CERTIFICATION ELECTIONS As Human Resources Department (HRD) manager of Baltech Manufacturing, an unorganized manufacturer of electric and electronic components

for household appliances, you are suddenly confronted with demands for recognition and collective bargaining negotiations from two competing labor unions. They both claim to represent all the rank-and-file employees. Union A is led by a moderate faction, while Union B is affiliated with a militant federation identified with leftist ideology. Which of the following courses of action should you take to best protect the interests of your company and employees? (a) recognize Union A as the rightful bargaining representative because it will be more reasonable to deal with; (b) recognize Union B because you do not want to antagonize its leftist connections and foment inter-union conflicts; (c) ignore the demands of either union since you cannot be compelled legally to deal with them at this stage; (d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the employees in the bargaining unit. SUGGESTED ANSWER: (d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the employees in the appropriate bargaining unit. When requested to bargain collectively, an employer may petition the Bureau for an election. (Article 258). ANOTHER SUGGESTED ANSWER: (c)Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage. The reason why opt for C instead of D is because option D calls for the Baltech Manufacturings filing of a petition for certification election with the Bureau of Labor Relations. Book V, Rule VIII, Section 2 of the Omnibus Rules Implementing the Labor Code (as amended by D.O. 40-03, Series of 2003) which implements Arts. 257 and 258 of the Labor Code, is explicit that a petition for certification election shall be filed with the Regional Office which issued the petitioning unions certificate of registration/certificate of creation of chartered local. The petition shall be heard and resolved by the MEDArbiter. Filing it with the Bureau of Labor Relations rendered (d) wrong. Article 258 of the Code, which empowers the Bureau to entertain the petition for certification election of an employer, must be read alongside Art. 212 (b) of the Labor Code which defines Bureau to mean as the Bureau of Labor Relations and/or the Labor Relations Division in the regional offices xxx in the Department of Labor, as well as Art. 259 of the Code which tells us that it is the Med-Arbiter of the Labor Relations Division in the regional offices who hears and

decides certification election and that appeal therefrom is not even to the Bureau of Labor Relations but to the DOLE Secretary. BENEFITS GIVEN TO EMPLOYEES/ FACILITIESWAGES Osh Kosh Kaposh, an unorganized manufacturer of childrens apparel with around 1,000 workers, suffered losses for the first time in history when its US and European customers shifted their huge orders to China and Bangladesh. The management informed its employees that it could not longer afford to provide transportation shuttle services. Consequently, it announced that a nominal fare would be charged depending on the distance traveled by the workers availing of the service. Was the Osh Kosh Kaposh Company within its rights to withdraw this benefit which it had unilaterally been providing to its employees? Select the best answer and briefly explain your reasons therefore. (a) Yes, because it can withdraw a benefit that is unilaterally given; (b) Yes, because it is suffering losses for the first time; (c) Yes, because this is a management prerogative which is not due to any legal or contractual obligation; (d) No, because this amounts to a dimunition of benefits which is prohibited by the Labor Code (e) No, because it is a fringe benefit that has already ripened into a demandable right or entitlement. SUGGESTED ANSWER: (c) yes, because this is a management prerogative which is not due to any legal or contractual obligation The facts of the case do not state the circumstances through which the shuttle service may be considered as a benefit that ripened into a demandable right. There is no showing that the benefit had been deliberately and consistently granted, i.e., with the employers full consciousness that despite its not being bound by law or contract to grant it, it just the same granted the benefit. OPTIONAL ANSWERS: (c) Management prerogative which is not due to any legal or contractual obligation: An employer cannot be forced to continue giving a benefit, which is unilaterally given as a management prerogative, when it can no longer afford to pay for it. To hold otherwise would penalize the employer for his past generosity. [Producers Bank of the Philippines vs. NLRC, 355 SCRA 489 (2001)] Other answers: (a) The shuttle service was not payable pursuant to a contract. For a benefit, supplement, or facility provided by the employer to ripen into a demandable legal or contractual obligation, it must be shown that it was given over a long period of time. It must be consistent. It must be with deliberate intent of the employer so as to make it amount to established practice. [Globe Mackay Cable and Radio Corp vs. NLRC, 163 SCRA 71 (1988)]. The Labor Code also

provides that facilities must be customarily provided by the employer to make their fair and reasonable value form part of the wage. The shuttle service must be part of the consideration for accepting the employment. In one case decided by the Supreme Court, where the employees were assigned in a remote place away from civilization, it was held that the fair and reasonable value of housing, board, and recreational facilities was part of the wage. Such facilities were considered part of the incentive for agreeing to be assigned in a remote and secluded place of work [Millares vs. NLRC, 305 SCRA 500 (1999)]. Hence in that case, they could not be withheld unilaterally by the employer without causing dimunition of benefits for the employee. No similar fact is present in the problem given. It is not alleged how long this shuttle service has been provided by the company. It does not appear to be part of the incentive for accepting the employment. In the Manila Bank case, it was also held that there is nothing to compel the employer to be liberal and generous to its employees in granting benefits when the employer is suffering financial loss. ILLEGAL RECRUITMENT What qualifying circumstances will convert illegal recruitment to economic sabotage, thus subjecting its perpetrator or perpetrators to a penalty of life imprisonment and a fine of at least P500,000.00? ANSWER Article 38(b) of the Labor Code, as amended by RA 8042 (Migrant Workers Act) provides that illegal recruitment shall be considered an offense involving economic sabotage if any of the following qualifying circumstances exists: (a) when illegal recruitment is commited by a syndicate. A syndicate exists when three or more persons conspire or confederate with one another in carrying out any unlawful or illegal transaction, enterprise or scheme; (b) When illegal recruitment is commited in a large scale, as when it is committed against three or more persons inidividually or as a group [People vs. Navarra, 352 SCRA 84 (Feb. 19, 2001)] PROJECT EMPLOYEES, REGULAR EMPLOYEES Peter Paco was a mason employed by the El Grande Construction Company. Everytime that El Grande had a project, it would enter into an employment contract with Paco for a fixed period that coincided with the need for his services, usually for a duration of three to six months. Since the last project involved the construction of a 40-storey building, Paco was contracted for 14 months. During this period, El Grande granted wage increases to its regular employees, comprised mostly of engineers and rank-andfile construction workers as a result of the just concluded CBA negotiations. Feeling aggrieved and discriminated against, Paco and other similarly-situated

project workers demanded that the increases be extended to them, inasmuch as they should now be considered regular employees and members of the bargaining unit. If you were El Grandes legal counsel, how would you respond to this demand? ANSWER As legal counsel for El Grande, I would argue that the employment of Paco was fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of his engagement. Rendering 14 months of work does not make him a regular employee, when to begin with, he was employed for a specific project, i.e., which is the construction of a particular 40storey building. The rule on more than 1 year of service making the employment regular applied only to casual employees; hence, Paco does not belong to the bargaining unit of regular employees. ILLEGAL DISMISSAL + OT and other benefits + Job contracting Jose Katindig, a security guard, was caught sleeping on the job while on duty at the Barako Coffee Factory. As a result, he was dismissed from employment by the Bantayan Security Agency, an independent contractor. At the time of his dismissal, Jose had been serving as a watchman in the factory for many years, often at stretches of up to 12 hours, even on Sundays and holidays, without overtime, nighttime and rest day benefits. He thereafter filed a complaint for illegal dismissal and non-payment of benefits against Barako Coffee Factory, which he claimed was his actual and direct employer. As the Labor Arbiter to hear the case, how would you correctly resolve the following: a. Joses charge of illegal dismissal b. Joses claim for OT and other benefits; ANSWER a. This is a case involving permissible job contracting. Joses charge of illegal dismissal against Barako will not prosper. Bantayan, an independent contractor, is Joses direct employer. Barako is only Joses indirect employer (Art. 109, Labor Code). By force of law, there is in reality no employer-employee relationship between Barako and Jose [Baguio v. NLRC, 202 SCRA 465 (October 4, 1991). b. Joses claim for OT and other benefits should be paid by Barako. The Labor Code provides that in the event that the contractor or subcontractor fails to pay the wages of his employees, the employer shall be jointly and severally liable to the extent of the work performed under the contract in the same manner and extent that he is liable to employees directly employed by his contractor or subcontractor for any violation of any provision of the Labor Code. PATERNITY BENEFITS

Bart Cruz had been an employee of Singko Company for the last 10 years. His wife of six years died last year. They had four (4) children. He remarried to his co-employee, Connie. In October this year, Barts new wife is expected to give birth to her first child. He has accordingly filed his application for paternity leave, conformably with the provisions of the Paternity Leave Law which took effect in 1996. The HRD manager of A Company denied his application, on the ground that Bart had already used up his entitlement under that law. Bart argued that he has a new wife who will be giving birth for the first time, therefore, his entitlement to paternity leave benefits would begin to run anew. (a) Whose contention is correct, Bart or the HRD manager?

SUGGESTED ANSWER Barts contention is correct. The law provides that every married male is entitled to a paternity leave of seven (7) days for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting (Section 2, RA 8187). Connie is Barts legitimate spouse with whom he is cohabiting. The fact that Connie is his second wife and that Bart had 4 children with his first wife is beside the point. The important fact is that this is the first child of Connie with Bart. The law did not distinguish and we should therefore not distinguish. The paternity leave was intended to enable the husband to effectively lend support to his wife in her period of recovery and/or in the nursing of the newlyborn child (Sec. 3, RA 8187). To deny Bart this benefit would be to defeat the rationale of the law. ANOTHER SUGGESTED ANSWER THE HRD Manager is correct. Since it is conceded that Bart earlier availed of four (4) paternity leaves when his first wife gave birth to their four (4) children, he clearly already used up his entitlement under the law. His new wifes giving birth for the first time would not matter as the benefit given by Section 2 of RA 8187 is an exhaustible benefit granted to a father fort he first four (4) deliveries of the legitimate spouse with whom he is cohabiting. (b) Is Connie entitled to maternity leave benefits ANSWER YES, if Connie, as a female employee, has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth (Sec. 14-A, RA 1161, as amended); otherwise, she is not entitled to the benefit. HOLIDAYS/WAGES/PAYROLL REINSTATEMENT During the open forum following your lecture before members of various unions affiliated with a labor federation, you were asked the following questions:

(a) Araw ng Kagitingan and Good Friday are among the 10 paid regular holidays under Article 94 of the Labor Code. How much will an employee receive when both holidays fall on the same day? SUGGESTED ANSWER The employee will receive 200% of his regular daily wage when both regular holidays fall on the same day and he does not work. The law provides that he shall receive his regular daily wage for each regular holiday. The employee will receive 100% for Araw ng Kagitingan and 100% for Good Friday. If he works on that day, he is entitled to 400% of his regular daily wage; otherwise, there will be diminution of benefits [Asian Transmission Corp vs. CA, 425 SCRA 478 (2004)] (b) May a rank-and-file employee, who is not a member of the union representing his bargaining unit, avail of the wage increases which the union negotiated for its members? SUGGESTED ANSWER YES. The beneficiaries of a CBA include non-union members; otherwise, there will be discrimination which is prohibited by law. [New Pacific Timber and Supply co., Inc vs. NLRC, 328 SCRA 242 (2000) (c) What is meant by payroll reinstatement and when does it apply?

SUGGESTED ANSWER Payroll reinstatement is a form of reinstatement which an employer may opt to exercise in lieu of an actual reinstatement. Here, the illegally dismissed employee is to receive his basic pay without the obligation of rendering any service to the employer. This occurs when a Labor Arbiter decides that an employee was illegally dismissed and as a consequence awards a reinstatement, pursuant to Article 279 of the Labor Code. Such award of reinstatement, according to Article 223 of the Code, is immediately executory even pending appeal. (d) Under what conditions may a compressed work week schedule be legally authorized as an exception to the eight-hour a day requirement under the Labor Code? SUGGESTED ANSWER A compressed work week may be authorized under the following conditions: (a) the employee voluntarily agrees to it (b) there is no diminution in their weekly or monthly take home pay or fringe benefits (c) The benefits are more than or at least commensurate or equal to what is due the employees without the compressed work week.

(d) overtime pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule. (e) no strenuous physical exertion or that they are given adequate rest periods (f) it must be for a temporary duration as determined by the department of labor SEXUAL HARRASSMENT Marimar, a comely bank teller, was due for her performance evaluation which is conducted every six months. A rating of outstanding is rewarded with a merit increase. She was given a below average rating in the last two periods. According to the banks personnel policy, a third rating of below average will result in termination. Mr. Sergio called Marimar into his office a few days before submitting her performance ratings. He invited her to spend the night with him in his rest house. She politely declined. Undaunted, Mr. Sergio renewed his invitation, and Marimar again declined. He then warned her to watch out because she might regret it later on. A few days later, Marimar found that her third and last rating was again below average. Marimar then filed a complaint for sexual harassment against Mr. Sergio with the Department of Labor and Employment. In his counter-affidavit, he claimed that he was enamored with Marimar. He denied having demanded, much less received any sexual favors from her in consideration of giving her an outstanding rating. He also alleged that the complaint was premature because Marimar failed to refer the matter to the Committee on Decorum and Discipline for her reply affidavit, Marimar claimed that there was no need for a prior referral to the Committee on Decorum and Discipline of her complaint. Resolve the case with reasons. ANSWERS Mr. Sergio is guilty of sexual harassment. This resolution is predicated mainly upon the following considerations: 1. Mr. Sergio exercises authority, influence or moral ascendancy over Marimar. 2. Mr. Sergios insistence in inviting Marimar to spend the night with him in his rest house is pregnant with sexual meaning as to imply the request or demand for a sexual favor; 3. Mr. Sergios warning of watch out clearly manifests that the refusal of such sexual favor would jeopardize Marimars continued employment; and 4. Mr. Sergios invitation for such sexual favor will clearly result in an intimidating, hostile, or otherwise offensive working environment for Marimar. Marimar is correct in stating that there was no need for a prior referral of her complaint to the Committee on Decorum and Discipline, because nothing in the law shall preclude the victim of sexual harassment from instituting a separate

and independent action for damages and other affirmative relief (Section 6, RA 7877). TRAVEL AGENCIES AS RECRUITER Wow Philippines Travel and Tours Agency (WPTTA) is well known travel agency and an authorized sales agent of the Philippine Air lInes. Since majority of its passengers are overseas workers, WPTTA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the application be approved? ANSWER: The application should not be approved for the simple reason that the law categorically declares that travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether for profit or not. (Article 26 of the Labor Code). It is, therefore, of no consequence that its purpose is not for profit but to help Filipinos and find employment abroad. OBITER: Not only are travel agencies prohibited from applying, the following are also prohibited: a. Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency; b. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency. (Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers [February 4, 2002]; Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers [May 23, 2003]). WAGES Can an employer and an employee enter into an agreement reducing or increasing the minimum percentage provided for nigh differential pay, overtime pay, and premium pay? ANSWER: While as a general rule, the parties may enter into any kind of stipulation in a contract and the same shall be considered as the law between them, however, it must be emphasized that a labor contract is not an ordinary contract since it is impressed with public interest. Thus, the parties are prohibited to enter into any stipulation which may result in the reduction of any employee benefits. In the instant case, the reduction by the employer, even with the consent of the employee, of the legally-mandated minimum percentage of such benefits as night

differential pay, overtime pay and premium pay, is not valid. (Article 100, Labor Code) However, the same may not be said on the matter of increasing said benefits. The employer and the employee are not prohibited under the law to enter into an agreement for the increase of whatever benefit being mandated by law fr the simple reason that any such increase certainly redounds to the benefit of the employee. Thus, the employer and the employee may legally and validly agree to increase the minimum percentage provided for night differential pay, overtime pay, and premium pay. BARGAINING DEADLOCK As a result of bargaining deadlock between LILY Corporation and LILY Employees Union, its members staged a strike. During the strike, several employees committed illegal acts. The company refused to give in to the unions demands. Eventually, its members informed the company of their intention to return to work. 1. Can LILY Corporation refuse to admit all the strikers? ANSWER: No, an employer cannot refuse to re-admit strikers who want to return to work. An employer, in fact, is required under the law to provide for the admission of all workers under the same terms and conditions prevailing before the strike. An employer who refuses to re-admit returning workers may be liable, upon filing of proper petition, for the payment of wages and other benefits, from the date of actual refusal until the workers are re-admitted (no. 24, Guidelines governing labor relations) 2. Assuming the company admits all the strikers, can it later on dismiss those employees who committed illegal acts? ANSWER: Yes. The re-admission by the employer of all the strikers who voluntarily returned to work does not have the effect of rendering as moot and academic, the issue of the legality of the strike. The employer may still pursue the declaration of the illegality of the strike and secure the dismissal of the union officers and union members who committed illegal acts during the strike. (Insurefco Pulp vs. Insurefco, 95 Phil. 761) 3. If due to the prolonged strike, ROSE replacements, can it refuse to admit the replaced strikers? Corporation hired

ANSWER: General Rule: Mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strke (Article 264, Labor Code). This is an unfair labor practice strike, replacements hired by the employer during the strike may not be permanently employed. The employer

is duty-bound to discharge them when the strikers are reinstated to their former positions (The Insular Life Assurance Co., Employees Association vs. Insular Life Assurance, 37 SCRA 244) In economic strike, however, the hiring of replacements may be done on a permanent basis. And in the event that the strikers decide to resume their work, the employer is not duty-bound to dismiss said permanent replacements.

PETITION FOR CERTIFICATION, CHARTER CERTIFICATE-NATIONAL UNION-LOCAL UNION The National Union of Garment Workers issued a Charter Certificate to Damit Garments, Inc. Workers Union as a local chapter. The local union is not registered with the DOLE. Is the High Class Garments Union, the local, a legitimate labor union on the basis of the charter certificate? (10%) ANSWER No, the issuance of a Charter Certificate by the National Union only grants the local chapter legal personality to file a petition for certification elections in accordance with ARTICLE 234-A. The local union needs to submit the list of their officers, their addresses and the principal office of the local union and the copies of the constitution and by-laws, if ever different from that of the National Union. The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president. [Article 234-A] A legitimate labor union, as provided in Article 212(h), is a labor organization duly registered with the DOLE, and includes the local or affiliates thereof. Jurisprudence also provides that a local chapter is duly registered upon the submission of the requirements for issuance of certificate of registration, and that local unions, even if affiliated with a duly registered national union, should also be registered with the Regional Office where the applicant principally operates to be legitimate [Lopez Sugar Corp vs. SOLE, 247 SCRA 1, August 1995]. ALTERNATIVE ANSWER Yes, the issuance of a charter certificate to the local chapter makes the local chapter a legitimate labor union for filing a Petition for Certification Election. CANCELLATION OF CERTIFICATE OF REGISTRATION Union A filed a Petition to Cancel the Certificate of Registration of Union B, presently the Exclusive Bargaining Representative of the workers in a defined bargaining unit. Union A claimed, and rightly so, that a review of the past, and including the current Collective Bargaining Agreement entered by Union B is

nothing but a codification f the minimum terms and conditions of employment as mandated by the Labor Code. Only the Union benefit from the Collective Bargaining Agreement because of the Union Security and check-off provisions of the same agreement. Can the BLR, after due hearing, cancel the certificate of registration of Union B? (5%) NO. Article 239 has been amended to provide only 3 grounds for the cancellation of the certificate of registration of a union: (a) misrepresentation, fraud, false statements in the list of officers submitted and their election; (b) misxrepresentation, fraud, false statements in the constitution and by-laws and its ratification by union members; and (c) voluntary dissolution of the union members. Although before, the insufficient bargaining of labor unions may be a ground for cancellation of the registration certificate of the union, since the amendment provides an exclusive listing of grounds for the BLR to cancel the certificate of registration, Union Bs certificate cannot be cancelled even after due hearing. FINALITY OF JUDGMENT, CERTIFICATION ELECTIONS The certificate of registration of Union A was cancelled. Union A appealed the said cancellation to the med-arbiter. A certification election was going to be held while the appeal of Union A was pending. Can Union A be one of the workers choices in a certification election while its appeal is pending resolution. (10%) ANSWER YES. Apply 238-A. Article 238-A provides that a petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. Since there is no finality of judgment yet, as Union A appealed the decision, it is still a legitimate, duly registered labor organization which is allowed to participate in a certification election. ALTERNATIVE ANSWER NO. Union A was not a legitimate labor organization under Article 212(h) as to entitle it to participate in the certification elections that would be conducted in the company. Article 255-257 requires that a union should be a legitimate labor organization to be entitled to participate in a certification elections. Article 212(h) defines a legitimate labor organization as registered. Since Union A is deemed not registered with the cancellation of its registration certificate then it cannot participate in the certification elections. NONREPLY TO OFFER TO BARGAIN BY UNION A lawyer, after carefully reading the long lists of union proposals, advised his client (the employer) not to bother answering and negotiating what is obviously an outrageous, unrealistic and outlandish union proposal without fear

of an unfair labor practice case. The employer did not answer the unions demands. The union then filed an unfair labor practice case. If you were to rule on the case, is the lawyers advice correct and in accord with law? ANSWER NO. Art. 252. Good Faith Test: Prompt, Expeditious, Good faith. No, under Article 252, it is the duty of the employer and the union to convene promptly and expeditiously in good faith to negotiate the terms and conditions of employment, particularly hours of work, wages and grievance procedure. By not negotiating with the labor union by not answering the proposal submitted by it, the employer is refusing to bargain and this constitutes an unfair labor practice under Article 248 of the Labor Code. STANDARD CHARTER V NLRC: where the employer refused to bargain with the labor union, allegedly because the union was proposing blue sky proposals said to be outrageous, unrealistic and outlandish, the court held that the company cannot refuse to bargain without any proof that the proposals of the union were indeed unrealistic. DUTY TO BARGAIN: BARGAINABLE ISSUES, LEGAL IMPLICATIONS The union and the employer submitted its proposals and counterproposals to the company, your client, as legal counsel, which of the proposals are mandatory and non-mandatory and what are the legal implications of the classification. How will you advise your client? ANSWER: Article 252 provides that proposals regarding hours of work, wages and other terms and conditions of employment should be made subject in collective bargaining, including grievance machinery for the interpretation and implementation of the CBA and company personnel policies. Other proposals not having connection or not germane to the nature of work performed by the employees in a bargaining unit are all non-mandatory. The classification is important in the use of economic weapons after the point of impasse is reached (SAMAHANG MANGGAGAWA SA TOPFORM V. NLRC). When the parties cannot agree, and the Labor Code does not compel the parties to accede to the proposals made by the other party, then they reach a point of impasse. If the issues are mandatory, the parties particularly the employer, cannot refuse to bargain. The parties can use economic weapons to further their interest. Refusal to bargain would be equivalent to failure or refusal to bargain, which is an unfair labor practice under Article 248 and 249 of the Labor Code. If the issues are not mandatory, then the employer could freely refuse to bargain on such matter.

RESTRICTIONS/ INNOCENT THIRD PARTY RULE AND LIABILITIES A Company occupies a fenced compound with other business establishments, including that of Company B whose bodega occupies the innermost part of the compound. The employees of A Company, led by A Union and its members, picketed the gate leading to the compound. The truck of Company B was prevented from entering the compound as the union members intimidated and threatened with bodily harm the employees of Company B who were in the truck. If you were the lawyer for Company B, what would you advice your client regarding A unions acts? ANSWER Company B could petition for a writ of preliminary injunction before the regular courts. The right to picket may be regulated at the instance of third parties or innocent bystanders if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. In accordance with Liwayway Publishing Company vs. Permanent Concrete Workers Union, the court would first have to determine if there is a labor dispute between the union and the company concerned. If there is a dispute, then the labor code would apply; if not, then the Rules of Court would be applied to determine which court has jurisdiction to issue such injunction. There is no labor dispute between the labor union and Company B that would empower the labor agency concerned to issue labor injunctions. Therefore, regular courts may grant preliminary injunction on the picketing of A Union. TOTAL LOSS OF MEMBERSHIP; EXPIRED CBA Union X was the bargaining representative of Maganda Co. They executed a CBA, which has already expired as of May 2008. The CBA was not renewed as the all the members of Union X decided to join different unions instead. As the CBA was already expired, and no new bargaining representative was elected by the employees, Maganda Co. was thinking of keeping the status quo just apply the existing CBA. If you were the counsel of Maganda Co., what would you advise your client? ANSWER The CBA is in full force and effect until a new agreement is reached, as provided in Article 253 of the Labor Code. Under Article 239 of the Labor Code, as amended, total loss of union membership can be considered as a ground for revocation of the certification of the labor organization, and Article 234 requires that a bargaining agent should be legitimate, i.e. registered (has a certificate of registration) to be able to negotiate with the employer. However, the total loss of union membership would still have no effect on the effectivity of the CBA which would still have a force and effect

since the labor union is still considered a legitimate and registered labor union until its certification is validly revoked with finality. In the previous example, if only 2/3 of Union Xs members decided to resign from the union, can the Bureau of Labor Relations motu propio cancel the Unions Certificate of Registration? ANSWER NO. Article 38, as amended, provides that the certificate of registration of any legitimate labor organization may be cancelled by the Bureau after due hearing only on the grounds specified in Article 239. One of the grounds specified therein is voluntary dissolution by the members. Article 239-A further provides that the registration of a legitimate labor organization may be cancelled by the organization itself provided, that at least 2/3 of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, that an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof. As Article 239-A expressly provides the conditions for the cancellation of the registration certificate of a union, the Bureau has to comply with the said requirements before the cancellation of the certificate be done. RIGHT TO SELF-ORGANIZATION Kapisanan ng mga Manggagawa ng Champoy Co. and Champoy Co. Supervisors Union both joined the National Union for Champoy Makers. Kapisanan includes not only rank-and-file workers of Champoy Co., but also the security guards of Champoy Co. To assure its legal status as a labor organization, Kapisanan asked your legal opinion as a counsel regarding the validity of joining the same national union as that of the supervisors of their company and as to the membership of the security guards of the company. How would you advise Kapisanan? ANSWER Kapisanan is now allowed to affiliate with the same national labor union as that of the union of supervisors in accordance with Article 245 of the amended Labor Code (The rank and file union and the supervisors union operating within the same establishment may join the same federation or national union). The doctrines laid down in the La Salle Case, etc. are now repealed by the recent amendment. As regards the security guards, they are now allowed to form, join or associate with labor organizations. Article 243 makes no qualification on who may exercise the right to self-organization, as was the case in the past. DOMESTIC EMPLOYEES OF THE RESTHOUSE Nova Banking Corporation has a resthouse and recreational facility in the highlands of Tagaytay City for the use of ifs top executive and corporate clients. The resthouse staff includes a caretaker, two cooks and a laundrywoman. All of

them are reported to the Social Security System as domestic or household employees of the resthouse and recreational facility and not of the bank. Can the bank legally consider the caretaker, cooks and laundrywoman as domestic employees of the resthouse and not of the bank? ANSWER No, they are not domestic employees. They are bank employees because the resthouse and recreational facility are business facilities as they are for use of the top executives and clients of the bank [Article 141, Labor Code; Apex Mining Co. Inc vs. NLRC, 196 SCRA 251 (1991)]; Traders Royal Bank vs. NLRC, G.R. No. 127864, December 22, 1999] EMPLOYMENT OF WOMEN An exclusive school for girls, run by a religious order, has a policy of not employing unwed mothers, women with live-in partners, and lesbians. Is the policy violative of any provision of the Labor Code n employment of women? SUGGESTED ANSWER: No, the policy does not violate the Labor Code. The practice is a valid exercise of management function. Considering the nature and reason for existence of the school, it may adopt such policy as will advance its laudable objectives. In fact, the policy accords with the constitutional precept of inculcating ethical and moral values in schools. The school policy does not discriminate against women solely on the accound of sex (Art.135, Labor Code) nor are the acts prohibited under Art. 137 of the Labor Code. ALTERNATIVE ANSWER: The school violated A137(2) of the Labor Code which states that: It shall be unlawful for any employer to discharge such woman on account of pregnancy. The pregnancy here could obviously have resulted from love and such only lends substance to the saying that the heart has reasons of its own which reason does not know, a matter that cannot be so casually equated with immorality. (Chua-Qua vs. Clave, 189 SCRA 117 (1990). CHOOSING BARGAINING REPRESENTATIVE Distinguish between Certification Election, Consent Election, and Runoff Election ANSWER Certification election requires a petition for a Certification Election filed by a union or employer. A med-arbiter grants the petition and an election officer is designated by the regional director to supervise the election (Art. 256, 257, 258, Labor Code) Consent election is held by agreement of the unions with or without participation of the med-arbiter [Warren Manufacturing Workers Union vs. BLR, 159 SCRA 387 (1988)]

Run-off election takes place between the unions who received the two highest number of votes where not one of the unions obtained the majority of the valid votes cast, provided that the total union votes is at least 50% of the votes cast. (Art. 256, Labor Code).