 SCRA 586 (1991).

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LABOR RELATIONS 38 LABOR LAW

must be handled carefully, like a sensitive explosive, interrupted, much less, paralyzed.162
lest it blow up in the workers’ own hands. Thus, it
must be declared only after the most thoughtful The most powerful of the economic weapons of
consultation among them, conducted in the only way workers which they unsheathe to force management
allowed, that is, peacefully, and in every case to agree to an equitable sharing of the joint product
conformably to reasonable regulation. Any violation of labor and capital.163
of the legal requirements and strictures, such as a
defiance of a return-to-work order in industries REQUISITES:
affected with public interest, will render the strike 1. Temporary work stoppage
illegal, to the detriment of the very workers it is 2. By workers’ concerted action
supposed to protect.158 3. Because of a labor dispute
4. Between ER and EES
The right to strike is not an absolute right.
A valid strike therefore presupposes the existence of
a labor dispute. The strike undertaken by
ROLE OF PEACE OFFICERS DURING respondents took the form of a sit-down strike, or
STRIKES AND PICKETING more aptly termed as a sympathetic strike, where
the striking employees have no demands or
1. ESCORTING grievances of their own, but they strike for the
No public official or employee, including officers and purpose of directly or indirectly aiding others,
personnel of the New Armed Forces of the without direct relation to the advancement of the
Philippines or the Integrated National Police, or interest of the strikers. It is indubitable that an
armed person, shall bring in, introduce or escort in illegal strike in the form of a sit-down strike
any manner, any individual who seeks to replace occurred in petitioner’s premises, as a show of
strikers in entering or leaving the premises of a sympathy to the two employees who were dismissed
strike area, or work in place of the strikers. by petitioner.164

The police force shall keep out of the picket lines Strike must be pursued on legal bounds. A strike is
unless actual violence or other criminal acts occur the most powerful of the economic weapons of
therein: workers which they unsheathe to force management
to agree to an equitable sharing of the joint product
Provided, That nothing herein shall be interpreted to of labor and capital. It is a weapon that can either
prevent any public officer from taking any measure breathe life to or destroy the Union and its members
necessary to maintain peace and order, protect life in their struggle with management for a more
and property, and/or enforce the law and legal equitable due to their labors. The decision to
order. (As amended by Executive Order No. 111, declare a strike must therefore rest on a rational
December 24, 1986)159 basis, free from emotionalism, envisaged by the
tempers and tantrums of a few hot heads, and finally
2. ARREST AND DETENTION OF LAW VIOLATORS focused on the legitimate interests of the Union
Except on grounds of national security and public which should not, however, be antithetical to the
peace or in case of commission of a crime, no union public welfare, and, to be valid, a strike must be
members or union organizers may be arrested or pursued within legal bounds. The right to strike as a
detained for union activities without previous means of attainment of social justice is never meant
consultations with the Secretary of Labor.160 to oppress or destroy the employer.165

FORMS OF CONCERTED ACTIVITIES NATURE AND PURPOSE


A worker who joins a strike does so precisely to
F.1. BY LABOR ORGANIZATION assert or improve the terms and conditions of his
F.1.A. STRIKE employment. If his purpose is to abandon his work,
he would not go into the trouble of joining a
means any temporary stoppage of work by the strike.166
concerted action of employees as a result of an
industrial or labor dispute.161 RATIONALE FOR REGULATION BY LAW
A strike is “any temporary stoppage of work by the
A coercive measure resorted to by laborers to concerted action of employees as a result of an
enforce their demands. The idea behind a strike is
that a company engaged in a profitable business
cannot afford to have its production or activities 162Phil
163Sta.
Can Co. v CIR (1950).
Rosa Coca Cola Plant Employees Union v. Coca Cola Bottlers
Phils., Inc., G.R. No. 164302 (2007).
158BLT Bus Co. v NLRC, 212 SCRA 792 (1992). 164G&S Transport v Infante, 533 SCRA 326 (2007).
159 Art. 279. Prohibited activities. 165Sta. Rosa Coca Cola Plant Employees Union v. Coca Cola Bottlers
160 Art. 281. Requirement for arrest and detention. Phils., Inc., G.R. No. 164302 (2007).
161 Art 219(o) 166BLTB Bus Co. v NLRC, 212 SCRA 792 (1992).

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LABOR RELATIONS 39 LABOR LAW

industrial or labor dispute.” It is the most ✓ Economic or bargaining deadlock


preeminent of the economic weapons of workers
which they unsheathed to force management to A no-strike clause in a CBA is applicable only to
agree to an equitable sharing of the joint product of economic strikes. Corollarily, if the strike is founded
labor and capital. Undeniably, strikes exert some on an unfair labor practice of the employer, a strike
disquieting effects not only on the relationship declared by the union cannot be considered a
between labor and management but also on the violation of the no-strike clause. An economic strike
general peace and progress society. Our laws thus is defined as one which is to force wage or other
regulate their exercise within reasons by balancing concessions from the employer which he is not
the interests of labor and management together with required by law to grant.171
the overarching public interest.167
ULP
EFFECT ON WORK RELATIONSHIP Bar 2009, 2010, 2011, 2012, 2013
Continuing work relationship Art 278 (c)
Work relationship suspended during the strike, NOT (c) In case of bargaining deadlocks, the duly
SEVERED! certified or recognized bargaining agent may file a
notice of strike or the employer may file a notice of
Consequences of continuing work relationship lockout with the Ministry at least 30 day before the
between ER and strikers: intended date thereof. In cases of unfair labor
✓ ER’s duty to bargain collectively with EEs practice, the period of notice shall be 15 days and in
remains the absence of a duly certified or recognized
✓ ER’s must reinstate them after the strike bargaining agent, the notice of strike may be filed
by any legitimate labor organization in behalf of its
Since strikes cause disparity effects not only on the members. However, in case of dismissal from
relationship between labor and management but also employment of union officers duly elected in
on the general peace and progress of society, the accordance with the union constitution and by-laws,
law has provided limitations on the right to strike.168 which may constitute union busting, where the
existence of the union is threatened, the 15-day
Responsibility for illegal acts must be on an cooling-off period shall not apply and the union may
individual and not collective basis. A union officer take action immediately. (As amended by Executive
may be declared to have lost his employment status Order No. 111, December 24, 1986)
if he knowingly participated in an illegal strike
whereas a union member may be similarly faulted if ULP strike
he knowingly participates in the commission of Strike committed upon a ULP complaint.
illegal acts during the strike.169 May be conducted without filing of a notice of strike

Mere participation in an illegal strike is not a Shell Oil Workers v Shell (1971).It is true that there
sufficient ground for termination of the services of is a requirement in the act that before the
the union members. The law, however, treats employees may go on strike, they must file with the
differently mere union members. Mere participation conciliation service of the department of labor a
in an illegal strike is not a sufficient ground for notice of their intention to strike. Such a requisite,
termination of the services of the union members. however, as has been repeatedly declared by this
The Labor Code protects an ordinary, rank-and-file Court, does not have to be complied with in case of
union member who participated in such a strike from ULP strike, which certainly is entitled to greater
losing his job, provided that he did not commit an judicial protection if the Industrial Peace act is to be
illegal act during the strike. It can be gleaned from rendered meaningful
the aforecited provision of law in point, however,
that an ordinary striking employee cannot be BARGAINING DEADLOCK – ECONOMIC/ULP
terminated for mere participation in an illegal Economic strike, defined
strike. There must be proof that he committed One which is to force wage or other concessions
illegal acts during the strike and the striker who from the employer which he is not required by law
participated in the commission of illegal act must be to grant.
identified.170
CONVERSION, DEFINED
TYPES AND CONVERSION An economic strike changes in character to one for
Types: ULP from the time the company refuses to reinstate
✓ ULP some of its striking employees because of their union
activities after it had offered to readmit all strikers
and in fact readmit others.
167Lapanday Workers Union v NLRC, 248 SCRA 95 (1995).
168StaRosa Coca-Cola Plant EU v CCBP, G.R. No. 164302-03 (2007).
169Chuayuco Steel v Buklod ng Manggagawa, G.R. No. 167347 (2007).
170G&S Transport v Infante, 533 SCRA 288 (2007). 171Mastor Iron Labor v NLRC, 219 SCRA 47 (1993).

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LABOR RELATIONS 40 LABOR LAW

Backpay not due to strikers in economic strikes since defense YES NO


the employer should get the equivalent day’s work
for what he pays his employees. In ULP strikes, grant ALLOWABLE STRIKES
of back wages is discretionary.172 Art. 278 (c)
(c) In case of bargaining deadlocks, the duly
NON-CONVERSION – STRIKE TO LOCK-OUT certified or recognized bargaining agent may file a
Sukhothai Cuisine and Restaurant v CA, G.R. No. notice of strike or the employer may file a notice of
150437 (2006). Strikes held in violation of lockout with the Ministry at least 30 day before the
agreements providing for arbitration are illegal since intended date thereof. In cases of unfair labor
these agreements must be strictly adhered to and practice, the period of notice shall be 15 days and in
respected if their ends are to be achieved. Xxx For the absence of a duly certified or recognized
failing to exhaust all steps in the arbitration bargaining agent, the notice of strike may be filed
proceedings, the strike staged by the private by any legitimate labor organization in behalf of its
respondents is illegal. Xxx Even if the strike were to members. However, in case of dismissal from
be declared valid because its objective or purpose is employment of union officers duly elected in
lawful, the strike may still be declared invalid where accordance with the union constitution and by-laws,
the means employed are illegal. which may constitute union busting, where the
existence of the union is threatened, the 15-day
GROUNDS FOR STRIKE cooling-off period shall not apply and the union may
Bar 2007, 2012 take action immediately. (As amended by Executive
IR, Book V, Rule XXII, Sec. 5. Grounds for strike or Order No. 111, December 24, 1986)
lock-out.
A strike or lock-out may be declared in cases of PROHIBITED STRIKES
bargaining deadlocks and unfair labor practices. ✓ Inter-union or intra-union (278-b)
Violations of collective bargaining agreements, ✓ CBA violation not gross in character (Art. 274)
except flagrant and/or malicious refusal to comply ✓ After AJO or certification order (279-a, par. 2)
with its economic provisions, shall not be considered ✓ After certification or submission of dispute to
unfair labor practice and shall not be strikeable. No compulsory/voluntary arbitration (279-a, par. 2)
strike or lock-out may be declared on the grounds ✓ During pendency of cases involving the same
involving inter-union and intra-union disputes or grounds for the strike (279-a, par. 2)
without first having filed a notice of strike or lock- ✓ w/o union first having bargained collectively
out or without the necessary strike or lock-out vote (279-a)
having been obtained and reported to the Board.
Neither will a strike be declared after assumption of after improved offer balloting (assumed that strike
jurisdiction by the Secretary or after certification or declared, on 30th day NCMB will tell union the offer
submission of the dispute to compulsory or voluntary of management, labor dispute shall end if union
arbitration or during the pendency of cases involving accepts) (280)
the same grounds for the strike or lock-out.
Wage distortion (RA 6727)
Grounds as strikeable issues:
• ULP For failure to comply with statutory requirements
• Bargaining deadlock (279-a)

ULP ECONOMIC Employees who have no labor dispute with their


Barred by no- employer but who, on a day they are scheduled to
strike clause? NO173 YES work, refuse to work and instead join a
Strikers’ Court has discretion to welgangbayan, where there is no showing that the
entitlement grant. employees notified their employer of their intention,
to backwages YES, in cases of or that they were allowed by the latter, to join the
discriminatory welgangbayan, commit an illegal work stoppage.174
dismissal or NO
suspension, unlawful EMPLOYMENT OF STRIKE BREAKERS
lock-out and other Art 279. Prohibited activities.
ULPs No employer shall use or employ any strike-breaker,
Cooling off nor shall any person be employed as a strike-
period 15 or O days 30 days breaker.
required
Good faith as
Strike breakers, defined

172Consolidated Labor Assn v Marsman and Co, 11 SCRA 589 (1964). 174BiflexPhils.
Inc. Labor Union v Filflex Industrial and Manufacturing
173Mastor Iron Labor v NLRC, 219 SCRA 47 (1993). Corporation and Biflex, G.R. No. 155679 (2006)

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LABOR RELATIONS 41 LABOR LAW

any person who obstructs, impedes, or interferes WHO MAY STRIKE?


with by force, violence, coercion, threats, or Strike upon: SEBA LLO
intimidation any peaceful picketing affecting wages, Bargaining
hours or conditions of work or in the exercise of the deadlock YES NO
right of self-organization or collective bargaining.175 (263-c)
ULP YES NO, but YES if there is
IMPROVED OFFER BALLOTING AND STRIKES (263-c) NO SEBA
Art 280. Improved offer balloting.
In an effort to settle a strike, the Department of Can minority union strike because of a ULP? NO.
Labor and Employment shall conduct a referendum They cannot strike. Only recourse is to file ULP
by secret ballot on the improved offer of the complaint with the NLRC.
employer on or before the 30th day of the strike.
When at least a majority of the union members vote Bar 2004
to accept the improved offer the striking workers Mandatory requirements:
shall immediately return to work and the employer 1. Notice of Strike
shall thereupon readmit them upon the signing of Filed with the NCMB, copy sent to employer (278-c).
the agreement. To allow NCMB to intervene, conciliate

In case of a lockout, the Department of Labor and 2. If economic strike, union must show proof that
Employment shall also conduct a referendum by it had asked management to negotiate with it
secret balloting on the reduced offer of the union on
or before the 30th day of the lockout. When at least 3. If ULP, union must allege acts of ULP committed
a majority of the board of directors or trustees or
the partners holding the controlling interest in the 4. Observance of cooling off period
case of a partnership vote to accept the reduced Parties are called for mediation/conciliation
offer, the workers shall immediately return to work conferences. If it fails, resort to VA
and the employer shall thereupon readmit them
upon the signing of the agreement. (Incorporated by a. 15-day cooling off period for ordinary ULP
Section 28, Republic Act No. 6715, March 21, 1989) strike
Not required in cases of alleged union busting
IR, Book V, Rule XXII, Sec 12 (where union officers were dismissed which
In case of a strike, the regional branch of the Board threatens existence of union)
shall, at its own initiative or upon request of any b. 30-day cooling off period for economic strike
affected party, conduct a referendum by secret When reckoned? From date of filing of notice of
balloting on the improved offer of the employer on strike
or before the 30th day of the strike. When at least
majority of the union members vote to accept the 5. Notice of strike vote
improved offer, the striking workers shall Filed with the NCMB at least 24 hours before strike
immediately return to work and the employer shall vote
thereupon re-admit them upon the signing of the
agreement. 6. Strike vote
xxx Where majority of union membership decides to
declare strike, by secret ballot (263-f)

STRIKING PARTY 7. Report of strike vote


IR, Book V, Rule XXII, Sec. 6. Who may declare strike Filed with the NCMB within seven (7) days (strike
or lockout. ban)
Any certified or duly recognized bargaining
representative may declare a strike in cases of 8. 7-day strike ban
bargaining deadlocks and unfair labor practices. The Assurance that a strike vote has been conducted and
employer may declare a lockout in the same cases. is truthful.
In the absence of a certified or duly recognized May run simultaneously with cooling period
bargaining representative, any legitimate labor
organization in the establishment may declare a
strike but only on the grounds of ULP. The procedural requirements for a valid strike are
mandatory in nature and failure to comply therewith
renders the strike illegal. 176

In case of alleged union-busting, the 3 remaining


requirements – notice, strike vote, and 7 day report
175 Art 219(r) 176Pilipino Telephone Corp. v PILIEA, 525 SCRA 361 (2007)

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LABOR RELATIONS 42 LABOR LAW

period – cannot be dispensed with. The union may


strike “immediately” provided that the strike vote is
conducted, the result thereof submitted “in every Defenses – good faith
case” at least 7 days before the intended strike or
lockout.177 Where a union believes that an employer committed
ULP and the surrounding circumstance warranted
TEST OF LEGALITY such belief in good faith, resulting strike may be
1. Purpose and means test considered legal, although such allegations of ULP
Assumption and certification orders are executory in were found to be groundless.181
character and are to be strictly complied with by the
parties even during the pendency of any petition F.1.B. LEGAL VS. ILLEGAL STRIKE
questioning their validity. xxx Regardless therefore
of their motives, or the validity of their claims, the LEGAL VS. ILLEGAL STRIKE
striking workers must cease and/or desist from any Leg One called for a valid purpose and conducted
and all acts that tend to, or undermined this al through means allowed by law.182
authority of the secretary once an assumption Stri
and/or certification was issued.178 ke
Illeg 1. If any of the
The strike in question was illegal. The strike itself al requirements
was prompted by no actual, existing unfair labor Stri for a valid
practice committed by the petitioner. In effecting a ke strike or
change in the seating arrangement in the office of lockout is not
the underwriting department, the petitioner merely complied with
exercised a reasonable prerogative employees could 2. If it is based
not validly question, much less assail as an act of on non-
ULP. The court is indeed at a loss how rearranging strikeable
furniture, as it were, can justify a 4 month long issues or if the
strike.179 issues involved
are already
2. Guidelines and balancing of interest the subject of
Shell Oil Workers Union v Shell Co. of the Phils., 39 arbitration.
SCRA 276 (1971). When to strike – The assumption is 3. During a strike
that labor can be trusted to determine for itself or lockout,
when the right to strike may be availed of in order to when either of
attain a successful fruition in their disputes with the parties
management. How strike is to be conducted – A commits
strike otherwise valid, if violent in character, may prohibited acts
be placed beyond the pale. Care is to be taken, or practices.183
however, especially where an unfair labor practice is
involved, to avoid stamping it with illegality just
because it is tainted by such acts. To avoid rendering ILLEGAL STRIKE
illusory the recognition of the right to strike,
responsibility in such a case should be individual and BASIS OF ILLEGALITY.
not collective. A different conclusion would be Art. 278. Strikes, picketing and lockouts.
called for, of course, if the existence of force while b. Workers shall have the right to engage in
the strike lasts is pervasive and widespread, concerted activities for purposes of collective
consistently and deliberately resorted to as a matter bargaining or for their mutual benefit and
of policy. It could be reasonably concluded then that protection. The right of legitimate labor
even if justified as to ends it becomes illegal organizations to strike and picket and of employers
because of the means employed. to lockout, consistent with the national interest,
shall continue to be recognized and respected.
The right to strike while constitutionally recognized, However, no labor union may strike and no employer
is not without legal restrictions. There are may declare a lockout on grounds involving inter-
procedural steps to be followed before a strike may union and intra-union disputes.
be staged. These requirements are mandatory,
meaning noncompliance therewith makes the strike
181Hotel Enterprises of the Phils.vSamahanngManggagawang Hyatt,
illegal.180
G.R. No. 165756 (2009).
182 NCMB. http://co.ncmb.ph/conciliation-mediation/
177Sukhothai Cuisine Restaurant v CA, G.R. No. 150437 (2006). 183Bureau of Labor Relations.
178Union of Filipino Employees v Nestle Phils.Inc., 192 SCRA 396 http://www.blr.dole.gov.ph/frequently-asked-questions/59-strikes-
(1990). and-lockout
179Reliance Surety and Insurance v NLRC, 193 SCRA 365 (1991).
180Stamford Marketing Corp v Julian, G.R. No. 145496 (2004).

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LABOR RELATIONS 43 LABOR LAW

secret balloting on the reduced offer of the union on


c. In case of bargaining deadlocks, the duly certified or before the 30th day of the lockout. When at least
or recognized bargaining agent may file a notice of a majority of the board of directors or trustees or
strike or the employer may file a notice of lockout the partners holding the controlling interest in the
with the Ministry at least 30 day before the intended case of a partnership vote to accept the reduced
date thereof. In cases of unfair labor practice, the offer, the workers shall immediately return to work
period of notice shall be 15 days and in the absence and the employer shall thereupon readmit them
of a duly certified or recognized bargaining agent, upon the signing of the agreement. (Incorporated by
the notice of strike may be filed by any legitimate Section 28, Republic Act No. 6715, March 21, 1989)
labor organization in behalf of its members.
However, in case of dismissal from employment of
union officers duly elected in accordance with the WHAT IS AN ILLEGAL STRIKE?
union constitution and by-laws, which may ✓ Prohibited by law
constitute union busting, where the existence of the ✓ Purpose is illegal, trivial, unconscionable or
union is threatened, the 15-day cooling-off period unjust
shall not apply and the union may take action ✓ Illegal means
immediately. (As amended by Executive Order No. ✓ Prohibited under a no-strike clause in the CBA
111, December 24, 1986) (economic strikes)

Art. 279. Prohibited activities Unlawful acts during a strike:


a. No labor organization or employer shall declare a ✓ Defiance of AJ/CO
strike or lockout without first having bargained ✓ Violence
collectively in accordance with Title VII of this Book ✓ Barricading ingress and egress
or without first having filed the notice required in ✓ picket must be constantly moving
the preceding Article or without the necessary strike ✓ Strike-breaking by non-strikers
or lockout vote first having been obtained and ✓ Escorting replacement by AFP/PNP, government
reported to the Ministry. officers or employees, security guards

No strike or lockout shall be declared after Strike must be through legal means. It is doctrinal
assumption of jurisdiction by the President or the that the exercise of the right of private sector
Minister or after certification or submission of the employees to strike is not absolute. Even if the
dispute to compulsory or voluntary arbitration or purpose of the strike is valid, the strike may still be
during the pendency of cases involving the same held illegal where the means employed are illegal.184
grounds for the strike or lockout.
EFFECT OF ILLEGALITY
Any worker whose employment has been terminated Bar 1994, 1995, 2006, 2007
as a consequence of any unlawful lockout shall be Art. 279. Prohibited activities.
entitled to reinstatement with full back wages. Any (a) No labor organization or employer shall declare a
union officer who knowingly participates in an illegal strike or lockout without first having bargained
strike and any worker or union officer who knowingly collectively in accordance with Title VII of this Book
participates in the commission of illegal acts during or without first having filed the notice required in
a strike may be declared to have lost his the preceding Article or without the necessary strike
employment status: Provided, That mere or lockout vote first having been obtained and
participation of a worker in a lawful strike shall not reported to the Ministry.
constitute sufficient ground for termination of his
employment, even if a replacement had been hired No strike or lockout shall be declared after
by the employer during such lawful strike. assumption of jurisdiction by the President or the
Minister or after certification or submission of the
Art. 280. Improved offer balloting. dispute to compulsory or voluntary arbitration or
In an effort to settle a strike, the Department of during the pendency of cases involving the same
Labor and Employment shall conduct a referendum grounds for the strike or lockout.
by secret ballot on the improved offer of the
employer on or before the 30th day of the strike. Any worker whose employment has been terminated
When at least a majority of the union members vote as a consequence of any unlawful lockout shall be
to accept the improved offer the striking workers entitled to reinstatement with full back wages. Any
shall immediately return to work and the employer union officer who knowingly participates in an illegal
shall thereupon readmit them upon the signing of strike and any worker or union officer who knowingly
the agreement. participates in the commission of illegal acts during
a strike may be declared to have lost his
In case of a lockout, the Department of Labor and
Employment shall also conduct a referendum by 184Philippine Diamond Hotel v Manila Diamond EU, G.R. No. 158075
(2006).

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LABOR RELATIONS 44 LABOR LAW

employment status: Provided, That mere involving or growing out of a labor dispute as defined
participation of a worker in a lawful strike shall not in this Code shall be issued except after hearing the
constitute sufficient ground for termination of his testimony of witnesses, with opportunity for cross-
employment, even if a replacement had been hired examination, in support of the allegations of a
by the employer during such lawful strike. complaint made under oath, and testimony in
opposition thereto, if offered, and only after a
EFFECTS OF ILLEGAL STRIKE finding of fact by the Commission, to the effect:
For union officers: Dismissal, No back wages
For members: None, except if committed illegal acts That prohibited or unlawful acts have been
during strike threatened and will be committed and will be
continued unless restrained, but no injunction or
An ordinary striking worker cannot be terminated for temporary restraining order shall be issued on
mere participation in an illegal strike. The effects of account of any threat, prohibited or unlawful act,
such illegal strikes, outlined in Article 279, make a except against the person or persons, association or
distinction between workers and union officers who organization making the threat or committing the
participate therein: an ordinary striking worker prohibited or unlawful act or actually authorizing or
cannot be terminated for mere participation in an ratifying the same after actual knowledge thereof;
illegal strike. There must be proof that he or she
committed illegal acts during a strike. A union That substantial and irreparable injury to
officer, on the other hand, may be terminated from complainant’s property will follow;
work when he knowingly participates in an illegal
strike, and like other workers, when he commits an That as to each item of relief to be granted, greater
illegal act during a strike. In all cases, the striker injury will be inflicted upon complainant by the
must be identified. But proof beyond reasonable denial of relief than will be inflicted upon
doubt is not required. Substantial evidence available defendants by the granting of relief;
under the attendant circumstances, which may
justify the imposition of the penalty of dismissal, That complainant has no adequate remedy at law;
may suffice. Liability for prohibited acts is to be and
determined on an individual basis.185
That the public officers charged with the duty to
INJUNCTIONS protect complainant’s property are unable or
Art. 266. Injunction prohibited. unwilling to furnish adequate protection.
No temporary or permanent injunction or restraining
order in any case involving or growing out of labor Such hearing shall be held after due and personal
disputes shall be issued by any court or other entity, notice thereof has been served, in such manner as
except as otherwise provided in Articles 218 and 264 the Commission shall direct, to all known persons
of this Code. (As amended by Batas Pambansa Bilang against whom relief is sought, and also to the Chief
227, June 1, 1982) Executive and other public officials of the province
or city within which the unlawful acts have been
There can be no injunction issued against any strike threatened or committed, charged with the duty to
except in only one instance, that is, when a labor protect complainant’s property: Provided, however,
dispute arises in an industry indispensable to the that if a complainant shall also allege that, unless a
national interest and such dispute is certified by the temporary restraining order shall be issued without
President to the CIR in compliance with sec 10, RA notice, a substantial and irreparable injury to
875.186 complainant’s property will be unavoidable, such a
temporary restraining order may be issued upon
Exceptions testimony under oath, sufficient, if sustained, to
Art. 225. Powers of the Commission. justify the Commission in issuing a temporary
The Commission shall have the power and authority: injunction upon hearing after notice. Such a
temporary restraining order shall be effective for no
e. To enjoin or restrain any actual or threatened longer than twenty (20) days and shall become void
commission of any or all prohibited or unlawful acts at the expiration of said twenty (20) days. No such
or to require the performance of a particular act in temporary restraining order or temporary injunction
any labor dispute which, if not restrained or shall be issued except on condition that complainant
performed forthwith, may cause grave or irreparable shall first file an undertaking with adequate security
damage to any party or render ineffectual any in an amount to be fixed by the Commission
decision in favor of such party: Provided, That no sufficient to recompense those enjoined for any loss,
temporary or permanent injunction in any case expense or damage caused by the improvident or
erroneous issuance of such order or injunction,
185Sukhothai
including all reasonable costs, together with a
Cuisine Restaurant v CA, G.R. No. 150437 (2006).
186CaltexFilipino Managers and Supervisors Assn v CIR, G.R. No. reasonable attorney’s fee, and expense of defense
130632-33 (1972).

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LABOR RELATIONS 45 LABOR LAW

against the order or against the granting of any That the language employed by the picketers is far
injunctive relief sought in the same proceeding and from being courteous and polite does not give rise to
subsequently denied by the Commission. a cause for label and damages.188

The undertaking herein mentioned shall be CURTAILMENT


understood to constitute an agreement entered into Peaceful picketing, freedom of speech. The
by the complainant and the surety upon which an wholesale condemnation of peaceful picketing is
order may be rendered in the same suit or likewise clearly bereft of support in law. Peaceful
proceeding against said complainant and surety, picketing is part of freedom of speech guarantee of
upon a hearing to assess damages, of which hearing, the constitution.189
complainant and surety shall have reasonable notice,
the said complainant and surety submitting REGULATION/RESTRICTIONS, INNOCENT THIRD
themselves to the jurisdiction of the Commission for PARTY RULE AND LIABILITIES
that purpose. But nothing herein contained shall A picketing labor union has no right to prevent
deprive any party having a claim or cause of action employees of another company from getting in and
under or upon such undertaking from electing to out of its rented premises, otherwise it will be held
pursue his ordinary remedy by suit at law or in liable for damages for its acts against an innocent
equity: Provided, further, That the reception of bystander. 190
evidence for the application of a writ of injunction
may be delegated by the Commission to any of its PROHIBITED ACTIVITIES:
Labor Arbiters who shall conduct such hearings in ✓ acts of violence, coercion or intimidation
such places as he may determine to be accessible to ✓ obstruct the free ingress to or egress from the
the parties and their witnesses and shall submit employer’s premises for lawful purposes
thereafter his recommendation to the Commission. ✓ obstruct public through fares
(As amended by Section 10, Republic Act No. 6715, ✓ obstruct, impede or interfere with by force,
March 21, 1989) violence, coercion, threats or intimidation, any
peaceful picketing
✓ use or employment of any person to commit such
F.2. PICKET acts nor shall any person be employed for such
purpose.
Bar 2000, 2004
IR, Book V, Rule XXII, Sec 13. Peaceful picketing. SLOWDOWN
Workers shall have the right to peaceful picketing.
No person engaged in picketing shall commit any act Slowdown as “strike on installment”, inherently
of violence, coercion or intimidation or obstruct the illicit a wilfull reduction in the rate of work by
free ingress to or egress from the employer’s concerted action of workers for the purpose of
premises for lawful purposes, or obstruct public restricting the output of the employer, in relation to
thoroughfares. a labor dispute; as an activity by which workers,
without a complete stoppage of work, retard
No person shall obstruct, impede or interfere with, production or their performance of duties and
by force, violence, coercion, threats or intimidation, functions to compel management to grant their
any peaceful picketing by workers during any labor demands. The Court also agrees that such a
controversy or in the exercise of the right to self slowdown is generally condemned as inherently
organization or collective bargaining shall aid or illicit and unjustifiable, because while the
abet such obstruction or interference. No employer employees "continue to work and remain at their
shall use or employ any person to commit such acts positions and accept the wages paid to them," they
nor shall any person by employed for such purpose. at the same time "select what part of their allotted
tasks they care to perform of their own volition or
NATURE AND PURPOSE OF PICKET LINE refuse openly or secretly, to the employer's damage,
The purpose of pickets is said to be a means of to do other work;" in other words, they "work on
peaceable persuasion. Picketing involves merely the their own terms.191
marching to and fro at the premises of the employer,
usually accompanied by the display of placards and F.3. BY EMPLOYER
other signs making known the facts involved in a F.2.A. LOCKOUT
labor dispute. xxx As applied to a labor dispute, to
picket means the stationing of one or more persons If the employees can strike, the employer can lock-
to observe and attempt to observe.187
188Philcom v Philnabank EA, 105 SCRA 314 (1981).
Picketing and libel laws 189Nagkahiusang Manggagawa sa Cuison Hotel-National Federation of
Peaceful picketing is part of the freedom of speech. Labor v Libron, 124 SCRA 448 (1983).
190Liwayway publishing Co. Inc. v Permanent concrete workers

union, 108 SCRA 161 (1981)


187Sta Rosa Coca-Cola Plant EU v CCBP, G.R. No. 164302-03 (2007). 191Ilaw at Buklod ng Manggagawa v NLRC, 198 SCRA 598 (1991).

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LABOR RELATIONS 46 LABOR LAW

out.192 commits ULP, subject to statutory requirements.

WHAT IS A LOCK-OUT? General Rule: Lockout, as a rule, is not subject to


any temporary refusal of an employer to furnish labor injunction or restraining orders.
work as a result of an industrial or labor dispute.193 Exception: In cases of national interest or if act are
prohibited under Art. 270 are being committed.
It is an employer’s act excluding employees who are
union members from the plant.194 PROHIBITED LOCKOUT
[N]o labor union may strike and no employer may
**Workers shall have the right to engage in concerted declare a lockout on grounds involving inter-union
activities for purposes of: and intra-union disputes.198
collective bargaining (or for)
their mutual benefit and protection. In line with the national concern for and the highest
respect accorded to the right of patients to life and
The right of legitimate labor organizations to strike health, strikes and lockouts in hospitals, clinics and
and picket and of employers to lockout, consistent similar medical institutions shall, to every extent
with the national interest, shall continue to be possible, be avoided, and all serious efforts, not only
recognized and respected. However, no labor union by labor and management but government as well,
may strike and no employer may declare a lockout be exhausted to substantially minimize, if not
on grounds involving inter-union and intra-union prevent, their adverse effects on such life and
disputes.195 health, through the exercise, however legitimate, by
labor of its right to strike and by management to
EFFECT ON WORK RELATIONSHIP lockout.199
Lockout may affect all or less than all of the
employee-union members. Lockout, in the sense in No labor organization or employer shall declare a
which it is universally used, is an act directed at the strike or lockout without first having bargained
union itself rather than at the individual employee- collectively in accordance with Title VII of this Book
union members of the union.196 or without first having filed the notice required in
the preceding Article or without the necessary strike
GROUNDS or lockout vote first having been obtained and
In case of bargaining deadlocks, the duly certified or reported to the Ministry.
recognized bargaining agent may file a notice of
strike or the employer may file a notice of lockout No strike or lockout shall be declared after
with the Ministry at least 30 day before the intended assumption of jurisdiction by the President or the
date thereof. In cases of unfair labor practice, the Minister or after certification or submission of the
period of notice shall be 15 days and in the absence dispute to compulsory or voluntary arbitration or
of a duly certified or recognized bargaining agent, during the pendency of cases involving the same
the notice of strike may be filed by any legitimate grounds for the strike or lockout.200
labor organization in behalf of its members.
However, in case of dismissal from employment of VALID LOCKOUTS:
union officers duly elected in accordance with the ✓ In anticipation of a threatened strike, where
union constitution and by-laws, which may motivated by economic considerations.201
constitute union busting, where the existence of the ✓ In response to unprotected strike or walkout.202
union is threatened, the 15-day cooling-off period ✓ In response to a whipsaw strike.203
shall not apply and the union may take action
immediately. (As amended by Executive Order No. UNLAWFUL LOCKOUTS:
111, December 24, 1986)197 ✓ To discourage and dissipate membership in a
labor organization, or otherwise kill the union
Lockout may be caused either by: ✓ To aid a particular union by preventing further
1. A collective bargaining deadlock or organizational work of its rival, or to coerce the
2. An unfair labor practice act. employees to join the favoured union.
✓ To avoid bargaining.
Lockout is recognized as a valid weapon in collective
bargaining. It may bring pressure upon the other Lockout must be for a lawful purpose and carried out
party (employee), where an impasse has arisen through lawful means. A lockout is unlawful where it
during bargaining negotiations or where one party is declared in order to defeat organizational and

192 The Labor Code Vol.II, Azucena 198 Art. 278 (b) (3rd sentence) , LC
193 Art. 218 (p), Labor Code of the Philippines 199 Art. 278 (g), LC
194Sta.Mesa v. CIR, 48 OG 3353 200 Art. 279 (a)
195 Art. 278 (b), LC 201Tidewater Express Lines case, 142 NLRB 1111
196Azucena, Vol. II 202News Union of BAtimore v. NLRB, 393 F2d 673
197 Art. 278(c), LC 203NLRB v. Brown, 13 L ed 2d 839

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bargaining rights of employees.204 F.4. ASSUMPTION OF JURISDICTION


ASSUMPTION OF JURISDICTION BY THE DOLE
PROCEDURAL REQUIREMENTS
SECRETARY OR CERTIFICATION OF THE LABOR
✓ BARGAIN FIRST (Art. 264(a))
DISPUTE TO THE NLRC FOR COMPULSORY
✓ NOTICE OF INTENTION TO LOCKOUT.
JURISDICTION
File notice of strike (or lockout) to the regional
Bar 1996, 2003, 2004, 2008, 2010, 2011
office of the NCMB205 As the case may be furnish a
Assumption of jurisdiction or certification of labor
copy to the employer of the notice of strike
dispute
(lockout)

COOLING OFF PERIOD SOLE may assume jurisdiction over dispute and
Observe cooling off period decide it or certify the same to the commission for
✓ 30 days for Bargaining deadlock; compulsory arbitration when in his opinion there
✓ 15 days for Unfair Labor Practice; exists a labor dispute causing strikes or problems to
industries imbued with national interest or vital
take action immediately for for Union Busting. to industries or those indispensable to national
enable parties to amicably settle the case. interest.

STRIKE VOTE. SOLE given great latitude to solve a labor dispute,


If not resolved, conduct a strike vote and inform the given great breath of discretion
NCMB 24 hours prior the intended day of conducting
the strike vote. DO 40G-03 (2010)
Sole ruled that he/she may assume jurisdiction over
Approved by a majority of the board of directors of a labor dispute only on the ff conditions:
the corporation or association or of the partners in
the partnership Both parties requested
✓ Obtained by secret ballot
✓ In a meeting called for that purpose Conference called for to decide on propriety of
issuance, motupropio or upon request or petition by
STRIKE VOTE REPORT either parties to the labor dispute
Submit the result of the strike vote at least 7 days
before the intended strike or lockout. (7 days strike Effect of AJ or Certification
ban) Intended strike is automatically enjoined

DECLARATION OF STRIKE OR LOCKOUT. If one has taken place


If NCMB is satisfied that the conduct of strike vote
was properly done, after the Lapse of 7 days the All employees should immediately return to work
employees may now conduct their strike, or the
employer may now proceed with its lockout. Employers should immediately resume operation and
readmit all employees under same terms before the
If the dispute remains unsettled after the lapse of strike
the cooling off period and the 7day reporting period,
the labor union may strike or the employer may AJ or Certification immediately executory, even if
lockout its workers. motion for reconsideration is still pending

NCMB shall continue mediating and conciliating. Effect of defiance of AJ or certification order

EFFECT OF ILLEGAL LOCKOUT Defying party may be disciplined, may even be


Any worker whose employment has been terminated dismissed from work
as a consequence of any unlawful lockout shall be
entitled to reinstatement with full backwages.206 A strike continued in defiance of AJ or CO becomes a
prohibited activity, thus officers and members who
have knowingly defied the order are deemed to have
lost their employment (different from illegal strike
where only union officers are liable)

Assumption order
The power granted to the Secretary of DOLE by Art
204Dinglasan v. NLU, 98 Phil. 649 278(g) authorizes her to assume jurisdiction over a
205 National Conciliation and Mediation Board (Regional branch)
206 Art. 279(a), par. 3, 1 st sentence, LC
labor dispute causing or likely to cause a strike or

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LABOR RELATIONS 48 LABOR LAW

lockout in an industry indispensable to the national binding on the parties, but in compulsory
interest, and correlatively, to decide the same. 207 arbitration, such a third party is normally appointed
by the government.212
The secretary’s assumption of jurisdiction power
necessarily includes matters incidental to the labor Even in the exercise of his power of compulsory
dispute, that is, issues that are necessarily involved arbitration under Article 278(g) of the Labor Code,
in the dispute itself, not just to those ascribed in the the Secretary must follow the law. 213
Notice of Strike, or, otherwise submitted to him for
resolution208 A voluntary, instead of compulsory, mode of dispute
settlement is the general rule. The State encourages
The authority to assume jurisdiction over a labor an environment wherein employers and employees
dispute must include and extend to all questions and themselves must deal with their problems in a
controversies arising thereform.209 manner that mutually suits them best.214

COMPULSORY ARBITRATION, CONDUCTED BY: RATIONALE OF COMPULSORY ARBITRATION


✓ Labor arbiter To bring about soonest a fair and just solution to the
✓ SOLE under 278 (g) dispute. The purpose of a presidential certification is
nothing more than to bring about soonest, thru
In compulsory arbitration, parties are compelled to arbitration by the industrial court, a fair and just
forego their right to strike by the government. solution of the differences between an employer and
his workers regarding the terms and conditions of
Impartial party in compulsory arbitration is work in the industry concerned which in the opinion
appointed by statutory authority. When the consent of the President involves the national interest, so
of one of the parties is enforced by statutory that the damage such employer-worker dispute
provisions, the proceeding is referred to as might cause upon the national interest may be
compulsory arbitration. Compulsory arbitration is the minimized as much as possible, if not totally averted
process of settlement of labor disputes by a by avoiding the stoppage of work as a result of a
government agency which has authority to strike or lock out or any lagging of the activities of
investigate and to make an award which is binding the industry or the possibility of these contingencies
on all parties. 210 which might cause detriment to such national
interest. This is the foundation of that court's
The filing of the strike notice, and the jurisdiction in what may be termed as a certification
commencement of conciliation activities by the case.215
Bureau of Labor Relations did not operate to make
GTE's orders illegal or unenforceable so as to excuse It may also be added that due to petitioner's
continued non-compliance therewith. It does not intransigent refusal to attend the conciliation
follow that just because the employees or their conferences called after the union struck,
union are unable to realize or appreciate the assumption of jurisdiction by the Secretary of Labor
desirability of their employers' policies or rules, the and the issuance of a return-to-work order had
latter were laid down to oppress the former and become the only way of breaking the deadlock and
subvert legitimate union activities. Indeed, the maintaining the status quo ante pending resolution
overt, direct, deliberate and continued defiance and of the dispute. The Solicitor General was correct
disregard by the employees of the authority of their when he stated that by assuming jurisdiction over
employer left the latter with no alternative except the labor dispute, the Acting Secretary of Labor
to impose sanctions. The sanction of suspension merely provided for a formal forum for the parties to
having proved futile, termination of employment was ventilate their positions with the end in view of
the only option left to the employer.211 settling the dispute.216

Compulsory arbitration, explained. Compulsory To call to a halt a pending strike by requiring that
arbitration is a system whereby the parties to a the status quo prior to its declaration be
dispute are compelled by the government to forego preserved.217
their right to strike and are compelled to accept the
resolution of their dispute through arbitration by a PROCESS INITIATION – CERTIFICATION DISPUTE
third party. The essence of arbitration remains since Initiating party:
a resolution of a dispute is arrived at by resort to a
disinterested third party whose decision is final and
212Luzon Dev’t Bank v Association of Luzon Dev’t Bank Employees,
207Union of Filipro Employers v Nestle, G.R. No. 158930-31 (2006). 249 SCRA 162 (1995).
208Union of Filipro Employers v Nestle, G.R. No. 158930-31 (2006). 213Phimco Industries v Brillantes, G.R. No. 120751 (1999).
209Supra. 214Manila Diamond Hotel EU v SOLE, 447 SCRA 97 (2004).
210PAL v NLRC, 180 SCRA 555 (1989). 215Manila Cordage v CIR, L-25943 (1971).
211GTE Directories Corp. v Sanchez, GTE Directories EU, G.R. No. 216PSBA v Noriel, 163 SCRA 402 (1988).

76219 (1991). 217NFL v MOLE, 124 SCRA 612 (1983).

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1. SOLE Arbitral award; retroactive effect.CBA arbitral


“When, in his opinion, there exists a labor dispute awards granted after six months from the expiration
causing or likely to cause a strike or lockout in an of the last CBA shall retroact to such time agreed
industry indispensable to the national interest, the upon by both employer and the employees or their
Secretary of Labor and Employment may assume union. Absent such an agreement as to retroactivity,
jurisdiction over the dispute and decide it or certify the award shall retroact to the first day after the
the same to the Commission for compulsory six-month period following the expiration of the last
arbitration. Such assumption or certification shall day of the CBA should there be one. In the absence
have the effect of automatically enjoining the of a CBA, the Secretary's determination of the date
intended or impending strike or lockout as specified of retroactivity.225
in the assumption or certification order. If one has
already taken place at the time of assumption or The Labor Secretary’s authority to assume
certification, all striking or locked out employees jurisdiction over a labor dispute must include and
shall immediately return-to-work and the employer extend to all questions and controversies arising
shall immediately resume operations and readmit all therefrom, including cases over which the labor
workers under the same terms and conditions arbiter has jurisdiction.226
prevailing before the strike or lockout. The Secretary
of Labor and Employment or the Commission may Option – Submit case Voluntary arbitration after
seek the assistance of law enforcement agencies to certification
ensure compliance with this provision as well as with Art 278 (h)
such orders as he may issue to enforce the same. (h) Before or at any stage of the compulsory
xxx”218 arbitration process, the parties may opt to submit
their dispute to voluntary arbitration.
Great breadth of discretion given to Secretary of
Labor under Article 278 (g).219 COMPULSORY ARBITRATION AND LABOR RIGHTS
The assumption of jurisdiction is in the nature of
The discretion to assume jurisdiction may be police power measure. This is done for the
exercised by the SOLE without necessity of prior promotion of the common good considering that a
notice or hearing given to any of the parties.220 prolonged strike or lockout can be inimical to the
national economy. The Secretary of Labor acts to
The Secretary of Labor has the discretion to maintain industrial peace. Thus, his certification for
determine what industries are indispensable to compulsory arbitration is not intended to impede
national interest.221 the workers' right to strike but to obtain a speedy
settlement of the dispute. 227
2. PRESIDENT – 269(G)
EFFECT OF DEFIANCE OF ASSUMPTION OR
To certify a labor dispute to the Industrial Court is CERTIFICATION ORDERS
the prerogative of the President. The Supreme Court
will not interfere with such prerogative, much less A strike undertaken despite Secretary’s issuance of an
curtail its exercise. 222 assumption or certification order becomes a prohibited
activity and thus, illegal.228
Assumption and certification orders are executory in
character and are to be strictly complied with by the Once the SOLE assumes jurisdiction over a labor
parties even during the pendency of any petition dispute, such jurisdiction should not be interfered
questioning their validity. 223 with by the application of the coercive processes of
a strike or lockout. Defiance of the assumption order
or a return-to work order by a striking employee,
AWARDS AND ORDERS whether a union officer or a member, is an illegal
A union’s demand for a signing bonus bereft of any act and, therefore, a valid ground for loss of
factual or legal basis where the CBA was not employment status.229
concluded in the bargaining table, the SOLE abuses
her discretion when she extends to the union an
award not asked for, let alone negotiated.224

218 Art 278(g)


219PLDT v Manggagawang Komunikasyon s aPilipinas, 463 SCRA 418
(2005).
220Capitol Medical v Trajano, 462 SCRA 457 (2005). 225Manila Electric Co. v SOLE, G.R. No. 127598 (2000).
221Philtread WU v Confesor, 269 SCRA 393 (1997). 226InterphilLab EU v Interphil, 372 SCRA 658 (2001).
222Feati University v Bautista, 18 SCRA 1191 (1966). 227Philtread Workers Union v Confesor, 296 SCRA 393 (1997).
223Union of Filipro Employees v Nestle, 192 SCRA 396 (1990). 228Philcom EU v Philcom 495 SCRA 214 (2006).
224Nissin Motors v SOLE, 491 SCRA 602 (2006). 229Manila Hotel Employees v Manila Hotel, 517 SCRA 349 (2007).

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II. Jurisdiction and LABOR


DIRECTOR
ARBITER VS. REGIONAL

Remedies
LABOR ARBITER (Art. REGIONAL DIRECTOR
A. LABOR ARBITER 224) (Art. 129)
A.1. JURISDICTION 1. Money claim 1. Money claim is not
accompanied with a claim accompanied
1. Unfair labor practice cases (Art. 224) of by reinstatement, AND
2. Termination disputes; (Art. 224) Reinstatement, regardless
3. If accompanied with a claim for reinstatement, of amount, OR
those cases that workers may file involving
2. Money claim exceeds 2. Money claim does not
wages, rates of pay, hours of work and other
P5,000, whether exceed P5,000
terms and conditions of employment; (Art. 224)
or not there is a claim for
4. Claims for actual, moral, exemplary and other
reinstatement.
forms of damages arising from the employer-
employee relations (Art. 224)
5. Cases arising from any violation of Article 279 of
this Code, including questions involving the A.2. REQUIREMENTS TO PERFECT APPEAL TO
legality of strikes and lockouts (Art. 224) NLRC
6. Except claims for Employees Compensation, Decisions, awards, or orders of the Labor Arbiter
Social Security, Medicare and maternity shall be final and executory unless appealed to the
benefits, all other claims arising from employer- Commission by any or both parties within ten (10)
employee relations, including those of persons calendar days from receipt thereof; and in case of
in domestic or household service, involving an decisions or resolutions of the Regional Director of
amount exceeding five thousand pesos the Department of Labor and Employment pursuant
(P5,000.00) regardless of whether accompanied to Article 129 of the Labor Code, within five (5)
with a claim for reinstatement. (Art. 224) calendar days from receipt thereof. If the 10th or
7. Wage distortion disputes in unorganized 5th day, as the case may be, falls on a Saturday,
establishments not voluntarily settled by the Sunday or holiday, the last day to perfect the appeal
parties (R.A. 6727 and Art. 124); shall be the first working day following such
8. Enforcement of compromise agreements when Saturday, Sunday or holiday (Rule VI, Section 1, 2011
there is non-compliance by any of the parties NLRC Rules of Procedure).
(Art. 233)
9. Money claims arising out of employer-employee REQUISITES FOR PERFECTION OF APPEAL. (Rule VI,
relationship or by virtue of any law or contract, Section 4, 2011 NLRC Rules of Procedure). (a) The
involving Filipino workers for overseas appeal shall be:
deployment, including claims for actual, moral, 1. filed within the reglementary period provided in
exemplary and other forms of damages (R.A. Section 1 of this Rule;
8042, as amended by R.A. 10022) 2. verified by the appellant himself/herself in
10. Other cases as may be provided by law. accordance with Section 4, Rule 7 of the Rules
of Court, as amended;
3. in the form of a memorandum of appeal which
shall state the grounds relied upon and the
arguments in support thereof, the relief prayed
for, and with a statement of the date the
appellant received the appealed decision, award
or order;
4. in three (3) legibly typewritten or printed
copies; and
5. accompanied by:
a. proof of payment of the required appeal fee
and legal research fee,
b. posting of a cash or surety bond as provided
in Section 6 of this Rule, and
c. proof of service upon the other parties.

A mere notice of appeal without complying with the


other requisites aforestated shall not stop the
running of the period for perfecting an appeal.

The appellee may file with the Regional Arbitration

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LABOR RELATIONS 51 LABOR LAW

Branch or Regional Office where the appeal was filed REVERSAL OF LA DECISION BY NLRC
his/her answer or reply to appellant's memorandum However, in the event that the LA's decision is
of appeal, not later than ten (10) calendar days from reversed by a higher tribunal, the employer's duty to
receipt thereof. Failure on the part of the appellee reinstate the dismissed employee is effectively
who was properly furnished with a copy of the terminated. This means that an employer is no
appeal to file his/her answer or reply within the said longer obliged to keep the employee in the actual
period may be construed as a waiver on his/her part service or in the payroll. The employee, in turn, is
to file the same. not required to return the wages that he had
received prior to the reversal of the LA's decision.
Subject to the provisions of Article 218 (now 225) of Notwithstanding the reversal of the finding of illegal
the Labor Code, as amended, once the appeal is dismissal, an employer, who, despite the LA's order
perfected in accordance with these Rules, the of reinstatement, did not reinstate the employee
Commission shall limit itself to reviewing and during the pendency of the appeal up to the reversal
deciding only the specific issues that were elevated by a higher tribunal may still be held liable for the
on appeal. (4a) accrued wages of the employee, i.e., the unpaid
salary accruing up to the time of the reversal. By
way of exception, an employee may be barred from
A.3. REINSTATEMENT PENDING APPEAL collecting the accrued wages if shown that the delay
in enforcing the reinstatement pending appeal was
Under Article 229 of the Labor Code, the decision of without fault on the part of the employer. (Manila
the [LA] reinstating a dismissed or separated Doctors College and Turla vs. Olones, G.R. No.
employee, insofar as the reinstatement aspect is 225044, 3 October 2016)
concerned, shall immediately be executory, even
pending appeal. The employee shall either be
admitted back to work under the same terms and
conditions prevailing prior to his dismissal or C. COURT OF APPEALS
separation or, at the option of the employer, merely C.1. APPEAL VIA RULE 65, RULES OF COURT
reinstated in the payroll. The posting of a bond by
the employer shall not stay the execution for Section 2, Rule 43 of the 1997 Rules of Civil
reinstatement. Verily, the employer is duty-bound to Procedure is explicit that Rule 43 shall not apply to
reinstate the employee, failing which, the employer judgments or final orders issued under the Labor
is liable instead to pay the dismissed employee's Code of the Philippines. The correct remedy that
should have been availed of is the special civil action
salary. (Manila Doctors College and Turla vs. Olones,
G.R. No. 225044, 3 October 2016) of certiorari under Rule 65. The party may
seasonably avail of the special civil action for
certiorari, where the tribunal, board or officer
exercising judicial functions has acted without or in
B. NATIONAL LABOR RELATIONS COMMISSION excess of its jurisdiction, or with grave abuse of
(NLRC) discretion, and praying that judgment be rendered
B.1. JURISDICTION annulling or modifying the proceedings, as the law
requires, of such tribunal, board or officer. In any
1. Exclusive appellate Jurisdiction over cases case, St. Martins Funeral Homes v. NLRC (295 SCRA
decided by Labor Arbiters (Art 224[b]) 494, 1998) settled any doubt as to the manner of
2. Exclusive appellate Jurisdiction over cases elevating decisions of the NLRC to the CA by holding
decided by DOLE regional directors under Art that the legislative intendment was that the special
129 on small money claims civil action of certiorari was and still is the proper
3. Petitions for injunctions or temporary vehicle for judicial review of decisions of the NLRC.
restraining order under Art. 225 (e). (Philippine National Bank v. Velasco, G.R. 166096,
September 11, 2008)
GROUNDS OF APPEAL FROM LA TO NRLC (Rule VI,
Section 2, 2011 NLRC Rules of Procedure)
a. If there is prima facie evidence of abuse of D. SUPREME COURT
discretion on the part of the Labor Arbiter or
Regional Director; D.1. RULE 45, RULES OF COURT
b. If the decision, award or order was secured Appeal by Certiorari to the Supreme Court
through fraud or coercion, including graft and
corruption; Section 1. Filing of petition with Supreme Court. —
c. If made purely on questions of law; and/or A party desiring to appeal by certiorari from a
d. If serious errors in the findings of facts are judgment or final order or resolution of the Court of
raised which, if not corrected, would cause Appeals, the Sandiganbayan, the Regional Trial Court
grave or irreparable damage or injury to the or other courts whenever authorized by law, may file
appellant. with the Supreme Court a verified petition for

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LABOR RELATIONS 52 LABOR LAW

review on certiorari. The petition shall raise only F.2. PREVENTIVE MEDIATION
questions of law which must be distinctly set forth.
(1a, 2a) a formal or informal request for conciliation and
mediation assistance sought by either or both parties
to avoid the occurrence of actual labor dispute.232
E. BUREAU OF LABOR RELATIONS (BLR)
E.1. JURISDICTION G. DOLE REGIONAL DIRECTORS
G.1. RECOVERY/ADJUDICATORY POWER
Art. 232. Bureau of Labor Relations — The Bureau
Art. 129. Recovery of wages, simple money claims
of Labor Relations and the Labor Relations Division in
and other benefits. — Upon complaint of any
the regional offices of the Department of Labor shall
have original and exclusive authority to act, at their interested party, the Regional Director of the
Department of Labor and Employment or any of the
own initiative or upon request of either or both
duly authorized hearing officers of the Department is
parties, on all
empowered, through summary proceeding and after
inter-union and intra-union conflicts, and all
due notice, to hear and decide any matter involving
disputes, grievances or problems arising from or
affecting labor-management relations in all work the recovery of wages and other monetary claims
places whether agricultural or non-agricultural, and benefits, including legal interest, owing to an
employee or person employed in domestic or
except those arising from the implementation or
household service or househelper under this Code,
interpretation of collective bargaining agreements
arising from employer-employee relations: Provided,
which shall be subject of grievance procedure
and/or voluntary arbitration. That such complaint does not include a claim for
reinstatement: Provided further, That the aggregate
money claims of each employee or househelper does
F. NATIONAL CONCILIATION AND MEDIATION not exceed Five thousand pesos (P5,000.00). The
BOARD Regional Director or hearing officer shall decide or
Sec. 22, EO 126 resolve the complaint within thirty (30) calendar
The National Conciliation and Mediation Board, is days from the date of the filing of the same. Any
hereby created and which shall absorb the sum thus recovered on behalf of any employee or
conciliation, mediation and voluntary arbitration househelper pursuant to this Article shall be held in
functions of the Bureau of Labor Relations. a special deposit account by, and shall be paid on
order of, the Secretary of Labor and Employment or
F.1. CONCILIATION VS. MEDIATION the Regional Director directly to the employee or
househelper concerned. Any such sum not paid to
Conciliation – is conceived of as a mild form of the employee or househelper because he cannot be
intervention by a neutral third party, the located after diligent and reasonable effort to locate
Conciliator-Mediator, relying on his persuasive him within a period of three (3) years, shall be held
expertise, who takes an active role in assisting as a special fund of the Department of Labor and
parties by trying to keep disputants talking, Employment to be used exclusively for the
facilitating other procedural niceties, carrying amelioration and benefit of workers.
messages back and forth between the parties, and
generally being a good fellow who tires to keep Any decision or resolution of the Regional Director or
things calm and forward-looking in a tense hearing officer pursuant to this provision may be
situation.230 appealed on the same grounds provided in Article
223 of this Code,within five (5) calendar days from
Mediation – is a mild intervention by a neutral third receipt of a copy of said decision or resolution, to
party, the Conciliator-Mediator, whereby he starts the National Labor Relations Commission which shall
advising the parties or offering solutions or resolve the appeal within ten (10) calendar days
alternatives to the problems with the end in view of from the submission of the last pleading required or
assisting them towards voluntarily reaching their allowed under its rules.
own mutually acceptable settlement of the
dispute231 The Secretary of Labor and Employment or his duly
authorized representative may supervise the
payment of unpaid wages and other monetary claims
and benefits, including legal interest, found owing to
any employee or househelper under this Code.(As
amended by Section 2, Republic Act No. 6715, March
21, 1989)

NCMB. ADMINISTRATIVE - BASED STATISTICS ON ACTUAL STRIKES


232

AND NOTICES/LOCKOUT FILED


230 NCMB. http://co.ncmb.ph/conciliation-mediation/
231 Id.

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LABOR RELATIONS 53 LABOR LAW

3. The Secretary of Labor and Employment may


Requisites for Regional Director’s Adjudicatory likewise order stoppage of work or suspension of
Power: operations of any unit or department of an
1. Claim is presented by an employee or a person establishment when non-compliance with the
employed in domestic or household service, or law or implementing rules and regulations poses
househelper. grave and imminent danger to the health and
2. Claim arises form employer-employee relations safety of workers in the workplace. Within
3. Claimant does not seek reinstatement twenty-four hours, a hearing shall be conducted
4. Aggregate money claim of each employee or to determine whether an order for the stoppage
househelper does not exceed 5,000 pesos. of work or suspension of operations shall be
(Azucena, Everyone’s Labor Code, p. 121) lifted or not. In case the violation is attributable
to the fault of the employer, he shall pay the
employees concerned their salaries or wages
H. DOLE SECRETARY during the period of such stoppage of work or
suspension of operation.
H.1. VISITORIAL AND ENFORCEMENT POWERS
Art. 128. Visitorial and enforcement power. 4. It shall be unlawful for any person or entity to
1. The Secretary of Labor and Employment or his obstruct, impede, delay or otherwise render
duly authorized representatives, including labor ineffective the orders of the Secretary of Labor
regulation officers, shall have access to and Employment or his duly authorized
employer’s records and premises at any time of representatives issued pursuant to the authority
the day or night whenever work is being granted under this Article, and no inferior court
undertaken therein, and the right to copy or entity shall issue temporary or permanent
therefrom, to question any employee and injunction or restraining order or otherwise
investigate any fact, condition or matter which assume jurisdiction over any case involving the
may be necessary to determine violations or enforcement orders issued in accordance with
which may aid in the enforcement of this Code this Article.
and of any labor law, wage order or rules and
regulations issued pursuant thereto. 5. Any government employee found guilty of
violation of, or abuse of authority, under this
2. The Secretary of Labor and Employment or his Article shall, after appropriate administrative
duly authorized representatives shall have the investigation, be subject to summary dismissal
power to issue compliance orders to give effect from the service.
to the labor standards provisions of this Code
and other labor legislation based on the findings 6. The Secretary of Labor and Employment may, by
of labor employment and enforcement officers appropriate regulations, require employers to
or industrial safety engineers made in the course keep and maintain such employment records as
of inspection. The Secretary or his duly may be necessary in aid of his visitorial and
authorized representatives shall issue writs of enforcement powers under this Code.
execution to the appropriate authority for the
enforcement of their orders, except in cases Modes of Labor Standards Inspections (RULE III.,
where the employer contests the findings of the SEC.1, DO 131-B)
labor employment and enforcement officer and 1. Joint Assessment (JA);
raises issues supported by documentary proofs 2. Compliance Visit (CV);
which were not considered in the course of 3. Occupational Safety and Health Standards
inspection. (As amended by Republic Act No. Investigation (OSHI); or
7730, June 2, 1994). 4. Special Assessment or Visit Establishment
(SAVE).
An order issued by the duly authorized
representative of the Secretary of Labor and H.2. POWER TO SUSPEND EFFECTS OF
Employment under this Article may be appealed TERMINATION
to the latter. In case said order involves a
monetary award, an appeal by the employer The Secretary of the Department of Labor and
may be perfected only upon the posting of a Employment may suspend the effects of the
cash or surety bond issued by a reputable termination pending resolution of the dispute in the
bondingcompany duly accredited by the event of a prima facie finding by the appropriate
Secretary of Labor and Employment in the official of the Department of Labor and Employment
amount equivalent to the monetary award in the before whom such dispute is pending that the
order appealed from. (As amended by Republic termination may cause a serious labor dispute or is
Act No. 7730, June 2, 1994) in implementation of a mass lay-off. (Art. 292 (b))

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LABOR RELATIONS 54 LABOR LAW

H.3. REMEDIES The Commission, its Regional Offices and the


Regional Directors of the Department of Labor and
The proper remedy to question the decisions or Employment shall not entertain disputes, grievances
orders of the Secretary of Labor is via Petition for or matters under the exclusive and original
Certiorari under Rule 65, not via an appeal to the
jurisdiction of the Voluntary Arbitrator or panel of
OP. For appeals to the OP in labor cases have indeed Voluntary Arbitrators and shall immediately dispose
been eliminated, except those involving national and refer the same to the Grievance Machinery or
interest over which the President may assume Voluntary Arbitration provided in the Collective
jurisdiction. (Pena v. Office of the President, G.R. Bargaining Agreement.
No. 189314, June 15, 2011)
ART. 275. Jurisdiction over other Labor Disputes.
- The Voluntary Arbitrator or panel of Voluntary
I. VOLUNTARY ARBITRATOR Arbitrators, upon agreement of the parties, shall
I.1. JURISDICTION also hear and decide all other labor disputes
including unfair labor practices and bargaining
The original and exclusive jurisdiction of the labor deadlocks.
arbiter over unfair labor practices, termination
disputes, and claims for damages cannot be ART. 224. Jurisdiction of the Labor Arbiters and
arrogated into the powers of voluntary arbitrators in the Commission.
the absence of an express agreement between the
union and the company.233 (c) Cases arising from the interpretation or
implementation of collective bargaining
The Voluntary Arbitrator or Panel of Voluntary agreements and those arising from the
Arbitrators will have original and exclusive interpretation or enforcement of company
jurisdiction over money claims 'arising from the personnel policies shall be disposed of by the
interpretation or implementation of the Collective Labor Arbiter by referring the same to the
Bargaining Agreement and, those arising from the grievance machinery and voluntary arbitration
interpretation or enforcement of company personnel as may be provided in said agreements.
policies', under Article 267."234
I.2. REMEDY
Unresolved grievances. The law grants to voluntary
arbitrators original and exclusive jurisdiction to hear The judgments of voluntary arbitrators shall be
and decide all unresolved grievances arising from the appealable by ordinary appeal to the court of
interpretation or implementation of the Collective appeals under Rule 43 of the Rules of Court. (Rule
Bargaining Agreement and those arising from the 43, Sec. 1, ROC).
interpretation or enforcement of company personnel
policies (Art. 274, Labor Code).235
J. PRESCRIPTION OF ACTIONS
ART. 274. Jurisdiction of Voluntary Arbitrators
PRESCRIPTION OF ACTIONS
and Panel of Voluntary Arbitrators. - The
Voluntary Arbitrator or panel of Voluntary MONEY CLAIMS ART. 306, Labor Code
Arbitrators shall have original and exclusive All money claims arising from
jurisdiction to hear and decide all unresolved employer-employee relations
grievances arising from the interpretation or shall be filed within 3 years from
implementation of the Collective Bargaining the time the cause of action
Agreement and those arising from the interpretation accrued; otherwise they shall be
or enforcement of company personnel policies forever barred.
referred to in the immediately preceding article. ILLEGAL Art. 1146, Civil Code
Accordingly, violations of a Collective Bargaining DISMISSAL Although illegal dismissal is a
Agreement, except those which are gross in violation of the Labor Code, it
character, shall no longer be treated as unfair labor does not fall within the ambit of
practice and shall be resolved as grievances under the term “offense” in Art. 305
the Collective Bargaining Agreement. For purposes of because in illegal dismissal, no
this article, gross violations of Collective Bargaining penalty, fine, or imprisonment is
Agreement shall mean flagrant and/or malicious imposed. Thus, the 4-year
refusal to comply with the economic provisions of prescription in the civil code must
such agreement. apply.
(Callanta v. Carnation Phil., Inc.,
145 SCRA 268 (1986))
233LantexIndustries v CA, 529 v 631 (2007).
234DelMonte v Saldivar, 504 SCRA 192 (2006).
235Sanyo Philippines Workers Union v Canizares, 211 SCRA 361

(1992).

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LABOR RELATIONS 55 LABOR LAW

UNFAIR LABOR Art. 305, Labor Code


PRACTICE All unfair labor practices shall be
filed with the appropriate agency
within 1 year from accrual of
such unfair labor practice;
otherwise, forever barred.
OFFENSES Art. 305, Labor Code
UNDER THE Offenses penalized under the
LABOR CODE Code and the rules and
regulations shall prescribe in 3
years
ILLEGAL Sec. 12, RA 8042
RECRUITMENT Illegal recruitment cases shall
prescribe in 5 years: Provided; if
economic sabotage is involved, it
shall prescribe in 20 years.

LA SALLIAN COMMISION ON BAR OPERATIONS