Edwin Villa Labor Law 2 Reviewer-Midterm

LABOR LAW ESSENTIALS

 From Dean Salvador Poquiz lecture (Overview of Labor Law)

 With special emphasis on Labor Relations

CONSTITUTIONAL PROVISION

 Art. 13 – Rights of worker

o Rights to self organization
o Rights to living wage
o Right to collective bargaining or negotiation
o Right to security of tenure
o Right to just and humane condition of work
o Right to engage in peaceful concerted activities
o Right to strike in accordance with law
o Right to participate in formulation of policy and decision making processes with
the management (Principle of co-determination, principle of shared
responsibilities)
o Right to profit sharing benefits
 Art. 12, Sec.6
o Principle of Distributive Justice – defusing, regulate the enjoyment of property
ownership for the common good via the power of eminent domain.
 Art. 19, Sec.5 – right to self organization of government
o Cannot have CBA but can have CNA
 Art. 19, Sec. 2 (1) – Scope of Civil Service
o Chartered government corp., governed by CSC
o Subsidiary of chartered government corp. organized under Corporation Code,
LC.(Corporate offspring)

TYPES OF EMPLOYEES

1. Regular employees
 Whether continuous of broken, so long as the employment is for more than one year,
regular employment.
 Constant Rehiring, renewal of contract plus one year = regular employment
 Necessary and desirable to the usual business or trade of the employer
 Usual trade and business = main undertaking of the employer
 Expiration of the training period
o Training Period
 For Apprentice – not more than 6 months but not less than 3 months
 Combo of Theoretical Instruction plus OJT(Practical application)
 The apprenticeship period is considered as the probationary
period
 Double apprenticeship is not allowed (apprenticeship plus
probationary period). It is against public policies.
 Apprentice is entitled to not less than 75% of the minimum wage
as issued by the wage board.

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Edwin Villa Labor Law 2 Reviewer-Midterm

 Q: Is the apprentice entitled to full month pay? A: Upon the

expiration of the apprenticeship period or if the training
company availed of the tax deduction scheme for apprenticeship
salary, must pay 100%.
 Learnership – engaged in non – apprenticiable or less skilled work, OJT
plus optional theoretical instruction
 Not less than 3 months
 No double learnership, period is probationary period
 Fixed at 75% of minimum wage as per wage order
 Once taken in after learning period, entitled to full compensation
 Disabled/Handicapped – maybe regular employee if employed in a job
which is usually necessary and desirable to the usual trade of business of
the employer which his performance is not affected by his disability.
 Age, Physical, mental and sensory defects
 Nature of Training – as an apprentice or learner – apply the rule

NB: Q: Who has jurisdiction over learnership and apprenticeship disputed? A: Plant
Committee then Department of Labor and Employment. Labor Arbiter has no jurisdiction.
(PAL vs Pano)

2. Probationary Employment
 Period can be less than six months, if favorable to the employee as provided for the
employer.
 SC: 18 months probationary period can be warranted when the job required extensive
training. The law provides for six months.
 During this period, employees are required to comply with the employer’s standards.
 Probation extension: allowed when agreed upon by the parties when necessary to
comply with the probationary standards of the employer. What is prohibited is double
probation.
 But after the extension, the employee still have not reached the standards, employer can
terminate the employee.

3. Seasonal Employment
 From season to season
 Performing the same task

4. Project Employment
 Hired for specific undertaking or project
 Upon termination of project, automatic cessation of employer and employee
relationship
 Q: What if there is illegal dismissal during the project? Answer: Reinstatement during
the period of the project and back wages but only during the term of the project.
 Q; when can a project employee be a regular employee? A: Employers are required to
submit termination report of the project to the nearest to the DOLE Office, failure to do
this would make project employees as regular employee.

5. Non - project Employees

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Edwin Villa Labor Law 2 Reviewer-Midterm

 Hired without reference to a specific project or job.

 Hence, they belong to a work pool.
 Q: Are they required to go under probationary period? A: Yes.
 They will be assigned to various projects or phase of such.

6. Fixed Term Employees

 Contractual employees
 Upon signing of the contract, employees knew when it will expire
 Once rehired, they will morphed into regular employment. EXPTN: Seamen, even if
rehired cannot be regular employees (Millares vs NLRC)

7. Casual Employees
 Activity performed is not usually necessary or desirable in the usual business or trade of
the ER (not regular); not project; not seasonal.
 He is uniquely regular because his “regularness” attaches only to the particular activity
that he has been doing while still a casual.

Prescriptive Period:

1. Purely Money Claims – 3 years

2. Criminal cases under LC -3 years, as a general rule.
 Exemptions are:
a. Simple Illegal Recruitment – 5 years
b. Qualified Illegal Recruitment - 20 years
3. ECC Cases -3 years
4. Illegal Dismissal – 4 years
5. GSIS Claims – 4 years
 Exemption: Payment of premium, its 20 years.(SC)
6. SSS Claims – for payment of premiums, 10 years
7. Sexual Harassment – 3 years but SC, no prescription, even after four years.

Requirements for Appeal

1. Payment of appeal fee

o Jurisdictional requirement – no payment, appeal will be dismissed for lack of
jurisdiction
2. Submission of memorandum of appeal to LA a quo who will submit it to the NLRC office
which has appellate jurisdiction over the LA a quo.
o The NLRC Commissioner can notify the parties to have amicable settlement base
on Art. 221 of LC.
o No amicable settlement, proceed with decision.
o When affirmed in toto, reinstated to the payroll.
o Losing party, file Motion for Reconsideration. Only one MR is allowed. This is a
condition sine qua non for filing of certiorari. (St. Martin’s Funeral Home vs.
NLRC)
o When MR denied, file a certiorari under Rule 65 to CA within 60 days.

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Edwin Villa Labor Law 2 Reviewer-Midterm

When Certiorari was denied or unfavorable, file MR again, then when denied
o
thus upholding NLRC decision, certiorari to SC.
o SC can only review question of law, but can review question of facts when
1. When decision of LA, NLRC and CA are contrary, in collision or
diametrically opposed to each other.(SC)
o Filing and reckoning period
 Reckoning Period: Upon receipt of the counsel of record
 Philpost: The date of mailing, date of filing
 Private Carrier: The date of receipt of private party, date of filing
3. Pay appeal Bond
o Cash and surety bond only, but
 UERM Case: Property bond can be posted provided it is sufficient to
cover the monetary award
 Bank certification, irrevocable bank guarantee are not allowed
 Q: Can you file a motion to reduce bond? A; Yes, but it must be coupled
with the payment of the reasonable amount of the bond. Without the
payment, the period will not be tolled.

JURISDICTION OF LABOR ARBITER

Exclusive and Original Jurisdiction

1. Unfair labor practices

2. Termination cases
3. Big Money claims, 5k up
 More than 5k, LA has jurisdiction
i. EXPTN: Big Money Claims bore out of the power of
inspection of Secretary of Labor.
ii. Power of inspection – by Sec. of Labor via the Regional
Director or his representatives. Can be done moto propio
or by a Labor Standards Complaint of an employee
supported by 20% of all the employees of the
employer/plant.
1. Enforcement Order has the force and effect of a
writ of execution.
2. When amount is contested:
 If the pieces of evidence are readily
available in the ordinary course of
inspection, the Regional Office retains
jurisdiction. If not, it will be transmitted
for compulsory arbitration to the Regional
Arbitration Branch of the NLRC, thus LA.
4. Small money claims with demand for reinstatement
 5k or less, but with claim for reinstatement.
 Without demand for reinstatement, Regional Director. Thus his
decision is appealable directly to the NLRC.
5. Other cases involving employer – employee relationships

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Edwin Villa Labor Law 2 Reviewer-Midterm

 Causal relation between employer – employee. Without this,

regular courts will have jurisdiction.
 Apply the Four Fold Test to determine employer - employee
i. Selection and engagement of the putative employee
ii. Manner of payment of salary or wages
iii. Presence or absence of the power of dismissal
iv. Presence or absence of the power control
1. Has primacy over all other
2. Q: Are all kinds of control indicative of EE-EM
relationship? A: No. If there is lesser control, no
relationship. More control, there is relationship
(Jay Sonza case)
3. Other test in determining relationship.
 Economic relations test – Sevilla vs. CA:
The prevailing economic relationship of
employer and employee can be indicative
of a relationship.
 Q: Are there instances when there is no
formal contract of employment but the
law mandates the existence of employer –
employee relationship? A: Yes. 1. In cases
of labor only contracting. As penalty,
actual employer deemed as employer of
the contractual employee, the contractor
will be deemed as the agent of the former.
 Q: Can contractual employees
form a union in the actual
employer’s premises when there
is a labor only contracting? A.1:
Yes, because the law mandates
that the actual employer is the
employee of the contractor’s
employee.
A.2: In cases of Working Scholars –
under the law, the agreement, no
employer – employee relationship.
Requirements: There must be a
real opportunity to finish the
course.
NB: For purposes of civil damages,
the working scholar will be treated
as employee and the school as an
employer, particularly in quasi-
delics.
6. Legality of strike and Lockout
 Strike is the most lethal weapon on employees

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Edwin Villa Labor Law 2 Reviewer-Midterm

i. May affect the socio-economic situation of a country that

is why there is a law on strike.
ii. Requirements to stage a lawful strike
1. Based on a valid ground
 Two Grounds
 CBA Deadlock
 ULP
 Union Busting (w/c is also ULP)
o NB: Inter/Intra Union
Disputes, wage distortion
issues are not strikable issues.
2. Approved by the majority of the total
membership of the union through strike voting
3. Filing of a Notice of strike
 To be filed with NCMB, which will look
into the factual grounds of the strike. It
will either dismiss it by issuing a
preventive mediation order which will
have the effect of making the strike illegal
if it still undertaken and will convert the
issue into a preventive mediation case.
 Must be filed before 30 days in case of
CBA Deadlock and 15 days for ULP. The
period is known as the Cooling Off Period.
Here, the Grievance Machinery in the CBA
will be exhausted.
 7 days after failure of the Grievance
Machinery, the issue will be submitted to
Voluntary Arbitration conducted by a 3rd
non-partisan person known as the
Voluntary Arbitrator whose decision will
be appealable to the CA under Rule 43.
 Principle of Improved Offer – through
secret balloting, union members can
choice whether or not to accept the
improved offer of the union.
 Principle of Reduced Offer – through
secret balloting, the BOD or members of
the governing body of the company can
choice WON to accept the reduced offer of
the union.
 In both cases, it will have the
effect of retuning to industrial
peace=workers return to work,
employer accepts workers and
resumes operation.

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Edwin Villa Labor Law 2 Reviewer-Midterm

 Compulsory Arbitration – when

the government intervenes.
 Q: During the cooling off period, officers of
the union were dismissed that seems to
tantamount to union busting. May the
union immediately strike? A: SC: If there is
union busting and the union has already
complied with the 24 hour prior notice
rule, 7 day strike report and the notice of
strike has already been submitted, then a
strike can be staged.
4. Compliance of the 24 hour prior notice rule of
strike vote
 Separate notice to DOLE and employer of
the place, time and date of the strike vote
24 hours before it is staged.
5. Submission of the strike vote report
 Must be submitted 7 days before the
strike.
 Q: What if the strike vote was submitted
during the cooling off period? A.: The
strike vote 7 day period must be reckoned
from the expiration of the cooling off
period.
6. Compliance of the doctrine of means and
purposes
 The purpose of the strike must be legal
and the means to attain the purpose
must be also legal. (e.g. uttering libelous
remarks during the strike. Thus,
commission of illegal acts during a lawful
strike, the strike can be declared illegal.)
7. For Hospitals and Medical Institutions:
designation of an effective skeletal force.
 NB: Officers of the union is liable for
dismissal for masterminding the illegal
strike. Basis: Doctrine of Vicarious
Liability.
 Members of the union who actively
participated in the illegal strike will also
be liable for dismissal.
 Q: Are the abovementioned dismissed
employees entitled to back pay? A: As a
general rule, no. Reason: No work, no pay.
But if they are:
 Discriminatorily dismissed

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Edwin Villa Labor Law 2 Reviewer-Midterm

 Illegally locked out by employer

 When the workers unconditionally
offer to return to work but they
were denied to return to work….
…they can return to work
 Once a strike is declared legal, the
workers cannot be liable for damages that
occurred during the strike based on the
doctrine of damnum absque injuria.
 You must be unionized (legitimate,
registered) before your strike can be
declared legal.
 Q: Can a union not registered conduct a
Certification election? A: Yes, in case of a
local chapter issued with a chapter
certificate. Here the charter member was
issued a charter for purposes of certificate
election. Other privileges accorded to a
union will be withheld for the meantime
until completion of the other
requirements.
 Principle of Comingling – the rank and
file union and the supervisory union of
the same company can join the same
federation.
 Q: Can government employees unionize?
A. Yes. But they don’t have the power to
collectively bargain. They can only have
the power to collectively negotiate. They
also cannot strike because according to
SC, strike of government employees is a
civil service offense. They serve the
people. If you allow the government
employees to strike, it will tremendously
affect the delivery of public service. It
tantamount ultimately as an assault to the
sovereignty.
 GOCC employees without original charters
can unionize and strike. LRTA vs Benus:
SC said LRTA is a GOCC with original
charter, thus its employees cannot strike.
However, employees of its subsidiaries or
Corporate Offspring of GOCC with or
without original charter, can strike.
 Managerial, and Confidential employees
cannot join a labor union and strike.

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Edwin Villa Labor Law 2 Reviewer-Midterm

 For confidential employee, they must have

access to labor relations matters to be
disqualified for union membership.
 Cooperative employees who are also
members thereof cannot unionize.
 Religious Objectors can choose not to join
a union. However they can vote in
certification election.

iii. Types of Strikes

1. Authorized strikes
 There must be a strike vote.
2. Unauthorized strikes
 When the there is no strike vote – Wild
Cat strike
3. General Strike
 No EE-EM Relationship
 Welga ng Bayan – SC a form of
Sympathetic Strike
 Political in Nature
 Industry wide strike –e.g. all employees of
the air transportation in the RP
 According to SC, these strikes are
unwarranted
4. Lightning Strike
 Brief strike that was stage in short
duration
5. Slowdown Strike
 To reduce company reduction
 Types
I. Sit down – strikers remain
in the plant but they
reduce company reduction
II. Quickie – some may
remain in the plant or
some may be outside the
plant
6. Economic Strike
 Staged as a result of a collective
bargaining deadlock
7. ULP Strike
 Staged in violation of the worker’s right to
self organization
7. Damages
8. Employees of GOCC without original charter
9. OFW

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Edwin Villa Labor Law 2 Reviewer-Midterm

 Based on Section 10 of RA 8042 as amended RA 10022

10. Over certain churchmen (pastor, ministers)
 If it’s purely religious function, LA has no jurisdiction.
 But if not, it has jurisdiction.
11. Collateral Matters
 Incidental to the main case
 Q: Can a LA award attorney’s fees in an illegal dismissal case? A:
Yes. When the LA has jurisdiction over the main issue of the case,
it has jurisdiction over collateral and incidental matters.
12. 3rd Party Compliant of a party not connected to a Labor case that has
been affected by its execution.

NB. Except as otherwise provided by this code. These matters are beyond the jurisdiction
of the Labor Arbiter.

1. Inter/Intra Corporate Disputes

2. Training and learnership agreement disputes
3. Labor cases against company under rehabilitation proceedings
4. International bodies and organizations
o This will be violative of the convention on protocol and a violation of its
functional immunity.
o DFA vs CA: ADB is an international organization outside the reach of LA.
5. Art. 263 (g) – Assumption power, preemptive power
 Provides that the President or Secretary of Labor can assume jurisdiction
of a labor dispute involving industries indispensable to national interest
for its resolution.
 The state and government is a passive party.
 Q: Can assumption be moto propio? A: Yes.
 Q: Can one of the parties to a labor dispute involving a labor dispute in
an industry indispensable to national interest file a motion for
assumption? A: Yes, either by the union or the employer.
 Once assumption is made, an assumption order will be issued.
 Legal effects of assumption order:
 Once issued, it has the effect of a writ of injunction.
 A return to work order is deemed written on the assumption
order.
 The workers must report back to work. Failure to do so would
mean that they are now engaging in a prohibited/illegal activity.
 All issues cognizable by the labor arbiter under art. 217 can now
be resolved by the assumption officer, when it is raised under
assumption.
 UST Faculty Union vs. UST: Assumption of jurisdiction
contemplates actual reinstatement only. Thus, no choice
between payroll or actual reinstatement unlike in illegal
dismissal.

POWERS AND JURISDICTION OF THE NLRC

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Edwin Villa Labor Law 2 Reviewer-Midterm

1. Contempt Power
 Two Types
i. Indirect Contempt
1. To be dealt with by the NLRC and its rules.
ii. Direct Contempt
1. By the Rules of Court (R71)
2. Injunctive Power
2. Certification Power
 Art. 263 (g) Assumption powers of President and/or Secretary of
Labor.
 The President or the Secretary of Labor, upon assumption, can
also certify the labor dispute assumed to compulsory arbitration.
Thus, it is certified to the NLRC which will resolve the dispute.
 Q: Can the labor dispute be certified for voluntary arbitration? A:
Yes. If the Secretary of Labor deems it fit for voluntary
arbitration.
3. Appellate Power
 Decisions of LA under Art. 217
 Decisions of LA under Art. 128 (b) in relations to contested cases
 Decisions of LA arbiter in wage distortion in non-unionize
companies.
 Elements of wage distortion (Pru Bankers Case)
i. Existence hierarchy of positions
ii. There in an increase in the lower pay class with
no corresponding increase higher pay class
iii. Abolition of the two groups or classes
iv. Wage distortion applies only to the same region
 NB: Q: Who has jurisdiction over wage distortion
problem?
 A: For unionize establishment – Voluntary
Arbitrator

For non - unionize establishment –

Labor Arbiter.

NB: Although wage distortion problems

are not strikable, but for failure to pay the
increase pursuant to the wage order, the
employer will be liable to pay double the
amount of the increase under the
Doctrine of Double Indemnity.

 Decisions of the LA pursuant to Sec. 10 of RA 8042 in cases of OFW.

 Decisions of the RD of their adjudicatory functions under Art. 129
of LA.
o Adjudicatory Function
 Indications:

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Edwin Villa Labor Law 2 Reviewer-Midterm

1. Filed by house worker or employee

2. No more employer and employee
3. No more claim for reinstatement
4. Claim is not more than 5k.
4. Injunctive Power
 A hearing must be conducted to observe due process.
 Q: Is there a provision in the LC that a TRO is issued without
conducting a hearing by the NLRC? A: Yes, a TRO is a mere
interlocutory order. Thus can be issued ex parte. But for
injunction, a hearing is indispensible

ILLEGAL DISMISSAL (Step by step procedure)

 File it with the Regional Arbitration Branch of the NLRC which has territorial
jurisdiction over the workplace of the complainant.
 Mandatory Preliminary Conference. Resort to amicable settlement as per Art. 221 of the
LC. Second MPC, if first attempt is not successful.
 After second MPC, no amicable settlement, LA will mandate parties to submit position
papers.
o SC: Position papers proceedings are not in violation of due process. Through their
papers, they are heard. Plus, technical matters are not binding in labor
proceedings being an administrative proceeding.
o Q: Can one of the parties file a motion to have a trial type proceeding? A: Yes, but
subject to the discretion of the LA.
 When final paper has been submitted, LA has 30 days to decide.
 Ten calendar days to appeal
 No appeal, immediately self-executory as to the reinstatement aspect. No need for writ
of execution.
 Virgen Shipping case: As to other matters, a writ of execution is needed. To be filed
after period to appeal expired and no appeal is made.
 After the motion for execution, LA will set it for pre-execution conference to abbreviate
the proceedings as to Art. 221 of LC.
 If after the pre-execution conference, no settlement, proceed to execution.
 Garnishment and levy is allowed when no money to answer for the judgment.
 3rd party complaint is cognizable by LA for execution.
o Instances when you can lift or quash the writ of execution:
 Issued against a non-party
 Issued on account of graft and corruption
 Issued on account that the awards is incomplete
 Irregularly issued

NB: Doctrine of Immutability of Final Judgment: Final judgments are final and cannot be
modified.

 Grounds for Appeal

o Grave abuse of discretion
o Graft and corruption

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Edwin Villa Labor Law 2 Reviewer-Midterm

o Serious errors in the finding of fact

o Fraud

COLLECTIVE BARGAINING AGREEMENT

 Q: What are the modes of determining the representation status?

1. Voluntary Recognition – it requires that there is no other union. Only one
union has the support of the majority of the employees. The employer
and employee must inform the Regional Director of the DOLE of the fact
of the voluntary recognition. From date of recognition, the union
becomes a legitimate labor organization.
o Q: Does the one year bar rule also apply to voluntary
recognition? A: Yes, no election can be held, 12 months
from the date of the final voluntary recognition election
results.
2. Consent election – the election was agreed upon by two or more union.
o Q: Is intervention of DOLE required in consent election?
A: No. Intervention is subject to the discretion of workers.
o One year bar rule also applies.
3. Certification election – one which is conducted among three or more
union. This is treated as the sole concern of the employees and the
employer is a mere by stander and it is the best forum in determining the
will of the employees.
o Sole Concern Rule
o By stander Rule
o Best Forum Rule
 Majority must vote – 50% plus one
 One of the unions or a no union should have garnered the
majority vote. (Second Majority Rule) Provided 50% of the
majority validly cast their votes.
 A no union may win in certification election. When a no union
win, the one year bar rule will still applies.
 In consent election, 25 % Subscription or Consent
Requirement must be present. If attained, holding of
certification election is mandatory, if not discretionary. SC:
Even if 25% not attained, consent election can still be held
because it is the best way to attain the will of the workers.
 Instances when holding of certification election is not
allowed:
i. Contract Bar Rule – no CE can be conducted during
the lifespan of the CBA except during the 60 day
period (Freedom Period) before the expiration of the
5 year life span of the CBA
 Exemption to the contract bar rule:
a) If the CBA is not registered
o Still valid as to parties but a CE
can now be conducted.

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Edwin Villa Labor Law 2 Reviewer-Midterm

b) If the CBA is incomplete, inadequate

ii.
iii.
iv.
v.
vi.
4. Run off or second election
o Contested between two unions garnering the highest
number of votes in a prior election
o A no union does not exist in a runoff election
 Contents of a CBA
1. Preamble
2. Union prerogatives
3. Management prerogatives
4. Economic clauses
5. Non – economic clauses
6. Union Security Clauses
7. Escalator Clause
8. Family planning clauses
9. Union Education Clauses
10. Grievance Machinery Clause
or sub standard. (Sweetheart
Contract)
c) If the CBA is hastily entered into or
prematurely extended.
d) In cases of mass disaffiliation in the
bargaining agent.
o Q: Can the remaining officers
of the union still bargain with
the employer? A: Yes. Until
and unless it lost in a
certification election, it is still
the bargaining agent.
One Year Bar Rule – no CE may be held one year after
the final result of a prior election. This applies to all
election.
Deadlock Bar Rule – a notice of strike is filed with the
NCMB which has been the subject of conciliation,
mediation, exhaustion of grievance machineries,
improved offer balloting, reduced offer balloting.
Charge of Company Union Rule –SC: If there is
charged of company unionism which is an unfair
labor practice, it is a prejudicial question which must
be resolved first before conducting a certification
election.
Negotiation Bar Rule – if there is a collective
bargaining negotiation in the company premises, it
will be a bar for certification election.
Appeal Bar Rule – if there is pending appeal over a
decision of the med arbiter elevated to the Secretary
of Labor, pending decision, no certification election
can be held.

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Edwin Villa Labor Law 2 Reviewer-Midterm

11.Drug Free Provision Clause

12.Separability Clause
13.Effectivity Clause
14.Automatic Renewal Clause
15.No strike, no lock out clauses
1. Q: can the union waive the right to strike? A: Generally, no. EXPT: By
inserting in the CBA a “no strike, no lock out clause”
 Term of CBA
1. As to representation aspects – 5 years
2. As to renegotiation aspects – 3 years
 Q: Upon expiration of the CBA, and no new CBA has been agreed upon yet, what will
govern? A: Old CBA subsists under the Principle of CBA Continuity.
 Q: Can the parties agree to suspend collective bargaining for 10 years? A: Yes, in order to
provide stability and predictability of collective bargaining agreements for the benefit
of both parties.
 SC: The Company can sue employees for violation of a CBA provision.
 Q: Why do workers unionize? A: 1. In order to have relative equality in the bargaining
process with the employer. 2. Security of tenure. 3. Attain maximum economic benefits
in the collective bargaining agreement.
 Q: Can a single employee bargain with management? A: Yes, there is no law prohibiting
individual bargaining.
 Q: If an employer is already giving out voluntary benefits, can the employees still
demands for 13th Month Pay? A: It depends. If the amount of voluntary benefits given is
equal to the amount of the 13th Month Pay, no more. But if it’s less, they can.
 In the event that the CBA is approved, it will govern the company premises or the law of
the plant. Thus, the law of the plant is another name for a CBA.
 Whatever benefits that the CBA may bring, non members of the union are also
benefitted. They are not required to pay union dues but they will pay agency fees that
will be of the same amount as that of union dues. Payment of the agency fee is known as
the agency shop, maintenance of the treasury shop, anti-hitchhiker clause, anti-
free rider clause.
 Q: Is there still a need for the union and the company to agree to impose agency shop? A:
No need. The agency shop agreement is already provided for by law.
 Doctrine of Union Monopoly/Exclusive Right Rule – the certified union is the only
bargaining agent allowed to bargain with the management to the exclusion of the other
unions in the plant or company premises.

UNFAIR LABOR PRACTICES

 An act either by the employer or the union, their agent or representatives which violates
the constitutional right of the workers to self organization.
 There must be employer and employer relationship.
 Instances when ULP can be committed even if there is no EE-EM relationship:
1. When committed by agents or representative

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Edwin Villa Labor Law 2 Reviewer-Midterm

2. Yellow dog contract – an applicant is made to denounce his

membership to a union or promised not to join one as a condition for
employment. Hence, being an applicant, no employer and employee
relationship yet.
 Two Types of ULP
o By employer
1. Interference, restraint , coercion in the formation of a union
 Discourage the formation or continuation of a union
 3 ways of commission
i. Economic
ii. Psychological
iii. Physical
2. Yellow dog contract
3. Discrimination
 Not per se illegal. Only if it’s designed, calculated to
discriminate the officers and members of union with regards
to benefits due to all employees.
 It maybe management prerogative. But if it’s a grand design
to undermine the union, then it is ULP
4. Forming or assisting in forming a company dominated union
 SC: Passivity of a union is an indication of a company
dominated union.
 Organize with help or assistance of management.
 Economic, legal support from employer
5. Refusal to bargain collectively
 Duty to bargain collectively – mutual obligation of the parties
to bargain and negotiate with matters regarding terms of
employment and adjustments of grievance machineries for
redress of grievances promptly, expeditiously and in good
faith.
 Standards of Collective Bargaining;
i. Mutual – either the parties may initiate collective
bargaining.
 Union may submit CBA proposal.
Employer, after 10 days, may submit a
counter proposal. Failure to submit a
counter proposal will amount to
refusal to bargain, thus a ULP and the
CBA submitted by the union will be
governing CBA in the plant.
 Q: A counter proposal was submitted,
the employer made it hard for
employees to bargain during the
negotiations with no real intention to
sign a CBA. Is the employer guilty of

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Edwin Villa Labor Law 2 Reviewer-Midterm

ULP? A: Yes, the employer is guilty of

Surface Bargaining.
 Blue Sky Bargaining - the union
submitted a proposal which contains
economic demands beyond the reach
and capacity of the employers, thus
sky high.
 Runaway Shop – when the employer
remove his plant or office from one
place to another in order to evade
unionism or collective bargaining and
relocate it to another place which is
called as runaway area.
 Q: Is it valid to strike in the Runaway
Area? A: Yes. According to the Labor
Code, strike areas also include
runaway areas.
ii. Prompt
iii. Good faith
 Q: What if employer submit a
counterproposal on a take it or leave it
basis, is the employer liable for refusal
to bargain collectively? A: Yes. The
employer is guilty of “Boulwarism.”
This is considered a malpractice
which is a violation of good faith
bargaining.
6. Contracting out of services
 SC: Mere contracting out within the period of six months is
valid. But if it goes beyond six months, it is ULP. Because
employer deny the strikers the opportunity to pursue their
work.
7. Gross and flagrant violations of the CBA
 Refers to economic provisions

o By Union
1. Interference, restraint , coercion in the formation of a union
2. Discrimination
3. Payment of Negotiation Fees
 It is when in order to settle economic provisions in CBA, union
demands from employer negotiation fees.
 Sweetheart Contract – when the CBA was not able to get full
economic benefits for employees, or it’s an incomplete CBA.
Example: when CBA does not have an arbitration clause.

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Edwin Villa Labor Law 2 Reviewer-Midterm

o NB: An incomplete CBA does not bar a certification

election. Thus not bar on holding another
certification election during the 12 month ban.
4. Gross and flagrant violations of CBA
5. Refusal to bargain collectively
6. Featherbedding Activities
 Union demanding from employers for fees on services rendered
or not rendered, performed or not performed.
 Prolonging the work
 In short, the union is engaged in extortion

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