Labor Law 2 (Labor Relations) : Section 1. INTRODUCTION

Labor law 2 ( Labor Relations )
Updated and enhanced with additional cases by ATTY. RENE CALLANTA

For the use of JJ JAMINOLA and other 2005 barristers
PART I
INTRODUCTORY MATERIALS
Section 1. INTRODUCTION
1.1 STATUTORY SOURCE AND INTERPRETATION
Statutory provisions of the Labor Code are construed liberally in favor or EEs, unless otherwise
intended by or patent from the language of the statute itself. (Caltex Filipino Managers and
Supervisors Assistant vs. CIR)
1.2 DEFINITIONS
ER and EE
Art. 212 :
An ER Any person acting in the interest of the ER, directly or indirectly. The term shall
not include any labor organization or any of its officers except when acting as an ER.
EE Any person in the employ of an ER. The term shall not be limited to the EEs of a
particular ER, unless this Code explicitly states. It shall include any individual whose
work has ceased as a result or in connection with any current labor dispute or because
of fair labor practice if he has not obtained any other substantially equivalent or regular
employment.
LABOR ORGANIZATION and LEGITIMATE LABOR ORGANIZATION
1. Art. 212 :
Labor Organization Any union for association of EEs which exists for the purpose of
collective bargaining or of dealing with Es concerning terms and conditions of
employment.
Legitimate Labor Organization Any labor organization duly registered with the
DOLE that includes any branch or local.
2. A local chapter becomes a legitimate labor organization only upon submission of:
A. Charter certificate within 30 days from its issuance by the laborfederation or
national union.
B. Constitution and by-laws, statement on set of officers, and books of accounts

which are certified under oath by secretary or treasurer, and attended to by its
president. (Phoenix Iron vs. Secretary of Labor and Employment)
LABOR DISPUTE
1. Art. 212 : Any controversy or matter concerning terms and conditions of employment or
the association or representation of persons in negotiating, fixing, maintaining, changing
or arranging terms and conditions of employment, regardless of whether the disputants
stand in the proximate relation of ER and EE.
2. What is the test to determine whether a labor controversy comes within the definition of
labor dispute?
It depends on whether it involves or concerns terms, conditions of employment or
representation. (Azucena)
1.3 LABOR RELATIONS POLICY

Sigma Rho ( ) reviewers
Personal copy of RENE CALLANTA 82

1. What is the policy of the state with respect to the trade unionism, collective
bargaining and labor relations?
It is the policy of the State to :
A. Promote and emphasize the primacy of free Collective bargaining and
negotiations, including voluntary arbitration, mediation and conciliation, as
modes of settling labor and industrial disputes.
B. Promote free trade unionism as an instrument for the enhancement of
democracy and the promotion of social justice and development.
C. Promote the Enlightenment of workers concerning their rights and obligations as
union members and as EEs.
D. To provide an adequate administrative Machinery for the expeditious settlement
of labor or industrial peace.
E. To ensure a stable but dynamic and just Industrial peace.
F.
To ensure the participation of Workers in Decision and policy-making processes

affecting their rights, duties and welfare.
G. To encourage free trade Unionism and free collective bargaining. (Art. 263)
Collective bargaining Negotiations towards a collective agreement designed to
stabilize the relation between labor and management and to create a climate of sound
and stable industrial peace. (Kiok Loy vs. NLRC)
The Secretary of Labor shall have the power and duty to inquire into aspects of ER-EE
relations concerning the promotion of harmony and understanding between the parties.
(Art. 273)
A line must be drawn between policies which are purely business-oriented and those
which affect the rights of EEs.
Workers and ERs shall, as far as practicable, be represented in decision and policymaking bodies of the government. The Secretary of Labor and Employment or his duly
authorized representatives may call a tripartite conference of representatives of
government, workers and EEs for the consideration and adoption of voluntary codes of
principles designed to promote industrial peace or to align labor movement relations with
established priorities in economic and social development. (Art. 275) (ME vs. CUPID)
Section 2. RIGHT TO SELF- ORGANIZATION

2.1 CONSTITUTIONAL BASIS OF RIGHT
1. Art. III, Sec. 8, Const. : The right of the people, including those employed in the public
or private sectors, to form unions, associations, or societies for purposes not contrary to
law shall not be abridged.
* IMPLICATION of phrase for purposes not contrary to law:
-The right is subject to legislative discretion.
2. Art. XIII, Sec. 3, Const. : The State shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities
including the right to strike in accordance with law.
2.2 COVERAGE (STATUTORY BASIS)

I. Art. 243 : Coverage and EEs right to self-organization

1. All persons employed in commercial, industrial and agricultural enterprises and in
religious, charitable, medical, or educational institutions --- whether operating for profit or
not, shall have the right to self-organization and to form, join or assist labor organizations
of their own choosing for purposes of collective bargaining.
2. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and
those without definite ERs may form labor organizations for their mutual aid and
protection.
II. Art. 244 : Rights of EEs in the public service
1. EEs of government corporations established under the Corporation Code shall have the
right to organize and bargain collectively with their respective ERs.
2. All other EEs in the civil service shall have the right to form associations for the
purposes not contrary to law.
The right does not apply to members of the AFP including police officers, policemen,
firemen, and jail guards.
High-level EEs doing policy making, managerial or confidential duties are not eligible to
join the rank-and-file organization.
Government EEs covered by EO #180 may organize, even unionize, can negotiate but
NOT BARGAIN, on matters not fixed by law. Cannot strike.
TAKE NOTE:
-The labor code is silent as to the right to strike of employees of GOCCs established
under the corporation code. But it expressly grants the right to collectively bargain and to
organize.
-- The labor code is silent as to right to strike and bargain collectively of employees in the civil
service. Anyway, the civil service employees are not under the coverage of the Labor Code.
III. Art. 245 :
1. Managerial EEs are not eligible to join, assist, or form any labor organization.
Take note: labor organization is a term that is strictly defined it should
be for the purpose of collective bargaining concerning terms and
conditions or dealing with employment concerning terms and condition of
employment.
Take note the law did not say that they cannot form an association, what
the law said is that they cannot form a labor organization
2. Supervisory EEs shall not be eligible for membership in a labor organization of the
rank-and-file EEs but may join, assist or form separate labor organizations of their own.
* Is Art. 245 a violation of the right to self-organization of managerial
employees?
No, they are not deprived of the right to organize. Just like any right, the right to
SO is not an absolute right. It is subject to police power and certain limitation.
And in any case, the mangers still have the right to organize and form
associations for their mutual aid and protection.
Remember that the right to join, form, assist organization and associations
should be exercised for purposes not contrary to law. It is subject to legislative
discretion.

National Union of Bank Employees v. Minister of Labor (110 SCRA 374) 1981
The SC quotes Bureau of Labor Relations Director Noriel: The rights of workers to elforganization finds general and specific guarantees.
-Section 7 Article IV (1973) Constitution provides that the right to form
associations or societies for purposes not contrary to law shall NOT BE
ABRIDGED. This right is more pronounced in the case of labor.
-Section 9, Article II (1973) specifically declares that the State shall assure the
rights of workers to self-organization, collective bargaining, security of tenure and
just and humane conditions of work.
Such constitutional guarantees should not be lightly taken much less easily nullified. A healthy
respect for the freedom of association demands that acts imputable to officers or members be
not easily visited with capital punishments against the association itself.
2.3 EXTENT AND SCOPE OF RIGHT
I. Art. 246 : Non-abridgement of right to self-organization It shall be unlawful for any
person to :
1. Restrain
2. Coerce
3. Discriminate against or
4. Unduly interfere
with EEs and the workers in their exercise of the right to self-organization
Such right shall include the right:
-to form, join or assist labor organizations
-for the purpose of collective bargaining
-through representatives of their own choosing and
(take note: the phrase underlined is the policy behind certification of election)
-to engage in lawful concerted activities
-- for the same purpose or for their mutual aid and protection,
-subject to the provisions of Art 264 of this Code.
II. The right to self-organization includes the right not to form or join a union (Reyes vs.
Trajano) However, by virtue of the operation or enforcement of a closed shop clause in a CBA,
an EE may be compelled on pain of dismissal, to become a member of a labor union.
(Alcantara)
Reyes v. Trajano , 209 SCRA 484 (92)
Guaranteed to all employees or workers is the "right to self-organization and to form, join, or
assist labor organizations of their own choosing for purposes of collective bargaining." This is
made plain by no less than three provisions of the Labor Code of the Philippines: Article 243 ,
Article 248 (a) , Article 249 (a).
The right of self-organization include:
a.
the right to organize or affiliate with a labor union or
b.
determine which of two or more unions in an establishment to join, and
c.
to engage in concerted activities with co-workers for purposes of collective bargaining
through representatives of their own choosing, or for their mutual aid and protection, i.e., the
protection, promotion, or enhancement of their rights and interests.
Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign
from a labor organization, is subsumed in the right to join, affiliate with, or assist any union, and
to maintain membership therein.
The right to form or join a labor organization necessarily includes the right to refuse or refrain
from exercising said right.

It is self-evident that just as no one should be denied the exercise of a right granted by law, so
also, no one should be compelled to exercise such a conferred right. The fact that a person has
opted to acquire membership in a labor union does not preclude his subsequently opting to
renounce such membership.
As early as 1974 this Court had occasion to expatiate on these self-evident propositions in
Victoriano v. Elizalde Rope Workers' Union, et al., viz.:
". . . What the Constitution and Industrial Peace Act recognize and guarantee is the 'right' to
form or join associations. Notwithstanding the different theories propounded by the different
schools of jurisprudence regarding the nature and contents of a 'right,' it can be safely said that
whatever theory one subscribes to,:
a right comprehends at least two broad notions, namely:
1)
first, liberty or freedom, i.e., the absence of legal restraint, whereby an employee may
act for himself without being prevented by law;
2)
second, power, whereby an employee may, as he pleases, join or refrain from joining an
association.
It is therefore the employee who should decide for himself whether he should join or not an
association; and should he choose to join, he himself makes up his mind as to which
association he would join; and even after he has joined, he still retains the liberty and the power
to leave and cancel his membership with said organization at any time. It is clear, therefore, that
the right to join a union includes the right to abstain from joining any union
Central Negros Electric Cooperative vs Secretary of Labor , 201 SCRA 584 (1991)
In addition, membership in the cooperative is on a voluntary basis. Hence, withdrawal therefrom
cannot be restricted unnecessarily. The right to join an organization necessarily includes the
equivalent right not to join the same.
The right of the employees to self-organization is a compelling reason why their withdrawal from
the cooperative must be allowed. As pointed out by CURE, the resignation of the memberemployees is an expression of their preference for union membership over that of membership
in the cooperative.
The avowed policy of the State to afford full protection to labor and to promote the primacy of
free collective bargaining mandates that the employees' right to form and join unions for
purposes of collective bargaining be accorded the highest consideration.
National Federation of Labor v. Secretary of Labor , 287 SCRA 599 (1998)
It is essential that the employees must be accorded an opportunity to FREELY and
INTELLIGENTLY determine which labor organization shall act in their behalf.
The complaint in this case was that a number of employees were not able to cast their votes
because they were not properly notified of the date. They could not therefore have filed their
protests within five (5). At all events, the Solicitor General States, that the protests were not filed
within 5 days, is a mere technicality which should not be allowed to prevail over the workers
welfare.
It is essential that the employees must be accorded an opportunity to FREELY and
INTELLIGENTLY determine which labor organization shall act in their behalf. The workers in this
case were denied this opportunity. Not only were a substantial number of them disfranchised,
there were, in addition, allegation of fraud and other irregularities which put in question the
integrity of the election. Workers wrote letters and made complaints protesting the conduct of
the election. The report of Med-arbiter Pura who investigated these allegations found the
allegations of fraud and irregularities to be true.
The workers right to self-organization as enshrined in both the Constitution and the Labor
Code would be rendered nugatory if their right to choose their collective bargaining
representative were denied. Indeed, the policy of the Labor Code favors the holding of a

certification as the most conclusive way of choosing the labor organization to represent workers
in a collective bargaining unit. In case of doubt, the doubt should be resolved in favor of holding
a certification of election.
III. May an ER impose as condition for employment that the applicant shall not join a labor
organization or shall withdraw from the one he belongs to?
No. Such a condition partakes of the nature of a yellow dog contract and constitutes an
unfair labor practice. It is interference with the individuals right to self-organization.
(Alcantara)
2.4 WORKERS WITH RIGHT TO SELF-ORGANIZATION FOR PURPOSES OF
COLLECTIVE BARGAINING
All EEs
1. Art. 243 : All persons employed in commercial, industrial and agricultural enterprises
and in religious, charitable, medical, or educational institutions whether operating for
profit or not, shall have the right to self-organization and to form, join or assist labor
organizations of their own choosing for purposes of collective bargaining.
2. The Macho hair Saloon refused to bargain with the union of the barbershop composed of
8 barbers on the ground that the shop was a service establishment and the number of
the barbers was less than 10. Is the contention tenable?
No. The law does not fix the minimum number of EEs for the exercise of the right to
self-organization and the right extends to all types of establishments. (Alcantara)
3. The faculty members of a non-profit school converted their club into a labor union. Is this
allowed?
Yes. Even EEs in non-profit or religious organizations are entitled to exercise this
right. (Alcantara)
FEU-DNRMF, Inc. v FEU-DNRMF Alliance of Fil Workers(152 SCRA 725) 1987
Under the Art. 244 provision, there is no doubt that rank and file employees of non-profit medical
institutions (as herein petitioner) are now permitted to form, organize or join labor unions of their
choice for purposes of collective bargaining.
A. RELIGION
The right of the members of the Iglesia ni Kristo sect not to join a labor union for being contrary
to their religious beliefs does not bar the members of that sect from forming their own union.
(Kapatiran vs. Calleja)
GOVERNMENT CORPORATION EES
Art. 244 : Rights of EEs in the public service
EEs of government corporations under the Corporation Code shall have the right to
organize and bargain collectively with their respective ERs.
SUPERVISORS
1. Art. 245 : Supervisory EEs shall not be eligible for membership in a labor organization of the
rank-and-file EEs but may join, assist or form separate labor organizations of their own.
[Supervisory EEs] Those, who, in the interest of the ER, effectively recommend such
managerial actions if in the exercise of such authority is not merely routinary or clerical in nature
but requires the use of independent judgment. (Art. 212) The criterion which determines
whether a particular EE is within the definition of a statute is the character of the work performed
rather than the title or nomenclature of position held. (NSRC vs. NLRC)

Professional/Technical EEs may join the existing rank and file union or form a union separate
and distinct from the existing union organized by the rank and file EEs of the same company.
3. If the recommendation of the teacher area supervisor is subject to evaluation, review
and final approval of the principal, is the teacher a supervisory EE?
No. This is merely ineffective or clerical recommendation. (Laguna Colleges vs.
CIR)
4. Supervisors were given the job of either to assist the foreman if the effective dispatch of
manpower and equipment or execute and coordinate work plans emanating from his
supervisors. Are these supervisors supervisory personnel?
No. They only execute approved and established policies leaving little or no
discretion at all whether to implement the said policies or not. (Southern
Philippines Federation vs. Calleja)
CONFIDENTIAL EMPLOYEES
assist or act in confidential capacity
to persons who formulate, determine and effectuate management policies in the
field of labor relations
are ineligible to join rank-and-file union
Assist management
Access labor management relations information (NOT trade secrets).
If not may join.
The confidential relation must exist between the EE and his supervisor, and the supervisor
must handle the prescribed responsibilities relating to labor relations
Fil-oil v. Fil-oil Supervisory & Confidential Employees Associaton (46 SCRA 512) 1972
ISSUE: WON supervisors form part of management and are not considered as employees
entitled to bargain collectively?
1)
As stated for the Court by the now Chief Justice in AG & P Co. of Manila, Inc. vs. C.I.R.,
8 section 3 of the Industrial Peace Act "explicitly provides that 'employees' and this term
includes supervisors 'shall have the right to self-organization, and to form, join or assist labor
organizations of their own choosing for the purpose of collective bargaining through
representations of their own choosing and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid or protection' and that 'individuals employed as
supervisors . . . may form separate organizations of their own'.
2)
Indeed, it is well settled that IN RELATION TO HIS EMPLOYER,' a foreman or
supervisor 'is an employee within the meaning of the Act' . . . For this reason, supervisors are
entitled to engage in union activities and any discrimination against them by reason thereof
constitutes an unfair labor practice."
3)
This further serves to point up the validity and rationale of the Industrial Peace Act's
provision, since the supervisors and confidential employees, even though they may exercise the
prerogatives of management as regards the rank and file employees are indeed employees in
relation to their employer, the company which is owned by the "stockholders and bondholders
(capital)" in petitioner's own words, and should therefore be entitled under the law to bargain
collectively with the top management with respect to their terms and conditions of employment.
4)
The other principal ground of petitioner's appeal questioning the confidential employees'
inclusion in the supervisors' bargaining unit is equally untenable. Respondent court correctly
held that since the confidential employees are very few in number and are by practice and
tradition identified with the supervisors in their role as representatives of management vis-a-vis
the rank and file employees, such identity of interest has allowed their inclusion in the
bargaining unit of supervisors-managers for purposes of collective bargaining in turn as
employees in relation to the company as their employer.

National Sugar Refineries Corp v NLRC (220 SCRA 452) 1993

It is the submission of petitioner that while the members of respondent union, as supervisors,
may not be occupying managerial positions, they are clearly officers or members of the
managerial staff because they meet all the conditions prescribed by law and, hence, they are
not entitled to overtime, rest day and supervisory employees under Article 212 (m) should be
made to apply only to the provisions on Labor Relations, while the right of said employees to the
questioned benefits should be considered in the light of the meaning of a managerial employee
and of the officers or members of the managerial staff, as contemplated under Article 82 of the
Code and Section 2, Rule I Book III of the implementing rules.
1)
In other words, for purposes of forming and joining unions, certification elections,
collective bargaining, and so forth, the union members are supervisory employees.
2)
In terms of working conditions and rest periods and entitlement to the questioned
benefits, however, they are officers or members of the managerial staff, hence they are
not entitled thereto.
Paper Industries Corporation of the Philippines v. Laguesma (330 SCRA 295) 2000
HELD: United Pepsi cola ruling was adopted here: Managerial employees are ranked as Top
managers, Middle managers and First Line Managers. Top and Middle Managers have the
authority to devise, implement and control strategic and operational policies while the task of
First-Line Managers is simply to ensure that such policies are carried out by the rank-and-file
employees of an organization.
Under this distinction, managerial employees therefore fall in two (2) categories, namely,
-the managers per se composed of Top and Middle Managers, and the
-supervisors composed of First-Line Managers.
Thus, the mere fact that an employee is designated manager does not ipso facto make him
one. Designation should be reconciled with the actual job description of the employee, for it is
the JOB DESCRIPTION that determines the nature of employment.
In this case, a thorough dissection of the job description of the concerned supervisory
employees and section heads indisputably show that they are NOT actually managerial
employees BUT ONLY supervisory employees SINCE THEY DO NOT LAY DOWN COMPANY
POLICIES.
PICOPs contention that the subject section heads and managers exercise the authority to hire
and fire is ambiguous and quiet misleading for the reason that any authority they exercise is
NOT SUPREME but merely ADVISORY in character. Theirs is not a FINAL DETERMINATION of
the company policies inasmuch as any action taken by them on matters relative to hiring,
promotion, transfer, suspension and termination of employees is still subject to confirmation and
approval by their respective superior.
Thus, where such power, which is in effect RECOMMENDATORY in character, is SUBJECT TO
EVALUATION, REVIEW, and FINAL ACTION by department heads and other higher executives
of the company. The same, although present, is not effective and not an exercise of
INDEPENDENT JUDGMENT as required by law.
Samson v. NLRC (330 SCRA 460) 2000
FACTS: In this case, petitioner was being dismissed for uttering insults and offensive words,
referring to or directed against Scheing-Plough Corporations Management Committee.
HELD: Given the environmental circumstances of this case, the acts of petitioner clearly do not
constitute serious misconduct as to justify dismissal. Neither is his dismissal justified o the
ground of loss of confidence. As a ground for dismissal, the term trust and confidence is
restricted to managerial employees. Petitioner is not a managerial employee.
What is the test in considering whether one is a managerial employee or not?

Before one may be properly considered a managerial employee, all the following conditions
must be met:
1.
Primary duty consists of the management of the establishment in which they are
employed or of a department or subdivision thereof;
2.
They customarily and regularly direct the work of two or more employees therein;
3. They have the authority to hire or fire other employees of lower rank; or their
suggestions and recommendations as to the hiring and firing and as to the
promotion or any other change of status of other employees are given particular
weight.
* It is the nature of the employees function and not the nomenclature or title given to his job,
which determines whether he has rank-and-file, supervisory or managerial status.
The powers of the position, not the title, make the

position-holder a manager or a supervisor.
But to make one a supervisor, the power to recommend must not be merely routinary or
clerical in nature but requires the use of independent judgment. In other words, the
recommendation is:
1discretionary or judgmental (not clerical)
2independent (not a dictation of someone else)
3effective(given particular weight in making
management decision)
If these qualities are lacking, or worse, if the power to recommend is absent, then the
person is not really a supervisor but a rank-and-file EE and therefore belongs or should
belong to a R & F organization.
Similarly, a so-called manager, regardless of impressive title is not really a manager in the
eyes of the law, if he does not possess managerial powers to make policy decisions or
people decisions (to lay down and execute management policies and/ or to hire, transfer,
suspend, lay off, recall, discharge, assign or discipline employee). If he can only
recommend the exercise of any of these powers, he is a supervisor, hence, may join, assist
or form a supervisors organization. Worse, if he cannot even recommend those acts, or his
recommendation is not independent, he is not even a supervisor but a rank-and-file
employee, regardless of position, title, perquisites, or seniority.
A. RIGHT TO ORGANIZE and LIMITATION
1. A supervisory union cannot represent the professional/technical and confidential EEs

whose positions are more of the rank and file than supervisory. The
professional/technical EEs may join the existing rank and file union, or form a union
separate and distinct from the existing union organized by the rank and file EEs. The
intent of the law is to avoid a situation where supervisors would merge with the rank and
file, or where the supervisors labor organization would represent conflicting interests.
(Philippine Phosphate vs. Torres)
2. The union of supervisory personnel affiliated with a national federation. The local union
of rank and file was also affiliated with the said national federation. Is this allowed?
No. A local supervisors union should not be allowed to affiliate with a national
federation of union of rank and file EEs. Supervisors should be given an occasion to
bargain together with the rank and file against the interests of the ER regarding
terms and conditions of employment. (Atlas Litographic vs. Laguesma)
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This prohibition against affiliating with the same

federation applies only when this 2 conditions are present:
1R & F EEs are directly under the authority of the supervisory EEs
2The national federation is actively involved in union activities in the
company
ALIENS
Art 269 Prohibition Against Aliens; exceptions
All aliens, natural or juridical, as well as foreign organizations
are strictly PROHIBITED from engaging directly or indirectly in all forms of
activities
trade union
without prejudice to normal contacts between Philippine labor unions and recognized
international labor centers;
Provided, however, that aliens working in the country with VALID PERMITS
issued the DOLE may exercise the right to self-organization and join or assist
labor organizations of their own choosing for purposes of collective bargaining ;
Provided, further, that said aliens are nationals of a country which grants
the same or similar rights to Filipino workers.
Take note : Aliens, generally, have no right to self organize for purpose of collective bargaining
unless
1.
They have valid permits
2.
Reciprocity: That said aliens are nationals of a country which grants the
same or similar rights to Filipino workers
SECURITY GUARDS
Manila Electric vs Secretary of Labor , 197 SCRA 275 (1991)
Executive Order 111, promulgated in 1986 has eliminated the disqualification of security guards
from forming labor unions. They may now join a rank and file organization. The disqualification
in article 245 with regards to supervisory employees does not include security guards. . The
implementing rules which disqualify security guards from joining rank and file organization are
null and void for being not germane to the object and purposes of EO 111. Rule-making power
is always subordinate to the law from which it proceeds.
2.5 WORKERS WITH NO RIGHT OF SELF-ORGANIZATION
A. MANAGERIAL AND CONFIDENTIAL EES
1. Art. 245 : Managerial EEs are not eligible to join, assist, or from any labor organization.
[Managerial EEs Those whose primary duty consists of the management of the
establishment of which they are employed or of a department or subdivision thereof, and to
other officers and members of the managerial staff. (Art. 82)]
Take note: As stated in National Sugar Refineries Corp v NLRC, The definition of a
managerial employee in Labor relations (Art. 212) is NOT exactly the same as the definition
under labor standards (Art. 82). Art. 82 is much broader in scope, while Art. 212 is much
narrower in scope and much more strictly construed
2. The nature of the job determines whether the EEs fall under the definition of
managerial. A managerial EE is one who is vested with powers of prerogatives to lay
down and execute management policies and/or hire, transfer, suspend, lay-off, recall
discharge, assign or discipline EEs or to effectively recommend such managerial
actions. (SPFL vs. Calleja) The rationale for this is that the union is not assured the
11

loyalty of managerial EEs in view of evident conflict of interests or that the union can
become company-dominated with the presence of managerial EEs in the membership.
(Golden Farms vs. Calleja)
3. Confidential EEs are also prohibited from forming unions. (Pier8 Arrastre vs.
Confesor) Having access to confidential information, they may become a source of
undue advantage. They may act as spies of either party to a CBA. These include
accounting personnel, radio and telephone operators and confidential secretaries.
(Golden Farms vs. Calleja)
Criteria to determine who are Confidential Employees:-1)
Assist or act in a confidential capacity, (this means that the confidential nature of
his job is not only incidental)
2)
To persons who formulate, determine, and effectuate management policies in the
field of labor relations.
* The two criteria are cumulative, and both must be met if an employee is to be
considered a confidential employeeThat is, the confidential relationship must exist
between the employee and his supervisor, and the supervisor must handle the
prescribed responsibilities relating to labor relations.
RATIONALE: The exclusion from bargaining units of employees who, in
the normal course of their duties, become aware of
management policies relating to labor relations is a
principal objective sought to be accomplished by the
confidential employee rule.
The broad rationale behind this rule is that employees
should not be placed in a position involving a potential
conflict of interests.
* Management should not be required to handle labor matters through employees
who are represented by the union with which the company is required to deal and who
in the performance of their duties may obtain advance information of the companys
position with regard to contract negotiations, the disposition of grievances, or other
labor relations matter.
An important element of the confidential employee rule is:
-the employees need to use labor relations information.
Thus, in determining the confidentiality of certain employees, a key question frequently
considered is the employees necessary access to confidential labor relations information.
It is evident that whatever confidential data the questioned employees may handle will have to
relate to their functions. From the foregoing functions, it can be gleaned that the confidential
information said employees have access to concerns the employers internal business
operations.
BUT TAKE NOTE:
An employee may not be excluded from appropriate bargaining

unit merely because he has access to confidential information
concerning employers internal business operations and which is
NOT RELATED to the field of labor relations.
It must be borne in mind that Section 3 of Article XIII of the 1987 Constitution mandates the
State to guarantee to all workers the right to self-organization. Hence, confidential employees
who may be excluded from bargaining units must be STRICTLTY DEFINED so as not to
needlessly deprive many employees of their right to bargain collectively through representatives
of their choosing.
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Will the fact that the employer has access to information, automatically prohibit
confidential employees from joining a labor organization? NO. Information has to
be related to labor relations.
If access is merely incidental, you cannot classify them as confidential
employees. Thus a phone operator or driver cannot be classified as a
confidential employee for the purpose of excluding them from joining a union.
Take note that it is the policy of the law to encourage self-organization, thus the
coverage of its application and scope must necessarily be broad. Thus if you
have to limit it, the limitation must strictly be construed and well justified.
4. The major patrons duties include taking complete charge and command of the ship and
performing the responsibilities of the ship captain; the minor patron also commands the
vessel, plying the limits of island waterway, ports and estuaries. Are they eligible to join
or form a union?
No. The exercise of discretion and judgment in directing a ships course is
managerial in nature. (Association of Marine Officers vs. Laguesma)
PROHIBITION AND RATIONALE
Metrolab Industries, Inc. v. Roldan-Confesor (254 SCRA 182) 1996
FACTS: Employees involved in the controversy include Executive Secretaries of
the companys officers. Can they join the labor union?
HELD: NO, they are confidential employees.
Although Article 245 of the Labor Code limits the ineligibility to join, form and assist any labor
organization to managerial employees, JURISPRUDENCE HAS EXTENDED this prohibition to
confidential employees or those who by reason of their position or nature of work are required to
assist or act in a FIDUCIARY manner to managerial employees and hence, are likewise privy to
sensitive and highly confidential records.
The RATIONALE behind the exclusion of confidential employees from the
bargaining unit of the rank and file employees and their qualification to join any
labor organization was succinctly discussed in Philips Industrial Development v.
NLRC (219 SCRA 229/ 1992):
NLRC committed grave abuse of discretion in decreeing hat a PIDIs
Service Engineers, Sales Force, Division Secretary, all Staff of General
Management, Personnel and Industrial Relations Department, Secretaries of
Audit, EDP and Financial systems are included within the rank and file bargaining
unit. In the first place, all these employees, with the exception of the service
engineers and the sales force personnel, are confidential employees.
By the very nature of their functions, they assist and act in a confidential capacity
to, or have access to confidential matters of, persons who exercise managerial
functions in the field of labor relations. As such, the rationale behind the
ineligibility of managerial employees to form, assist or join a labor union equally
applies to them.
The rationale for inhibition or prohibition against MANAGERIAL EMPLOYEES
joining unions:
The rationale for this inhibition has been stated to be, because is these
managerial employees would belong to or be affiliated with a Union, the latter
might not be assured of their loyalty to the Union in view of EVIDENT CONFLICT
OF INTERESTS. The Union can also become company-dominated with the
presence of managerial employees in Union membership.
This rationale holds true also for confidential employees who have access to
confidential information (example: accounting personnel, radio and telegraph
operators), since this confidential information may be a source of undue
13

advantage. Said employees may act as a spy or spies of either party to a

collective bargaining agreement.
In the collective bargaining process, managerial employees are supposed to be
on the side of the employer, to act as its representative, and to see to it that its
interests are well protected. The employer is not assured of such protection if
these employees themselves are union members. Collective bargaining in such a
situation can become one-sided.
If confidential employees could unionize in order to bargain for advantages for
themselves, then they could be governed by their own motives rather than the
interest of the employers.
Moreover, unionization of confidential employees for the purpose of collective
bargaining would mean the extension of the law to persons or individuals who
are supposed to act in the interest of the employers. It is not far fetched that in
the course of collective bargaining, they might jeopardize that interest which they
are duty-bound to protect.
Finally, confidential employees cannot be classified as rank and file. As previously discussed,
the nature of employment is quite distinct from the rank and file, thus warranting a separate
category. Therefore it is not discrimination to exclude them from bargaining unit of rank and file.
Manila Electric Co. v. Quisumbing (302 SCRA 173) 1999
The confidential employees do not share in the same community of interest that might
otherwise make him eligible to join his rank and file co-worker, precisely because of a conflicting
in those interests. Thus employees holding a confidential position are prohibited from joining
the union of the rank and file employees.
Pepsi-Cola Products Philippines, Inc. v. Secretary of Labor (312 SCRA 104) 1999
The confidential employees involved in this case are Credit & Collection
Managers and Accounting Managers.
DOCTRINE OF NECESSARY IMPLICATION: what is implied in a statute is as much a part
thereof as that which is expressed.
In applying the DOCTRINE OF NECESSARY IMPLICATION, the Court took into consideration
the RATIONALE behind disqualification of managerial employees expressed in Bulletin
Publishing Corporation v. Sanchez, thus In the collective bargaining process, managerial
employees are supposed to be on the side of the employer, to act as its representative, and to
see to it that its interest are well protected. The employer is not assured of such protection if
these employees themselves are union members. Collective bargaining in such a situation can
become one-sided. If confidential employees could unionize in order to bargain for advantages
for themselves, then they could be governed by their own motives rather than the interest of the
employers.
B. WORKER/MEMBER OF COOPERATIVE
The right to forming or joining a labor organization for purposes of collective bargaining is not
available to an EE of a cooperative who at the same time is a member and co-owner thereof. It
is the fact of ownership of the cooperative and not the involvement in the management thereof,
which disqualifies a member from joining any labor organization within the cooperative with
respect however, to EEs who are neither members or co-owners, they are entitled to the rights
of self-organization for purposes of collective bargaining (Benguet Electric vs. Ferrer-Calleja).
However, a member/owner has the right to withdraw as owner of the cooperative for purposes
of joining the union (Central Negros Electric vs. Of DOLE).
COOP MEMBERS
14

An EE of a cooperative who is also a member and co-owner cannot invoke the right to
collective bargaining, for certainly an owner cannot bargain with himself or his coowners.
However, insofar as it involves cooperatives with EEs who are not members or coowners thereof, such EEs are entitled to exercise the rights of all workers to
organization, collective bargaining negotiations and other rights as are enshrined in the
Constitution and existing laws of the country. (San jose coop vs. MOLE , 1989)
But even as regards the EEs who are members of the co-operative, their incapacity to
bargain does not stop them from forming their organization which is not a union. Its purpose is
not to collectively bargain but to extend aid and protection to its members.
Purely EEs of the coop may join or organize
Cooperative Rural Bank of Davao vs Ferrer-Calleja (165 SCRA 725) 1988
HELD: Under PD 175, a COOPERATIVE is an organization composed of small producers and
of consumers who voluntarily join together to form business enterprises which they themselves,
own, control and patronize. A cooperative is different from an ordinary business concern. Its
owners or members are the ones who run and operate the business while the others are its
employees.
An employee of such a cooperative who is a member and co-owner cannot invoke the right to
collective bargaining for certainly an owner cannot bargain with himself or his co-owners.
However, insofar as it involves cooperatives with employees who are NOT members or coowners thereof, certainly such employees are entitled to exercise the rights of all workers to
organization, collective bargaining negotiations, and others as are enshrined in the Constitution
and existing laws of the country.
C. NON-EES
Art. 243 : Ambulant, intermittent and itinerant workers, self-employed people, rural workers and
those without definite ERs may form labor organizations for their mutual aid and protection.
However, they are not entitled to the constitutional right to join or form a labor organization for
purposes of collective bargaining.
RPB General Services Employees Union v. Laguesma (264 SCRA 637) 1996
HELD: If union members are not employees, no right to organize for the purpose of bargaining,
not to be certified as bargaining agent can be recognized. Since the persons involved are not
employees of the company, they are not entitled to the constitutional right to join or form a labor
organization for purposes of collective bargaining. (Ruling based on Singer Sewing Machine
Company v. Drilon; digest is provided below)
Singer Sewing Machine Company vs Drilon (193 SCRA 270) 1993
HELD: SC found that there existed NO employer-employee relationship between the
parties primarily because the element of the control test is not satisfied by the terms and
conditions of the contracts. There is nothing in the agreement which implies control by
the company not only over the end to be achieved but also over the means and methods
in achieving the end.
If union members are not employees, there exists no right to organize for purposes of
bargaining nor to be certified as a bargaining agent. It is a fundamental and essential
condition that the bargaining unit be composed of employees. Failing this, the union
becomes illegal.
2.6 PARTY PROTECTED
15

It is well-settled doctrine that the benefits of a CBA extend to the laborers and EEs in the
collective bargaining unit, including those who do not belong to the chosen bargaining labor
organization.
Mactan Workers Union vs Aboitiz , 45 SCRA 577 (1972)
HELD: CBA constitutes the law between the parties. The benefits of the CBA extend to the
employees in the collective bargaining unit. The labor union who won as sole bargaining agent
of the employees does not act for its members alone. It represents all the employees in such a
bargaining unit.
The members of Mactan are therefore entitled to the bonuses. Furthermore, what is entitled to
protection is labor, not the labor organization. The latter are merely instrumentalities through
which their welfare may be promoted and fostered.
2.7 SANCTIONS FOR VIOLATION OF RIGHT
Art. 246 : Non-abridgment of the right to self-organization
It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere
with employees and workers in their exercise of the right to self-organization.
Such right shall include the right to form, join or assist labor organizations for the purposes of
collective bargaining through representatives of their own choosing and to engage in lawful
concerted activities for the same purpose or for their mutual aid and protection, subject to the
provisions of Art. 265 of this Code.
Art. 248 : Unfair labor practices of employers--It shall be unlawful for an employer to commit
any of the following unfair labor practice:
a. To interfere with, restrain or coerce employees in the exercise of their right to selforganization;
b. To require as a condition of employment that a person or an employee shall not join a
labor organization or shall withdraw from one to which he belongs;
c. To contract out services or functions being performed by union members when such will
interfere with, restrain or coerce employees in the exercise of their rights to selforganization;
d. To initiate, dominate, assist or otherwise interfere with the formation or administration of
any labor organization including giving of financial or other support to it or its organizers or
supporters;
e. To discriminate in regard to wages, hours of work and other terms and conditions of
employment in order to encourage or discourage membership in any labor organization.
Nothing in this Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment, except those
employees who are already members of another union at the time of the signing of the
collective bargaining agreement.
Employees of an appropriate collective bargaining unit who are not members of the
recognized collective bargaining agent may be assessed a reasonable fee equivalent to the
dues and other fees paid by members of the recognized collective bargaining agent, if such
non-union members accept the benefits under the collective agreement:
-Provided, that the individual authorization required under Art. 242 paragraph (o)
of this Code shall not apply to the non-members of the recognized collective
bargaining agent;
f.
To dismiss, discharge, or otherwise prejudice or discriminate against an employee for

having given or being about to give testimony under this Code;
16

g. To violate the duty to bargain collectively as prescribed by this Code;

h. To pay negotiation or attorneys fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute; or
i.
To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers and agents
of corporations, associations or partnerships who have actually participated in, authorized or
ratified unfair labor practices shall be held criminally liable.
Art. 249 : Unfair labor practices of labor organization--It shall be unfair labor practice for a
labor organization, its officers, agents or representatives:
a. to restrain or coerce employees in the exercise of their rights to self-organization.
However, a labor organization shall have the right to prescribe its own rules with
respect to the acquisition or retention of membership;
b. to cause or attempt to cause and employer to discriminate against an employee,
including
-discrimination against an employee with respect to whom membership in
such organization has been denied or
-to terminate an employee on any ground other that the usual terms and
conditions under which membership or continuation of membership is
made available to other members;
c. to violate the duty, or refuse to bargain collectively with the employer, provided it is
the representative of the employees;
d. to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver
any money or other things of value, I the nature of an exaction, for services which
are not performed or not to be performed, including the demand for fee for union
negotiations
e. to ask for or accept negotiations or attorneys fees from employers as part of the
settlement of any issue in collective bargaining or any other dispute; or
f.
to violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding,

-ONLY the officers, members of governing boards representatives or
-agents or
-members of labor organizations who have actually participated in, authorized or
ratified unfair labor practices shall be held criminally liable.
1.
Art. 288 : Penalty

Fine of not less than P1,000.00 nor more than P10,000.00
Imprisonment of not less than 3 months nor more than 3 years, or
Both, at the discretion of the court.
In addition to such penalty, any alien found guilty shall be summarily deported upon
completion of service.
Any provision of the law to the contrary notwithstanding any criminal offense punished under
this Code shall be under the concurrent jurisdiction of the Municipal or City Courts and the RTC.
2. Art. 289 : If the offense is committed by a corporation, trust, firm, partnership,
association or any other entity, the penalty shall be imposed upon the guilty officer or
officers of such corporation, trust, firm, partnership, association or entity.
17

Section 3. LABOR ORGANIZATION

3.1 POLICY
Sec. 211 : It is a policy of the State to :
1. Promote free trade unionism as an instrument for the enhancement of democracy and
the promotion of social justice and development.
2. Foster the free and voluntary organization of a strong and united labor movement.
From the commentaries : If labor unions are to serve and protect the interest of the workers,
then the unions themselves must be sufficiently strong and stable to be able to fulfill effectively
their assigned role in society. It is also incontrovertible that in such a regime of collective
bargaining it is essential that the negotiations be conducted between parties of relatively equal
strength.
3.2 LABOR ORGANIZATION - UNIONS
Art. 211. Declaration of policy---It is the policy of the State:
(g) To ensure the participation of workers in
-decision and policy-making processes
-affecting their rights, duties and welfare.
DEFINITIONS
A. LABOR ORGANIZATION
Art. 212 : Any union or association of EEs which exist for the purpose of collective bargaining
or of dealing with ERs concerning terms and conditions of employment.
Labor Organization v. Workers Organization
LABOR ORGANIZATION
WORKERS ORGANIZATION
Composition: Employees
Composition: Employees
Purpose: collective bargaining or of Purpose: organized for mutual aid and
dealing with employers concerning terms protection of its members or for any other
and conditions of employment.
legitimate purpose other than collective
bargaining
Airline Pilots Association of the Philippines v. CIR
RA 875 defines labor organization as any union or association which exists, in whole or in part,
for the purpose of collective bargaining.
There is no condition to the statutory concept of a labor organization as being limited to the
employees.
MIXED MEMBERSHIP
Dunlop v. Sec. of Labor , 200 SCRA 120 (1998)
A labor Organization composed of both rank and file and supervisory employees is no labor
organization at all. It cannot possess the rights of a legitimate labor organization.
Toyota v. Toyota : 268 SCRA 573 (1997)
HELD: Clearly based on Art. 245 (Ineligibility of managerial employees to join any labor
organization; right of supervisory employees), a labor organization composed of both rank-and-
18

file and supervisory employees is no labor organization at all. It cannot, for any guise or
purpose be a legitimate labor organization.
RATIONALE of Codes exclusion of supervisors from unions of rank-and-file
employees: is that such employees, while in the performance of
supervisory functions, become the alter ego of management in the
making and the implementing of key decisions at the submanagerial level. Certainly it would be difficult to find unity or
mutuality of interests in a bargaining unit consisting of a mixture of
rank-and-file and supervisory employees.
TAKE NOTE: A legitimate labor organization is technically defined by the code in
such a way that it has a designated purpose, which is to bargain
collectively.
Thus for it to bargain efficiently and effectively it must be an appropriate bargaining unit,
meaning that it shares mutuality of interest among members of the unit. Thus if it is composed
of supervisor and rank-and-file, who inherently do not share mutuality of interests, then it cannot
serve the purpose of a legitimate labor organization, thus it is no LLO at all.
B. LOCAL UNION
Sec. 1, Rule I, Book V, IRRs : Any labor organization operating at the enterprise level.
C. NATIONAL UNION FEDERATION
Sec. 1, Rule I, IRRs : Any labor organization with at least 10 locals or chapters each of which
must be duly recognized bargaining agent.
D. LEGITIMATE LABOR ORGANIZATION
Art. 212 : Any labor organization duly registered with the DOLE, and includes any branch or
local thereof.
D.1 DOLE REGISTRATION BASIS
A labor organization acquires legitimacy only upon registration with the DOLE. (Progressive
Development vs. Secretary of Labor and Employment) A SEC registration cannot suffice.
(Cebu Seamens Association vs. Ferrer-Calleja)
* A branch or local of a Legitimate Labor organization DOES NOT become a
legitimate labor organization simply by affiliating itself. The rules require certain
requirements to avoid fraud.
E. COMPANY UNION
Art. 212 : Any labor organization whose information, function or administration has been
assisted by any act defined as ULP by this Code.
* A company union is not really a union contemplated by law
since it violates the provisions of Article 248.
Dept. Order No. 9 Book 1, Sec. 1
(h) Labor organization
-means any union or association of employees which exists in whole or in part for the purpose of
collective bargaining or for dealing with employers concerning terms and conditions of
employment
(i) Legitimate labor organization
-means any labor organization defined under letter (h) which is duly registered w/ the Dept. The
term includes a local/chapter directly chartered by a federation or national union w/c has been
duly reported to the Dept. in accordance w/ Rule 6, sec. 2 of this Book
19

(j) Workers Association

-means any association of workers
-organized for mutual aid and protection of its members or
-for any other legitimate purpose other than collective bargaining
*** This is a new concept.
(k) Independent Union
-means any labor organization
-operating at the enterprise level
-whose legal personality is derived through an independent action for registration prescribed
under A.234 of this Code and R3, sec. 2 of these Rules.
-An independent union may be affiliated w/ a federation, national or industry union, in which case it
may also be referred to as an affiliate
(l) Local union/chapter means any labor org.
-operating at the enterprise level
-whose legal personality is derived through the issuance of a charter by a duly registered
federation or national union,
-subject to the reporting requirements prescribed in R6, sec. 1 of these Rules.
(m) National union/federation means any labor org.
-with at least 10 locals/chapter or affiliates
-- each of which must be a duly certified or recognized collective bargaining agent
A FEDERATION:
is union composed by INDEPENDENT UNIONS. An independent
union is a labor organization with a legal personality which is
derived through an independent action for registration.
The provision requires that the 10 affiliates of the federation must
be duly certified or recognized bargaining agents. This means
that they must have been elected in a certification election, and
they must be legitimate labor organizations by themselves.
Why 10 affiliates? 10 is an arbitrary number. The purpose was so that it will not be easy
to form a federation. The old policy of the law was 1 industry = 1 union. But now the new
policy of the law is the formation of a Strong and United Labor Union.
(n) Legitimate workers association
-means any workers association defined under letter (j) which is duly registered w/ the Dept.
(o) Industry union means
-any group of legitimate labor organizations
-operating within an identified industry,
-organized for collective bargaining or for dealing with employers concerning terms and conditions
of employment within an industry or
-for participating in formulation of social employment policies, standards and programs in such
industry which is duly registered with the Dept. in accordance w/ R3. sec. 2 of these rules.
(p) Trade union center means
-any group of registered national unions or federations organized for mutual aid and protection of
its members for assisting such members in collective bargaining or for participating in
formulation....
DOLE REGISTRATION AS BASIS

Cebu Seamens Assoc., Inc v Ferrer-Calleja , 212 SCRA 50 (1992)
The unions registration with the bureau and not the SEC makes it a legitimate labor
organization, with the rights and privileges granted by the Labor Code including the release or
custody of union dues.
The Progressive Development case is a very important case. Below is an outline of the
important parts of the case.
20

Progressive Devt v Sec. of Labor205 SCRA 802

Art. 212 defines a legitimate labor organization as any labor organization duly registered with
the DOLE and includes any branch or local thereof.
I.
Ordinarily, a labor organization acquires legitimacy ONLY upon registration with the BLR.
The requirements for registration are in Article 234.
a. The applicant labor organization shall acquire legal personality and shall be entitled to
the rights and privileges granted by law to a legitimate labor organization UPON issuance of
the certificate of registration based on the requirements in Article 234.
i.
P50 registration fee
ii.
The names of its officers their addresses,

the principal address of the labor org,
the minutes of the organizational meetings and
the list of the workers who participated in such meetings
iii.
The names of all its members comprising at least 20% of all the Ees of
the bargaining unit it seeks to operate
iv.
If the applicant union has been in existence for 1 or more years, copies of
its annual financial reports; and
v.
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 participating in it.
b.
Moreover, section 4 of Rule II, Book V of the Implementing Rules requires:

(i)
that the application should be signed by at least twenty percent (20%) of

the employees in the appropriate bargaining unit and
(ii)
be accompanied by a sworn statement of the applicant union that there is

no certified bargaining agent or, where there is an existing collective
agreement duly submitted to the DOLE, that the application is filed during
the last sixty (60) days of the agreement.
RATIONALE: What is the purpose of the Law for requiring so many
requirements?
Registration is required to protect both labor and the public against
abuses, fraud, or impostors who pose as organizers, although not
truly accredited agents of the union they purport to represent.
Are these registration requirements a curtailment of the freedom to
associate?
NO. These requirements are not restrictions on the freedom of
assembly and of association. Rather they are merely conditions sine
qua non for the acquisition of legal personality by a labor org and
the possession of rights and privileges granted by law to a legit LO.
The consti does not guarantee these rights and privileges, much less
personality, which are mere statutory creationsfor the possession
and exercise of which, registration is required. xxx Such requirement
is valid exercise of police power because the activities in which Los
are engaged in affect public interest which should be protected.
II. BUT when an UNREGISTERED union becomes a branch, local or chapter of a federation,
some of the aforementioned requirements for registration are no longer required. The
provisions governing UNION AFFILIATION are found in Rule II, Section 3, Book V. Relevant
21

portions are as follows: (Take note this part of the case is no longer seen in the amendments
in the rules by DO. No. 9 which was promulgated on 1997, this case was decided in 1992)
TAKE NOTE: Two types of union may become affiliated with a federation or a
national union:
1)
A local or chapter of a federation WHICH DID NOT
undergo the rudiments of registration.
2)
An independently registered union may also be an affiliate
of a federation or national union.
Implicit in the forgoing differentiation is the fact that a local
or chapter need NOT BE independently registered. By
force of law (Art. 212 h) such local or chapter becomes a
legitimate labor organization upon compliance with the
aforementioned provisions of Section 3 (Under DO. No. 9,
its is now Rule IV Book V section 1 & section 3)
What requirements imposed by Art. 234 for the registration of an independent
union are OMITTED when it comes to registration of a local or chapter?
i)
The requirement that the application for registration must be signed by at
least 20% of the employees in the appropriate bargaining unit;
ii)
The submission of officers addresses,

principal address of the labor organization
the minutes of the organizational meetings
list of the workers who participated in such meetings
iii)
The submission of the minutes of the adoption or ratification of the

constitution and by laws and the list of the members who participated in it.
RATIONALE: Undoubtedly, the intent of the law is imposing lesser requirements

in this case is to encourage the affiliation of a local union in order
to increase the local unions bargaining powers respecting term
and conditions of labor.
Although there are few requirements, the requirements in A 235 regarding certification under
oath still has to be complied with. In the case at bar, the constitution and by-laws and list of
officers submitted to the BLR, while attested to by the chapters president, were not certified
under oath by the secretary.
Does such defect (the consti and by-laws were not certified under oath) warrant the withholding
of the status of legitimacy to the local or chapter?
YES. It is a fatal defect.
RATIONALE:
The certification and attestation requirements are preventive

measures against the commission of fraud.
The rationale for requiring that the submitted documents and papers be certified
under oath by the secretary or treasurer, as the case may be, and attested to by
the president is apparent. Upon the approval of the application for registration,
the LO acquires legal personality and thereby becomes entitled to all the rights
and privileges granted by the law to a legit L.O. The employer would naturally
need assurance that it is dealing with a bonafide organization, one which has not
submitted false statements and misrepresentation to the BLR.
a. The inclusion of the certification and attestation requirements will in a marked
degree allay these apprehensions of management. Because the issuance of
a false statement and misrepresentation is a ground for cancellation of
registration and is also a ground for criminal charges of perjury.
22

b. The certification and attestation requirements are preventive measures

against the commission of fraud.
c. They likewise afford a measure of protection to unsuspecting employees who
may be lured into joining unscrupulous or fly-by-night unions whose sole
purpose is to control union funds or to use the union for dubious ends.
Since there are lesser requirements for a local or a chapter, there is greater reason to exact
compliance with the certification and attestation requirements. The policy of the law in conferring
greater bargaining power upon labor unions must be balanced with the policy of providing
preventive measures against the commission of fraud.
MAIN QUESTION of the case: When does a branch, local or affiliate of a federation
become a legitimate labor organization?
A local or chapter therefore becomes a legitimate LO only upon submission of the following
to the BLR:
charter certificate within 30 days from its issuance by the national union; and
constitution and By-laws, statement of the set of officers and books of accounts all of which
must be certified under oath by the secretary or treasurer of such local chapter and attested
by its president.
Absent compliance with these mandatory requirements, the local or chapter does not become a
legitimate labor organization.
(Take note: This is not in the law, but only in the implementing rules, now under
DO. No. 9, it is Book V, Rule VI sec. 1. The Professor asked what is the legal
basis of these requirements, the answer is the implementing rules not the labor
code.)
In case at bar, the failure of the secretary of PDEU-Kilusan to certify the required documents
under oath is fatal to its acquisition of a legitimate status.
TAKE NOTE: Difference of an oath from an attestation is that in an oath, you are in effect
saying that all that is contained therein is true and it makes you liable for perjury.
While an attestation merely means that you have witnessed the fact of it.
San Miguel Foods, Inc. V. Laguesma , 263 SCRA 68 (1997)
It is important to determine whether or not a particular labor organization is legitimate since
legitimate labor organizations have exclusive rights under the law which cannot be exercised by
non-legitimate unions.
ISSUE:
Is a CHARTER CERTIFICATE defective if it NOT certified under oath and attested to

by the organizations secretary and president?
NO it is not defective.
A charter certificate need NOT be certified under oath. What is required to be certified under
oath by the secretary or treasurer and attested to by the locals president are:
1.
the constitution and by-laws
2.
Statement of the set of officers
3.
The books of accounts
The charter certificate issued by the mother union need not be certified under oath by the
secretary or treasurer and attested to by the locals president.
When does a labor organization acquire legitimacy?
Ordinarily a labor organization attains the status of legitimacy only upon the issuance in its
name of a Certificate of Registration by DOLE.
23

Furusawa v. Secretary of Labor , 282 SCRA 635 (1997)

The presentation of the Xerox copy of the certificate of registration to support its claim of being a
duly registered labor organization instead of the submission of the original certificate is sufficient
proof of its legitimacy, not a fatal defect.
The issuance of the certificate of registration evidently shows that FEU-IND has complied with
the requirements of Art. 234 of the Labor Code.
Certification proceeding is non-adversarial, technical rules do not apply.
When conflicting interests of labor and capital are to be weighed on the scales of social justice,
the heavier influence of the latter should be balanced by sympathy and compassion which the
law must accord the underprivileged worker. This is only in keeping with the constitutional
mandate that the State shall afford full protection to labor.
3.3 UNION RATIONALE
Guijarno v. CIR52 SCRA 307 (1973)
The state has an obligation to afford protection to labor. xxx That is to carry out the purpose
implicit in one of the five declared principles, namely the promotion of social justice to insure
the well being and economic security of the people
It is then the individual employee, as a separate, finite human being, with his problems and his
needs, who must be attended to. He is the beneficiary of the concerns thus made manifest by
the fundamental law.
RATIONALE: Where does that leave a labor union? Correctly understood, it is nothing
but the means of assuring that such fundamental objectives would be
achieved. It is the instrumentality through which an individual laborer who
is helpless as against a powerful employer may, through concerted effort
and activity achieve the goal of economic well-being.
Workers unorganized are weak, workers organized are strong.
Unions are merely instrumentalities through which their welfare may be protected and fostered.
That is the raison dtre of labor unions.It is the instrumentality by which the weak laborer up
against the strong employer, may, by concerted effort, achieve economic well-being.
Heirs of Cruz v CIR30 SCRA 917
The Constitution enjoins the State to afford protection to labor. Fair dealing is equally demanded
of unions as well as of employers in their dealings with employees.
RATIONALE: The union has been evolved as an organization of collective
strength for the protection of labor against exactions of capital.
The union is but an agent of the individual workers and it has the duty to inform the members of
the labor matters entrusted to it. The employer may rely on the authority of the union to bring the
union members especially in collective bargaining where the matters to be discussed are still to
be observed but this case is an exception. What is sought here are backwages and other
benefits already earned. Authority for the union to waive this must be express. In a compromise
or settlement, the individual union members are the real judgment creditors and are the real
parties in interest.
When is a labor organization wholesome? A labor organization is wholesome if it serves its
legitimate purpose of promoting the interests of labor without unnecessary labor disputes. That
is why it is given personality and recognition in concluding CBAs. but if it is made use as a
subterfuge, or as a means to subvert valid commitments, it defeats its own purpose, for it tends
24

to undermine the harmonious relations between management and labor. (United Seamens
Union vs. Davao Shipowners Association)
3.4 LABOR UNION AND GOVERNMENT REGULATION
UNION REGISTRATION AND PROCEDURE REQUIREMENTS
What are the requirements for registration of a labor organization? Art. 234 :
Any applicant labor organization shall acquire legal personality and shall be entitled to rights
and privileges of legitimate labor organizations upon issuance of a certificate of registration
upon submission of the following requirements:
A. Registration Fee (Php 50.00)
B. Names of its officers, addresses, principal address of the organization, minutes of
meetings and list of workers who participated in meetings.
C. Names of all its members comprising at least 20% of all its EEs in the bargaining unit.
(Not applicable if by chartering)
D. Copies of annual financial reports if union has been in existence for more than 1 year. (If
less than 1 year No more need to file financial statement)
E. Copies of constitution and by-laws.
Sec. 3, Rule II, Book V, IRRs : Sworn statement by applicant union that there is no certified
bargaining agent in bargaining unit concerned. When there is an existing CBA duly submitted to
the DOLE, a sworn statement that the application for registration was filed during the last 60
days of the agreement.
The application and all accompanying documents shall be verified under oath by the
secretary or the treasurer as the case may be, and attested to by the president. (Id.)
II. What are the additional requirements for federations or national unions? (Art. 237)
A. Proof of affiliation of at least 10 local chapters.
Each of which must be a duly recognized collective bargaining agent in the
establishment or industry in which it operates.
B. Names and addresses of the companies where the locals or the chapters operate and list of
all the members in each company involved.
A union does not become legitimate by the mere

fact of affiliation BUT by registration. It is registration with the BLR which made it a
LLO with rights and privileges granted under the Labor Code.
Union registration is a ministerial duty if all the

requirements are present
> Mandamus will lie
III. What is the period for action on application? 30 days from filing (Art. 235)
Book V Rule V
Sec. 3 Action on Application
The Regional Office or Bureau, as the case may be, shall act on the application for registration
within thirty (30) days thereof, either by approving the application and issuing the certificate of
registration, or denying the application for failure of the applicant to comply with the
requirements for registration.
Where the documents supporting the application are not complete or do not contain the
requisite attestation requirements, the Regional Office or Bureau shall, within five days from
receipt of application, notify the applicant in writing of the requirements needed to complete the
application.
25

Where the applicant fails to complete the requirements within thirty (30) days from receipt of
notice, the application shall be denied without prejudice.
TAKE NOTE: You cannot deny outright an application for registration when the only ground to
deny is the incompleteness of the requirements. The applicant must be notified
first and be given a chance to complete the requirements. It is only after thirty
days after notice that such may be denied.
Book V Rule III (as amended by DO. No. 9) :
Sec. 1: Where to file application; The application for registration of any:
1) federation, national or industry union or trade union center:
-shall be filed with the Bureau.
2) Independent Union
-shall be filed with and be acted upon by the Regional Office where the
applicants principal office is located.
3) Local Union: The charter certificate issued by the federation or national union in creating a
local/chapter, together with the supporting documents:
-shall be filed with the Regional Office or the Bureau within (30) days from
the issuance of such charter certificate.
Book V Rule VI
Sec. 1 CHARTERING AND CREATION OF A LOCAL/CHAPTER:
A duly registered federation or national union may DIRECTLY CREATE a local/chapter by
submitting to the Regional Office or to the Bureau two (2) copies of the following:
a. a charter certificate ISSUED BY labor federation or national union indicating the creation
or establishment of a local or chapter;
b. The names of the local/ chapters officers, their addresses, and principal office of the
local/chapter; and
c. The local/chapters constitution and by-laws; provided that where the local/chapters
constitution and by-laws is the same as that of the federation or national union, this fact
shall be indicated accordingly.
All the foregoing supporting requirements shall be certified under oath by the Secretary or
Treasurer of the Local/chapter and attested to by its President.
Sec. 3 ACQUISITION OF LEGAL PERSONALITY BY LOCAL/CHAPTER
A local/chapter constituted in accordance with section 1 of this Rule shall acquire legal
personality from the date of filing of the complete documents enumerated therein.
Upon compliance with all the documentary requirements, the Regional Office or Bureau shall
issue in favor of the local/chapter a certificate indicating that it is included in the roster of
legitimate labor organizations.
Sec. 4 AFFILIATION OF AN INDEPENDENT UNION
An independent union shall be considered an affiliate of a federation or national or industry
union upon filing by the later to the Regional Office or Bureau of:
1)
two (2) copies each of verified resolution of affiliation,
2)
ratified by a majority of the members of the former,
3)
and a resolution of acceptance by the later.
NOTES:
* A LOCAL or CHAPTER becomes a LLO only upon submission of the following to the BLR:
1. A CHARTER CERTIFICATE, within 30 days for its issuance
2. The constitution and by laws
3. A statement on the set of officers
26

4. Books of accounts all of which are certified under oath by the secretary or treasurer as
the case may be, of such local chapter and attested to by its president.
* DO # 9 (1997)
- The submission of books of accounts is no longer required in registering a union
if existence for less than a year.
Pagpalain Hauling Inc. v. Trajano , 310 SCRA 364 (1999)
The Labor Code DOES NOT require the submission of books of account in order for a labor
organization to be registered as a legitimate labor organization.
The requirement that books of account be submitted as a requisite for registration can be found
only in Book V of the Omnibus Rules Implementing the Labor code, PRIOR to its amendment by
DO No. 9 Series of 1997. Specifically, the old Section 3(e, Rule II, of Book V provided that the
local or chapter of a labor federation or national union shall have and maintain a constitution
and by-laws, set of officers and BOOKS OF ACCOUNTS. For reporting purposes, the procedure
governing the reporting of independently registered union, federations or national unions shall
be observed.
Since Department Order No. 9 has done away with the submission of books of accounts as a
requisite for registration, Pagpalains only recourse now is to have said order declared null and
void.
The controlling intention in requiring the submission of books of accounts is the protection of
labor through the minimization of the risk of fraud and diversion in the handling of union funds.
But this intention can still be realized through other provisions of the Labor Code. (Example Art.
241 b, g, h, I, j, l, m; Art. 274)
Department Order No. 9 only dispenses with books of accounts as a requirement for registration
of a local or chapter of a national union or federation. As provided by Article 241 h and 241 j, a
labor organization must still maintain books of account, but it need not submit the same as a
requirement for registration.
CREATION AND REGISTRATION METHODS:
* A union at the enterprise level may be created either by (a) independent registration or (b)
chartering. Independent registration is obtained by the union organizers in an enterprise
through their own action instead of through issuance of a charter by a federation, national or
industry union. The union thus created has a legal personality of its own and is called an
independent union. But it may affiliate with a federation, national or industry union, in which
case it may also be called an affiliate. The application for registration of an independent union
is filed with and will be acted upon by the DOLE regional office where the applicants principal
office is located.
Chartering takes place when a duly registered federation or national union issues a
charter to a union in an enterprise and registers the charter with the Regional Office or the
Bureau of Labor Relations. The union recipient of the charter is called a chapter or local. It has
no legal personality of its own as long as it has not availed itself of independent registration.
The charter certificate issued by a federation or national union, together with supporting
documents evidencing the establishment of such local/chapter, is filed with the regional office or
the Bureau of Labor Relations within thirty days after issuance of the charter certificate.
INDEPENDENT UNION
Independent from mother union.
Its legitimacy was obtained on its own.
Has its own registration.
Regular requirement for registration
Requirements for registration are in the law
itself.
AFFILIATE who is not an independent

union
Does not have its own registration. Its
legitimacy was obtained through its mother
union.
Its requirements for registration are less
Requirements for registration are not in the
law, but in the implementing rules
27

May disaffiliate and remain legitimate.
ISSUE: May an affiliate who is not an

independent union retain its legitimacy if it
disaffiliates from its mother union from
where it derives its legal
personality/legitimacy?
Yes. Once a union attains its legitimacy in
ANY means, it retains its legitimacy.
Because the right to associate includes the
right to disaffiliate.
C.B.U.
No minimum or maximum number is required to constitute a bargaining unit. Regardless
of their number, twenty percent of the employees in the bargaining unit should be members of
the labor organization applying for independent registration. But the 20 percent is not required
when a federation or national union creates, through chartering, a local chapter in an enterprise.
A company may therefore be unionized even if less than 20 percent of the employees in the
bargaining unit participate in the unionizing effort.
Bargaining unit refers to the group of employees which the labor union will represent in
dealing or bargaining with the employer. It is that cluster of jobs or positions that politically
supports within the company the labor organization applying for registration. Bargaining unit is
the people represented by the representative union which therefore is called the bargaining
agent. Bargaining unit is explained further under Art. 255.
* A union does not become legitimate by the mere fact of affiliation. BUT by registration.
- It is the registration with the BLR which made it a LLO with rights and privileges
granted under the LC.
* Union registration is a ministerial duty if all the requirements are complied with.
- Mandamus will lie.
A. REQUIREMENT AND RATIONALE
Registration is a condition sine qua non for the acquisition of legal personality by a labor
organization. (Protection Technology vs. Secretary of Labor and Employment) However, it
is not a limitation on the right of assembly or association which may be exercised with or without
said registration. (PAFLU vs. Sec. of Labor) The statutory and regulatory provisions of defining
the requirements of legitimate labor organizations are an exercise of the overriding police power
of the State designed for the protection of workers against potential abuses by unions that
recruit them. (Protection Technology vs. Sec. of Labor) or fly-by-night unions whose sole
purpose is to control union for dubious ends. (Phoenix Iron vs. Sec. of Labor and
Employment)
Progressive Devt v Sec. of Labor , 205 SCRA 802
These requirements are not restrictions on the freedom of assembly and of association. Rather
they are merely conditions sine qua non for the acquisition of legal personality by a labor org
and the possession of rights and privileges granted by law to a legit LO.
The consti does not guarantee these rights and privileges much less personality, which are
mere statutory creationsfor the possession and exercise of which, registration is required to
protect both labor and the public against abuses, fraud or impostors who pose as organizers,
although not duly accredited agents of the union they purport to represent.
ACTION OR DENIAL OF APPLICATION, AND REMEDY
28

1. Sec. 6, Rule II, Book V, IRRs : Any applicant union may appeal to the Bureau the
denial of registration by the Regional Office, or to the secretary if the denial is by the
Bureau, within 10 calendar days from receipt of such decision on grounds of :
A. grave abuse of discretion ; and
B. gross incompetence
The appeal shall be filed in the Regional Office/Bureau which shall cause the transmittal
of records to the Bureau/Secretary within 5 calendar days from receipt of the appeal.
The Bureau/Secretary shall decide the appeal within 20 calendar days from receipt of
the records of the case.
2. Can the Regional Office/Bureau exercise discretion in the registration of the applicant
union?
No. As long as the applicant union complies with all the legal requirements for
registration, it becomes the Offices/Bureaus ministerial duty to do register the union.
(Vassar vs. Estrella)
* MANDAMUS lies to compel the registration of an LO
EFFECTS ON FREEDOM OF ASSOCIATION

While disaffiliation from a labor union is not open to legal objection, since it is implicit in the
freedom of association ordained in the Constitution, a closed shop agreement is a valid
form of union security and is not a restriction of the right of freedom of association
guaranteed by the Constitution.
PAFLU v. Sec. Of Labor

The requirement of registration does not curtail the freedoms of assembly and association. Said
freedoms may still be exercised with or without registration. The latter is merely a condition sine
qua non for the acquisition of legal personality by labor unions and the possessions of rights
and privileges granted by law. The constitution does not guarantee these rights and privileges,
much less legal personality, which are mere statutory creations.
RIGHTS OF LEGITIMATE LABOR ORGANIZATION

I. What are the rights of legitimate labor organization? (R E F O S A F)
A. Act as Representative of its members in collective bargaining
B. To be certified as the Exclusive representative of all the EEs in an appropriate collective
bargaining unit for purposes of collective bargaining.
C. To be furnished by the ER, upon written request, with its annual audited financial
statements, including the balance sheet and the profit and loss statement,
a) Within 30 calendar days from the date of receipt of request after the union has
been duly recognized by the ER or certified as the sole and exclusive bargaining
representative of the EEs in the bargaining unit, or
b) Within 60 calendar days before the expiration of the existing CBA,or
c) During the collective bargaining negotiation.
D. To own property for the use and benefits of the labor organization and its members.
E. To sue and be sued in its registered name.
F. To undertake all other Activities designed to benefit the organization and its members.
29

G. Its income and properties which are directly and exclusively used for their lawful purposes,
shall be free from taxes, duties and other assessments. The exemptions provided herein may
be withdrawn only be a special law expressly repealing this provision.
The right to represent EEs in collective bargaining

is true only for the union of the majority members of the BU
Must win certification or consent election
A registered union has the requisite personality to

sue on behalf of its members for their individual money claims
TIP ON HOW TO REMEMBER Art. 242 when you are asked to enumerate it:
1.
LLO has right to participate in Collective bargaining:

-As representative of its members (a)
-to be certified as representatives of the employees in the appropriate bargaining
unit (b)
-To be furnished the annual audited financial statements, this will aid him in
collective bargaining (c).
2.
Registration gives an LLO a juridical personality. Thus as a person, it may:

-own property (d)
-sue and be sued (e)
-undertake all activities designed to benefit its members and not contrary to law (f)
3.
Special Tax exemption
II. Can the union effect a compromise of the money claims of workers?
Money claims due to laborers cannot be the object of settlement or compromise effected by a
union or counsel without the specific individual consent of each laborer concerned. (Kaisahan
ng mga Manggagawa sa La Campana vs. Sarmiento)
III. May a union waive a right of union members to reinstatement provided for in an NLRC
decision?
No, the waiver of reinstatement, must be regarded as a personal right which must be
exercised personally by workers themselves. (Jag vs. NLRC)
A. EFFECT OF NON-REGISTRATION
Union, must comply with all the requirements of registration as a legitimate labor organization.
(Protection Technology vs. Sec. of Labor & Employment). However, if the union has filed
application for registration and has submitted all the legal requirements, the fact that it does not
yet have the certificate of registration will not annul the designation of the labor union as sole
bargaining agent by the virtue of a certification election since the defect is not fatal. (UE
Automotive EEs vs. Noriel)
Tropical Hut EEs Union-CGW v Tropical Hut Food Market1 , 81 SCRA 173
A local union, being a separate and voluntary association, is free to serve the interest of all its
members including the freedom to disaffiliate when circumstances warrant. The locals are
separate and distinct units primarily designed to secure and maintain an equality of bargaining
power between the employer and their employee-members.
A local union owes its creation and continued existence to the will of its members and not to the
federation to which it belongs. When the local union withdrew from the old federation to join a
new federation, it was merely exercising its primary right to labor organization for the effective
enhancement and protection of common interests.
30

In the absence of provisions in the constitution preventing disaffiliation of a local union, a local
may sever its relationship with its parent. Non-compliance with the provision in the NATU
Constitution requiring the service of three months notice of intention to withdraw did not produce
the effect of nullifying the disaffiliation.
Firstly, NATU was not even a legitimate labor organization. It was not registered with the
Department of Labor and did not possess and acquire the legal personality to enforce its
constitution and laws, much less the right and privilege under the Labor Code to organize and
affiliate chapters or locals.
Secondly, the act of non-compliance is premised on purely technical grounds which cannot rise
above the fundamental right of self-organization. The disaffiliation did not violate the CBA
provisions. The THEU-NATU, not NATU, was recognized as the exclusive bargaining agent in
all matters concerning terms and conditions of employment. While the NATU was recognized as
the sole bargaining agent in the check-off form, it was only acting as an agent of THEU. Finally,
while CBA imposes dismissal on an Ee who joins another federation, that situation does not
obtain in this case, since the entire THEU was withdrawing from the federation.
CANCELLATION OF THE UNION CERTIFICATE REGISTRATION

Art 238. The certificate of registration of any legitimate labor org whether national or local shall
be
-canceled by the bureau
-if it has reason to believe after due hearing that the said labor org no longer meets one
or more of the requirements herein prescribed.
I. What are the grounds for its cancellation of union registration by the Bureau?
1. Misrepresentation, false statement or fraud by the union with respect to the required
documents submitted to the Bureau.
2. Failure to submit the documents within 30 days from adoption or ratification of the
constitution and by-laws or amendments thereto.
3. Misrepresentation, false statements or fraud in connection with the election of officers,
minutes of the elections and list of voters of failure to submit these documents within 30
days from election [or from the occurrence of any change in the list of officers of the
labor organization (Art. 241)].
4. Failure to submit annual financial report within 30 days after closing of fiscal year and
misrepresentation of fraud in the preparation of the financial report.
5. Acting as labor contractor or cabo system.
Art. 106 labor only contracting

6. Entering into CBAs which provide terms and conditions of employment below minimum
standards.
7. Asking for or accepting attorneys fees or negotiation fees from ERs.
8. Other than for mandatory activities under this Code, Checking of special assessment or
other fees without duly signed individual written authorization of members.
9. Failure to submit list of individual members once a year or when required (MACED
MALL)
Book V Rule I Sec. 1: (jj) Cancellation Proceedings refer to the process leading to the
revocation of the legal personality of a labor organization or a workers association after due
process.
Cancellation of Registration under Book V of implementing rules:
31

Sec. 1 Venue:
-Regional office having jurisdiction over the place where the respondents
principally operates.
Sec. 2 Who may file?
-Any party in interest
-Except in actions involving Article 241, in this case only members of the
association (30% consent)
Book V Rule VIII Sec. 5
Revocation of legal personality of local/chapter:
A federation/ national union may revoke the charter issued to a local/ chapter or branch by
serving on the latter a verified notice of revocation.
Grounds:
1. disloyalty
2. other grounds as may be specified in the constitution and by-laws
* In case revoked, the local will lose its legal personality if it fails to register as an independent
union before the expiration of the CBA. (Sec. 6)
Cancellation of registration means that the union

is no longer a LLO
Its juridical personality as well as its statutory rights and privileges are suspended, BUT
the cancellation does not invalidate an otherwise valid CBA which the union has entered
into.
Having held an illegal strike is not a reason to

cancel a unions registration
> It may affect strikers and officers only
Any party in interest may commence a petition for
cancellation of registration, except in actions involving violations of Art. 241 which can be
commenced only by members of the respondent union.
II. If a union declares an illegal strike, is this a good ground for cancellation of union
registration?
No. While Art .239 provides the phrase acting as a labor contractor or otherwise engaging
in any activity prohibited by law, this phrase refers to an activity partaking the nature of a
labor contractor. Thus, an illegal strike is not one of the grounds for cancellation of
registration. (Itogon-Sayoc vs Sangilo-Itogin Workers Union)
Rules on TRADE UNION REGISTRATION:
Book V Rule III Sec. 2(III): The application for registration of an industry or trade union center
shall be supported by the following:
a)
The list of its member organizations and their respective presidents and, in the case of
an industry union, the industry where the union seeks to operate;
b)
The resolution of membership of each organization, approved by the Board of Directors
of such union;
c)
The name and principal address of the applicant, the names of its officers and their
addresses, the minutes of its organizational meeting/s, and the list of member organizations and
their representatives who attended such meetings; and
d)
A copy of its constitution and by-laws and minutes of its ratification by a majority of the
presidents of the member organizations, provided that where the ratification was done
simultaneously with the organizational meeting, it shall be sufficient that the fact of ratification be
included in the minutes of the organizational meeting.
3.5 INTERNATIONAL ACTIVITIES OF UNION PROHIBITION AND REGULATION
I. What activities by aliens are prohibited?
All aliens, whether natural or juridical are strictly prohibited from engaging directly or
indirectly in all forms of trade union activities without prejudice to normal contacts
32

between Philippine labor unions and recognized international labor centers. The
prohibition does not apply to the formation of labor organizations by aliens working in the
country with valid working permits. (Art. 269)
Trade Union Activities shall mean :
organization formation and administration of labor organizations;
negotiation and administration of CBAs;
all forms of concerted union action;
organizing, managing or assisting union action;
any form of participation or involvement in representation proceedings, representation
elections, union elections; and
6. other analogous activities. (Art. 270)]
1.
2.
3.
4.
5.
II. What activities by aliens are regulated?

No foreign individual, organization or entity may give any form of assistance, in cash or
in kind directly or indirectly, to any labor organization, group of workers or any auxiliary
thereof, such as cooperatives, credit unions and institutions engaged in research,
education or communication, in relation to trade union activities, without prior permission
by the Sec. of Labor
This prohibition also applies to foreign donations or other forms of assistance, in cash or
in kind, given directly or indirectly to any ER or ERs organization to support any activity
or activities affecting trade unions.
III. The strike declared by Union M has reached its 60th day. Taking pity on the hungry and sick
strikers, B and G, French missionaries, distributed food and drinks to the strikers. Has any one
committed any illegal act?
Yes. B and G, distributing food and drinks to the strikers violated the prohibition against
aliens from engaging directly or indirectly in all forms of trade union activities. The term
trade union activities includes all forms of concerted union actions and analogous
activities. (Alcantara)
Art. 271. Applicability to farm tenants and rural workers - The provisions of this Title
pertaining to foreign orgs and activities shall be deemed applicable likewise to all orgs of farm
tenants, rural workers, and the like:
Provided, That in appropriate cases the Sec of Agrarian Reform shall exercise the powers and
responsibilities vested by this Title in the Sec of Labor.
3.6 UNION-MEMBER RELATIONS
NATURE OF RELATIONSHIP
The union may be considered but the agent of its members for the purpose of securing for them
fair and just wages and good working conditions and is subject to the obligation of giving the
members as its principals all information relevant to union and labor matters entrusted to it.
(Heirs of Cruz vs. CIR)
RIGHTS OF UNION MEMBER (ART. 241)
Summarize the basic rights of union members :
1. Political right Members right to vote and be voted for, subject to lawful provisions on
qualifications and disqualifications.
2. Deliberative and decision-making right Members right to participate in deliberations
on major policy questions and decide them by secret ballot.
3. Right over money matter Members right against excessive fees, right against
unauthorized collection of contributions or unauthorized disbursements; the right to
require adequate records of income and expenses and the right of access to financial
33

records; the right to vote on proposed special assessments and be deducted a special
assessment only with the members written authorization.
4. Right to information Members right to be informed about the organizations
constitution and by-laws and the CBA and about labor laws.
As EEs, the union members retain the right to directly present grievances to the ER at
anytime
ISSUES
UNION CONSTITUTION:
UST Faculty Union v. Bitonio , 318 SCRA 185 (1999)
The point to be stressed is that the unions CBL is the fundamental law that governs the
relationship between and among the members of the union.
It is where the rights, duties and obligations, powers, functions and authority of the officers as
well as the members are defined. It is the organic law that determines the validity of acts done
by any officer or member of the union. Without respect for the CBL, a union as a democratic
institution degenerates into nothing more than a group of individuals governed by mob rule.
The importance of a unions constitution and by-laws cannot be overemphasized. They embody
a covenant between a union and its members and constitute the fundamental law governing
members rights and obligations. As such, the unions constitution and by-laws should be
upheld, as long as they are not contrary to law, good morals, or public policy.
A. ADMISION AND DISCIPLINE OF MEMBERS
1. Art. 249 : A labor organization shall have the right to prescribe its own rules and with
respect to the acquisition or retention of membership.
2. Art. 277 : Any EE, whether employed for a definite period or not, shall, beginning on his
1st day of service, be considered an EE for purposes of membership in any labor union.
A. 1. ADMISSION
1. Labor unions are not entitled to arbitrarily exclude qualified applicants for membership,
and a closed-up provision would not justify the ER in discharging, or a union in insisting
upon the discharge of it, an EE whom the union refuses to admit to membership, without
any reasonable ground therefor. Thus, while generally the State may not compel the
union to admit the individual as a member, this scenario is not an exception to that
general rule. (Salunga vs. CIR)
Important points in Salunga Case
GENERAL RULE:
Labor union is a PRIVATE and voluntary organization.
EXCEPTION: When union has access to employment, example: closed-shop

agreement. This converts union into one with a public character and thus the
government will have a right to inquire into the rules or business of the union.
2. The unions constitution and by-laws provides that no individual who previously
belonged to another union may be admitted as member thereof. Is this provision valid?
No. While a union is in general free to select its own members, it cannot impose
arbitrary and discriminatory conditions for admission to membership. It is very clear
that the provision discriminates against an individual for having exercised his right to
self-organization. (Alcantara)
34

3. The union constitution and by-laws provides that only EEs with 2 years service in the
company are eligible for membership therein. Is the provision valid?
No. The provision is an unreasonable restriction on the workers exercise of his right
to self-organization. It would have those who have less than 2 years of service
without representation in bargaining with the ER. (Alcantara)
RIGHT TO DISCIPLINE
Villar v Inciong , 121 SCRA 444
HELD: When a labor union affiliates with a mother union, it becomes bound by the laws and
regulations of the parent organization. It becomes subject to the laws of the superior body under
whose authority the local union functions. The constitution, by-laws and rules of the parent body,
together with the charter it issues pursuant thereto to the subordinate union, constitute an
enforceable contract between the parent body and the subordinate union.
When members of a labor union sow the seeds of dissension and strife within the union. When
they seek the disintegration and destruction of the very union to which they belong. They forfeit
their rights to remain as members. PAFLU acted when, after proper investigation and finding of
guilt, it decided to remove the oppositors from the list of members of the Amigo Employees
Union-PAFLU.
A. 2 DUE PROCESS RULES
1. An officer or a member of a labor union is entitled to due process before he can be
expelled. The member of the labor union may be expelled only for a valid cause and by
following the procedure outlined in the constitution and by-laws of the union.
(Kapisanan ng mga Mangagawa vs. Bugay)
2. The union constitution and by-laws provides that a member may be expelled from the
union upon a vote of 2/3 of all the members. Is the rule valid? No. The expulsion of a
union member cannot be made to depend upon the whims and caprices of cp-members.
It must be founded on some just and serious grounds. (Alcantara)
3. 5 regular EEs were dismissed allegedly pursuant to a union security clause. They had
previously been expelled from the union for attempting to oust the union leadership, but
they were not given an opportunity to explain their side. The company also did not
conduct an investigation into the matter. Is the dismissal of the EEs lawful?
No. The union should have given them an opportunity to explain their side before
expelling them. And the company should have complied with procedural due process
before dismissing them. (Ferrer vs. NLRC)
B. ELECTION OF OFFICERS QUALIFICATION, TENURE AND COMPENSATION
Give the rules of the Labor Code governing union officers :
Art. 241 : The members shall directly elect their officers, including those of the national
union or federation, to which they or their union is affiliated, by secret ballot at intervals of 5
years.
No qualification requirements for candidacy to any position shall be imposed other than
membership in good standing.
No person who has been convicted of a crime involving moral turpitude shall be eligible
for election or appointment as a union officer. [Moral turpitude Act of baseness,
vileness or depravity in the private of social duties which a men owes to his fellowmen,
or to society in general. (Tak vs. Republic)
The officers of any labor organization shall not be paid any compensation other than the
salaries and expenses due their positions as specifically provided in the constitution and
35

by-laws, or in a written resolution duly authorized by the majority of all the members at a
general membership meeting duly called fort he purpose.
Any irregularity in the approval of the resolution shall be a ground for
impeachment or expulsion from the organization. (Art. 241)
QUALIFICATON:
Member in good standing

Not convicted of crime of moral turpitude
MANNER OF ELECTION: Secret Ballot

Direct election
Interval of 5 years
TENURE:
5 years
Compensation:
Generally none.
But allowed if the constitution or by-laws allow it, or a written resolution by
a majority of all the union members in a general membership meeting
called for that purpose.
UST Faculty v. Bitonio

A union election is held pursuant to the unions constitution and by-laws and the right to vote in it
is enjoyed ONLY BY UNION MEMBERS.
A union election should be distinguished from a certification election, which is the process of
determining, through secret ballot, the sole and exclusive bargaining agent of the employees in
the appropriate bargaining unit, for purpose of collective bargaining.
Specifically, the purpose of a certification election is to ascertain whether or not a majority of the
employees wish to be represented by a labor organization and, in the affirmative case, by
which particular labor organization. In a certification election, ALL employees belonging to the
appropriate bargaining unit can vote. Therefore, a union member who likewise belongs to the
appropriate bargaining unit is entitled to vote in said election.
HOWEVER, the reverse is not always true; an employee belonging to an appropriate unit but
who is not a member of the union cannot vote in the union election, UNLESS otherwise
authorized by the constitution and by-laws.
B.1 VOTERS LIST
Submission of the EEs names with the BLR as qualified members of the union not a condition
sine qua non to enable said members to vote in the election of union officers. Question of
eligibility to vote may be determined through the use of applicable payroll period and EEs
status. (Tancinco vs. Ferrer-Calleja)
B.2 DISQUALIFICATION OF CANDIDATES
Disqualification of winning candidates will not automatically result in the assumption of office of
those who garnered the second highest number of votes. (Manalad vs. Trajano)
B.3 EXPULSION REMEDY
Remedy against erring union officers is not referendum but union expulsion. However, reelection of union officers and non-election of complaining union members is convincing show of
faith on union officers leadership. (KMP vs. Trajano)
B.4 ELECTION INVALID
1. Free and honest elections are indispensable to the enjoyment of EEs and workers of
their right to self-organization. This right will be diluted if the election is not fairly and
36

honestly conducted. Thus, elections for union officers attended by grave irregularities are
invalid. (Rodriguez vs. BLR)
2. Will failure to comply with the technical requirements or formalities in relation to the
election of union officers invalidate the election? No, as long as it does not appear that
such failure resulted in the deprivation of any substantial right or prerogative of anyone
or caused the perpetration of fraud or other serious anomaly, or preclude the expression
and ascertainment of the popular will in the choice of officers. (Timbungco vs. Castro)
B.5 QUALIFICATION OF UNION OFFICERS
Atty. R won a big case for the union at the University of the West. He became very popular with
the union members that they elected him as union president. Is this allowed?
No. Atty. R is not an EE of the University. He is disqualified from becoming an officer of any
union therein. (Alcantara)
C. MAJOR POLICY MATTER
1. Art. 241 : The members shall determine by secret ballot, after due deliberation, any
question of major policy affecting the entire membership of the organization, unless the
nature of the organization or force majeure renders such secret ballot impractical.
In which case the board of directors of the organization may make the decision in behalf
of the general membership.
2. Z, a member of a union was surprised to know that the union had disaffiliated with the
national federation. Has Z any ground to complain?
Yes. As union member, he has the right to participate, by secret ballot, to determine
any question of major policy affecting the entire membership. Disaffiliation is a major
policy issue. (Alcantara)
D. UNION FUNDS
Give the rules of the Labor Code governing union funds :
1. The members shall be entitled to full and detailed reports from their officers and
representatives of all financial transactions.
2. No officer, agent or member of a labor organization shall collect any fees, dues or other
contributions in its behalf or make any disbursement of funds unless he is duly
authorized by the constitution and by-laws.
3. Every payment of fees, dues or other contributions by a member shall be evidenced by a
receipt signed by the officer or member making the collection and entered into the record
of the organization.
4. The funds of the organization shall not be applied for any purpose or object other than
those expressly provided by its constitution and by-laws or those expressly authorized
by written resolution adopted by a majority of the members at a general meeting duly
called for the purpose.
5. Every income or revenue of the organization shall be evidenced by a record showing its
source or by a receipt from the person to whom payment is made.
6. Any action involving the funds of legitimate labor organization shall prescribe after 3
years from date of submission of the annual financial report to the DOLE or from date
the same should have been submitted, whichever comes earlier.
7. The treasurer shall render a true and correct account of all moneys received and paid by
him since he assumed office or since the last day on which he rendered such account.
The account shall be duly audited and verified by affidavit and a copy shall be rendered
by the DOLE. The rendering of the account shall be made :
37

a. At least once a year and within 30 days after the close of its fiscal year.
b. At such other times as may be required by a resolution of the majority of the
members of the organization.
c. Upon vacating his office.
8. The books of accounts and other financial records shall be open to inspection by any
officer or member thereof during office hours.
9. No special assessment or other extraordinary fees may be levied upon the members of
a labor organization unless authorized by a written resolution of a majority of all the
membership meeting duly called for the purpose.
a. The secretary shall record the minutes of the meeting which shall be attested by
the president.
10. Other than for mandatory activities under this Code, no special assessments, attorneys
fees, negotiation fees or any other extraordinary fees may be checked off from the
amount due to an EE without an individual written authorization duly signed by the EE.
11. The Sec. of Labor or his duly authorized representative is hereby empowered to inquire
into the financial activities of the legitimate labor organization upon filing of a complaint
under oath and duly supported by a written consent of at least 20% of the total
membership to determine compliance with the law.
a. Such inquiry shall not be conducted during the 60-day freedom period within the
30 days immediately preceding the date of election of the union officials.
D.1 SOURCE- PAYMENT-ATTORNEYS FEES
Art. 222: Appearances and fees---a) Non-lawyers may appear before he Commission or any
Labor Arbiter only:
1. If they represent themselves; or
2. If they represent their organization or members thereof.
b) No attorneys fees, negotiation fees or similar charges of any kind arising from any collective
bargaining negotiations or conclusion of the collective agreement shall be imposed on any
individual member of the contracting union;
Provided, however, that attorneys fees may be charged against union funds in an amount to be
agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary
shall be null and void.
1. Payment of attorneys fees is an obligation of the union and not of the EEs. Money of
EEs are not to be used to pay attorneys fees of a lawyer. (Pacific Bank vs. Clave)
2. Atty. S was hired by a union to assist its president in negotiating a CBA. After the
execution of the CBA, Atty. S sought to collect his attorneys fees out of the benefits due
to the EEs by virtue of the agreement. Is this proper?
No. Atty. Ss claims for attorneys fees should be satisfied out of the funds of the
union. (ALU vs. NLRC)
Attorneys fees may not be deducted or checked off from any amount due to an
EE without his consent EXCEPT for mandatory activities under the code.
Even negotiation fee in collective bargaining is an obligation of the union and not
of a particular member
D.2 Source-Payment-Special Assessment

1. Written resolution of a majority of all members of the union at a general membership
meeting, required for validity of levy of a special assessment. (Palacol vs. FerrerCalleja)
2. The law does not require that this authorization must be in individual form. (Id.)
38

3. The Board of Directors of a union passed a resolution assessing every union member of
P2.00 to be used in the purchase of a birthday gift for the courageous lawyer of the
union. The union members refused to pay assessment. Is the refusal justified?
Yes. The assessment was not authorized by a written resolution of a majority of all
the members at a general membership meeting for the purpose.
4. At a general membership meeting, a majority of the members of the union voted for a
written resolution assessing each member P5.00. A member who did not vote
affirmatively and did not execute an individual written authorization refused to pay the
same. Is his refusal justified?
No. He is bound by the resolution. However, the absence of a written check-off
authorization means that the assessment cannot be deducted by the ER from his
wages or other amounts due him, but he is still obliged to pay the same. (Alcantara)
An employee who collects a special assessment

without being armed with the required general assembly resolution and the written
authorization from each of the union members may be charged with making illegal
deductions from the EEs salary.
Gabriel v. Sec. Of Labor , 328 SCRA 247 (2000)

Art. 241 has three requisites for the validity of the special assessment for the unions incidental
expenses:
1) authorization by
-written resolution
-of majority of ALL the members
-at the general membership meeting called for that purpose
2) Secretarys record of the minutes of the meetings attested to by the president.
3) Individual written authorization for check-off duly signed by the employees concerned.
E. MANDATORY ACTIVITY
Art. 214 : Other than for the mandatory activities under the Code : no special assessment,
attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any
amount due to an EE without an individual written authorization duly signed by the EE.
E.1 DEFINITION
What is a mandatory activity? Judicial process of settling dispute laid down by law.
Vengco v Trajano 173 SCRA 155 (1989)
HELD: Attorneys fees may not be deducted or checked off from any amount due to an
employee without his written consent except for mandatory activities under the Code.
A mandatory activity has been defined as a judicial process of settling dispute laid down by the
law.
Amicable settlement entered into by the management and the union can not be considered as a
mandatory activity. Union filed a claim for emergency cost of living allowance and other benefits
however, case never reached its conclusion in view of the parties agreement. It is not also
39

shown that Atty. Benjamin Sebastian was instrumental in forging the said agreement on behalf
of the union members.
Furthermore, Kapasiyahan did not confer upon Timbungco the power to deduct 10% of the
P150,000.00 despite the alleged approval of the majority of the union workers. Law requires the
individual written authorization of each employee concerned, to make the deduction of
attorneys fees valid. Book III, Rule VIII, Section II of the Implementing Rules does not apply.
This provision envisions a situation where there is a judicial or administrative proceedings for
recovery of wages. Law allows a deduction for attorneys fees of 10% from the total amount due
to a winning party. Fringe benefits received by the union members consist of back payments of
their unpaid emergency cost of living allowances which are totally distinct from their wages.
Allowances are benefits over and above the basic salaries of the employees. Such allowances
are excluded from the concept of salaries or wages. Penalty of expulsion from the union
presidency imposed upon Timbungco is justified.
E.2 CBA NEGOTIATION
1. Placement of re-negotiation for a CBA under compulsory process does not make it a
mandatory activity as to authorize check-off from EEs salary for attorneys fees without
written, signed authorization. (Galvadores vs. Trajano)
2. May a union collect union service fee for its appearance in labor proceeding?
Yes. This is in accordance with the liberalized scheme and theory of representation for
labor. (RCPI vs. Sec. of Labor and Employment)
F. UNION INFORMATION
Art. 241 : It shall be the duty of any labor organization and its officers to inform its members on
the :
1. Provisions of its constitution and by-laws.
2. CBA
3. Prevailing labor relations system and
4. All their rights and obligations under existing labor laws.
For this purpose, registered labor organizations may assess reasonable dues to finance
labor relations seminars and other labor education activities. (Responsibility of officers for
dissemination of union information and for respect of the law is greater than that of the
members. (NLU vs. Continental Cement)
ENFORCEMENT AND REMEDIES PROCEDURE AND SANCTIONS
1. Art. 241 : Any violation of the above rights and conditions of membership shall be a
ground for cancellation of union registration or expulsion of officer from office, whichever
is appropriate. At least 30% of all the members or any member or members especially
concerned may report such violation to the Bureau.
Only if the issue involves the entire membership of the union
Criminal and civil liabilities arising from violations of above rights and conditions of
membership shall continue to be under the jurisdiction of ordinary courts.
2. When is the 30% requirement not needed? When such violation directly affects only 1
or 2 members, then only 1 or 2 members would be enough to report such violation and
seek redress. (Kapisanan ng mga Manggagawa vs. Bugay)
A. JURISDICTION EXHAUSTION INTERNAL REMEDIES
I. In case of intra-union disputes, redress must first be sought within the organization itself in
accordance with its constitution and by-laws. (Villar vs. Inciong)
II. What are the exceptions to the exhaustion of internal remedies?
1. Futility of intra-union remedies.
40

2.
3.
4.
5.
6.
7.
8.
9.
Improper expulsion procedure.

Undue delay in appeal as to constitute substantial injustice.
When action is for damages.
Lack of jurisdiction of the investigating body.
When action of administrative agency is patently illegal, arbitrary and oppressive.
When issue involves is a pure question of law.
Where administrative agency has already prejudged the case.
Where the administrative, agency was practically given an opportunity to act on the case
but did not. (Azucena)
3.7 UNION AFFILIATION : LOCAL AND PARENT UNION RELATIONS

I. Sec. 3, Rule II, Book V, IRRs : An affiliate of a labor federation or national union may be a
local or an independently registered union.
RULES:
1. The labor federation or national union shall issue a charter certificate which shall be
submitted to the Bureau within 30 days from issuance.
2. An independently registered union shall be considered an affiliate after submission to the
Bureau of the contract or agreement of affiliation within 20 days after its execution.
3. All existing labor federations or national unions are required to submit a list of their
affiliates, their addresses and including the names and addresses of their respective
officials.
4. The local or chapter of a labor federation or national union shall maintain a constitution
and by-laws, set of officers and books of accounts.
5. No person who is not an EE or worker of the company or establishment where an
independently registered union, affiliate, local or chapter of a national federation or
national union operates shall henceforth be elected or appointed as an officer of such
union, affiliate, local or chapter.
(Under DO .No. 9, 1997) Book V Rule VI
Sec. 1 Chartering and creation of a local/chapter:
A duly registered federation or national union may DIRECTLY CREATE a local/chapter by
submitting to the Regional Office or to the Bureau two (2) copies of the following:
d. a charter certificate ISSUED BY labor federation or national union indicating the creation
or establishment of a local or chapter;
e. The names of the local/ chapters officers, their addresses, and principal office of the
local/chapter; and
f.
The local/chapters constitution and by-laws; provided that where the local/chapters
constitution and by-laws is the same as that of the federation or national union, this fact
shall be indicated accordingly.
All the foregoing supporting requirements shall be certified under oath by the Secretary or
Treasurer of the Local/chapter and attested to by its President.
Sec. 3 Acquisition of legal personality by local/chapter
A local/chapter constituted in accordance with section 1 of this Rule shall acquire legal
personality from the date of filing of the complete documents enumerated therein.
Upon compliance with all the documentary requirements, the Regional Office or Bureau shall
issue in favor of the local/chapter a certificate indicating that it is included in the roster of
legitimate labor organizations.
41

Sec. 4 Affiliation of an Independent Union

An independent union shall be considered an affiliate of a federation or national or industry
union upon filing by the later to the Regional Office or Bureau of:
1)
two (2) copies each of verified resolution of affiliation,
2)
ratified by a majority of the members of the former,
3) and a resolution of acceptance by the later.
AFFILIATION; PURPOSE OF; NATURE OF RELATIONS
A. NATURE OF RELATIONSHIP
* The mother union is merely an agent of the local union. (NAFLU vs. Noriel)
Sugbuanon Rural Bank v. Laguesma , 324 SCRA 425 (2000)
Locals are separate and distinct units primarily designed to secure and maintain an equality of
bargaining power between the employer and their employee-members in the economic struggle
for the fruits of the joint productive effort of labor and capital.
Association of the locals into the national union was in furtherance of the same end. These
associations are consensual entities capable of entering into such legal relations with their
members. The essential purpose was the affiliation of the local unions into a common enterprise
to increase by collective action the common bargaining power in respect of the terms and
conditions of labor. Yet the locals remained the basic units of association.
A local union maintains its separate personality despite affiliation with a larger national
federation.
Tropical Hut v. Tropical Hut , 181 SCRA 173 (1990)
The right of a local union to disaffiliate from its mother federaton is well-settled. A local union,
being a SEPARATE and VOLUNTARY association, is free to serve the interest of all its mebers
including the freedom to disaffiliate when circumstances warrant. The right is consistent with the
constitutional guarantee of freedom of association.
B. EFFECT LEGAL PERSONALITY
Affiliation by a duly registered local union with a national union or federation does not make the
local union lose its legal personality. Furthermore, notwithstanding affiliation, the local union
remains the basic unit to serve the common interest of all its members. (Adamson vs. CIR)
Contract of affiliation is an enforceable contract
Affiliation by a duly registered union with a national union or federation does not cause
the local union to lose its legal personality
WON a union of supervisors affiliated with a federation with a local affiliated consisting
of R & F EEs can be validly represented by the federation?
The SC says that the federation may. In the CB, the federation acts merely as an
agent, the local union of supervisors remains to be the principal. Thus, the fact that
the federation is composed of both unions of supervisors and R&F EEs has no
effect on the personality of the local union of supervisors, the local union does no
lose its personality of independence by affiliation.
If the supervisors does NOT supervise the R&F EEs.
Filipino Pipe and Foundry Corporation v. NLRC , 318 SCRA 68

The mother union, acting for and in behalf of its affiliate, had the status of an agent while the
local remained the basic unit of the association, free to serve the common interest of all its
members subject only to restraints imposed by the constitution and by the by-laws of the
association.
42

The same is true even if the local is not a legitimate labor organization.
Alliance v. Samahan , 1996
A local labor union is a separate and distinct unit primarily designed to secure and maintain an
equality of bargaining power and their employee-members. A local union does not owe its
existence to the federation with which it is affiliated.
It is a separate and distinct voluntary association owing its creation to the will of its members.
The mere act of affiliation does not divest the local union of its own personality, neither does it
give the mother federation the license to act independently of the local union. It only gives rise
to a contract of agency where the former acts in representation of the latter.
SUPERVISOR- RANK AND FILE UNION AFFILIATION
Rule-affiliation
This case gives the rule:
Atlas Lithographic v Laguesma (205 SCRA 12) 1992
HELD: The definition of managerial employees is limited to those having authority to hire and
fire while those who only recommend effectively the hiring and firing or transfers of personnel
would be considered as closer to rank and file employees. The exclusion, therefor, of middle
level executives from the category of management employees brought about a third
classification, supervisory employees, who are allowed to form their own union but are not
allowed to join the rank and file union due to conflicts in interest.
A local union of supervisory employees may be allowed to affiliate with a national federation of
labor organizations of rank and file employees. What the law prohibits is that supervisory
employees join a rank and file union.
The national federation would be representing the respective interests of the 2 groups
separately.
These two cases give the reason behind the rule above:
Adamson vs CIR , 127 SCRA 268 (1984)
Individuals employed as supervisors shall not be eligible for membership in a labor organization
of employees under their supervision but may form separate organizations of their own. The
supervisory employees of an employer cannot join any labor organization of employees under
their supervision but may validly form a separate organization of their own.
It cant be construed that personalities of the 3 unions are so merged with the mother federation
that for one difference or another they cannot pursue their own ways, independently of the
federation.
Adamson and Adamson Supervisory Union and the Adamson and Adamson, Inc., Salesmen
Association (FFW), have their own respective constitutions and by-laws. They are separately
and independently registered of each other. Both sent their separate proposals for collective
bargaining agreements with their employer.
There is nothing in Industrial Peace Act which provides that a duly registered local union
affiliating with a national union loses its legal personality, or its independence. Locals are
separate and distinct units primarily designed to secure and maintain an equality of bargaining
power between the employer and their employee-members.
43

Locals remain the basic units of association, free to serve their own and the common interest of
all. Inclusion of FFW in the registration is merely to stress that they are its affiliates at the time of
registrations. It does not mean that said local unions cannot stand on their own.
De la Salle Med v. Laguesma , 294 SCRA 141
The affiliation of 2 local unions in a company with the same national federation is not by itself a
negation of their independence since in relation to an employer, the local unions are considered
as the principal, while the federation is deemed as the be merely an agent.
LOCAL UNION DISAFFILIATION
A. NATURE RIGHT DISAFFILIATION
The right of a local union to disaffiliate from its mother union is consistent with the constitutional
guarantee of freedom of association. (Volkschel Labor Union vs. BLR)
A local union which has affiliated with a federation is free to sever such affiliation
anytime and such disaffiliation cannot be considered disloyalty in the absence of specific
provision in the constitution and by-laws prohibiting disaffiliation.
In the absence of enforceable provisions in the federations constitution

preventing disaffiliation of a local union, a local may sever its relationship with its parent.
When a union which is not independently registered disaffiliates from the

federation, it is not entitled to the rights and privileges granted to a LLO
It cannot file a petition for certification election
Neither can it bargain with the ER nor stage a strike
The EEs check-off authorization, even is declared irrevocable, is good only as

long as they remain members of the union.
When a local union disaffiliates from a national union or federation, the latter ceases
to be entitled to check-off dues.
Once the fact of disaffiliation is demonstrated beyond doubt a certification

election is the most expeditious way of determining which LO is the exclusive bargaining
representative.
B. RULE LEGALITY ACT - DISAFFILIATION

The validity of the legal union disaffiliation is to be determined on the basis of the
provisions of the constitution and by-laws of the local union with respect to the process of
disaffiliation. (Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills)
C. MINORITY DISAFFILIATION
Generally, a labor union may disaffiliate from the mother union only during the 60-day
period immediately preceding the expiration of the CBA (Tanduay vs. NLRC). However, a mere
minority cannot file a petition for a union disaffiliation, even within the prescribed 60-day period
before the expiry of an existing CBA. (Villar vs. Inciong)
Need to be effected by the majority of the members in the bargaining unit
D. EFFECT OF DISAFFILIATION SUBSTITUTIONARY DOCTRINE
What is the substitutionary doctrine? EEs cannot revoke the validly executed CBA
with their ER by the simple expedient of changing their bargaining agent. (NAFLU vs. Noriel)
Thus, the CBA continued to bind the members of the new or disaffiliated and independent union
up to the CBAs expiration date. (Associated Workers Union vs. NLRC) However, the
substitutionary doctrine is not applicable to the personal undertaking of the deposed union i.e.
no-strike stipulation. (Benguet Consolidated vs. PAFLU)
But may negotiate to shorten the period of validity
44

Section 4. THE APPROPRIATE BARGAINING UNIT

4.1 LAW AND DEFINITION
Define the appropriate bargaining unit : Group of EEs of a given ER, comprised of all
or less than all of the entire body of EEs, consistent with the equity to the ER, indicated to be
the best suited to serve the reciprocal rights and duties of the parties under the collective
bargaining provisions of the law. (SMC vs. Laguesma) Within one unit there may be one or
more unions, but for bargaining with the ER only one union the majority of incumbent union
should represent the whole bargaining unit. (Azucena)
Dept Order No. 9 (s 1997), Rule 1, Sec. 1 (q)
Bargaining Unit refers to a group of Employees
-sharing mutual interests within a given ER unit,
-comprised of all or less than all of the entire body of Employees in the ER unit or any
specific occupational or geographical grouping within such ER unit.
What is the function of an appropriate bargaining unit?
1.
To act as a SOVEREIGN in relation to the CE and CBA
2.
It is an ELECTION DISTRICT. It marks the boundaries of those who may
participate in a certification election.
3.
It is an Economic Unit.
From the reading of article 255: its function is to select or designate a
labor organization to represent them in collective bargaining.
4.2 DETERMINATION OF APPROPRIATE BARGAINING UNIT
FACTORS UNIT DETERMINATION
The fundamental factors in determining the appropriate collective bargaining unit
are : [W A P E]
1. Will of the EEs.
2. Affinity and unity of the EEs interest, such as substantial similarity of work and duties, or
similarity in compensation and working conditions.
3. Prior collective bargaining history.
4. Similarity of employment status, such as temporary, probationary and seasonal EEs.
Among these factors, the Supreme Court has consistently ruled that the test of grouping
is mutuality or commonality of interests. The EEs sought to be represented by the collective
bargaining agent must have substantial mutual interests in terms of employment and working
conditions as evinced by the type of work they perform. (SMC vs. Laguesma) In this respect,
the basic test of an asserted bargaining units acceptability is whether or not it is fundamentally
the combination which will best assure to all the EEs the exercise of their collective bargaining
rights. (Belyca vs. Ferrer-Calleja)
1. In making judgments about community of interest in these different settings, the Bureau of
Labor and Relation will look to such factors as :
1. Similarity in the scale and manner of determining earnings.
2. Similarity in employment benefits, hours of work, and other terms and conditions
of employment.
3. Similarity in the kinds of work performed.
4. Similarity in the qualifications, skills and training of EEs.
5. Frequency of contact or interchange among the EEs.
6. Geographic proximity.
7. Continuity or integration of production processes.
45

8. Common supervision and determination of labor-relations policy.

9. History of collective bargaining.
10. Extent of union organization. (Azucena)
U.P. v. Ferrer-Calleja , 211 SCRA 451 (1992)
HELD: A bargaining unit is a group of Employees, comprised of all or less than all of the entire
body of Employees, which the collective interest of all the Employees, consistent w/ equity to
the ER, indicate to be the best suited to serve the reciprocal rights & duties of the parties under
the CB provisions of the law.
In Democratic Labor Assoc v. Cebu Stevedoring Co., there are factors w/c must be satisfied
& considered in determining the PROPER UNIT.
Rothenberg mentions:
1) will of the Employees,
2) affinity & unity of Employees interest, such as substantial similarity of works and duties or
similarity of compensation & working conditions,
3) prior CB history and
4) employment status i.e. temporary, seasonal, & probationary Employees.
The TEST of grouping is COMMUNITY or MUTUALITY of INTERESTS because the basic test
of an asserted bargaining units ACCEPTABILITY is won it is fundamentally the combination w/c
will best assure to all Employees the exercise of their CB rights.
***
Take note: This is related to the policy of the law in ensuring the right to collective
bargain.
TAKE NOTE from the Professors Lecture:
-The law is looking only for what is PROPER OR APPROPRIATE. The law
is NOT looking for the best.
--
RATIONALE OF THE COMMUNITY OR MUTUALITY OF INTEREST TEST:

Greater chance of success for the collective bargaining process.
Illustration of Prof.: A group of rank and file of old employees can be separated
from a rank and file of young employees, especially if the issue involved in the
collective bargaining would be to choose between salary raise or a pension plan.
The two groups do not have the same interest, thus it will be harder for them to
bargain.
ELEMENTS OF AN APPROPRIATE BARGAINING UNIT:
1. COMPOSITION
-All or less than all of the entire body of employees
2. EQUITY
--
-Of employees: A.k.a = Collective interest of employees

consistent with the equity of the employer.
3. PURPOSE
-to serve the reciprocal rights & duties of the parties under the CB
provisions of the law.
* The prime element in determining WON a given group of EEs constitutes a
proper BU is whether it will without inequity to the ER best serve all EE in the
exercise of their bargaining rights.
Can you have a permanent bargaining unit?
No. An appropriate bargaining unit depends on the factors that are influenced by
the market place. The bargaining unit is designed to maintain the mutuality of
interest among the employees in such unit. Thus a reason to dissolve, change or
46

expand a certain bargaining unit is when THE INTEREST BETWEEN GROUPS

HAS CHANGED OVER TIME.
2.
A cigar manufacturing company has 7 departments, namely administrative, raw leaf,

cigar, cigarette, engineering and garage, dispensary and sales. May the rank-and-file in the
administrative, sales and dispensary be grouped separately from the rank-and-file of the
other departments?
Yes. They are engaged in work different from those performed in the other departments.
Thus, they have a community of interest different from that of the other departments.
(Alhambra vs. PAFLU)
3.
Golden Farm has 2 sets of EEs : monthly-paid clerical workers and daily-paid
agricultural workers. May the monthly-paid EEs constitute a separate bargaining unit?
Yes. The monthly-paid EEs have very little in common with the daily-paid EEs in terms
of duties and obligations, working conditions, salary rates, and skills. (Golden Farms
vs. Sec. of Labor)
4.
May the non-academic personnel of UP be joined with the academic personnel?

No. The 2 groups do not have community or mutuality of interests. (UP vs. FerrerCalleja)
HISTORY
San Miguel Corp. v. Laguesma , 236 SCRA 595 (1994)
HELD: Prior collective bargaining history is not conclusive or determinative of what constitutes
the appropriate bargaining unit.
The test of grouping is mutuality or commonality of interest.
The Employees sought to be represented by CB agent must have substantial mutual interests in
terms of employment and working conditions as evinced by the type of work they perform.
There is similarity of employment status for all sales personnel. They have the same duties,
responsibilities, compensation and working conditions.
SMA cant insist that each sales office should constitute one bargaining unit. There is meager
number of sales personnel in each sales office. Even the whole bargaining unit sought to be
represented only consists of 55 employees. It would not be for the best interest to fractionalize
them further. It is not the convenience of the employer that constitutes the determinative factor
in forming the bargaining unit.
Geography Location
Benguet Consolidated Inc. v. Bobok Lumberjack Assn. , 103 P 1150 (58)
HELD: The court below is correct in concluding that the system of having one collective
bargaining unit for each camp should be maintained and continued for the following reasons:
Such system had operated satisfactorily.
The prime element in determining whether a given group of employees constitute a proper
bargaining unit is whether it will, without inequity to the employer, best serve all employees in
the exercise of their bargaining rights.
In the present case the separation between the camps and the different kinds of work in each all
militate in favor of the present system of separate bargaining units since the problems and
interest of the workers are peculiar in each camp or department.
Take note: this case is also based on historical factors.
Corporate Entities
47

Indophil Textile Mills Workers Union v. Calica , 205 SCRA 697 (92)
FACTS: The Indophil Textile Mills Workers Union and Indophil Textile executed a CBA which
provided that the CBA shall apply to the companys extensions and expansions. Indophil Acrylic
(WHICH IS ANOTHER COMPANY) was formed. Its workers unionized and another CBA was
executed. Indophil Textile Mills Workers Union claimed that Acrylic should be considered an
extension of Indophil textile and therefore the CBA executed by Indophil textile and the Union
should cover Indophil Acrylic.
ISSUE: WON the operation in INDOPHIL ACRYLIC is an extension or expansion of Indophil
Textile Mills.
HELD: Indophil ACRYLIC is NOT an extension of INDOPHIL TEXTILE. Thus the CBA of
Indophil textile, cannot apply to Indophil Acrylic.
1.
The existence of a bonafide business relationship between Acrylic and Indophil Textile is
not a proof of being a single corporate entity because the services which are supposedly
provided by Textile to Acrylic are AUXILIARY SERVICES or activities which are NOT
ESSENTIAL in the actual production of Acrylic. The essential services are discharged
exclusively by Acrylic personnel under the control and supervision of Acrylic managers and
supervisors.
2.
Diatagon Labor Federation v. Ople GR L- 44493-94 (1980) : two corporations cannot
be treated as single bargaining units even if their businesses are related. It submits that the fact
that there are as many bargaining units as there are companies in a conglomeration of
companies is a positive proof that a corporation is endowed with a legal personality
DISTINCTLY ITS OWN, independent and separate from other corporations.
3.
Unlike Indophil Textile, Indophil Acrylic cannot manufacture textile while Indophil Textile
Cannot buy or import yarn. Thus this shows that Indophil Acrylic is not an alter ego or an adjunct
or business conduit of Indophil Textile because it has a separate legitimate purpose.
4.
Under the doctrine of piercing the corporate veil, when valid grounds exist, the legal
fiction that a corporation is an entity with a juridical personality separate and distinct from
another may be disregarded. Doctrine applies when the fiction defeats public convenience,
justifies wrong, protects fraud or defends crime.
5.
The fact that the businesses are related, that some of the employees are the same
persons working in the other company and the physical plants, offices and facilities are in the
same compound arent sufficient to pierce the corporate veil of Acrylic.
6.
In Umali vs CA, legal corporate entity is disregarded only if it is sought to hold the
officers and stockholders directly liable for a corporate debt or obligation. The union in this case
does not seek to impose a claim on the members of Acrylic.
7.
Lastly it is grave abuse of discretion to treat 2 companies as a single bargaining unit
when these 2 companies are indubitably distinct entities with separate juridical personalities.
San Miguel Corp. Employees Union v. Confesor , 262 SCRA 81(1996)
San Miguel Corporation was originally one company composed of four operating divisions
namely: 1. beer, 2. packaging, 3. magnolia, 4. feeds and livestock. San Miguel Corporation
employees for ALL DIVSIONS were represented by San Miguel Corp employees unionPTGWO. San Miguel underwent a restructuring. As a consequence of this Magnolia and Feeds
& livestock Division were spun-off and became two separate and distinct corporations.
ISSUE: WON the employees of the two new corporations (Magnolia Corp & San Miguel Foods)
should still remain in the same bargaining unit and be included I the old bargaining unit of the
old SMC?
HELD: No. Employees in the Magnolia Corporation and San Miguel Foods may form a separate
bargaining unit.
48

1.
The transformation of the companies was a management prerogative and business
judgment which the courts cannot look into unless it is contrary to law, public policy or morals.
Neither can we impute any bad faith on the part of SMC to justify the application of the doctrine
of piercing the corporate veil.
2.
Each of the companies are run by, supervised and controlled by different management
terms including separate human resource/personnel managers. Each company enforces its own
administrative and operational rules. Each entity maintains separate financial statements and
are is audited separately from the other.
3.
No mutuality of interest anymore between corporations: Considering the spin-offs, the
companies would consequently have their respective and distinctive concerns in terms of the
nature of work, wages, hours of work and other conditions of employment. Interests of
employees in the different companies perforce differ. SMC is engaged in the business of beer
manufacturing. Magnolia is involved in the manufacturing and processing of dairy products while
SMFI is involved in the production of feeds and processing chicken.
4.
The nature of their products and scales of business may require different skills which
must necessarily be commensurate by different compensation packages. The different
companies may have different volumes of work and different working conditions. For such
reason, the employees of the different companies see the need to group themselves together
and organized themselves into distinctive and different groups.
Take note: The two cases cited the case of Diatagon Labor Federation Local 110 of the
ULGWP v. OPLE (101 SCRA 534, 1980) & the Professor discussed the case in class, here are
the relevant portions:
The fact that their businesses are related and that the 236 employees of Georgia Pacific
International Corporation were originally employees of Lianga Bay Logging Co. Inc. is not a
justification for disregarding their separate personalities. Hence, the 236 employees, who are
now attached to Georgia Pacific International Corporation, should not be allowed to vote in the
certification election at the Lianga Bay Logging Corporation, Inc. They should vote at a separate
certification election to determine the collective bargaining representative of the employees of
Georgia Pacific International Corporation.
Take note: The above three cases were distinguished by the Professor with the case of Phil
Scouts Veterans.
Management
Phil. Scouts Veterans v. Torres , 224 S 682 (93)
This case involved three companies (PSVSIA, GVM, & ASDA) and only one union (UFW).
ISSUE: Whether or not a SINGLE petition for certification election or for recognition as the
SOLE and EXCLUSIVE bargaining agent can validly or legally be filed by a labor union in three
(3) corporations each of which has a separate and distinct legal personality instead of filing
three (3) separate petitions?
HELD: Yes.
1.
The securities agencies concerned (PSVSIA, GVM, & ASDA) do not exist and operate
separately and distinctly from each other with different corporate directions and goals. All the
cross-linking of the three agencies command, control and communication systems indicate their
unitary corporate personality.
a.
The security agencies are managed through the Utilities Management
Corporation with all of their employees drawing their salaries and wages from
said entity.
b.
Agencies have common and interlocking incorporators and officers.
49

c.
PSVSIA, GVM and ASDA employees have a single Mutual Benefit
System and followed a single system of compulsory retirement.
d.
No explanation was given why the security guards of one agency could
easily transfer from one agency to another and then back again by simply fillingup a common pro forma slip called "Request for Transfer".
e.
PSVSIA, GVM and ASDA always hold joint yearly ceremonies such as
the "PGA Annual Awards Ceremony".
f.
In emergencies, all PSVSIA Detachment Commanders were instructed in
a memorandum to get in touch with the officers not only of PSVSIA but also of
GVM and ASDA.
2.
Veil of corporate fiction should be lifted for the purpose of allowing the employees of the
three agencies to form a single labor union. Employees need not file three separate petitions for
certification election. All of these could be covered in a single petition.
Test
Dunlop Slazenger Inc. v. Secretary of Labor and Employment , 300 SCRA 120 (1998)
A unit to be appropriate must affect a grouping of employees who have substantial, mutual
interests in wages, hours, working conditions and other subjects of collective bargaining.
Belyca Corporation v. Ferrer-Calleja , 168 SCRA 184 (1988)
Among the factors considered in Democratic Labor Association v. Cebu Stevedoring are: 1.
will of employees (Globe Doctrine); 2. affinity and unity of employees interest, such as
substantial similarity of work and duties or similarity of compensation and working conditions; 3.
prior collective bargaining history; and 4. employment status, such as temporary, seasonal and
probationary employees.
Under the circumstances of that case, the Court stressed the importance of the fourth factor and
sustained the trial courts conclusion that the two separate bargaining units should be formed in
dealing with respondent company, one consisting of regular and permanent employees and
another consisting of casual laborers or stevedores.
Otherwise stated, temporary employees should be treated separately from permanent
employees.
But more importantly, this Court laid down the test of proper grouping, which is communality and
mutuality of interest.
Examples wherein the communality or mutuality of interest test was applied:
1)
Alhambra Cigar and Cigarette Manufacturing v. Employees Association: Nature of
work was at issue -- the Court stressed the importance of the second factor otherwise known
as the substantial-mutual-interest-test. And found that the employees in the administrative, sales
and dispensary departments perform work which has nothing to do with production and
maintenance, unlike those in the raw leaf, cigar, cigarette packaging and engineering and
garage departments and therefore have a community of interest which justifies the formation or
existence as a separate appropriate collective bargaining unit.
2)
PLASLU v. CIR: among the factors to be considered are: employment status, position
and categories of work, unity of employees interest such as substantial similarity of work and
duties.
3)
LVN Pictures v. Phil Musicians Guild: there is a substantial difference between the
work performed by musicians and that of other persons who participate in the production of a
film which suffice to show that they constitute a proper bargaining unit.
4)
Golden Farms Inc. v Secretary: Monthly paid office and technical rank-and-file
employees enjoy the constitutional right to self-organization and collective bargaining.
Community or mutuality of interest is the essential criterion. Basic test is whether or not it is
50

fundamentally the combination which will best assure to all employees the exercise of their
collective bargaining rights. Monthly paid rank-and-file employees perform administrative or
clerical work. Daily paid rank-and-file employees mainly work in the cultivation of bananas in the
fields. They have very little in common in terms of duties and obligations, working conditions,
salary rates, and skills.
In the case at bar, it is beyond question that the employees of the livestock and agro division of
Petitioner Corporation perform work entirely different from those performed by employees in the
supermarts and cinema. The noted differences are: the hours of work, working conditions, rates
of pay.
San Miguel Corp. v. Laguesma , 236 SCRA 595 (1994)
HELD: Prior collective bargaining history is not conclusive or determinative of what constitutes
the appropriate bargaining unit. The test of grouping is mutuality or commonality of interest. The
Employees sought to be represented by CB agent must have substantial mutual interests in
terms of employment and working conditions as evinced by the type of work they perform.
There is similarity of employment status for all sales personnel. They have the same duties,
responsibilities, compensation and working conditions.
UNIT SEVERANCE AND THE GLOBE DOCTRINE
What is the Globe Doctrine? The relevancy of the wishes of the EEs concerning their
inclusion or exclusion from a proposed bargaining unit is inherent in the basic right of selforganization. While the desire of EEs with respect to their inclusion in bargaining unit is not
controlling it is a factor which would be taken into consideration in reaching a decision.
FROM THE PROFESSORS LECTURE
A brief explanation of the GLOBE DOCTRINE
It is best explained in the context of a market place and the demand of employment on such
market place. The GLOBE DOCTRINE usually applies to employees with rare skills or highly
technical ones.
Example given: Case of Pilots and Stewardess. If ,originally, pilots and stewardesses belong to
ONE bargaining unit (unit A) for the purpose of collective bargaining, with the use of the GLOBE
DOCTRINE a plebiscite can be held to determine if the pilot employees would want to form a
separate bargaining unit (unit B).
Illustration:
Unit A (original bargaining unit) : 100 Pilots + 200 Stewardesses = 300 employees
Unit B (proposed new unit): Pilots = 100 employees.
Those in unit B (100 pilots) will vote in a plebiscite. Their choices will be
(1) To vote for Unit A: this would mean that they do not wish to separate from the original
bargaining unit.
(2) To vote for Unit B: This would mean that they would want to form their OWN
bargaining unit, composed of pilots only.
(3) Neither: They do not want the choices
If you have one BIG bargaining unit, most probably you are grouping together DIFFERENT
SKILLED workers.
Rationale of the Globe Doctrine: highly skilled workers have to separate to increase their market
value.
Under the Globe Doctrine, will of the employees is the determinative factor.
SINGLE OR ER UNIT IS FAVORED
51

1. It has been the policy of the Bureau to encourage the information of an ER unit unless
circumstances otherwise require. The proliferation of unions in an ER unit is discouraged
as a matter of policy unless there are compelling reasons which would deny a certain
class of EEs the right to self-organization for purposes of collective bargaining.
(Philtranco vs. BLR)
2. It is proposed in a certification election that the professors of L. College be grouped into
2 units : high school and college professor. The proposal is based on the fact that the
rules governing the 2 are different, that the set up of the 2 departments are different and
that the manner of their payment is different. This proposal is opposed on the following
grounds : that the 2 departments are under the control of only 1 board of trustees; that
they are housed in the same building; that there is but 1 cashier and registrar for the 2
departments; that there are teachers who are teaching in both departments; that the
elementary department would be left without a bargaining representative; and that there
are only 130 teachers involved in the proceedings. How many bargaining units should
there be?
The facts show community of interests of the teachers in the college and high
school
departments. Beside, the establishment of separate units would leave the elementary
teachers without a bargaining representative. And considering that there are only 130
teachers, the division of the bargaining unit dissipate their strength for collective bargaining
purposes. Finally, the ER would be contending with 2 different unions vying for each other
for better benefits to gain more members. (Laguna College vs. CIR)
TWO COMPANIES WITH RELATED BUSINESSES
Two corporations cannot be treated as a single bargaining unit even if their business are
related. (Diatogon vs. Ople) However, when if in reality, the companies constitute a single
business entity i.e. 3 corporations acting as security agencies were under the same
management and had interlocking incorporators and officers, the veil of corporate fiction may be
lifted for the purpose of allowing the EEs to form a single union and be part of a single
bargaining unit. (PSVSIA vs. Torres)
SIZE OF UNIT AND EFFECT ON RIGHT TO SELF-ORGANIZATION
Filoil Refinery Corp. v Filoil Supervisory and Confidential Employees Union , 46 Phil 512
(1972)
ISSUE: The right of supervisors and confidential employees to organize a labor association and
to bargain collectively with their employer.
HELD: Since the confidential employees are very few in number and are by practice and
tradition identified with the supervisors in their role as representatives of management vis--vis
the rank and file employees, such identity of interest has allowed their inclusion in the
bargaining of supervisors for purposes of collective bargaining in turn as employees in relation
to the company as their employer.
This identity of interest logically calls for their inclusion in the same bargaining unit and at the
same time fulfills the laws objective of insuring to them the full benefit of their right to selforganization and to collective bargaining, which could hardly be accomplished if the respondent
associations membership were to be broken up into five separate ineffective tiny units.
Creating fragmentary units would not serve the interest of industrial peace. The breaking up of
bargaining units into tiny units will greatly impair their organizational value.
Since the confidential employees are very few and are identified with the supervisors in their
role as representatives of management vis-a-vis the rank and file employees, such identity of
interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes
of collective bargaining. Industrial court enjoys a wide discretion in determining the procedure
necessary to insure the fair and free choice of bargaining representations by employees. Action
in deciding upon an appropriate unit for collective bargaining purposes is discretionary. Its
judgment is entitled to finality, unless its action is arbitrary or capricious.
52

Supervisor Unit
Dunlop Slazenger v. NLRC , 300 SCRA 120 (1998)
Supervisors can be an appropriate bargaining unit.
EFFECT OF PRIOR AGREEMENT
General Rubber & Footwear Corp. v BLR , 115 SCRA 283 (1987)
HELD: Monthly paid Employees are not managerial. The supervisory power of such Employees
consists merely in recommending as to what managerial actions to take in disciplinary cases.
They DO NOT FIT into the definition of managerial Employees laid down in Bulletin Publishing
Corp v. Sanchez. Thus, they are NOT PROHIBITED from forming a union. It hasnt been shown
that their responsibilities require the exercise of discretion and independent judgment or that
they possess power and authority to lay down or exercise management policies.
The proliferation of unions in an employer unit is discouraged as a matter of policy unless there
are compelling reasons which would deny a certain class of employees the right to selforganization for purposes of collective bargaining. This case does not fall squarely within the
exception.
Monthlies who are rank-and-file have been historically excluded from the bargaining unit
composed of daily-paid rank-and-filers. It is unusual to have to deal with 2 collective bargaining
unions but there is no one to blame for creating the situation. General had sought to
indiscriminately suppress the members right to self-organization. Exclusion of the members
from the bargaining union of the rank-and-file or from forming their own union was agreed upon
by corporation with the previous bargaining representatives.
However, it can never bind subsequent federations and unions because it is a curtailment of the
right to self-organization guaranteed by the labor laws. Monthly-paid rank-and-file employees
should be allowed to join the union of the daily-paid-rank-and-file employees so that they can
also avail of the CBA benefits or to form their own rank-and-file union, without prejudice to the
certification election that has been ordered.
DETERMINING AGENCY
Art. 232 Prohibition on Certification Election
[sec. 15 of RA 6715] The Bureau shall not entertain any petition for certification election or any
other action which may disturb the administration of duly registered existing collective
bargaining agreements affecting the parties EXCEPT under Art. 253, 253-A and 256 of this
Code (60 day freedom period)
Filoil Refinery Corp. v Filoil Supervisory and Confidential Employees Union , 46 Phil 512
Industrial court enjoys a wide discretion in determining the procedure necessary to insure the
fair and free choice of bargaining representations by employees, and that its action in deciding
upon an appropriate unit for collective bargaining purpose is discretionary and that its judgment
in this respect is entitled to almost complete finality, unless its action is arbitrary or capricious
and that absent any grave abuse of discretion as to justify the Courts intervention.
Action in deciding upon an appropriate unit for collective bargaining purposes is discretionary.
Its judgment is entitled to finality, unless its action is arbitrary or capricious.
53

Section 5. UNION REPRESENTATION : ESTABLISHING UNION

MAJORITY STATUS
5.1 PRE-CONDITION ER-EE RELATIONSHIP
The duty to bargain collectively exists only between the ER and its EEs. When there is no duty
to bargain collectively, it is not proper to hold certification election in connection therewith.
(PLUM vs. Compania vs. Maritima)
Why is an employer-employee relationship a PRE-CONDITION before a petition for
certification election can be entertained?
An employer employee relationship is a pre-condition since without such relationship, there will
be no duty to bargain on the part of either the employer or employee.
Thus it will be senseless to go on with a certification election to choose their bargaining
representative when there is no duty to collectively bargain anyway. (Allied Free Workers
Union v. Cia Maritima, 19 SCRA 258, 1967)
5.2 METHODS OF ESTABLISHING MAJORITY STATUS
CERTIFICATION ELECTION ; CONSENT ELECTION ; AND RUN-OFF ELECTION
Define certification election, consent election, and run-off
1. Certification Election Process of determining through secret ballot, the sole and
exclusive bargaining agent of the EEs in an appropriate bargaining unit, for purposes of
collective bargaining. (Certification proceedings directly involve two issues):
a. proper composition and constituency of the bargaining unit; and
b. validity of majority representation claims of the asserted bargaining
representative or of competitive bargaining representative. (Azucena)
2. Consent Election Election voluntarily agreed upon by the parties to determine the
issue of majority representation of all the workers in the appropriate bargaining unit.
3. Run-Off Election between the labor unions receiving the 2 highest number of votes
when a certification election which provides for 3 or more choices results in no choice
receiving a majority of the valid votes cast.
Exclude spoiled ballots
where the total number of votes for all contending unions is at least 50%
of the number of votes cast.
Distinguish consent election from certification election : A consent election is an agreed
one; its purpose being merely to determine the issue of majority representation of all the
workers in the appropriate collective bargaining unit. A certification election is aimed at
determining the sole and exclusive bargaining agent of all the EEs in the appropriate bargaining
unit for the purpose of collective bargaining. (Warren Workers Union vs. BLR)
CERTIFICATION ELECTION
Purpose: determine the SOLE & EXCLUSIVE bargaining agent of all the EEs in the
appropriate bargaining unit (ABU) for the purpose of collective bargaining.
CONSENT ELECTION
An agreed one
Purpose: merely to determine the issue of majority representation of all the workers in
the ABU
Separate and distinct process; has nothing to do with the import and effect of a
certification election
Does not shorten the existing CBA
Does not entitle participants to immediately renegotiate an existing CBA
POLICY
A. NO DIRECT CERTIFICATION
Direct certification is no longer allowed as a method of selecting the bargaining agent.
Where a union has a filed petition for certification election, the mere fact that no opposition is
made does not warrant a direct certification. (CENECO vs. Sec. of Labor)
Colgate Palmolive Philippines v. Ople , 163 SCRA 323, (1988)
ISSUE: WON the secretary of labor can directly certify a union as the sole and exclusive
bargaining agent?
HELD: NO! He cannot directly certify.
The main purpose of the procedure in Art. 257 - 260 is to aid in ascertaining the majority
representation. The implementing rules pertinent to these provisions are all calculated to ensure
that the certified bargaining rep is the TRUE CHOICE OF THE EMPLOYEES against all
contender.
The constitutional mandate that the State shall assure the rights of the workers to selforganization, collective bargaining, security of tenure and just and humane conditions of work,
should be achieved under a system of law such as the aforementioned provisions of the
pertinent statute.
When an overzealous official by-passes the law on the pre-text of retaining a laudable objective,
the intendment or purpose of the law will lose its meaning as the law itself is disregarded.
When respondent minister (Sec. Of Labor) DIRECTLY certified the union, he in fact
DISREGARDED THE PROCEDURE AND ITS LEGAL REQUIREMENT.
There was therefore FAILURE TO DETERMINE with legal certainty whether the union indeed
enjoyed majority representation.
The holding of a certification election at the proper time IS NOT NECESSARILY A MERE
FORMALITY.
Even in a case where a union has filed a petition for certification elections, the mere fact that no
opposition is made does NOT warrant a certification election.
There can be NO VOLUNTARY RECOGNITION
Samahang Manggagagwa sa Premex v. Secretary of Labor , 286 SCRA 693 (GR 107792)
ISSUE: Can an employer voluntarily recognize a union as the bargaining representative of the
employees?
HELD: NO! It cannot.
The employer (Permex) should not have given its voluntary recognition to the union when the
latter asked for recognition as exclusive collective bargaining agent of the employees of the
company.
The company did not have the power to declare the union as the exclusive representative of the
workers for the purpose of collective bargaining.
Certification election is the most effective and the most democratic way of determining which
labor organization can truly represent the working force in the ABU of the company.
B. EFFECT OF ONE UNION ONLY
Certification election is the best and most appropriate means of ascertaining the will of
the EEs as to their choice of an exclusive bargaining representative. That there are no
competing unions involved should not alter that principle, the freedom of choice of the EEs
being the primordial consideration besides the fact that the EEs can still choose between
union and no union. (George and Peter Lines vs. ALU)
C. ONE-UNION, ONE-COMPANY POLICY
Give a brief description on the one-union, one-company policy : The proliferation of
unions in an ER unit is discouraged as a matter of policy unless compelling reasons exist which
deny a certain and distinct class of EEs the right to self-organization for purposes of collective
bargaining. (Pagkakaisa ng mga Manggagawa sa triumph vs. Ferrer-Calleja)
D. RATIONALE
The holding of a certification election is based on a statutory policy that cannot be
circumvented. The workers must be allowed to freely express their choice in a determination
where everything is open to their sound judgment and the possibility of fraud and
misrepresentation is eliminated. (Progressive development vs. Sec. of Labor)
VENUE OF PETITION
1. Sec. 1, Rule V, Book V, IRRs : A petition for certification election may be filed with the
Regional Office which has jurisdiction over the principal office of the ER.
2. Sec. 6, Rule V, Book V, IRRs : Upon receipt of the petition, the regional director shall
assign the case to a Med-Arbiter to appropriate action. The Med-Arbiter shall have 20working days from submission of the case for resolution within which to dismiss or grant
the petition.
3. In case the place of work of the EEs and the principal office of the ER are located within
the territorial jurisdiction of different regional offices, may the workers file the application
in their place of work?
Yes. The word jurisdiction as used in the provision refers to venue, and venue
touches more to the convenience of the parties rather substance of the case. Since
the worker is more economically disadvantaged, the nearest government machinery
to settle a labor dispute must be placed at his immediate disposal. (Cruzvale vs.
Laguesma)
PAST NON PARTICIPATION
No law, administrative rule or precedent prescribes forfeiture of the right to vote by
reason of neglect to exercise the right in the past certification election
5.3 CERTIFICATION ELECTION
What is the PURPOSE of a certification election?
It is a means of determining the workers choice of:
1)
Whether the want a union to represent them for collective bargaining OR they want
NO union to represent them at all.
2) And if they choose to have a union represent them, they will choose WHICH among the
contending union will be the SOLE and EXCLUSIVE bargaining representative of the
employees in the appropriate bargaining unit.
1st Level of Choice:

2nd Level of Choice:
Yes Union or No Union

If Yes Union wins, WHICH union.
UST Faculty Union v. Bitonio 318 SCRA 185,(1999)

Specifically, the purpose of a certification election is to ascertain whether or not a majority of
the employees (1) wish to be represented by a labor organization and (2) by which particular
labor organization.
BACKGROUND POLICIES and CHARCTERISTICS behind a certification election:
1. It is NOT a Litigation, but a mere investigation of a non-adversary character
No determination of rights violated or asserted.
Determination of workers choice only.
IMPLICATION: Technical rules and objections should not hamper the correct
ascertainment of the labor union that has the support and confidence of
the majority of the workers and is thus entitled to represent them in
bargaining for the terms and conditions of their employment. (Port
Workers Union v. DOLE)
2. it is most DEMOCRATIC and most efficacious/ effective way (Samahang manggagawa
sa permex case) and it is a STATUTORY POLICY (Belyca Corp. v. Ferrer-Calleja)
> There should be no obstacle in conducting the Certificate election.
STATUTORY FRAME-WORK AND POLICY
TAKE NOTE: Certification election implements the policy of right to self-organization and
collective bargaining. The right of self-organization includes the right of the workers to have a
bargaining representative OF THEIR OWN CHOOSING for the purpose of collective bargaining.
Statutory Frame-work
I.
The different entry points to a certification election

Art. 256:
Organized Establishments
Art. 257:
Unorganized Establishments
Art. 258:
Employer-Initiated Certification Election
Take note:
II.
The BARS to a CE: Prevents the happening of a CE.

a.
Contract bar rule (Art. 232)
b.
Deadlock-bar rule
c.
One year bar rule
Take note:
III.
The mechanics of the three entry-points are similar and the same.
among all the bar rules, only the contract bar is actually in the labor code,
the other two are in the implementing rules.
Suspension of CE: Prejudicial question rule
UNION AS INITIATING PARTY

A. ORGANIZED ESTABLISHMENT
It is an establishment with:
a.
An existing CBA; or
b.
Duly certified bargaining agent.
1. Under what conditions may the Med-Arbiter automatically order a certification
election by secret ballot in an organized establishment?
a. Petition questioning the majority status of the incumbent bargaining agent is filed
before the DOLE within the 60-day freedom period.
b. Such petition is verified.
c. The petition is supported by the written consent of at least 25% of all EEs in the
bargaining unit : (Art. 256)
The 25% subscription requirement is prescribed only in organized establishments, that

is, those with existing bargaining agents.
Does not apply to unorganized establishment
2. In case there are 3 or more unions contending in a certification election, what will
happen if no union receives a majority of the valid votes cast?
Provided that the total number of votes of all contending unions is at least 50% of the
number of votes cast [that is, the contending unions got more votes than the vote for
no union], a run-off election will be conducted between the 2 unions with the
highest number of votes. (Alcantara)
3. A certification election was held between 3 contending unions, A, B and C. Of the 560
eligible voters, only 500 actually cast their votes. A got 220 votes, B got 242 votes and C
got 30 votes, while the rest of the ballots were considered spoiled. How do you
determine the majority vote in the certification election ?
The majority vote in the certification election is 50% plus 1 of the valid votes cast.
Spoiled ballots are excluded. (Id.)
A.1 DEFINITION
What is an organized establishment? It is a firm or company where the EE have
selected an exclusive bargaining representative or where there is a CBA duly submitted to the
DOLE. (Sec. 6, Rule V, Book V, IRRs)
Take note:
in relation to the one-year bar rule, a duly certified bargaining agent is

allowed one-year to negotiate for the signing of a CBA, that is why no CE
can be filed at this time.
An organized establishment is best distinguished from an unorganized
establishment by the presence of a bargaining representative.
Since according to Art. 257, an unorganized establishment is an
establishment without a bargaining representative.
The distinctions are important because the requirements are different.

ORGANIZED ESTABLISHMENT V. UNORGANIZED ESTABLISHMENT
Art. 256: ORGANIZED
Art. 257: UNORGANIZED
Bargaining agent
Existing, has one
None
Petition filed
Has to be a VERFIED
petition
No need to be verified
Freedom Period
No petition for Certification Not applicable.

election EXCEPT within 60
days before the expiration No freedom period. Can file
of the collective bargaining petition anytime.
agreement (See Art. 253 &
253-A)
Take
note
interpreted
WITHIN.
how
the
SC
term
What is the rationale of

freedom
period
in
organized establishments,
why is there none in
unorganized
establishments?
It has something to do with
industrial peace
Substantial support rule
Must be duly supported by

25%
of
ALL
THE
MEMBERS
OF
THE
APPROPRIATE
BARGAINING UNIT.
NO substantial support rule.

WHY?
Intention of law is to bring in
the union, to implement
policy behind Art. 211a.
Percentage
base:
all
members of an appropriate
bargaining unit.
What is intent and purpose
of law for requiring the
substantial support rule?
Law wants to know the
intention of the employees.
If they really want a CE,
since they already have a
bargaining agent.
FREEDOM PERIOD
1. When may a petition for certification be filed in an organized establishment? A

petition for certification election may be filed during the last 60 days (freedom period) of
the CBA. Any petition filed before or after the 60-day freedom period shall be dismissed
outright. (Sec. 3, Rule V, Book V, IRRs)
2. Is the freedom period affected by any amendment, extension or renewal of the

CBA? No. The 60-day freedom period based on the original CBA, shall not be affected
by any amendment, extension or renewal of the CBA for purposes of certification
election. (Sec. 6, Rule V, Book V, IRRs)
3. May a new CBA executed by the incumbent exclusive bargaining representative

and the company, and ratified during the 60-day freedom period be considered a
bar to the certification election? No. The representation case shall not be adversely
affected by a CBA registered before or during the last 60 days of a subsisting agreement
or during the pendency of the representation case. (Sec. 4, Rule V, Book V, IRRs)
A.3 FILING PARTY
1. Among the legal requirements before a petition for certification election may be ordered
by the Med-Arbiter is that the petitioning union must be a legitimate labor organization in
good standing. (Lopez Sugar vs. Sec. of Labor)
2. May a federation file such a petition in behalf of its chapter or local? The mother
federation may file a petition for certification as agent of the local or chapter provided
both the mother federation and the local or chapter is a legitimate labor organization.
(Progressive Development vs. Sec. of Labor)
If the legitimacy of the petitioner union is under question in a proceeding seeking
to cancel its registration, such question must first be finally resolved before its
petition for a CE may be granted.
Once the required percentage requirement has been reached, the EEs
withdrawal from union membership taking place after the filing of the petition for
CE will not affect it.
A.4 SIGNATURE VERIFICATION
It is the Director of Labor Relations, rather than a union that is required to determine
whether there has been compliance with the requirement that at least 25% of all the EEs in the
bargaining unit consented in writing to the holding of a certification election. (Todays Knitting
vs. Noriel)
Does a RIVAL union have authority to VERIFY the signatures in the substantial support
requirement?
No a rival union may not. Only the department of labor has authority to verify.
There is no basis for the contention that a duty is cast on respondent director (secretary of
labor) to allow a rival labor organization to verify the authenticity of such signatures. The duty to
ascertain whether there was compliance was on the director of labor. (Todays Knitting Free
Workers Union v. Noriel, 75 SCRA 450, 1977)
A.5 SUBSTANTIAL SUPPORT
1. What percentage of the EEs should support the petition for certification election
in an organized establishment? The required number is 25% of all the EEs in the
bargaining unit.
Is the substantial support rule a mandatory requirement?
If you strictly follow the letter of the law it would seem to be mandatory.
BUT the courts have interpreted Art. 256 to read in such a way that the secretary of labor has
DISCRETION to order the holding of the certification election if it will achieve the policy of the
law (Self-organization and collective bargaining).
Western Agusan Workers Union v. Trajano ,196 SCRA 622, (1991)
This one involves an ORGANIZED ESTABLISHMENT. The policy of the labor code is partial to
the holding of a certificate election. Thus the DOLE in the exercise of his sound discretion may
order CE even without the 30% (25%) requirement.
When should the substantial support be shown or complied with?
It need not be shown at the time of filing of the petition, may be shown within a reasonable time
thereafter but should be before the election.
2. Is there a need for simultaneous submission of the signatures together with the
petition for certification election? No. The mere filing of a petition for certification
election within the freedom period is sufficient basis for the issuance of an order for
holding of a certification election subject to the submission of the consent signatures
within a reasonable period of time. (PWUP vs. Laguesma)
3. May a certification election be called by the Med-Arbiter although the 25%

statutory requirement has not been complied with? Yes. Even conceding that the
statutory requirement of 25% is not strictly complied with, the Med-Arbiter is still
empowered to order that the certification election be held precisely for the purpose of
ascertaining which of the contending labor organizations shall be the exclusive
bargaining agent. The requirement then is relevant only when it becomes mandatory in
conduct a certification election. (CMC vs. Laguesma) Once the statutory requirement is
met, it is mandatory for the Med-Arbiter to conduct a certification election. (Belyca vs.
Ferrer-Calleja) In all other instances, however, the discretion ought to be ordinarily
exercised in favor of a petition for a certification election. (CMC vs. Laguesma)
4. The NFSW filed a petition for certification election. It was contended however by another
union that more than 20% of the membership of NFSW disaffiliated and thus the union
cannot meet the 25% support requirement. Should the petition be dismissed?
If there is a reasonable doubt as to whom the EEs have chosen as their
representative for the purpose of collective bargaining, the Bureau shall order a
certification election by secret ballot. To hold otherwise would violate the liberal
approach constantly followed in labor litigation. (VICMICO vs. Noriel)
What is the effect on a petition of certification election of the withdrawal from union
membership filed by that union?
Once the required percentage requirement has been reached, the employees withdrawal from
union membership taking place after the filing of the petition for certification election will not
affect the petition.
On the contrary the presumption arises that the withdrawal was not free but was procured
through duress, coercion, or for a valuable consideration.
Hence, the subsequent disaffiliation of the six (6) employees from the union will not be counted
against or deducted from the previous number who had signed up for the CE. (Oriental Tin
Can Labor Union v. Secretary of Labor and Employment 294 SCRA 640, 1998)
A.6 MOTION FOR INTERVENTION SUPPORT
A union that is merely filing a MOTION FOR INTERVENTION in a CE filed by another
union need NOT present substantial support. The substantial support is only needed when filing
for a petition for certification election. (PAFLU vs. Calleja, 169 SCRA 491)
B. UNORGANIZED ESTABLISHMENTS
Art. 257 : In any establishment where there is no certified bargaining agent, a certification
election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a
legitimate labor organization.
FILING PERIOD
When may a petition for certification be filed in an unorganized establishment? A
petition for certification election may be filed at any time. (Sec. 3, Rule V, Book V, IRRs)
ALU vs. CALLEJA

In cases of organized bargaining agent, what is essential is whether the petition
for certification election was filed within the 60-day freedom period. The mere
filing of the same is sufficient basis for the holding of a certification election.
Who shall file the petition under Art. 257?

A LEGITIMATE labor organization. It cannot be an unregistered labor organization. This is best
read in relation to Art. 242 which enumerates the rights granted to a legitimate labor
organization and one of those rights is the right to be chosen as the exclusive bargaining
representative. This is one way the law encourages union registration.
VENUE: Where to file?
BLR region where union is. The one nearer to the employees.
ER AS INITIATING PARTY
Art. 258 : When requested to bargain collectively, an ER may petition the Bureau for an
election. If there is no existing CBA in the unit, the Bureau shall, after hearing, order a
certification election. The certification case shall be decided within 20 working days, and the
certification election shall be conducted within the 20 working days from the decision.
A. ROLE ER
ER has no role in certification election except when asked to bargain collectively under
the Bystander Rule. (Philippine fruits and vegetable Industries vs. Torres) It was a wellsettled rule that ER has no standing to question a certification election since it is the sole
concern of the workers. (PTTC vs. Laguesma)
TAKE NOTE: Employer is a TOTAL STRANGER in the process of Certification Election.
Employer has NO STANDING to file a MOTION TO DISMISS (Phil. Telephone
Telegraph v. SOL)
A companys interference in the CE creates a suspicion that it intends to
establish a company union (Oriental Tin Can Labor Union v. Secretary of
Labor).
CONDUCTING AGENCY
1. Art. 226 : The Bureau of Labor Relations and the Labor Relations Divisions in the
regional offices of the DOLE shall have exclusive and original authority to act, at their
own initiative or upon request of either or both parties, on all inter-union and intra-union
conflicts, and all disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces whether agricultural or non-agricultural, except
those arising from the implementation or interpretation of CBAs which shall be subject of
grievance procedure and/or voluntary arbitration.
2. The practice of the Board referring certification cases to the TUCP, a private entity, is not
sanctioned by the Labor Code. (PLUM vs. Noriel)
NATURE OF PROCEEDING
The certification election is the most democratic and expeditious method by which the
laborers can freely determine the union that shall act as their representative in their dealings
with the establishment where they are working. (PWUP vs. Laguesma) It is not litigation in a
sense. It is a mere investigation of a non-adversary fact-finding character in which the BLR of
the DOLE plays the part of a disinterested investigator seeking merely to ascertain the desires
of the EEs as to the matter of their representative. (Airline Pilots Association vs. CIR)
Certification proceedings are investigatory in nature since the object of the

proceedings is not the decision of any alleged commission of wrong but is merely the
determination of proper bargaining units and the ascertainment of the will and choice of the
EEs in the selection in the selection of a bargaining representative. The determination of the
proceedings doesnt entail the entry of remedial orders or redress of rights, but culminate
solely in an official designation of bargaining units and an affirmation of the EEs expressed
choice of bargaining agent. (Young Men Labor Union Stevedores v. CIR, 13 SCRA 285)
CERTIFICATION ELECTION PROCESS AND PROCEDURES

Book V Rule XI: Certification Elections
WHO may file?
Sec. 1
Any legitimate labor organization

Or any employer, when requested to bargain collectively and the
status of the union is in doubt
WHERE to file?
Sec. 2
A petition for certification election shall be filed with the Med-Arbiter

through the Regional Office which has jurisdiction over
a. the principal office of the employer or
b. where the bargaining unit is principally situated.

Where two or more petitions involving the same bargaining unit are
filed in one Regional office, the same shall be AUTOMATICALLY
consolidated.
Where these petitions are filed in different Regional Offices, the
Regional Office which FIRST ACQUIRES JURISDICTION over the
case shall exclude the others, in which case the latter shall
endorse the petition to the former for consolidation.
WHEN to file?
Sec. 3
a.
In the absence of a collective bargaining agreement duly
registered in accordance with Article 231 of the Code, a petition for
certification election may be filed at any time.
b.
However, no certification election may be held within one
year from the date of a valid certification, consent or run-off
election or from the date of voluntary recognition in accordance
with Rule X of these Rules; provided that, where an appeal has
been filed on the order of the med-arbiter certifying the results of
the elction, the running of the one year period shall be suspended
until the descision on the appeal shall have become final and
executory.
c.
Neither may a representation question be entertained if,
before the filing of a petition for certification election,
i.
the duly recognized or certified union has commenced
negotiations with the employer in accordance with Article 250 of the
Code within one-year period referred to in the immediately
preceding paragraph,
ii. or a bargaining deadlock to an incumbent or certified bargaining
agent is a party and has been submitted to conciliation or
arbitration or had become the subject of a valid notice of strike or
lock-out.
d. If a collective bargaining agreement has been duly registered in
accordance with Article 231 of the Code, a petition for certification
election or a motion for intervention can only be entertained within
sixty (60) days prior to the expiry date of such agreement.
Sec. 1, Rule VI, Book V, IRRs : The Regional Division, shall cause the necessary posting of
notices at least 5 working days before the actual date of election in 2 most conspicuous places
in the company premises.
A.1 Waiver
The execution of an agreement to waive the mandatory 5 days posting election notices
binds the parties thereto by the doctrine of estoppel. (JISSCOR vs. Torres)
B. VOTING LIST AND VOTER
based on the payrolls (3 mos)
voting in a C E does not require union membership because CE elects a
bargaining union; it does not elect union officers
B.1 All EEs
1. Only EEs who are directly employed by the ER and working along the activities to which
the ER is engaged and linked by ER-EE relationship are qualified to participate in the
certification election irrespective of the period of their employment. (Eastland
Manufacturing vs. Noriel)
Airtime Specialists, Inc. v Director of BLR (180 SCRA 749) 1990

In a certification election, all rank and file employees in the appropriate bargaining unit are
entitled to vote. Collective bargaining covers all aspects of the employment relation and the
resultant CBA binds all employees in the bargaining unit. All rank and file employees,
probationary or permanent, have a substantial interest in the selection of the bargaining
representative. The code makes no distinction as to their employment status. The law refers to
all the employees in the bargaining unit. All they need to be eligible to support the petition is to
belong to the bargaining unit.
2. Are EEs prohibited by their religion to be members of a labor organization be

allowed to vote in a certification election? Yes. The plainly discernible intendment of
the law is to grant the right to vote to all bona fide EEs in the bargaining unit, whether
they are members of a labor organization or not. (Reyes vs. Trajano)
Benguet Electric Cooperative, Inc. v Calleja(180 SCRA 740) 1989
The employees of a cooperative may not join or form a labor organization for purposes of
collective bargaining. As members of the cooperative, they are co-owners. An owner cannot
bargain with himself or his co-owners. The fact the members-employees do not participate in
the actual management of the cooperative does not make them eligible to form, assist or join a
labor organization for the purposes of collective bargaining. It is the fact of ownership of the
cooperative, not involvement in the management thereof, which disqualifies a member from
joining any labor organization within the cooperative.
Only 37 employees are not members of the cooperative and who are the only employees
eligible to form or join a labor union. However, the minutes of the certification election show that
a total of 83 employees were allowed to vote. The certification election is still null and void.
It cannot be determined whether or not union was duly elected by the eligible voters of the
bargaining unit since even employees who are ineligible to join a labor union within the
cooperative because of their membership therein were allowed to vote in the certification
election.
B.2 DISMISSED EES
EEs who have been improperly laid-off but who have a present, unabandoned right to
the expectation of reemployment, are eligible to vote in certification elections. (Phil. Fruits and
Vegetables Industries vs. Torres)
R. Transport Corp. v Laguesma (227 SCRA 827)
Company argues that the employment status of the members of CLOP who joined the strike
must first be resolved before a certification election can be conducted. This is untenable. In
Philippine Fruits v. Torres, employees who have been improperly laid off but who have a
present, unabandoned right to or expectation of re-employment, are eligible to vote in
certification elections. Employees who participated in the strike, legally remain as such, until
either the motion to declare their employment status legally terminated or their complaint for
illegal dismissal is resolved by the NLRC.
B.3 PROBATIONARY EES
Probationary EEs in the appropriate bargaining unit are entitled to vote. (Airtime
Specialists vs. Director of Labor Relations)
C. VOTING DAY
1. Sec. 2, Rule VI, Book V, IRRs : The election shall be set during the regular business
day of the company unless otherwise agreed upon by the parties.
Valid election
Majority of the workers of the ABU must cast their vote
Does not make any distinction whether the ballot is valid or not
2. May a party to a certification election contend that the election was not held on a regular
business day due to the occurrence of a strike that day?
No. While it may have affected the actual performance of work, by some EEs, it did
not necessarily make said date an irregular business day of the company. (Asian
Design vs. Ferrer-Calleja)
D. PROTEST
1. When should a protest be raised? (by the representation officer)
a. On-the-spot during the conduct of the election.
b. Before the close of proceedings with the representation officer.
* Protests not so raised are deemed waived. Such protest shall be contained in the
minutes if the proceedings. (Sec. 3, Rule VI, Book V, IRRs)
* The protest should be formalized with the Med-Arbiter within 5 days after the close of
the election proceedings, otherwise the protest shall be deemed dropped. (Sec. 4, Rule VI,
Book V, IRRs)
must be made of record in the minutes of the proceeding
Phil. Fruits & Vegetables Ind. v. Torres Ruling: According to Sec. 3-4 Rule VI
Bk V, the following are required so that a protest may prosper:
(a)
Protest must be filed with the representation officer and
made of record in the minutes of the proceedings before the close of
election proceedings. Protest not so raised are deemed waived;
(b)
Protest must be formalized before the Med-Arbiter within
5 days after the close of the election proceedings, which shall then be
decided within 20 working days from the. The close of the election
proceedings is the period from the closing of the polls to the counting
and tabulation of the votes.
Hercules Industries Inc. v Secretary , 214 SCRA 129 (1992)
Notice of the certification election had been issued. Copies of said notice were given and posted
in conspicuous places. Payroll was used as the basis of the voters' list. Only 15 out of the 98
voters signed their names showing that they actually voted. These were shown by the minutes
of the pre-election conference. Neither the records of the case nor the minutes of the
certification election show that Hercules protested the conduct of the certification election.
Protests not so raised are deemed waived.
Jisscor Independent Union v Torres , 221 SCRA 699 (1993)
Grounds of a protest may be filed on the spot or in writing with the representation officer and
shall be contained in the minutes of the proceedings. Protests not so raised are deemed
waived. The minutes of the certification election show that JIU only protested against the use of
emblem, visor, pin. Other protests not so raised are deemed waived. There is no merit in the
argument that the non-posting of the notice of the certification election as prescribed misled and
confused the workers regarding the mechanics of the election. JIU is estopped from raising that
issue for it signed an agreement with JISSCOR to waive the mandatory 5 days posting of
election notices. The doctrine of estoppel is based on grounds of public policy, fair dealing, good
faith and justice, and its purpose is to forbid one to speak against his own act, representations,
or commitments to the injury of one to whom they were directed and who reasonably relied
thereon. The results of the certification election belie the allegation that the workers were
misinformed about the election out of 104 eligible voters, 99 were able to cast their votes and
only 3 were spoiled ballots. Nothing in the records shows that the alleged wearing of sunvisors
and pins, the posting of huge streamers, as well as the alleged escorting of voters by SMJ-ALU
have unduly pressured, influenced, vitiated, or in any manner affected the choice of the workers.
E. APPEAL
Art. 259 : Any party to an election may appeal the order or results of the election as determined
by the Med-Arbiter directly to the Sec. of Labor and Employment on the ground that the rules
and regulations established by the Sec. have been violated.
Such appeal shall be decided within 15 calendar days.
F. ANNULMENT
United Employees Union of Gelmart Inv. v. Noriel , 67 S 267 (75)
General allegation of duress is not sufficient to invalidate a certification election; it must be
shown by competent and credible proof. Slightest doubt cannot be entertained that what
possesses significance in a petition for certification is that through such a device the employees
are given the opportunity to make known who shall have the right to represent them. What is
equally important is that not only some but all of them should have the right to do so. Grievance
spoken of is more fancied than real, the assertion of confusion and demoralization based on
conjecture rather than reality. Nor need this Court pass upon the ground of protest based on the
alleged participation by nuns and a priest who presumably aided the cause of GATCORD.
Victoriano v. Elizalde left no doubt as to the privacy of religious freedom, to which contractual
rights, even on labor matters, must yield. One's religious convictions may be the basis for a
employee joining or refusing to join a labor union. Reference was made to the registration of
GATCORD allegedly having been revoked. Pleadings do not touch upon the matter. Court is not
in a position to rule on such a question.
Confederation of Citizens Labor Union v. Noriel , 116 S 694 (82)
Certification election is invalid because of certain irregularities. Workers on the night shift and
some of those in the afternoon shift were not able to vote. Out of 1,010 voters only 692 voted
and about 318 failed to vote. Secrecy of the ballot was not safeguarded. Election supervisors
were remiss in their duties and were apparently "intimidated" by a union representative.
Participating unions were overzealous in wooing the employees to vote in their favor by
resorting to such tactics as giving free tricycle rides and T-shirts. Certification election gives the
employees "true representation in their collective bargaining with an employer". ALU's written
protest was based on the same founds invoked by CCLU in its protest. That fact alone should
have alerted Noriel to disregard the technicality that CCLU's protest was not filed on time.
Timbungco v. Castro , 183 S 140 (90)

Pajares was arguing that the elections where Timbungco won was invalid because there was no
COMELEC and no tally sheet was prepared which set out the number of votes that each
candidate got. However, it does not appear that the dispensing by the membership of the
Kapisanan with certain technical requirements or formalities in relation to the election had
resulted in the deprivation of any substantial right or prerogative of anyone, or caused the
perpetration of a fraud or other serious anomaly, or precluded the expression and ascertainment
of the popular will in the choice of officers.
Objections to the elections have come too late, and they must be deemed in the premises to
have forfeited their right to impugn. Protests against elections should be formalized before the
med-arbiter within (5) days from the close of the election proceedings. Protest was presented
only after the lapse of 2 years after it was held. No informal protest, oral or written, was ever
presented against the election. There was tacit acceptance of the regularity of the elections and
the results for during that period of 2 years, certain significant events took place without demur
or objection of any sort. Timbungco officially made known to the BLR the Kapisanan's
disaffiliation from the Federacion FOITAF and obtained a new certificate of registration for the
union. He and the other officers of the Kapisanan negotiated with the AAATC management and
succeeded in bringing about the execution of a new CBA.
5.4 CERTIFICATION OF DESIGNATED MAJORITY UNION
MAJORITY UNION
Art. 255 Exclusive bargaining representation and workers participation in policy and
decision-making [sec. 22 of RA 6715] -- The labor organization designated or selected by the
majority of the EEs in an appropriate collective bargaining unit shall be the exclusive
representative of the EEs in such unit for the purpose of collective bargaining. However, an
individual EE or group of EEs shall have the right at any time to present grievances to their ER.
Any provision of law to the contrary notwithstanding, workers shall have the right, subject
to such rules and regulations as the SOLE may promulgate, to participate in policy and
decision-making processes of the establishment where they are employed in so far as said
processes will directly affect their RIGHTS, BENEFITS and WELFARE. For this purpose,
workers and ERs may form LABOR MGT COUNCILs; Provided, that the representatives of the
workers in such labor mgt councils shall be elected by at least the majority of all EEs in said
establishment.
Art. 256 Representation issue in organized establishments - In organized establishments,
when a verified petition questioning the majority status of the incumbent bargaining agent is filed
before the DOLE within the 60 day period before the expiration of the CBA, the Med-Arbiter
shall automatically order an election by secret ballot when the verified petition is supported by
the written consent of at least 25% of all the employees in the bargaining unit to ascertain the
will of the employees in the appropriate bargaining unit. To have a valid election, at least a
majority of all eligible voters in the unit must have cast their votes. The labor union receiving the
majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the
workers in the unit. When an election which provides for 3 or more choices results in no choice
receiving a majority of the valid votes cast, a run-off election shall be conducted between the
labor unions receiving the 2 highest number of votes. Provided, that total number of votes for all
contending unions is at least 50% of the number of votes cast.
At the expiration of the freedom period, the ER shall continue to recognize the majority status of
the incumbent bargaining agent where no petition for certification election has been filed.
Benguet Electric Cooperative, Inc. v Calleja , (180 SCRA 740) 1989
To have a valid certification election, at least a majority of all eligible voters in the unit must have
cast their votes. The labor union receiving the majority of the valid votes cast shall be certified
as the exclusive bargaining agent of all the workers in the unit. In this case, the election is
invalid. Only 37 employees are not members of the cooperative and who are the only
employees eligible to form or join a labor union. However, the minutes of the certification
election show that a total of 83 employees were allowed to vote. The certification election is still
null and void. It cannot be determined whether or not union was duly elected by the eligible
voters of the bargaining unit since even employees who are ineligible to join a labor union within
the cooperative because of their membership therein were allowed to vote in the certification
election.
5.5 BARS TO CERTIFICATION ELECTION
1)
2)
3)
Contract bar rule (Art. 253-A/ Art. 233)

Deadlock Bar-Rule
One-Year Bar rule
Bars to a certification election:

Suspension Rule:
PREVENTS a CE
merely POSTPONES a CE
ONE YEAR BAR RULE (CERTIFICATION YEAR)

A. GENERAL RULE
Sec. 3, Rule V, Book V, IRRs : No certification election may be held within 1 year from the date
of issuance of a final certification result.
The phrase final certification result means that there was an actual conduct of election. In
case where there was no certification election conducted precisely because the first petition was
dismissed, on the ground of a defective petition, the certification year bar does not apply. (R.
Transport vs. Laguesma)
* From time of valid certification election. Not from time of final resolution of appeal.
B. EXCEPTIONS
A petition for certification election may be entertained where unusual circumstances
exist. A circumstance would be unusual or out of the ordinary if it affects the structure, functions
or membership of the contracting union i.e. the number of EEs in the appropriate bargaining
unit has more than doubled since the last certification election. (Azucena)
DEADLOCK BAR RULE
What is the deadlock bar rule? A petition for certification election can only be
entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration of
which has become the subject of a valid notice of strike or lockout. (NASUCIP-TUCP vs.
Trajano)
DEADLOCK-BAR RULE (requisites)
1) Parties must have negotiated in good faith.
2) Deadlock must have been submitted to voluntary arbitration or a valid subject of a valid
notice of strike or lock-out.
A. NO DEADLOCK
Bargaining deadlock presupposes reasonable effort at good faith bargaining which,
despite noble intentions, does not conclude in agreement between the parties. (Divine World
vs. Sec. of Labor)
Dead Lock is defined as the counteraction of things producing entire stoppage: a state of
inaction or of neutralization caused by the opposition of persons of factions (as in
government or a voting body): stand still. There is a deadlock when there is a complete
blocking or stoppage resulting from the action of equal and opposed forces as the
deadlock of jury or legislature. The word is synonymous to impasse which, within the
meaning of the American federal labor laws, presupposes reasonable effort at good
faith bargaining which, despite noble intentions, does not conclude to an agreement
between the parties.
Disini: A precondition for the application of the rule is that the deadlock must be based on good
faith bargaining.
CONTRACT BAR RULE
1. What is the contract bar rule? The existence of a CBA duly filed and submitted to the
DOLE, in compliance with the requirements and standards of the said office bars a
certification election in the collective bargaining unit except within the 60 days prior to
the expiration of the life of such contract. (Foamtex Labor Union vs. Director of Labor
Relations)
GENERAL RULE:
EXCEPT:
The bureau shall NOT entertain any petition for certification election.
(Freedom period)Art. 253, 253-A, 256: Within 60 days before expiration of
the five year term of the CBA.
TAKE NOTE:
The contract bar rule can be validly invoked only if the existing CBA
contains substantially those materials that should be included in the CBA.
Buklod ng Saulog Transit v. Casalla , 99 Phil 16, 1956

The provisions of the law contemplates a situation:
1) NOT ONLY when there had been NO AGREEMENT entered into by and between
employees or laborers and employer or management as to the terms and condition of
employment.
2) BUT ALSO where there had been an agreement that leaves out many or the same
matters on which the parties should have stipulated.
In the present case, the collective bargaining agreement entered into by and between the
petitioners and company does not touch in substantial terms, the rate of pay, wages, hours of
employment and other conditions of employment of all the employees in the company but seeks
to establish merely a grievance procedure for drivers, conductors, and inspectors who are
members of the Buklod ng Saulog.
The agreement being incomplete is no bar to a certification election.
TAKE NOTE: CBA should be complete AT THE TIME OF FILING of petition for certification
election, even if amended CBA is submitted wherein the terms and conditions are
complete, it will not bar a petition for CE already filed.
Contract need not be certified, only registered.
2. Give the statutory recognition of the contract bar rule : The Bureau shall not
entertain any petition for certification election which may disturb the administration of
duly registered existing CBAs affecting the parties. (Art. 232)
What is the effect of an expired CBA on the contract bar rule?
No petition for CE may be filed after the lapse of the 60 day freedom period. The old CBA is
extended until a new one is filed. The purpose is to ensure stability in the relationship of the
workers and the company by preventing frequent modifications of any CBA earlier entered into
by them in good faith and for the stipulated original period.
3. The exclusive bargaining unit entered into a 5-year CBA with the company. Because of
intra-union conflict the ratified CBA was only registered with the DOLE 3 months after it
was ratified. A month later, another union filed a petition for certification election. The
petitioning union contends that the contract was registered beyond the 30-day period
prescribed by Art. 231. Is the petition barred by the contract bar rule?
Yes. Non-compliance with the procedural requirements of Art. 231 should not
adversely affect the substantive validity of the CBA. A CBA is more than a contract. It
is highly impressed with public interest for it is an essential instrument to promote
industrial peace. To set it aside on technical grounds is not conducive to the public
good. (TUCP vs. Laguesma)
4. Company A signed a 3-year CBA with Union X, the duly authorized bargaining
representative. The CBA was never formally ratified by the EEs, although they all
accepted and enjoyed the benefits under the CBA. 18 months after the CBA was signed,
Union Y filed a petition for certification election. Will the petition of Union Y prosper?
No. While there was no express ratification by the EEs, the fact that they received
the benefits is an implied ratification of the CBA. The non-submission of a copy of the
CBA to the DOLE is a mere formal requirement which should not prevent the
application of the contract bar rule. (Alcantara)
The CBA has to be certified before it can serve as

a bar to a petition for certification election.
The contract bar rule shall not apply if the

following conditions exist:
1) The agreement contains provisions lower than the standards fixed by law, or
2) The documents supporting its registration are falsified, fraudulent, or tainted with
misrepresentation.
Associated Trade Unions v. Trajano Ruling: The contract bar rule simply provides tha a
petition for certification election or a motion for intervention can only be entertained within 60
days PRIOR to the expiry date of an existing CBA. Otherwise put, the rule prohibits the
filing of a petition for certification election during the existence of a CBA except within the
freedom period as it is called, when the said CBA is about to expire. The purpose is to
ensure stability in the relationship of the workers and the management by preventing
frequent modifications of any CBA earlier entered into by them in good faith and for the
stipulated original period.
A. DEFECTIVE CBA
The contract bar rule does not apply when the CBA which is the basis of the rule is
defective. (ALU vs. Ferrer-Calleja)
B. INCOMPLETE CONTRACT
To be a bar to a certification election, the CBA must be adequate in that it comprises
substantial terms and conditions of employment. (Buklod ng Saulog vs. Casalia)
C. HASTILY CONCLUDED CBA
1. 8 months prior to the expiration of the CBA, the company and the union renewed the
same for another 3 years. Can the renewed CBA be set up as a bar to the holding of the
certification election?
If the CBA is prematurely renewed, such is not a bar to the holding of a certification
election. The ER and a friendly union can not by the mere expedient of prematurely
renewing their CBA, effectively deprive the workers of their right to freely select their
bargaining agent. (General Textiles Allied Workers Association vs. Director of
Labor Relations)
2. ALU had a CBA with PASAR. Several days before the expiration of the CBA NAFLU filed
a petition for certification election. During the pendency of the representation case, the
Med-Arbiter enjoined PASAR from entering into a CBA with any union. However, ALU
and PASAR concluded a CBA. Is the new CBA a bar to certification election?
No. The CBA was hastily concluded, showing that the parties were in bad faith when
they concluded the CBA. (ALU vs. Ferrer-Calleja)
D. CBA THAT DOES NOT FOSTER STABILITY
More than half of the members of a union resigned from it to form another union. It later
filed a petition for certification election within the 60-day freedom period. Meanwhile the old
union and the company entered into a new CBA. Is the contract bar rule applicable?
No. It is doubtful if any contract that may have been entered into between ALU and the
company will foster stability in the bargaining unit in view of the substantial number of EEs that
have resigned from the old union and joined the new union. (Firestone vs. Estrella)
E. EXCEPTION
Deviation from the contract bar rule is justified only where the need for industrial stability
is clearly shown to be the imperative. (PWUP vs. Laguesma)
F. VALIDITY OF CBA SIGNED DURING REPRESENTATION DISPUTE
When a CBA is entered into at the time when a petition for certification election had already
been filed by a union and was then pending resolution, the said CBA cannot be deemed
permanent, precluding the commencement of negotiations by another union with management.
(ATU vs. Trajano)
5.6 SUSPENSION OF CERTIFICATION ELECTION
PREJUDICIAL QUESTION RULE
Should be read in relation to Art. 248d: ULP:
It shall be unlawful for an employer to commit any of the following unfair labor practice. (d) To
initiate, dominate, assist or otherwise interfere with the formation or administration of any labor
organization, including the giving of financial or other support to it or its organizers or
supporters.
1. United CMC Textile Workers filed a complaint for unfair labor practice against CENTEX
and PAFLU, alleging the CENTEX helped and cooperated in the organization of PAFLU.
During the pendency of the case, PAFLU filed a petition for certification election. May the
certification election be suspended pending the determination of the case?
Yes. Pendency of a formal charge of company domination is a prejudicial question
that, until decided, bars proceedings for certification election the reason being that
the votes of the members of the dominated union would not be free. The rationale
for the suspension of the election proceedings is that the certification election may
lead to the selection of an ER-dominated or company union as the EEs bargaining
representative, and when the court finds that the said union is ER-dominated in the
ULP case, the union selected would be decertified and the whole election
proceedings would be rendered useless and nugatory. (United CMC Textile
Workers vs. BLR , 128 SCRA 316)
RATIONALE for suspension
the reason being, in the words of Mr. Justice Montemayor, ìf there is a union dominated by the
company, to which some of the workers belong, an election among workers and employees of
the company would not reflect the true sentiment and wishes of the said workers and
employees because the votes of the members of the dominated union would not be free.'
(Manila Paper Mills Employees vs. Court of Industrial Relations, 104 Phil.
"And we have held, through Mr. Justice J.B.L. Reyes, that such charge of company domination
is a prejudicial question that until decided, shall suspend or bar proceedings for certification
election. (Standard Cigarette Workers' Union vs. Court of Industrial Relations, 101 Phil. 126)
"Indeed, if as a result of the Pelta's complaint in Case No. 255-ULP, the Workers Union should
be ordered dissolved as a company dominated union, any election held in the meantime would
be a waste of energy and money to all parties concerned."
The rationale for the suspension of the election proceedings has been further amplified as
follows:
"What is settled law, dating from the case of Standard Cigarette Workers' Union v. Court of
Industrial Relations (101 Phil. 126), decided in 1957, is that if it were a labor organization
objecting to the participation in a certification election of a company-dominated union, as a
result of which a complaint for an unfair labor practice case against the employer was filed, the
status of the latter union must be first cleared in such a proceeding before such voting could
take place.
In the language of Justice J.B.L. Reyes as ponente: Às correctly pointed out by Judge Lanting
in his dissenting opinion on the denial of petitioner's motion for reconsideration, a complaint for
unfair labor practice may be considered a prejudicial question in a proceeding for certification
election when it is charged therein that one or more labor unions participating in the election are
being aided, or are controlled, by the company or employer.
The reason is that the certification election may lead to the selection of an employer-dominated
or company union as the employees' bargaining representative, and when the court finds that
said union is employer-dominated in the unfair labor practice case, the union selected would be
decertified and the whole election proceedings would be rendered useless and nugatory.'
There would be an impairment of the integrity of the collective bargaining process if a companydominated union were allowed to participate in a certification election. The timid, the timorous,
and the faint-hearted in the ranks of labor could easily be tempted to cast their votes in favor of
the choice of management. Should it emerge victorious, and it becomes the exclusive
representative of labor at the conference table, there is a frustration of the statutory scheme. It
takes two to bargain. There would be instead a unilateral imposition by the employer. There is
need therefore to inquire as to whether a labor organization that aspires to be the exclusive
bargaining representative is company-dominated before the certification election."
WHAT SUSPENDS:
Formal charge of ULP against the employer

for establishing a company union.
WHO MAY ASK FOR SUSPENSION:
Only a union. CE cannot be suspended

based on a pendency of a formal charge of
ULP against a labor organization.
2. Who can file and maintain an opposition to the holding of the certification election
based on a charge of company domination? Only the union who made the charge
since it is the entity that stands to lose and suffer prejudice by the certification election.
(Id.)
What if there is a pending unfair labor practice charge by the ER against the
union. Can this stay the certification election? No. (Barrera vs. CIR)
3. What kind of charge of company domination will not suspend the certification
proceedings? A charge that is flimsy, made in bad faith or filed purposely to forestall the
certification election. (Id.)
The mere allegation of one of the contesting LU of company domination cannot suspend
a CE.
Only a formal charge can do that
The filing of a formal charge is the basis of the prejudicial question of whether or
not the said union is really company dominated
5.7 EFFECT OF PENDING PETITION FOR CANCELLATION OF TRADE UNION
REGISTRATION
An order to hold a certification election is proper despite the pendency for cancellation of the
registration certificate of union which is a party to the representation dispute. The rationale for
this is that all the time the respondent union filed its petition, it still had the legal personality to
perform such act absent an order directing a cancellation. (Association of CA EEs vs. FerrerCalleja)
Section 6. COLLECTIVE BARGAINING : PROCESS, PROCEDURES

AND ISSUES
The right to collectively bargain is Constitutionally guaranteed.
Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organizations, COLLECTIVE
BARGAINING AND NEGOTIATIONS, and peaceful concerted activities, including the right to
strike in accordance with law. They shall be entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.
The State shall promote the PRINCIPLE OF SHARED RESPONSIBILITIES between
workers and employers and the preferential use of voluntary modes in settling 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 labor to its just share in the fruits of production and the right of enterprises to reasonable
returns on investments, and to expansion and growth.
This Constitutional guarantee is implemented by the Labor Code. Thus it is also

statutorily guaranteed.
Art 211 (a) To promote and emphasize the primacy of FREE COLLECTIVE BARGAINING and
negotiations, including voluntary arbitration, mediation and conciliation, as modes of setting
labor or industrial disputes;
It is implemented by the following provisions of the Labor Code:
1. PROCEDURE
Art. 250
Art. 251
In relation with Art. 233
2. DUTY TO BARGAIN COLLECTIVELY
Art. 252
Art. 253
3. TERMS
Art. 253-A
6.1 GENERAL CONCEPTS
1. What is collective bargaining? Collective bargaining has been defined as the process
of negotiation between an ER or ERs and the EEs organization or union to reach an
agreement on the terms and conditions of employment for a specified period. It covers
the entire range of organized relationships between ERs and EEs represented by
union, this includes the negotiation, administration, interpretation or application of the
labor contract. (Alcantara)
2. What are the most important aims or aspects of collective bargaining?
The most important aims are :
a. To establish industrial peace by enabling capital and labor to resolve their
disputes and controversies on terms mutually acceptable and satisfactory to
themselves.
b. To enhance industrial efficiency through speedy resolution of labor disputes
concerning fixing of wages, working hours and other terms and conditions of
contracts incorporating such agreements, and the adjustment or settlement of
any grievance arising thereunder.
c. To establish benefits of labor higher or greater than those fixed by law.
The various aspects are :
a. The duty of the parties to bargain and negotiate on proposals concerning wages,
working hours and other terms and conditions of employment.
b. The duty of the parties to adhere to statutory standards of good faith, promptness
and expeditious actions.
c. The duty to refrain from unilateral changes concerning matters subject to
bargaining.
d. In case there is an existing CBA, the duty to adhere faithfully to its terms and not
terminate or modify the same during its period of effectivity. (Alcantara)
5. What is the nature and purpose of collective bargaining?
Collective bargaining is a democratic framework to stabilize the relation between labor and
management to create a climate of sound and stable industrial peace. It is a mutual
responsibility of the ER and the union and is their legal obligation. (loy vs. NLRC)
6. What are the jurisdictional preconditions of collective bargaining?
The mechanics of collective bargaining is set in motion only when the following jurisdictional
preconditions are present :
a. Possession of the status of majority representation of the EEs representative in
accordance with any of the means of selection or designation provided by the
Labor Code.
b. Proof of majority representation.
c. Demand to bargain under Art. 250. (Id.)
6.2 BARGAINABLE ISSUES
OBLIGATION TO NEGOTIATE ; MANDATORY BARGAINING SUBJECTS
1. It is the obligation of the ER and the EEs representative to bargain with each
other with respect to wages hours and other terms and conditions of
employment. They are statutory of mandatory proposals requiring the party to whom
they are made to bargain in good faith concerning them. (Azucena) However, the law
does not compel agreements between ERs and EEs and neither party is obligated to
yield even on a mandatory bargaining subject, for as long as they bargain in good faith.
(Id.)
2. What are considered mandatory subjects of bargaining?
a. Wages and other types of compensation
b. Working hours
c. Vacations and holidays
d. Bonuses
e. Pensions and retirement plans
f. Seniority
g. Transfer
h. Lay-off
i. EEs workloads
j. Work rules and regulations
k. Rent company houses
l. Union security arrangements (Azucena)
m. No-Lockout Clause
n. Clause fixing contractual term.
NON-MANDATORY SUBJECTS
1. The right to bargain on a non-mandatory subject does not include to right to insist on the
inclusions of the non-mandatory subject in the CBA as a condition to any agreement.
(Azucena)
2. Give some examples of non-mandatory subjects :
a. Management prerogative clauses.
b. Union discipline clause.
c. Arbitration, strike vote or no-strike clauses.
Nestle Phil. V NLRC (193 SCRA 504) 1991
HELD: Retirement Plan was "a collective bargaining issue right from the start" for the
improvement of the existing Retirement Plan was one of the original CBA proposals submitted
by the UFE to president of Nestle Philippines.
The union's original proposal was to modify the existing plan by including a provision for early
retirement. The company did not question the validity of that proposal but merely offered to
maintain the existing non-contributory retirement plan which it believed to be still adequate for
the needs of its employees. The union modified its proposal, but the company was adamant.
Impasse on the retirement plan become one of the issues certified to the NLRC for compulsory
arbitration.
Retirement plan is negotiable. Inclusion of the retirement plan in the CBA as part of the package
of economic benefits extended by the company to its employees to provide them a measure of
financial security after they shall have ceased to be employed in the company, reward their
loyalty, boost their morale and efficiency and promote industrial peace, gives "a consensual
character" to the plan so that it may not be terminated or modified at will by either party.
The fact that the retirement plan is non-contributory does not make it a non-issue in the CBA
negotiations. Almost all of the benefits granted to its employees under the CBA are noncontributory benefits. Since the retirement plan has been an integral part of the CBA since 1972,
demand to increase the benefits due the employees is a valid CBA issue. Employees have a
vested or demandable right to a non-contributory retirement plan. It is an existing benefit
voluntarily granted to them by their employer.
6.3 BARGAINING PROCEDURE
PRIVATE PROCEDURE
Art. 251 : In the absence of the CBA, it shall be the duty of the ER and the representatives of
the EEs to bargain collectively.
IMPLICATION: Provisions of this code are only supplementary not mandatory with regards to
the process of collective bargaining. Because it is the policy of the state to promote the primacy
of FREE collective bargaining. (211a).
> The Labor Code authorizes parties to provide for their own procedures in Collective
Bargaining but it must be more EXPEDITIOUS that that provided in Art. 250.
> If they are unable to agree they must follow procedure in the labor code (Art. 250).
While it is a mutual obligation of the parties to bargain, the ER, however, is not under any
legal duty to initiate contract negotiation.
CODE PROCEDURE
Describe the procedure in collective bargaining : In the absence of an agreement or other
voluntary arrangement providing for a more expeditious manner of collective bargaining, the
following procedures shall be observed :
1. When a party desires to negotiate an agreement, it shall serve a written notice upon the
other with a statement of its proposals. The other party shall make a reply thereto not
later than 10 calendar days from the receipt of such notice.
2. Should difference arise on the basis of such notice and reply, either party may request a
conference which shall begin not later than 10 calendar days from date of request.
3. If the dispute is not settled, the Board shall intervene upon request of either or both
parties to conciliation meetings. The Board shall have the power to issue subpoenas
requiring the attendance of the parties to such meetings. It shall be the duty of the
parties to participate fully and promptly in the conciliation meetings the Board may call.
4. During the conciliation proceedings in the Board, the parties are prohibited from doing
any act which may disrupt or impede the early settlement of the dispute.
5. The Board shall exert efforts to settle disputes amicably and encourage the parties to
submit their case to voluntary arbitration. (Art. 250)
6. The parties shall at the request of either of them, make available such up-to-date
financial information on the economic situation of the undertaking, as is material and
necessary for meaningful negotiations. Where the disclosure of some of the information
could be prejudicial to the undertaking, its communication may be made condition upon
a commitment that it would be regarded as confidential to the extent required. (Sec. 5,
Rule XIII, Book V, IRRs)
7. Information and statements made at conciliation proceedings shall be treated as
privilege communication and shall not be used as evidence in the Commission.
Conciliators and similar officials shall not testify in any court or body regarding any
matters taken up at conciliation proceedings conducted by them. (Art. 233)
8. The agreement negotiated by the EEs bargaining agent should not be ratified or
approved by the majority of all the workers in the bargaining unit. (Art. 231) [Ratification
in not needed when the CBA is a product of an arbitral award. The arbitral award may
result from voluntary arbitration or from the secretarys assumption of jurisdiction or
certification of the dispute to the NLRC. (Azucena)]
Art. 250 in summary:
1)
All proposal and counter-proposal must be in writing. No verbal proposal or counterproposal.
2)
Time periods are provided for by law.

Reply: not later than 10 calendar days from receipt of notice.
Request for a conference shall begin 10 days after making such request.
TAKE NOTE: This procedure is DIRECTORY in nature and not mandatory, failure to comply
with the prescribed time periods will not amount to an unfair labor practice.
Stages of the Collective Bargaining Process
STAGE 1
Organization-Represenational
normal course:
> Formation & registration of union
> Request & grant of voluntary
recognition
> Petition for certification/consent
election (CE)
> Holding of election
> Certification of exclusive
bargaining representative (EBR)
STAGE 2
Bargaining Proper
normal course:
> Bargaining preparations
> Presentation of proposals and
Counterproposals
> Bargaining on specific mandatory
or nonmandatory items
> Conclusion of negotiations; signing
> Ratification
> Registration of CBA
STAGE 3
Contract Administration
normal course:
> Implamentation of of CBA provision
> CBA questions submitted to &
resolved through grievance
machinery or voluntary arbitration
> Renegotiation on 2nd & 3rd year
of non-representational provisions
> Freedom period on the 5th year;
holding of election to resolve EE
representation
detour/deviation
> Election protest
> Appeal to Labor Secretary
> Certiorari in Court of Appeals
> Strike because of union busting or
other ULP by the ER
> 3rd party intervention; conciliationmediation or arbitration
detour/deviation
> Strike/lockout because of
bargaining deadlock or ULP in
bargaining
detour/deviation
> Strike because of gross violation of
CBA economic provisions
National Union of Restaurant Workers v. CIR , 10 SCRA 843 (64)

HELD: IN letter sent by the union containing its demands, there appears marks, opposite each
demand, such as a check for those demands to which Mrs. Felisa Herrera was agreeable, a
cross signifying the disapproval of Mrs. Herrera, and a circle regarding those demands which
were left open for discussion on some future occasion that the parties may deem convenient.
Such markings were made during the discussion of the demands in the meeting. That Herrera
had agreed to some of the demands shows that she did not refuse to bargain collectively. Tres
did not refuse to bargain collectively because they accepted some of the demands while they
refused the others even leaving open other demands for future discussion. Those demands
were discussed at a meeting.
Under Section 14 of Republic Act 875 whenever a party serves a written notice upon the
employer making some demands the latter shall reply not later than 10 days from receipt, but
this condition is merely procedural. Its non- compliance cannot be deemed to be an act of
unfair labor practice.
Tres did not ignore the letter. While Tres denied the capacity of the complaining union to bargain
collectively, this is because they were of the impression that before a union could have that
capacity it must first be certified by CIR. This is what they stated in their answer to the petition
for certification filed by said union. Furthermore, another union also claimed to represent the
majority of the employees of restaurant.
A. NATURE OF PROCEDURE
Collective bargaining does not end with the execution of an agreement. It is a continuous
process. The duty to bargain imposes on the parties during the term of their agreement the
mutual obligation to meet and confer promptly and expeditiously and in good faith for the
purpose of adjusting any grievances or question arising under such agreement. (RSB vs. CIR)
DUTY TO BARGAIN
Explain the meaning of the duty to bargain effectively : The duty to bargain
collectively means the performance of a mutual obligation to meet and confer promptly and
expeditiously and in good faith for the purpose of negotiating an agreement with respect to
wages, hours of work, and all other terms and conditions of employment including proposals for
adjusting grievances or questions arising under such agreement and executing a contract
incorporating such agreement if requested by either party, but such duty does not compel any
party to agree to a proposal or to make any concession. (Art. 252) In case there is an existing
collective contract, the duty shall include the obligation to adhere faithfully to its terms and not
terminate or modify the same during its period of effectivity. (Art. 253)
Good faith bargaining is genuine and reasonable bargaining

One cannot view an isolated act of a party and on that basis conclude that there is bad
faith.
Duty to bargain in good faith (Art. 252):

Can be broken down into two components: The positive statement and the Negative Statement.
1. POSITIVE STATEMENT
NATURE of duty to bargain:
Mutual Obligation
HOW: to meet and convene promptly and expeditiously in good faith.

PURPOSE:
for the purpose of negotiating an agreement(CBA)
NEGOTIABLE ISSUES:
with respect to wages,
hours of work and
all other terms and conditions of employment
including proposals for adjusting any grievances or questions arising under such agreement
2. NEGATIVE STATEMENT DUTY:
but such duty does not compel any party to agree to a proposal or to make any concession.
3. EXECUTION OF A CONTRACT: Art. 252 also states that it is part of the duty to bargain to
execute a contract incorporating such agreements if requested by either party.
TAKE NOTE: Proposals embodied in minutes does not form part of the CBA. (Samahang
Manggagawa sa Top Farm v. NLRC (295 SCRA 171, 1998)
ARTICLE 253.
Duty to bargain collectively when there exists a collective
bargaining agreement.
1.
When there is a collective bargaining agreement, the duty to bargain collectively shall
also mean that neither party shall terminate or modify such agreement during its lifetime.
2.
However, either party can serve a written notice to terminate or modify the agreement at
least sixty (60) days prior to its expiration date.
3.
It shall be the duty of both parties to keep the status quo and to continue in full force and
effect the term and conditions of the existing agreement during the 60-day period and/or until a
new agreement is reached by the parties.
Violations of Duty to Bargain

1Failure or refusal to meet and convene
2Evading the purposes of bargaining
3Not observing GF in bargaining
4Grossly violating the economic provisions of the CBA
Natl Congress of Unions, etc. vs. Callcja
Art. 253 of the LC provides that it shall be the duty of both parties to keep the status quo and to
continue in full force and effect the terms and conditions of the existing agreement during the
60-day freedom period and/ or until a new agreement is reached by the parties. Despite the
lapse of the formal effectivity of the CBA, the law still considers the same to be continuing in
force and effect until a new CBA shall have been validly executed.
6.4 THE CBA
What is the CBA? It is a negotiated contract between a legitimate labor organization

and the ER concerning wages, hours of work and all other terms and conditions of employment
in a bargaining unit, including mandatory provisions for grievances and arbitration machineries.
(Sec. 1, Rule VI, Book V, IRRs)
REGISTRATION - PERIOD, REQUIREMENTS AND ACTIONS
Art. 231 : Within 30 days from the execution of a CBA the parties shall submit copies of
the same directly to the Bureau or Regional Office of the DOLE for registration accompanied
with verified proofs of its posting in 2 conspicuous places in the place of work and ratification by
the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act
upon the application for registration of such CBA within 5 calendar days from the receipt thereof.
The Regional office shall furnish the Bureau with a copy of the CBA within 5 days from its
submission. The Bureau shall maintain a file of all CBAs and other related agreements and
records of settlements of labor disputes and copies of orders, decisions of voluntary arbitrators.
The file shall be open and accessible to interested parties under conditions prescribed by the
Sec. of Labor and Employment.
CONTRACT BENEFICIARIES
DOCTRINE OF FAIR REPRESENTATION: When a collective bargaining agreement is entered
into by the union representing the employees & the employer, even the non-member employees
in the appropriate bargaining unit are entitled to the benefits of the agreement.
RATIONALE: The rationale behind the extension of the benefits of a collective bargaining
agreement even to non-union members is to preclude undue discrimination.
Rivera v San Miguel Brewery (24 SCRA 86) 1968
It is binding on all employees because a CBA is the law of the plant. Rivera stresses that he is
not a member of the labor union, and Article XV of the private plan is not binding on him.
Assuming he is not bound by the terms of the private plan, then it is only just and logical that its
benefits be withheld likewise from him.
When a collective bargaining contract is entered into by the union representing the employees
and the employer, even the non-member employees are entitled to the benefits of the contract.
To accord its benefits only to members of the union without any valid reason would constitute
undue discrimination against non-members.
Mactan Workers Union v Aboitiz (45 SCRA 577) 1972
HELD: The terms and conditions of a collective bargaining contract constitute the law between
the parties. Those who are entitled to its benefits can invoke its provisions. In the event that an
obligation therein imposed is not fulfilled, the aggrieved party has the right to go to court for
redress. Nor does it suffice as a defense that the claim is made on behalf of non-members of
intervenor Associated Labor Union, for it is a well-settled doctrine that the benefits of a collective
bargaining agreement extend to the laborers and employees in the collective bargaining unit,
including those who do not belong to the chosen bargaining labor organization.
1. A CBA provides for the deduction of union dues from non-member of the
bargaining union. Is the stipulation valid? Yes. It provides for the collection of an
agency fee from the members who accept and enjoy the benefits attained through the
efforts of the bargaining agent. The non-union members should not be unjustly enriched
at the expense of the bargaining agent. (Alcantara)
2. How about if the stipulation was not provided for in the CBA but was merely
requested by the bargaining union from the ER? The stipulation is still valid. EEs of
an appropriate collective bargaining unit who are not members of the recognized
collective agent may be assessed a reasonable fee equivalent to the dues and other
fees paid by members of the recognized collective bargaining agent, if such union
members accept the benefits under the CBA. The individual authorization required under
Art. 241 shall not apply to the non-members of the recognized collective bargaining
agent. (Art. 248) The law does not impose as a condition for the collection of the agency
fee that the same be provided in the CBA, the basis of the unions right to the agency fee
is quasi-contractual, not contractual. (Alcantara)
3. The CBA negotiated by union Y provides for wage increases to EEs in the production
and maintenance department. To avoid discrimination, the company also granted the
increases to EEs in the administrative and sales department. Union Y now demands an
agency fee from the EEs of these departments. Is such demand valid?
No. In the 1st place, the EEs in the latter 2 departments do not belong to the
bargaining unit covered by the agreement. In the 2nd place, the wage increases were
not obtained through the efforts of union Y. (Id.)
CONTRACT ADMINISTRATION AND ENFORCEMENT
A. NATURE OF CONTRACT
1. While the terms and conditions of a CBA constitute the law between the parties, it is not,
however, an ordinary contract to which is applied the principles of law governing ordinary
contracts. A CBA, as a labor contract within the contemplation of Art. 1700, NCC which
governs the relations between labor and capital, is not merely contractual in nature but
impressed with public interest, thus it must yield to the common good. As such, it must
be construed liberally rather than narrowly and technically, and the courts must place a
practical and realistic construction upon it, giving due consideration to the context in
which it is negotiated and the purpose which it is intended to serve. (Davao Integrated
vs. Abarquez) However, like ordinary contracts, ignorance of its terms by either party,
including the EEs who are principals of the bargaining union, will not justify the breach
of the contract. (Manalang vs. Artex)
Kimberly Clark Phils v. Lorredo Ruling

A CBA, just like any other contract, is respected as the law between the
parties and compliance therewith in good faith is mandated. Similarly, the
rules embodied in the CC on the proper interpretation of contracts can very
well govern, the intention of the parties is primordial. If the terms of the
contract are clear, the literal meaning of the stipulations shall control. But if
the words appear to be contrary to the evident intention of the parties, the
latter shall prevail over the former.
SUBSTITUTIONARY DOCTRINE (Benguet Consolidated v. BCI EEs & Workers

Union)
The substitutionary doctrine was formulated by the NLRB as its initial
compromise solution to the problem facing it when there occurs a shift in the
EEs union allegiance after the execution of a bargaining contract with their
ER by the simple expedience of changing their bargaining agent. The EEs
through their new bargaining agent, cannot renege on their CB contract
except to negotiate with the management for the shortening thereof. In
formulating the subtitutionary doctrine, the only condition involved was the
EEs interest in the existing CBA. Justification for the doctrine is that the
majority of the EEs is the true party in interest to the contract.
The substitutionary doctrine cannot be invoked to support the contention that
a newly certified CV agent automatically assumes all personal undertakings
like the no-strike stipulation in the CVA made by the deposed union.
The new CBA should have a prospective effect because of the hold over
principle (Art. 253 253-A) of the old CBA
2. The CBA was not formally ratified by the majority of the workers in the bargaining unit.
However, the workers received and enjoyed the benefits under the CBA. Can the EEs
later on have the contract invalidated for lack of formal ratification?
No. The EEs have already enjoyed benefits from it. They cannot receive benefits
under provisions favorable to them and later insist that the CBA is void simply
because other provisions turn out not to the liking of certain EEs. (Planters Product
vs. NLRC)
3. Are wage increases paid by the ER pursuant to laws and wage orders compliance with
the wage increases provided for under a CBA?
No. In the absence of a provision of law or the CBA to the effect that benefits
provided by the former encompass those provided by the latter, benefits derived from
either law or a contract should be treated as separate from each other. A CBA is a
contractual obligation. EE benefits derived from law are exclusive of benefits arrived
through negotiation and agreement unless otherwise provided by the agreement
itself or by law. (Meycauayan College vs. Drilon)
* a CBA is a contractual obligation, it is distinct from an obligation imposed by law
B. GRIEVANCE PROCEDURE DISPUTE SETTLEMENT: ISSUES AND INDIVIDUAL
GRIEVANCE
Art. 255 Exclusive bargaining representation and workers participation in policy and
decision-making. The labor organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit shall be the exclusive representative of
the employees such unit for the purpose of collective bargaining.
However, an individual employer or group of employees shall have the right at any time to
present grievances to their employer.
Any provision of law to the contrary notwithstanding, workers shall have the right, subject
to such rules and regulations as the Secretary of Labor and Employment may promulgate, to
participate in policy and decision-making processes of the establishment where they are
employed insofar as said processes will directly affect their rights, benefits, and welfare.
For this purpose, workers and employers may form labor-management councils; Provided, That
the representatives of the workers in such labor management councils shall be elected by at
least the majority of all employees in said establishment.
Art. 260 Grievance Machinery and Voluntary Arbitration. The parties to a CBA shall
include therein provisions that will ensure the mutual observance of its terms and conditions.
They shall establish a machinery for the adjustment and resolution of grievances arising from
(1)
the interpretation or implementation of their CBA and
(2)
those arising from the interpretation or enforcement of company personnel policies.
All grievances submitted to the grievance machinery which are not settled within 7
calendar days from the date of its submission shall automatically be referred to voluntary
arbitration prescribed in the CBA.
1)
For this purpose, parties to a CBA shall

name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators,
or
include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of
Voluntary Arbitrators preferably from the listing of qualified Voluntary Arbitrators duly accredited
by the Board.
2)
In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators,
the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be
necessary, pursuant to the selection procedure agreed upon in the CBA, which shall act
with the same force and effect as if the Voluntary Arbitrator or panel of Arbitrators has been
selected by the parties as described above.
1. J, a member of a union that has been certified as the sole and exclusive bargaining
representative of the EEs, sends a letter to management requesting, in view of inflation,
for an increase in his wages. Is this allowed?
Yes. Although there may be an exclusive bargaining agent, an individual EE or group
of EEs have the right to present grievances to their ER. It would have been different
if J demanded for wage increases for the other EEs. (Alcantara)
Article 261 gives the VOLUNTARY ARBITRATOR

(or panel of Voluntary Arbitrators) original and exclusive jurisdiction to hear and decide:
1Unresolved grievances arising from the interpretation or
implementation of the collective bargaining agreement; and
2Those arising from the interpretation or enforcement of company
personnel policies.
3Also violations of CBA, if not resolved through grievance
machinery
Gross Violations = flagrant and/or malicious refusal to comply with the

economic provisions of the CBA
If the violation is GROSS in character, treat as ULP which should be heard and
decided by a Labor Arbiter
BUT, In Art. 262, parties are allowed to submit the ULP (gross violations) to a
voluntary arbitrator
4Even bargaining deadlocks and all other disputes may, by
agreement of the parties, be considered proper subject of voluntary arbitration.
As ruled by the SC in San Miguel Corp v. NLRC (March

15, 1996): A termination dispute may be submitted by the parties to voluntary
arbitration, but in the absence of such agreement in clear and unequivocal language,
the dispute should be lodged with a labor arbiter in line with article 217.
Caltex Refinery Employees Association v. Brilliantes , 279 SCRA 218 (1997)

No particular setup for a grievance machinery is mandated by law. Rather, Article 260 of the
Labor Code, as incorporated by RA 6715, provides for only a single grievance machinery in the
company to settle problems arising from "interpretation or implementation of their collective
bargaining agreement and those arising from the interpretation or enforcement of company
personnel policies."
We believe that the procedure described by public respondent sufficiently complies with the
minimum requirement of the law. Public respondent even provided for two steps in hearing
grievances prior to their referral to arbitration. The parties will decide on the number of
arbitrators who may hear a dispute only when the need for it arises. Even the law itself does not
specify the number of arbitrators. Their alternatives whether to have one or three arbitrators
have their respective advantages and disadvantages. In this matter, cost is not the only
consideration; full deliberation on the issues is another, and it is best accomplished in a hearing
conducted by three arbitrators. In effect, the parties are afforded the latitude to decide for
themselves the composition of the grievance machinery as they find appropriate to a particular
situation. At bottom, we cannot really impute grave abuse of discretion to public respondent on
this issue.
Master Iron Labor Union v NLRC (219 SCRA 47) 1993
HELD: Union staged the strike only after the Corporation had failed to abide by the agreement
forged between the parties upon the intervention of no less than the DOLE after the union had
complained of the Corporation's unabated subcontracting of workers who performed the usual
work of the regular workers. Companys failure to traverse unions allegations that the NLRC
abused its discretion in holding that the provision on grievance procedure had not been
exhausted clearly sustains such allegation and upholds the contention that the Corporation
refused to undergo said procedure.
It should be remembered that a grievance procedure is part of the continuous process of

collective bargaining. It is intended to promote a friendly dialogue between labor and
management as a means of maintaining industrial peace.
The Corporation's refusal to heed request to undergo the grievance procedure clearly
demonstrated its lack of intent to abide by the terms of the CBA. The Corporation's insistence
that the hiring of casual employees is a management prerogative betrays its attempt to coat with
legality the illicit curtailment of its employees' rights to work under the terms of the contract of
employment and to a fair implementation of the CBA. As to the no-strike clause in a CBA, it is
applicable only to economic strikes. Corollarily, if the strike is founded on an unfair labor practice
of the employer, a strike declared by the union cannot be considered a violation of the no-strike
clause. An economic strike is defined as one which is to force wage or other concessions from
the employer which he is not required by law to grant In this case, strike was grounded on
violation of the CBA or the Corporation's practice of subcontracting workers; discrimination;
coercion of employees; unreasonable suspension of union officials, and unreasonable refusal to
entertain grievance.
San Miguel Corp. v. NLRC 304 SCRA 1 (1999)
Grievance machinery is mandatory provision of the CBA.
PAL v Santos (218 SCRA 415) 1993
HELD: Section 2, Article IV of the PAL-PALEA CBA states that division head shall answer the
grievance within 5 days from the date of presentation.
If the division head fails to act within 5 days, the grievance must be resolved in favor of the
aggrieved party.
Grievance was filed with Mr. Abad's secretary during his absence. Under Section 2, the division
head shall act on the grievance within 5 days.
Grievants knew that division head was then "on leave" when they filed their grievance. This
knowledge, however, should not prevent the application of the CBA.
When Abad failed to act within the reglementary period, complainants, believing in good faith
that the effect of the CBA had already set in, cannot be blamed if they did not conduct ramp
inventory. It is hard to believe that everything under Abad's authority would have to stand still
during his absence from office. Someone has to be left to attend to Abad's duties. This may be a
product of inadvertence on the part of PAL management, but certainly, complainants should not
be made to suffer the consequences. Grievance of employees is not a matter which requires the
personal act of Mr. Abad and thus could not be delegated. PAL could at least have assigned an
officer-in-charge to look into the grievance and possibly make his recommendation to Mr. Abad.
It is of no moment that Mr. Abad immediately looked into the grievance upon returning to work,
for it must be remembered that the grievants are workingmen who suffered salary deductions
and who rely so much on their meager income for their daily subsistence and survival. When
these employees first presented their complaint, PAL failed to act on it. It was only after a formal
grievance was filed and after Mr. Abad returned to work that PAL decided to turn an ear.
Grievance machinery was established for both labor and management as a vehicle to thresh out
whatever problem may arise in the course of their relationship, every employee is duty bound to
present the matter before the management and give the latter an opportunity to impose
whatever corrective measure is possible.
C. CONTRACT DURATION AND RENEWALS
Art. 253-A Terms of a collective bargaining agreement.
POLITICAL ASPECT:
Any Collective Bargaining Agreement that the parties may enter
into shall, insofar as the representation aspect is concerned,
-be for a term of five (5) years.
No petition questioning the majority status of the incumbent bargaining agent shall be
entertained and no certification election shall be conducted by the DOLE
-outside of the sixty-day period immediately before the date of the expiry of such five year
term of the Collective Bargaining Agreement.
ECONOMIC ASPECT: All other provisions of the CBA shall be renegotiated not later than
three (3) years after its execution.
Any agreement on such other provisions of the CBA entered into within six months from the
expiry of the term of such other provisions as fixed in such CBA, shall retroact to the day
immediately following such date.
If any such agreement is entered into beyond six months, the parties shall agree on the
duration of the retroactivity thereof, In case of a deadlock in the renegotiation of the CBA, the
parties may exercise their rights under this Code.
Book V Rule XVI Sec. 3: Terms of collective bargaining agreement--REPRESENTATION ASPECT:
The representation status of the incumbent exclusive collective bargaining representative which
is a party to a duly registered collective bargaining agreement shall be for a term of 5 years.
No petition questioning the majority status of the incumbent exclusive bargaining representative
shall be entertained
And no certification shall be conducted by the Department outside of the sixty-day period
immediately before the date of expiry of such five-year term.
NON-REPRESENTATION ASPECT:
All other provisions of said agreement shall, AS A MATTER OF RIGHT, be renegotiated not later
than three (3) years after its execution.
Any agreement on such other provisions shall retroact to the day immediately following such
date.
If any such provisions are entered into beyond six months, the parties shall agree on the
duration of retroactivity.
In case of a deadlock in the renegotiation, the parties may exercise their rights under the Code.
In the case of renegotiation, all requirements for registration prescribed under the two
immediately preceding sections shall be complied with, whichever is applicable, except payment
of the registration fee.
San Miguel Corp Employees Union v. Confesor , GR-111262 9/19/96
HELD: Article 253-A is a new provision. This was incorporated by Section 21 of Republic Act
No. 6715 (the Herrera-Veloso Law) which took effect on March 21, 1989. This new provision
states that the CBA has a term of five (5) years instead of three years, before the amendment of
the law as far as the representation aspect is concerned. All other provisions of the CBA shall be
negotiated not later than three (3) years after its execution.
The "representation aspect":
-refers to the identity and majority status of the union that negotiated the CBA as the
exclusive bargaining representative of the appropriate bargaining unit concerned.
"All other provisions"
-simply refers to the rest of the CBA, economic as well as non-economic provisions,
except representation.
Obviously, the framers of the law wanted to maintain INDUSTRIAL PEACE and stability by
having both management and labor work harmoniously together without any disturbance. Thus,
no outside union can enter the establishment within five (5) years and challenge the status of
the incumbent union as the exclusive bargaining agent.
Likewise, the terms and conditions of employment (economic and non-economic) can not be
questioned by the employers or employees during the period of effectivity of the CBA.
The CBA is a contract between the parties and the parties must respect the terms and
conditions of the agreement.
Notably, the framers of the law did not give a fixed term as to the effectivity of the terms and
conditions of employment. It can be gleaned from their discussions that it was left to the parties
to fix the period.
In the instant case, it is not difficult to determine the period of effectivity for the nonrepresentation provisions of the CBA. Taking it from the history of their CBAs, SMC intended to
have the terms of the CBA effective for three (3) years reckoned from the expiration of the old or
previous CBA which was on June 30, 1989.
2. Contract continues to have legal effects even after its expiry date, until a new CBA is
renegotiated and entered into. (Lopez Sugar Corporation vs. FFW)
4. Union A and Co. B concluded a CBA with a duration of 3 years. Upon the expiration of
the 3-year period, Co. B discontinued to benefits under the CBA. Is this legal?
No. Art. 253 requires the parties to keep the status quo and to continue in full force,
and effect until a new agreement is reached. (Alcantara)
Representation Aspect (60-day FREEDOM PERIOD)

Refers to the identity and majority status of the union that negotiated the CVA as the
exclusive bargaining representative
All other representations

Refers to the rest of the CVA, economic as well as non-economic EXCEPT representational
provisions
EFFECT OF EXPIRY
Pier 8 Arrastre v Confesor , 241 SCRA 294 (1995)
HELD: When there is a CBA, the duty to bargain collectively shall also mean that neither party
shall terminate nor modify such agreement during its lifetime. Either party can serve a written
notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It
shall be the duty of both parties to keep the status quo and to continue in full force and effect
the terms and conditions of the existing agreement during the 60-day period and/or until a new
agreement is reached by the parties. All other provisions of the CBA shall be renegotiated not
later than (3) years after its execution.
Any agreement entered into within six (6) months from the date of expiry of the term of such
other provisions as fixed in such CBA, shall retroact to the day immediately following such date.
If any such agreement is entered into beyond six months, the parties shall agree on the duration
of retroactivity.
Although a CBA has expired, it continues to have legal effects as between the parties until a
new CBA has been entered into. It is the duty of both parties to the CBA to keep the status quo,
and to continue in full force and effect the terms and conditions of the existing agreement during
the 60-day freedom period and/or until a new agreement is reached by the parties.
The legal effects of the immediate past CBA between company and union terminated, and the
effectivity of the new CBA began, only when Secretary resolved their dispute.
New Pacific Timber and Supply Co. Inc v. NLRC , 328 SCRA 404 (2000)
ISSUE: WON the terms of an existing CBA particularly as to the economic provisions, can be
extended beyond the three year period prescribed by law in the absence of a new agreement?
HELD: Until a new CBA has been executed by and between the parties, they are duty bound to
keep the status quo and to continue in full force and effect the terms and conditions of the
existing agreements.
The law does not provide for an exception nor qualification as to which of the economic
provisions of the existing agreements are to retain force and effect, therefore it encompasses all
provisions.
The New CBA is given PROSPECTIVE effect generally since 253 and 253-A provides for an
automatic renewal clause in existing CBAs.
PURPOSE: To avoid creating a gap during which no agreement would govern. Better for
industrial peace if effectivity of the CBA is longer.
D. CBA AND 3RD PARTY APPLICABILITY
Unless expressly assumed, labor contracts such as employment contracts and CBAs
are not enforceable against a transferee of an enterprise, labor contracts being in personam,
thus binding only between parties. As a general rule, there is no law requiring a bona fide
purchaser of assets of an ongoing concern to absorb in its employ the EEs of the latter.
However, although the purchaser of the assets or enterprise is not legally bound to absorb in its
employ the EEs of the seller of such assets or enterprise the parties are liable to the EEs if the
transaction between the parties is colored or clothed with bad faith. (ALU vs. NLRC)
A labor contract merely creates an action in personam and does not create any real right
which should be respected by 3rd parties.
An innocent transferee of a business establishment has no liability to the EEs of the
transferor to continue employing them.
Sundowner Devt. Corp. v Drilon (180 SCRA 14) 1989
HELD: Labor contracts such as employment contracts and CBAs are not enforceable against a
transferee of an enterprise, labor contracts being in personam, thus binding only between the
parties.
A labor contract merely creates and action in personam and does not create any real right
which should be respected by third parties. This conclusion draws its force from the rights of an
employer to select his employees and to decide when to engage them.
The same can only be restricted by law through the exercise of police power. There is no law
requiring a bona fide purchaser of assets of an on-going concern to absorb in its employ the
employees of the latter.
However, although the purchaser of the assets or enterprise is not legally bound to absorb in its
employ the employers of the seller of such assets or enterprise, the parties are liable to the
employees if the transaction between the parties is colored or clothed with bad faith. In the CAB,
it is undisputed that when Mabuhay surrendered the leased premises to Syjuco and asked
Syjuco to offer same to other lessees it was Syjuco who found Sundowner and persuaded to
lease said premises. Mabuhay had nothing to do with the negotiations and consummation of
the lease contract bet Sundowner and Syjuco.
Manlimos v. NLRC , 242 SCRA 145 (1995)
We disagree with the Labor Arbiter's reliance on the case of Mobil Employees Association vs.
National Labor Relations Commission. The NLRC was correct in holding that Mobil was not
applicable because Mobil involved the termination of employment under Article 283 (before
Article 284) of the Labor code and not termination of employment as a result of the change of
corporate ownership, as in the case of private respondent Super Mahogany Plywood
Corporation. In Mobil, the original employer, Mobil Oil Philippines, Inc., completely withdrew
from business and was even dissolved.
In the case at bar, there was only a change of ownership of Super Mahogany Plywood
Corporation which resulted in a change of ownership. In short, the corporation itself, as a
distinct and separate juridical entity, continues to exist.
The issue of whether there was a closing or cessation of business operations which could have
operated as just cause for the termination of employment was not material. The change in
ownership of the management was done bona fide and the petitioners did not for any moment
before the filing of their complaints raise any doubt on the motive for the change.
On the contrary, upon being informed thereof and of their eventual termination from
employment, they freely and voluntarily accepted their separation pay and other benefits and
individually executed the Release or Waiver which they acknowledged before no less than a
hearing officer of the DOLE.
A change of ownership in a business concern is not proscribed by law. In Central Azaucarera
del Danao vs. Court of Appeals, this court stated:
There can be no controversy for it is a principle well-recognized, that it is within the employer's
legitimate sphere of management control of the business to adopt economic policies or make
some changes or adjustments in their organization or operations that would insure profit to itself
or protect the investment of its stockholders. As in the exercise of such management
prerogative, the employer may merge or consolidate its business with another, or sell or dispose
all or substantially all of its assets and properties which may bring about the dismissal or
termination of its employees in the process. Such dismissal or termination should not however
be interpreted in such a manner as to permit the employer to escape payment of termination
pay. For such a situation is not envisioned in the law. It strikes at the very concept of social
justice.
In a number of cases on this point, the rule has been laid down that the sale or disposition must
be motivated by good faith as an element of exemption from liability. Indeed, an innocent
transferee of a business establishment has no liability to the employees of the transferor to
continue employing them. Nor is the transferee liable for past unfair labor practices of the
previous owner, except, when the liability therefor is assumed by the new employer under the
contract of sale, or when liability arises because of the new owner's participation in thwarting or
defeating the rights of the employees.
Where such transfer of ownership is in good faith, the transferee is under no legal duty to
absorb the transferor's employees as there is no law compelling such absorption.
The most that the transferee may do, for reasons of public policy and social justice, is to give
preference to the qualified separated employees in the filling of vacancies in the facilities of
the purchaser.
E. CBA AND THE SEC. OF LABOR AND EMPLOYMENT
May the parties be required by the Sec. of Labor and Employment to execute a CBA
embodying terms and conditions that the latter may determine? Yes. This is pursuant to
the power of compulsory arbitration vested in the Secretary. (Art. 263)
Section 7. UNFAIR LABOR PRACTICE

7.1 INTRODUCTORY CONCEPTS
FOR A ULP TO EXIST THE FOLLOWING MUST CONCUR:
1. WHO IS THE ACTOR:
If under Art. 248: Employer
If under Art. 249: Labor Organization
Take note:
that a Labor Organization may commit a ULP under either 249 or 248. Since Art.
212e recognizes that there are times when a Labor Organization can be defined
as an employer if it is in relation to its own employees.
Thus if ULP committed against its own employees, the Labor Organization is
liable under Art. 248.
If Committed against it union members who are employees of a different
employer, it commits ULP under Art. 249.
2. What ACT was committed

These acts are enumerated under Art. 248 and 249
3. Was it directed against the right to self-organization and/or collective bargaining?
If yes, then it may be a ULP case.
If No, then it cannot be a ULP case.
Give the concept of unfair labor practice under the Labor Code :
Unfair labor practices (V-I-D-Hi)
1. Violate the constitutional right of workers and EEs to Self-organization
2. Are inimical to the legitimate interests of both labor and management, including their
right to bargain collectively and otherwise deal with each other in an atmosphere of
freedom and mutual respect.
3. Disrupt industrial peace.
4. Hinder the promotion of healthy and stable labor management relations.
ULP are not only violations of civil rights of both labor and management BUT are
also criminal offenses against the state
CIVIL ASPECTS of all cases involving ULP which may include claims for actual,
moral, exemplary and other forms of damages, attorneys fees and other affirmative
reliefs, shall be under the jurisdiction of labor arbiters
resolve cases within 30 days
Recovery of civil liability in the administrative proceedings shall bear recovery

under the civil code.(No double recovery)
No criminal proceeding may be instituted without a final judgment, finding that a

ULP was committed PROVIDED, HOWEVER, the final judgment in the administrative
proceedings shall not be binding in the criminal case nor be considered as evidence of
guilt BUT merely as proof of compliance of the required requirements.
Any allegation of ULP has to be proved by facts and evidence.
GPL Employees Union v. Great Pacific Life Assurance Corp. , 303 SCRA 113 (1999)
While an act or decision of an employer may be unfair, certainly NOT EVERY UNFAIR ACT or
decision constitutes unfair labor practice (ULP) as defined and enumerated under Art. 248 of the
Labor Code.
There should be no dispute that ALL the prohibited acts constituting unfair labor practice in
essence relate to the workers RIGHT TO SELF-ORGANIZATION.
Thus, an employer may be held liable under this provision if his conduct affects in whatever
manner the right of an employee to self-organize. The decision of respondent GREPALIFE to
consider the top officers of petitioner UNION as unfit for reinstatement is NOT essentially
discriminatory and constitutive of an unlawful labor practice of employers under the above-cited
provision.
Meaning of Discrimination
Discrimination in the context of the Code involves either encouraging membership in any labor
organization or is made on account of the employees having given or being about to give
testimony under the Labor Code. These have not been proved in the case at bar.
There can be NO discrimination where the employees concerned are not similarly situated. A
union officer has larger and heavier responsibilities than a union member. By committing
prohibited activities during the strike, de la Rosa as VP of Union demonstrated a higher degree
of imprudence and irresponsibility. Verily this justifies his dismissal.
Policy of the Labor Code
Since the objective of the Labor Code is to ensure a stable but dynamic and just industrial
peace, the dismissal of undesirable labor leaders should be upheld.
Regarding Management prerogative in relation to Discrimination
It bears emphasis that the employer is free to regulate all aspects of employment according to
his own discretion and judgment. This prerogative flows from the established rule that labor laws
do not authorize substitution of judgment of the employer in the conduct of his business. Recall
of workers clearly falls within the ambit of management prerogative.
The employer can exercise this prerogative without fear of liability so long as it is done in
1) GOOD FAITH for the advancement of his interest and
2) not for the purpose of defeating or circumventing the rights of the
employees under special laws or valid agreements.
It is valid as long as it is not performed in a malicious, harsh, oppressive, vindictive or wanton
manner or out of malice or spite. Readmitting the union members to the exclusion of Domingo
and de la Rosa was nothing less than a sound exercise of management prerogative, an act of
self-preservation in fact, designed to insure the maintenance of peace and order in the company
premises.
CONSTRUCTION
Caltex Filipino Managers and Supervisors Assn. v CIR (44 SCRA 350) 1972
HELD: It is imperative that in order to attain the laudable objectives of RA 875 calculated to
safeguard the rights of Ees, the provisions thereof should be liberally constructed in favor of the
EE and strictly against the ER, unless otherwise intended by or patent from the language of the
statute itself.
7.2 REQUISITE RELATIONSHIP
CONDITIONS PRECEDENT TO AN UNFAIR LABOR PRACTICE
What are the conditions precedent to an unfair labor practice charge?
1. The injured party comes within the definition of EE as that term is defined by the Code.
(EE-ER relationship exists)
2. The act charged as unfair labor practice must fall under Art. 248 or 249.
* There must be an employer-employee relationship.
American President Lines, Inc. v Clave (114 SCRA 826) 1982
HELD: Applying the Four Factors Test (selection and engagement, payment of wages, power of
dismissal, and control), there exists no ER-EE relation between APL and the individual
watchmen. It necessarily follows that the ER cannot be guilty of the ULP charge as under RA
875, such may occur only within the context of an ER-EE relationship.
This next case is an exception, the law created an artificial employer-employee relationship:
Phelps-Dodge Corp. v NLRB (313 U.S. 177) 1941

HELD: This case is an exception to the rule laid down in American President Lines, an ULP can
be committed outside the ER-EE relationship because the policy of the law is to foster
unionism.
The ultimate concern of the National Labor Relation Act was to claimant the causes of certain
substantial obstructions to the free flow of commerce. This vital national purpose was to be
accomplished by encouraging the practice and procedure of CB and by protecting the exercise
by workers of full freedom of association.
TAKE NOTE: The general rule is that for a ULP case to arise there must be an employeremployee relationship, but if the employer requires as a condition for
employment that the employees will NOT join the union, there is imposed an
artificial employee-employer relationship for the purposes of unfair labor practice.
This is to achieve the policy objectives of the law.
7.3 NO UNFAIR LABOR PRACTICE : ILLUSTRATIVE INSTANCES OF VALID
EXERCISE OF MANAGEMENT RIGHTS

PERSONNEL MOVEMENTS
1. As a rule, it is the prerogative of the company to promote, transfer or even demote its
EEs to the other positions when the interests of the company reasonably demand it.
Unless there are instances which directly points to interference by the company with the
EEs rights to self-organization, the transfer of an EE should be considered as within the
bounds allowed by law. (Rubberworld vs. NLRC)
2. 9 teachers were hired by a school on a yearly basis. The nine are members of a union.
After their 2nd yearly contract, the school refused to renew their contract on the ground
that their teaching performances were not satisfactory. Is the refusal unfair labor
practice?
No. The refusal was not by reason of their union membership but by reason of their
poor teaching performances. (Bilboso vs. Victorias Mining)
GRANT OF PROFIT-SHARING BENEFITS TO NON-UNION MEMBERS
It is the prerogative of management to regulate, according to its discretion and judgment,
all aspects of employment. Such management prerogative may be availed of without fear of any
liability so long as it is exercised in good faith for the advancement of the ERs interest and not
for the purpose of defeating or circumventing the rights of EEs under special laws or valid
agreement and are not exercised in a malicious, harsh oppressive, vindictive or wanton manner
or out of malice or spite. (Wise vs. Wise EEs Union)
FORCED VACATION LEAVE
The forced vacation leave without pay in view of the economic crisis, being neither
malicious, oppressive or vindictive, does not constitute unfair labor practice. (Philippine
Graphic vs. NLRC)
ISSUANCE OF RULES OR POLICY
Every business enterprise endeavors to increase its profits. In the process, it may adopt
or devise means designed towards that goal. (SMC vs. Ople)
TAKING ACTION AGAINST SLOWDOWN

EEs have the right to strike, but they have no right to continue working while rejecting
the standards desired by their ER. Hence, the ER does not commit as unfair labor practice by
discharging EEs who engaged in slowdown, even if their object is a pay increase and therefore
is lawful. (Azucena)
EE DISCIPLINE
The dismissal of a union member because of threats made against the life of the ER and
there being evidence that more active members of the union were retained is not an unfair labor
practice. (PTUC vs. CIR)
CLOSED SHOP AGREEMENTS
Dismissal of an EE upon demand of a union pursuant to a closed shop agreement is not
an unfair labor practice. (Lirag Textile vs. Blanco)
7.4 UNFAIR LABOR PRACTICE OF ERS

RESTRAINT, INTERFERENCE OR COERCION
Art. 248 : It shall be unlawful for the ER to interfere with, restrain or coerce EEs in the
exercise of their right to self-organization.
Take note: Comparing 248a with 249a: interfere does not constitute a ULP under 249a.
Art.255- Exclusive bargaining representation and workers participation in policy and
decision-making.The labor organization designated or selected by the majority of the employees in an
appropriate collective bargaining unit shall be the exclusive representative of the employees in
such unit for the purpose of collective bargaining. HOWEVER, an individual employee or group
of employees shall have the right at any time to present grievances to their employer.
Any provision of law not with standing, workers shall have the right, subject to such rules
and regulations as the Secretary of Labor and Employment may promulgate, to [participate in
policy and decision-making processes of the establishment where they are employed insofar as
said processes will directly affect their rights, benefits, and welfare. For this purpose, workers
and employers may form LABOR-MANAGEMENT COUNCILS:
Provided, that the
representatives of the workers in such labor management councils shall be elected by at least
the majority of all employees in said establishment.
(g)
(h)
Art.277- Miscellaneous provisions.The Ministry shall help promote and gradually develop, WITH THE AGREEMENT of
labor organizations and employers, LABOR MANAGEMENT COOPERATION
PROGRAMS at appropriate levels of the enterprise based on shared responsibility and
mutual respect in order to ensure industrial peace and improvement in productivity,
working conditions and quality of working life.
In establishments where no legitimate labor organization exists, LABOR-MANAGEMENT
COMMITTEES may be formed VOLUNTARILY by workers and employers for the
purpose of promoting industrial peace.
The Department of Labor and Employment shall endeavor to enlighten and educate the workers
and employers on their rights and responsibilities through labor education with emphasis on the
policy thrusts of this Code.
TAKE NOTE:
Interfere is defined in the dictionary as: to meddle, obstruct or hinder, to act in a way that
impedes or obstructs others, to enter into the concern of others.
The Labor Management Cooperation Programs and the Labor Management Committees could
not be considered as interference of employer with the right to self-organization since this
committees and programs are entered into VOLUNTARILY and WITH the AGREEMENT of the
Labor Union. Besides, the purpose of this committee and program is the promotion of industrial
peace.
1. Although experience has shown that certain forms of conduct, however disguised, either
directly or indirectly result in actual interference with or intimidation of EEs in exercising
their rights, to distinguish between culpable interference from an innocent and noninterfering course of conduct is often difficult. Interference with EE organizational rights
was found where the superintendent of the ER threatened the EEs with cutting their
pay; increasing rent of the company houses, or closing the plant if they supported the
union and where the ER encouraged the EEs to sign a petition repudiating the union.
(Azucena)
TOTALITY OF CONDUCT DOCTRINE

An ERs expression of opinion about unionization may or may not amount to ULP
depending on combination of circumstances.
The totality of conduct doctrine holds that the culpability of the ERs remarks is to be
evaluated not only on the basis of their implications, but against the background of
collateral circumstances. Under this doctrine, expressions of opinion by an ER, though
innocent in themselves, frequently are held to be culpable or objectionable because of
the circumstances under which they are uttered.
A. INTERROGATION
In order that questioning of an EE concerning his union activities would not be deemed
coercive, the ER must communicate to the EE the purpose of the questioning, assure him that
no reprisal would take place, and obtain his participation on a voluntary basis. In addition,
questioning must also occur in a context free from ER hostility to union organization and must
not itself be coercive in nature. (Id.)
Blue Flash Express, Inc. v. NLRB Ruling

When interrogation is conducted with the proper safeguards, the fact that it is systematic
does not impart a coercive power to the interrogation. The test is whether, under all
circumstances, the interrogation with the EEs in the exercise of rights guaranteed by the
act.
Note: Although this case marks an important departure from the previous practice in
rejecting the doctrine that interrogation per se is unlawful, and adopting the principle that
it is privileged:
1- when the purpose is legitimate
2- when accompanied by assurances against reprisal, and
3- when unaccompanied by other ULPs
Operating Engineers Local 49 v. NLRB Ruling

The board revised the Blue Flash test and announced the standards which may be used
as guidelines to determine whether a poll by the ER is lawful.
Absent unusual circumstances, the polling of EEs by an ER will be violative of Sec. 8(a)
(1) of the Act (prohibition on interference, restraint or coercion of EEs right to self
organization) unless the ffg safeguards are observed:
1the purpose of the poll is to determine the truth of a unions claim of
majority
2this purpose is communicated to the EEs
3assurances against reprisals are given
45-
the EEs are polled by secret ballot, and

the ER has not engaged in ULP or otherwise created a coercive
atmosphere.
B. PROHIBITING AND INTERFERING IN ORGANIZING ACTIVITIES

Give instances of unfair labor practice in the form of prohibitions against union
organizing activities :
1. Rule prohibiting solicitation of union membership in company property during nonworking and working time. (Id.) But if the prohibition is merely during working hours, this
is not unfair labor practice since the ER has the prerogative of promulgating rules and
enhance production within its premises during working hours. (Alcantara)
2. Dismissal of union members upon their refusal to give up their membership, under
pretext of retrenchment due to reduced dollar allocations. (Manila Pencil Co. vs. CIR)
3. Refusal over period of years to give salary adjustments according to improved salary
scales in the CBAs. (Benguet Consolidated vs. BCI EEs Union)
4. Dismissal of an old EE allegedly for inefficiency, on account of her having joined a union
and engaging in union activities. (East Asiatic vs. CIR)
5. Issuance of suspension and termination orders for EEs participating in a verification
election. (Gochangco Workers Union vs. NLRC)
6. Dismissal of EEs who refused to resign from their union and to affiliate with another one
which was formed at the instance of the ER. (Progressive Development vs. CIR)
7. C, the duly elected president of the union, was dismissed by the company for allegedly
threatening the lives of 4 EEs. It was however established that he was very active in
union affairs and that he was dismissed a day after his union sent collective bargaining
proposals to the company; and that C, had no reason to threaten the 4 EEs. (Royal
Undergarment vs. CIR)
8. Refusal to renew teaching contracts of teachers because of fear of the school that there
will be a strike the succeeding semester. (Rizal-Memorial Colleges Union vs. NLRC)
* an apprehension that there might be a future strike in the school is not a ground for dismissal
of the teachers
Insular Life Employees Association v. Insular Life Assurance Co. (37 SCRA 244) 1971
HELD: Free speech on both sides and for every faction on any side of the labor relation is to be
made a constitutional and useful right. Labor is free to turn its publicity on any labor oppression,
substandard wages or unfairness or objectionable working condition. The ER too, should be
free to answer and turn publicity on the records of leader of the union which seeks the
confidence of his men.
When Inapplicable
The protection of free speech is however, inapplicable where the expression of opinion by the
ER/agent contains a promise of benefit, threat or reprisal.
When the ER offered reinstatement and attempted to `bribe the strikers with comfortable cots,
free coffee, and occasional movies, OT pay for work performed in excess of 8 hours, and
arrangement for their families, so the would abandon their strike and return to work, it was in
fact engaged in strike breaking and /or union busting and consequently ULP.
The respondents contend that the sending of the letters, exhibits A and B, constituted a
legitimate exercise of their freedom of speech. We do not agree.
The said letters were directed to the striking employees individually by registered special
delivery mail at that without being coursed through the Unions which were representing the
employees in the collective bargaining.
ULP- Individual bargaining or communication: interference with the right of collective
bargaining:
"The act of an employer in notifying absent employees INDIVIDUALLY during a strike following
unproductive efforts at collective bargaining that the plant would be operated the next day and
that their jobs were open for them should they want to come in has been held to be an unfair
labor practice, as an ACTIVE INTERFERENCE with the right of collective bargaining through
dealing with the employees individually instead of through their collective bargaining
representatives." (31 Am. Jur. 563, citing NLRB v. Montgomery Ward & Co. [CA 9th] 133 F2d
676, 146 ALR 1045)
Indeed, it is an unfair labor practice for an employer operating under a collective bargaining
agreement to negotiate or to attempt to negotiate with his employees individually in connection
with changes in the agreement.
And the basis of the prohibition regarding individual bargaining with the strikers is that although
the union is on strike, the employer is still under obligation to bargain with the union as the
employees' bargaining representative (Melo Photo Supply Corporation vs. National Labor
Relations Board, 321 U.S. 332).
Examples of ULP
Indeed, some such similar actions are illegal as constituting unwarranted acts of interference.
1)
Thus, the act of a company president in writing letters to the strikers, urging their return
to work on terms inconsistent with their union membership, was adjudged as constituting
interference with the exercise of his employees' right to collective bargaining (Lighter
Publishing, CCA 7th, 133 F2d 621).
2)
It is likewise an act of interference for the employer to send a letter to all employees
notifying them to return to work at a time specified therein, otherwise new employees would be
engaged to perform their jobs.
3)
Individual solicitation of the employees or visiting their homes, with the employer or his
representative urging the employees to cease union activity or cease striking, constitutes unfair
labor practice.
Common element of above examples
All the above-detailed activities are unfair labor practices because they tend to undermine the
concerted activity of the employees, an activity to which they are entitled free from the
employer's molestation.
Moreover, since exhibit A is a letter containing promises of benefits to the employees in order to
entice them to return to work, it is not protected by the free speech provisions of the Constitution
(NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70). The same is true with exhibit B since it
contained threats to obtain replacements for the striking employees in the event they did not
report for work on June 2 1958.
The free speech protection under the Constitution is inapplicable
where the expression of opinion by the employer or his agent
contains a promise of benefit, or threats, or reprisal (31 Am. Jur.
544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs.
Goigy Co., 211 F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and attempted to "bribe" the strikers with
"comfortable cots," "free coffee and occasional movies," "overtime" pay for "work performed in
excess of eight hours," and "arrangements" for their families, so they would abandon the strike
and return to work, they were guilty of strike-breaking and/or union-busting and, consequently,
of unfair labor practice.
It is equivalent to an attempt to break a strike for an employer to offer reinstatement to striking

employees individually, when they are represented by a union, since the employees thus offered
reinstatement are unable to determine what the consequences of returning to work would be.
Other violations of right to self-organization:
Likewise violative of the right to organize, form and join labor organizations are the following
acts:
1)
the offer of a Christmas bonus to all "loyal" employees of a company shortly after the
making of a request by the union to bargain;
2)
wage increases given for the purpose of mollifying employees after the employer has
refused to bargain with the union, or for the purpose of inducing striking employees to
return to work;
3)
the employer's promises of benefits in return for the strikers' abandonment of their strike
in support of their union;
4)
and the employer's statement, made about 6 weeks after the strike started, to a group of
strikers in a restaurant to the effect that if the strikers returned to work, they would
receive new benefits in the form of hospitalization, accident insurance, profit-sharing,
and a new building to work in.
Even act of interference is ineffective, it is still a ULP:
The circumstance that the strikers later decided to return to work ostensibly on account of the
injunctive writ issued by the Court of First Instance of Manila cannot alter the intrinsic quality of
the letters, which were calculated, or which tended, to interfere with the employees' right to
engage in lawful concerted activity in the form of a strike. Interference constituting unfair labor
practice will not cease to be such simply because it was susceptible of being thwarted or
resisted, or that it did not proximately cause the result intended. For success of purpose is not,
and should not, be the criterion in determining whether or not a prohibited act constitutes unfair
labor practice.
TEST OF INTERFERENCE:
"The test of whether an employer has interfered with and coerced employees within the
meaning of subsection (a)
(1) is whether the employer has engaged in conduct which it may reasonably be said tends to
interfere with the free exercise of employees' rights under section 3 of the Act, and it is not
necessary that there be direct evidence that any employee was in fact intimidated or coerced by
statements of threats of the employer if there is a reasonable inference that anti-union conduct
of the employer does have an adverse effect on self-organization and collective bargaining."
(Francisco, Labor Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A., 1948, 170 F2d 735).
Discrimination in this case:
It is not denied that when the strikers reported for work on June 2, 1958, 63 members of the
Unions were refused readmission because they had pending criminal charges. However,
despite the fact that they were able to secure their respective clearances 34 officials and union
members were still refused readmission on the alleged ground that they committed acts inimical
to the Companies. It is beyond dispute, however, that non-strikers who also had criminal
charges pending against them in the fiscal's office, arising from the same incidents whence the
criminal charges against the strikers evolved, were readily readmitted and were not required to
secure clearances. This is a clear act of discrimination practiced by the Companies in the
process of rehiring and is therefore a violation of sec. 4 (a) (4) of the Industrial Peace Act.
The respondents did not merely discriminate against all the strikers in general.
They separated the active from the less active Unionists on the basis of their militancy, or lack of
it, on the picket lines. Unionists belonging to the first category were refused readmission even
after they were able to secure clearances from the competent authorities with respect to 'the
criminal charges filed against them. It is significant to note in this connection that except for one
union official who deserted his union on the second day of the strike and who later participated
in crashing through the picket lines, not a single union officer was taken back to work.
Discrimination undoubtedly exists where the record shows that the union activity of the rehired
strikers has been less prominent than that of the strikers who were denied reinstatement.
"So is there an unfair labor practice where the employer, although authorized by the Court of
Industrial Relations to dismiss the employees who participated in an illegal strike, dismissed
only the leaders of the strikers, such dismissal being evidence of discrimination against those
dismissed and constitution a waiver of the employer's right to dismiss the striking employees
and a condonation of the fault committed by them." (Carlos and Fernando, Labor and Social
Legislation, p. 62 citing Phil. Air Lines, Inc. v. Phil. Air Lines Employees Association, L-8197,
Oct. 31, 1958.).
"Delayed reinstatement is a form of discrimination in rehiring, as is having the machinery of
reinstatement in the hands of employees hostile to the strikers, and reinstating a union official
who formerly worked in a unionized plant, to a job in another mill, which was imperfectly
organized." (Morabe, The Law on Strikes, p. 473, citing Sunshine Mining Co. 7 NLRB 1252;
Cleveland Worsted Mills, 43 NLRB 545; italics supplied.)
Equally significant is the fact that while the management and the members of the screening
committee admitted the discrimination committed against the strikers, they tossed back and
around to each other the responsibility for the discrimination.
Thus, Garcia admitted that in exercising for the management the authority to screen the
returning employees, the committee admitted the non-strikers but refused readmission to the
strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella, chairman of the management's
screening committee, while admitting the discrimination, placed the blame therefor squarely on
the management (tsn., Sept. 20, 1960, pp. 7-8, 14-18). But the management, speaking through
the respondent Olbes, head of the Companies, disclaimed responsibility for the discrimination.
He testified that "The decision whether to accept or not an employee was left in the hands of
that committee that had been empowered to look into all cases of the strikers." (tsn., Sept. 6,
1962, p. 19.)
C. VIOLENCE OR INTIMIDATION
Violations have been found where the ER threatened EEs favoring the union with force
or violence. (Azucena) In another case, the ER was found guilty of unfair labor practice when 2
EEs were provoked into a fight by 2 recently hired EEs pursuant to a strategy of the company
designed to provide an apparent lawful cause for their dismissal and said dismissed EEs had
not figured in similar incidents before or violated companys rules in their many years with the
company. (Visayan Bicycle vs. NLU)
D. ESPIONAGE AND SURVEILLANCE
One form of pressure which some over-eager ERs sometimes use is the practice of
spying upon EEs. Inasmuch as the pressure results more from the EEs apprehension than
from the ERs purpose in spying, and the use of its results, it has been held to be no answer to a
charge of unfair labor practice that the fruits of espionage were not used. When an ER engages
in surveillance or takes steps leading his EEs to believe it is going on, a violation results
because the EEs come under threat of economic coercion or retaliation for their union activities.
(Azucena)
Insular Life EEs Association v. Insular Life Assurance Co. Ruling

Espionage by an ER of union activities or surveillance thereof, are instances of
interference, coercion or restraint of EEs in connection with the right to organize, join
and form unions as to constitute ULP. ULP is committed whether the espionage is
carried out by a professional labor spy or detective, official or supervisory EEs, or fellow
EEs at the request/direction of the ER, or an ex-EE.
E. ECONOMIC INDUCEMENTS
1. A violation results from an ERs announcements of benefits prior to a representation
election, where it is intended to induce the EEs to vote against the union. (Id.)
2. While a strike is going on, the president of the company sent each worker a letter stating
among others that if the latter returned to work, he can have his meals within the office,
make a choice whether to go home at the end of the day or to sleep nights at the office,
enjoy free coffee and occasional movies. Is the writing of the letter unfair labor practice?
Yes. The letter tends to undermine the concerted activity of the EEs, an activity
which they are entitled free from the ERs molestation. (Insular Life EEs
Association vs. Insular Life)
Insular Life EEs Assoc. v. Insular Life Assurance Co. Ruling

When the ER offered reinstatement and attempted to bribe the strikers with comfortable
cots, free coffee, and occasional movies, OT pay for work performed in excess of 8
hours, and arrangement for their families, so they would abandon their strike and return
to work, it was in fact engaged in strike breaking and/or union busting and consequently
ULP.
F. EXPRESSION OF ANTI-UNION OPINION

If the ER evinced willingness to be guided by and to accept the EEs choice, criticism or
depreciating remarks made by the ER concerning a particular labor union or labor unions
generally did not constitute an unfair labor practice, provided, of course, the remarks were not
so hostile as to evidence or produce a coercive or intimidating purpose or effect. (Azucena)
F.1 TOTALITY OF CONDUCT DOCTRINE
The culpability of ERs remarks were to be evaluated not only on the basis of their
implicit implications, but were the be appraised against the background for and in conjunction
with the collateral circumstances i.e. history of particular ERs labor relations or anti-union bias
or because of their connection with an established collateral plan of coercion or interference.
(Id.)
Visayan Bicycle Manu. Co. v. Natl Labor Union , 14 SCRA 5 (65)
Rothenberg has this to say:
". . . it can be established that the true and basic inspiration for the employer's act is derived
from the employee's union affiliations or activities, the assignment by the employer of another
reason, whatever its semblance or validity, is unavailing.
Thus, it has been held that the facts disclosed that the employer's acts in discharging
employees were actually prompted by the employer's improper interest in the affected
employee's union affiliations and activities, even though the employer urged that his acts were
predicated on economic necessity, desire to give employment to more needy persons, lack of
work, cessation of operations, refusal to work overtime, refusal of non-union employees to work
with union employees, seasonal lay-off, libelous remarks against management, violation of
company rules." (Rothenberg on Labor Relations, pp. 400-401; italics supplied.)
Translation: An employer may have a valid ground for termination under Art. 282 or the
companypolicies. Such act committed by the employee may be, standing alone, considered just
cause for termination. BUT if read with the circumstances and in light of unfair labor practice
and the right to elf-organize, it may be considered as an unfair labor practice even though only a
small connection exists.
TOTALITY RULE: One single act may be innocent if standing alone, but if the totality of
circumstance show that the employer was motivated by an unfair labor practice then a case for
ULP may arise.
TAKE NOTE: Effect or failure of the act is immaterial.
G. MASS LAY-OFF
1. A companys capital reduction efforts, a subterfuge, a deception, to camouflage the fact

that it has been making profits and to justify mass lay-off of its EE ranks, especially of
union members, were an unfair labor practice. (Madrigal and Company vs. Zamora)
2. There is unfair labor practice in the lay-off of a bank of 65 EEs who were active union
members allegedly by reason of retrenchment, although the bank was not suffering any
losses. (Peoples Bank vs. Peoples Bank EEs Union)
G. LOCKOUTS, CLOSURE
1. A lockout, actual or threatened, as a means of dissuading the EEs from exercising their
rights clearly an unfair labor practice. (Azucena)
2. An ER which closes its business to put an end to a unions activities and which made no
effort to allow the EEs attempt to exercise their right to self-organization and collective
bargaining commits unfair labor practice. (Sy Chi Junk Shop vs. Federacion Obrero
de la Industria)
3. Where there is a simulated sale as a device to merely get rid of the EEs who were
members of the union, the company is guilty of unfair labor practice. (Moncada Bijon
Factory vs. CIR) The acquiring company created to relieve the old company of its
obligations is liable for the old companys obligations. (PLASLU vs. Sy Indong) The
doctrine of piercing the veil of corporate identity will be utilized, to the effect, that the
separateness of corporate personality will be disregarded if it is being used to run away
from corporate obligations. (Delfin vs. Inciong)
H. RUN-AWAY SHOP
The transfer of an industrial plant from one location to another in order to discriminate
against EEs at the old plant because of their union activities. (Azucena)
Doctrine of SUCCESSOR EMPLOYER
The new company will be treated as a continuation or successor of the one that closed.
In such a case, the separated EEs will have to be employed in the new firm because in
the first place they should not have been separated at all.
I. REFUSAL TO HIRE STRIKING WORKERS
There is unfair labor practice in the refusal of ER to reinstate strikers who abandoned
their strike and who voluntarily and unconditionally offered to return to work. (Cromwell vs.
CIR)
YELLOW DOG CONTRACT
1. Art. 248 : It shall be unlawful for the ER to require as a condition of employment that a
person or an EE shall not join a labor organization or shall withdraw from one to which
he belongs.
2. What is a yellow dog contract? It is a promise exacted from workers a condition of
employment that they do not belong to, or attempt to foster, a union during their period of
employment. The typical yellow dog contract contains a representation by the EE that he
is not a member of a labor union and a promise by him not to join a labor union or upon
joining a union to quit his employment. (Alcantara)
3. X, a member of a union, applied for employment with Y Co. The union is not among the
unions in the bargaining unit. He was told by the personnel manager that he cannot be
employed unless he resigned from his union. X refuses to do so. He was not hired. Is
this unfair labor practice?
Yes. This is an example of an exaction of a yellow dog contract. The defense that X
is not yet an EE of Y is not tenable since the unfair labor practice covered by a
yellow dog contract may be committed against a prospective EE. (Alcantara)
CONTRACTING WORK OUT
1. Art. 248 : It shall be unlawful for an ER to contract out services or functions being
performed by union members when such will interfere with, restrain or coerce EEs in the
exercise of their rights to self-organization.
2. Shell dissolved its security guard section, transferred 18 guards to other departments
and eventually dismissed them, then contracted out to an independent security agency.
Such section was among the departments covered by the existing CBA. In the absence
of an express reservation in the CBA of Shells right to abolish the section, did the ER
commit unfair labor practice?
Yes. The dissolution of a section is a violation of the CBA, the terms of which cannot
be unilaterally disregarded by either party. Shell should have specifically reserved its
right to dissolve the section; a statement of management prerogatives couched in
general terms is not sufficient. (Shell Oil vs. Shell)
Contracting work out by an ER is a ULP when it is motivated by a desire to prevent his
EEs from organizing and selecting a collective bargaining representative.
COMPANY DOMINATED UNION
1. Art. 248 : It shall be unlawful for an ER to initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor organization, including the giving of
financial aid or other support to it or its organizers or supporters.
2. What are the various manifestations of domination of labor union?
a. Initiation of the company union idea.
This may further occur in 3 styles:
1- outright formation by the employer or his representatives;
2- employee formation on outright demand or influence by the ER;
3- managerially motivated formation by EEs
b. Financial support to the union.
An ER commits ULP if he defrays the union expenses or pays the fees of the
attorney who drafted the union expenses or pays the fees of the attorney who
drafted the unions constitution and by-laws.
c. ER encouragement and assistance
Immediately granting the union exclusive recognition as a bargaining agent
without determining majority representation.
d. Supervisory assistance
Solicitation of membership, permitting union activities during working time or
coercing EEs to join the union by threats of dismissal or demotion. (Philippine
American Cigarette Factory Union vs. Philippine American Cigarette
Factory)
DISCRIMINATION
1. Art. 248 : It shall be unlawful for an EE to discriminate in regard to wages, hours of
work, and other terms and conditions of employment in order to encourage or
discourage membership in any labor organization. [Discouraging membership in a labor
organization includes not only discouraging adhesion to union membership but also
discouraging participation in union activities such as a legitimate strike. (Azucena)]
2. Give some examples of discrimination resulting in unfair labor practices :
a. Discrimination in work quota between members and non-members of union.

(AHS/Philippines EEs Union vs. NLRC)
b. Discrimination in dissemination of bonus allocation of salary adjustments
between members and non-members of union contrary to previous practice of
dividing equally the percentage of net profits. (Manila Hotel vs. CIR)
c. Even where business conditions justified a lay-off of EEs, unfair labor practices
in the form of discriminatory dismissal were found where only unionists were
permanently dismissed while non-unionists were not. (Manila Pencil vs. CIR)
d. Discrimination in regularization between old EEs who were members of union
and new EEs who were non-members. The new EEs were immediately given
permanent appointments after their hiring. (Manila Railroad vs. Kapisanan ng
mga Manggagawa sa Manila Railroad)
e. Indirect discrimination i.e. the discharge of an EE due to the union activities of
wife, brother or husband. (Azucena)
3. What is the test of discrimination to be considered unfair labor practice? It is
necessary that the underlying reason for the discharge be established. The fact that a
lawful cause for discharge is available is not a defense where the EE is actually
discharge because of his union activities. If the discharge is actually motivated by a
lawful reason, the fact that the EE is engaged in union activities at the time will not lie
against the ER and prevent him from the exercise of his business judgment to discharge
an EE for cause. (Id.)
4. A company considers one factor for promotion the fact that an EE is Ilocano. Assuming
this is discriminatory, is this unfair labor practice?
No. Only such act as would interfere with the EEs right to self-organization,
encourage or discourage membership in a labor organization, or discriminate against
an EE of having given or being about to give testimony under the Code are
considered unfair labor practices. The said provisions, being penal in character,
should be strictly construed. (Alcantara)
Wise and Co. v. Wise and Co. Ees Union , 178 SCRA 536 (89)
HELD: There can be no discrimination committed by company as the situation of the union
employees are different and distinct from the non-union employees. Indeed, discrimination per
se is not unlawful. There can be no discrimination where the employees concerned are not
similarly situated.
The union can not claim that there is grave abuse of discretion by the company in extending the
benefits of profit sharing to the non-union employees as they are two (2) groups not similarly
situated. These non-union employees are not covered by the CBA. They do not derive and
enjoy the benefits under the CBA.
The grant by the company of profit sharing benefits to the employees outside the "bargaining
unit" falls under the ambit of its managerial prerogative.
It appears to have been done in good faith and without ulterior motive. More so when as in this
case there is a clause in the CBA where the employees are classified into those who are
members of the union and those who are not.
In the case of the union members, they derive their benefits from the terms and conditions of the
CBA contract which constitute the law between the contracting parties. Both the employer and
the union members are bound by such agreement.
*** The Professor criticizes the practice of extending the benefits of a CBA to non-union
members outside the appropriate bargaining unit because it has a chilling effect on the union.
In the Wise case, the company extended the profit sharing benefit in CBA to those outside its
coverage.
Discrimination
Sweepstakes Staff Personnel Ruling
PCSO
Assoc.
of
Under RA 875, an ER commits an ULP when it discriminates against a labor union in

favor of another. Discriminatory acts under the applicable law are not limited to hiring or
tenure but extend to terms and conditions of employment. An ER can discriminate in
favor of a union, even if it were not company dominated. Discriminatory acts can be
effected against a union itself. Since the PCSO extended privileges and concessions to
the PCSSU while denying the same privileges and concessions to the respondent union
at a time when neither union had been recognized as sole bargaining representative.
VALID DISCRIMINATION: UNION SECURITY

CLAUSE
Union security clause is any form of agreement which imposes upon EEs the obligation
to acquire or retain union membership, otherwise their employment will be terminated.
The objective is to assure continued existence of the union through enforced
membership. In a sense, there is discrimination when certain employees are obliged to
join a particular union. But is discrimination favoring unionism; it is a valid kind of
discrimination.
VIOLATION OF DUTY TO BARGAIN

1. Art. 248 : It shall be unlawful for an ER to violate the duty to bargain collectively as
prescribed by this Code.
2. While the law does not compel the parties to reach an agreement, it does contemplate
that both parties will approach the negotiation with an open mind and make reasonable
effort to reach a common ground of agreement. (Kiok Loy vs. NLRC)
3. ALU was certified as the bargaining agent of Balmar Farms. Balmar subsequently
received a letter by the president of the union of its workers that they wanted to
negotiate directly with the company and not through ALU. Because of this, Balmar
refused to negotiate with ALU. Is this unfair labor practice?
Yes. ALU has been certified as the exclusive bargaining agent, and it is not for
Balmar to question which group is the bargaining representative of its workers.
(Balmar farms vs. NLRC)
A ULP is committed when it is shown that the ER, after having been served with a
written bargaining proposal did not even bother to submit a reply.
TESTIMONY OF EE
Art. 248 : It shall be unlawful for an ER to dismiss , discharge or otherwise prejudice or
discriminate against an EE for having given or being about to give testimony under this Code.
NEGOTIATION OR ATTORNEYS FEES
Art. 248 : It shall be unlawful for an ER to pay negotiation of attorneys fees to the union or its
officers or agents as part of the settlement of any issue in collective bargaining or any other
dispute.
VIOLATION OF CBA
1. Art. 248 : It shall be unlawful for an EE to violate a CBA.
2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer
be treated an unfair labor practice and shall be resolved as grievances under the CBA.
7.5 UNFAIR LABOR PRACTICE OF LABOR ORGANIZATIONS
RESTRAINT OR COERCION BY LABOR ORGANIZATION
1. Art. 249 : It shall be unfair labor practice for a labor organization to restrain or coerce
EEs in the exercise of their right to self-organization.
However, a labor organization shall have the right to prescribe its own rules with respect to the
acquisition or retention of membership.
TAKE NOTE:
Interfere is not included as an act of ULP under 249a because a labor organization shall have
the right to prescribe its own rules with respect to the acquisition or retention of membership.
2. The provision is violated by a unions restraining or coercing an EE in the exercise of his

right to refuse to participate or recognize a strike i.e. blocks their ingress and egress
from the plant or damages their automobiles. (Azucena)
DISCRIMINATION
1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to
cause an ER to discriminate against an EE, including discrimination against an EE with
respect to who, membership in such organization has been denied or to terminate an EE
on any ground other than the usual terms and conditions under which membership is
made available to other members.
2. The union may not arbitrarily use the union security clause to unjustly discriminate
against non-members of the union. (Salunga vs. CIR)
3. Due to negligence of a mother federation in attending to a case filed by its local against
the ER, 32 out of the 36 members of the local union signed a resolution of disaffiliation
from the mother federation. The federation demanded dismissal of the union members
pursuant to the maintenance of membership clause in the CBA. Thereafter, the union
members were dismissed. Is there unfair labor practice?
Yes. The union members were dismissed by reason of their freedom to disaffiliate.
(Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills)
4. What is the liability of the ER and the mother federation? The companys liability
should be limited to reinstatement considering that the dispute revolve around the
mother federation and its local. The mother federation at whose instance the workers
were dismissed, should be held liable for payment of backwages. (Id.)
REFUSAL TO BARGAIN
Art. 249 : It shall be unfair labor practice for a labor organization to violate the duty, or refuse to
bargain collectively with the ER, provided
it is the representative of the EEs.
FEATHERBEDDING AND MAKE-WORK ARRANGEMENTS
1. Art. 249 : It shall be unfair labor practice for a labor organization to cause or attempt to
cause an ER to deliver or agree to pay or deliver any money or other things of value, in
the nature of an exaction, for services which are not performed or not to be performed
including the demand for free for union negotiations.
2. Define FEATHERBEDDING : Name given to EE practices which create or spread

employment by unnecessarily maintaining or increasing the number of EEs used, or
the amount of time consumed to work on a particular job. (Azucena)
3. A union in a company declares a strike to compel the ER to assign 2 checkers to 1
container. If it can be established that only 1 checker is needed for a container, has the
union committed in unfair labor practice?
Yes. The union is guilty of featherbedding.
NEGOTIATION FEES
Art. 249 : It shall be unfair labor practice for a labor organization to ask for or accept
negotiations or attorneys fees from the ERs as part of the settlement of any issue in collective
bargaining or any other dispute. Sweetheart Contract
VIOLATION OF CBA
1. Art. 249 : It shall be unfair labor practice for a labor organization to violate a CBA.
2. Art. 261 : Violations of a CBA, except those which are gross in character, shall no longer
be treated as unfair labor practice and shall be resolved as grievances under the CBA.
{Gross Violations of a CBA] Flagrant and/or malicious refusal to comply with the
economic provisions of such agreement. (Alcantara)
7.6 ENFORCEMENT, REMEDIES AND SANCTIONS
PARTIES LIABLE FOR ACTS
1. Who may commit an unfair labor practice? The ER or a labor organization may
commit unfair labor practices. (Id.)
2. In case the ER committing the unfair labor practices is a corporation, association
or partnership, who may be held criminally liable? Only the officers and agents of
corporations, associations or partnerships who have actually participated in, authorized
or ratified the unfair labor practices shall be held criminally liable. (Art. 248)
3. Who may be held criminally liable for the unfair labor practices committed by
labor unions? Only the officers, members of governing boards, representatives or
agents or members of labor associations or organizations who have actually participated
in, authorized or ratified the unfair labor practices shall be held criminally liable. (Art.
249)
PROSECUTION AND PRESCRIPTIVE PERIOD
A. CIVIL ASPECT
1. Art. 247 : Subjects to the exercise by the President or by the Secretary of Labor and
Employment of the powers vested in them by Arts. 263 and 264 of this Code, the civil
aspects of all cases involving unfair labor practices which may include claims for actual,
moral, exemplary and other forms of damages, attorneys fees and other affirmative
relief, shall be under the jurisdiction of the Labor Arbiters.
The Labor Arbiters shall revolve such cases within 30 days from the time they are
submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery under the
Civil Code.
2. Art. 290 : All unfair labor practices shall be filed with the appropriate agency within 1
year from the accrual of such unfair labor practice, otherwise, they shall be forever
barred.
B. CRIMINAL ASPECT
1. Art. 247 : No criminal prosecution may be instituted without a final judgment finding that
an unfair labor practice was committed, having been first obtained in the administrative
proceedings. During the pendency of the administrative proceeding, the running of the
period of prescription of the criminal offense herein penalized shall be considered
interrupted. The final judgment in the administrative proceeding shall not be binding in
the criminal case nor be considered as evidence of guilt but merely as proof of
compliance of the requirements therein set forth.
2. Art. 290 : All unfair labor practices shall be filed with the appropriate agency within 1
year from the accrual of such unfair labor practice, otherwise, they shall be forever
barred.
3. Art. 228 : The criminal charge shall fall under the concurrent jurisdiction of the Municipal
or regional trial Court.
4. When is an unfair labor practice deemed to be purely an administrative offense
and not a criminal act? When the acts complained of hinges on a question of
interpretation or implementation of ambiguous provisions of an existing CBA. (Art. 288)
COMPROMISE
Unfair labor practice is not subject to compromise. (Gochangco Workers Union vs. NLRC)
AFPMBAI v. AFPMBAIEU (97 SCRA 715) 1980
HELD: Quitclaims and releases executed by EES do not estop them from pursuing their claims
arising from the ULP of the ER. The basic reason is that such quitclaims are against public
policy and therefore, null and void. Since the dismissal of the EES constituted ULP, it is
immaterial whether some have executed quitclaims or not. The acceptance of termination pay
does not divest the laborer of the right to prosecute his ER for ULP. The reason is that the EE is
placed in a position where he needs to have money, a case of adherence not of his choice. ULP
acts are beyond compromises such as quitclaims, releases and settlement.
Are the rules stated above abandoned in the case of Reformist Union?
No. Reformist is a case of compulsory arbitration.
Reformist Union v. NLRC , 266 SCRA 713 (1997)
The dispute or strike was settled when the company and the union entered into an agreement
on 19 January 1990 where the private respondents agreed to accept all employees who by
then, had not yet returned to work. By acceding to the peaceful settlement brokered by the
NLRC, the private respondents waived the issue of the illegality of the strike.
The very nature of compulsory arbitration makes the settlement binding upon the private
respondents, for compulsory arbitration has been defined both as "the process of settlement of
labor disputes by a government agency which has the authority to investigate and to make an
award which is binding on all the parties," and as a mode of arbitration where the parties are
"compelled to accept the resolution of their dispute through arbitration by a third party."
Clearly then, the legality of the strike could no longer be reviewed by the Labor Arbiter, much
less by the NLRC, as this had already been resolved. It was the sole issue submitted for
compulsory arbitration by the private respondents, as is obvious from the portion of their letter
quoted above. The case certified by the Labor Secretary to the NLRC was dismissed after the
union and the company drew up the agreement mentioned earlier. This conclusively disposed of
the strike issue.
The agreement entered into by the company and the union, moreover, was in the nature of a
compromise agreement, i.e., "an agreement between two or more persons, who for preventing
or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which
they agree on, and which everyone of them prefers to the hope of gaining, balanced by the
danger of losing."
Thus, in the agreement, each party made concessions in favor of the other to avoid a
protracted litigation.
While we do not abandon the rule that "unfair labor practice acts are beyond and outside the
sphere of compromises," the agreement herein was voluntarily entered into and represents a
reasonable settlement, thus it binds the parties.
On this score, the Labor Code bestows finality to unvitiated compromise agreements:
Art. 227.
Compromise agreements. Any compromise settlement, including those
involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the
Bureau or the regional office of the Department of Labor, shall be final and binding upon the
parties. The National Labor Relations Commission or any court shall not assume jurisdiction
over issues involved therein except in case of non-compliance thereof or if there is prima facie
evidence that the settlement was obtained through fraud, misrepresentation or coercion.
RELIEF IN UNFAIR LABOR PRACTICE CASES
What are the various forms of relief available in unfair labor practice cases?
1. Cease and Desist Order Order served upon such person requiring him to cease and
desist from such unfair labor practice.
2. Affirmative order Directing full reinstatement of EE with back pay.
3. Disestablishment Orders directing the ER to withdraw all recognition from a
company-dominated labor union and to disestablish the same.
4. Order to bargain Affirmative order to the respondent to bargain with the bargaining
agent.
PENALTIES
Art. 288 : Except as otherwise provided in this Code, or unless the acts complained of hinges
on a question of interpretation or implementation of ambiguous provisions of an existing CBA,
any violation of the provisions of this Code declared to be unlawful or penal in nature shall be
punished with
1. A fine of not less than P1,000.00 nor more than P10,000.00 or
2. Imprisonment of not less than 3 months or more than 3 years , or
3. Both such fine and imprisonment at the discretion of the court.
In addition to such penalty, any alien found guilty shall be summarily deported upon
completion of service of sentence.
Section. 8. UNION SECURITY

8.1 STATUTORY BASIS
Art. 248 : Nothing in this Code or in any other law shall stop the parties from requiring
membership in a recognized collective bargaining agent as a condition of employment, except
those EEs who are already members of another union at the time of the signing of the CBA.
8.2 TYPES UNION SECURITY PROVISIONS
What are the different types of union security arrangements?
1. Closed shop Agreement whereby an ER binds himself to hire only members of the
contracting union who must continue to remain members of the union in good standing
for the duration of the agreement as a condition for the continued employment.
2. Union shop One whereby an ER is permitted to employ a non-union-worker, but to
retain employment such worker must become a union member after some period and
maintain his membership therein in good standing for the duration of the agreement.
3. Maintenance of membership clause Does not require non-members to join the union
but provides that those who do join must maintain their membership for the duration of
the union contract, under penalty of discharge.
4. Agency shop An agreement whereby EEs must either join the union or pay to the
union as exclusive bargaining agent a sum equal to that paid by members.
PREFERENTIAL SHOP AGREEMENT

The ER agrees to give preference to the members of the bargaining union in hiring or
filing of vacancies and retention in case of lay-off.
The ER can hire in the open market if union members are not available
All things being equal, union members are given preference over non-union
members with regards to hiring.
Distinguish closed shop from union shop :

* Closed shop
The ER cannot hire any worker who is not a member of the contracting union.
Membership in the contracting union is a condition for employment and retention of
employment.
* Union shop
ER may hire worker who is not a member of the contracting union but the worker must
within a specified period after his employment become a member of the contracting
union.
Membership in the contracting union is a condition for continued employment.
Hiring
Union Shop
Closed Shop
Maintenance shop
Continued
Employment
Employees
have After some time,
access to labor employee must
market. Can be become a member
hired even if not
union member.
Employee must
become a member
at the time of hiring
Already a member
at the time of hiring
Must be a member
all through-out
Must maintain
membership,
otherwise it shall be
a ground for
termination
Ground for
Termination
If they employee
does not join the
union after a
reasonable time, it
will be grounds for
termination
After due process is
observed
If not a member at
anytime, grounds for
termination
observed
If disaffiliates from
union, grounds for
termination
observed
8.3 RATIONALE
The validity of a union security provisions is largely recognized; it is intended to make
the union strong so that true collective bargaining may be assured. Statutes recognizing the
validity of closed shop agreements have been justified on the basis of police power. The
recognition of the validity of such agreements has been held to be the most prized achievement
of unionism. (Juat vs. CIR)
RATIONALE-employee action
UST v. Bitonio , 318 SCRA 185 (1999)
Self-organization is a fundamental right guaranteed by the Philippine Constitution and the Labor
Code. Employees have the right to form, join or assist labor organizations for the purpose of
collective bargaining or for their mutual aid and protection.
Whether employed for a definite period or not, any employee shall be considered as such,
beginning in his first day of service, for purposes of membership in a labor union.
Corollary to this right is the prerogative not to join, affiliate with or assist a labor union.
Therefore, to become a labor union member, an employee must, as a rule, not only signify the
intent to become one, but also take some positive steps to realize that intent.
The procedure for union membership is usually embodied in the unions constitution and bylaws. An employee who becomes a union member acquires the rights and the concomitant
obligations that go with this new status and become bound by the unions rules and regulations.
Juat v. CIR , 15 SCRA 391 (1965)
A closed shop agreement has been considered as one form of union security whereby only
union members can be hired AND workers must remain union members as a condition of
continued employment.
RATIONALE CLOSED SHOP: The requirement for employees or workers to become
members of a union as a condition for employment redounds to the benefit and
advantage of said employees because by holding out to loyal members a
promise of employment in the closed-shop the union wields group solidarity.
In fact it is said that the closed-shop contract is the most prized achievement of
unionism.
To who is Closed-shop proviso of a CBA applicable?
Closed-shop proviso of a collective bargaining agreement entered into between an employer
and a duly authorized labor union is applicable not only to the employer and a duly
authorized labor union is applicable NOT ONLY to the (1) employees or laborers that are
employed AFTER the collective bargaining agreement was entered into. BUT ALSO to (2)
old employees who ARE NOT members of any labor union at the time the said collective
bargaining agreement was entered into.
In other words, if an employee or laborer is already a member of a labor union different from
the union that entered into a collective bargaining agreement with the employer providing for
a closed-shop, said employee or worker cannot be obliged to become a member of that
union which had entered into a CBA with the employer as a condition for his continued
employment.
Guijarno v. CIR , 52 SCRA 307 (1973)
GENERALLY: a state may NOT compel ordinary voluntary associations to admit thereto any
given individual, because membership therein may be accorded or withheld as a matter of
privilege.
EXCEPTION: The rule is qualified in respect of labor unions holding a monopoly in the
supply of labor, either in a given locality, or as regards a particular employer with which it
has a closed-shop agreement.
Consequently, it is well settled that such unions are NOT entitled to arbitrarily exclude
qualified applicants for membership, and a closed-shop provision would not justify the
employer in discharging, or a union in insisting upon the discharge of, an employee whom
he union thus refuses to admit to membership, without any reasonable ground thereof.
To further increase the effectiveness of labor organizations, a closed-shop has been
allowed.
8.4 VALIDITY OF AGREEMENT AND EFFECT ON FREEDOM OF CHOICE

A union security provision is not a restriction of the right of freedom of association
guaranteed by the Constitution. (Villar vs. Inciong)
valid exercise of police power
* a CLOSED SHOP provision in a CBA should not be applied retroactively
Villar v. Inciong , 121 SCRA 444 (1983)
A closed-shop is a valid form of union security, and a provision thereof in a collective bargaining
agreement is not a restriction of the right of freedom of association guaranteed by the
Constitution.
Where in a closed-shop agreement it is stipulated that union members who cease to be in good
standing shall immediately be dismissed, such dismissal does not constitute an unfair labor
practice exclusively cognizable by the CIR.
Malayang Samahan v. Ramos , 326 SCRA 428 (2000)
The reason behind the enforcement of union security clauses which is the sanctity and
inviolability of contracts cannot override ones right to due process.
8.5 CONTRACT DRAFTING AND INTERPRETATION OF PROVISIONS UNION
SECURITY
1. A CBA provides : The union shall have the exclusive right and privilege to supply the
company with laborers and the company agrees to hire only such persons who are
members of the union. If the union member is expelled, is the company obliged to
terminate the EEs employment?
No. The stipulation does not establish a closed-shop agreement : Dismissal pursuant
to a closed-shop clause must clearly appear in the CBA. (Confederated Sons of
Labor vs. Anakan)
2. A CBA provides : The ER agrees to employ only members in good standing of the union.
The ER, however, reserves its rights to accept or reject EEs where they fail to meet its
requirements. The ER agrees not to employ any new EE unless he is a member of good
standing of the union provided such new EE meets the qualifications required by the ER.
Is the ER obliged to terminate an expelled member of the union?
No. The contract does not clearly prescribe the period within which the EE must
remain a member of good standing of the union. And it is not clear that membership
in the union is a condition for continuation or retention of employment. Stipulations of
this nature are strictly construed; doubts are resolved against the existence of the
right to dismiss.
Rizal Labor Union v. Rizal Cement Co.
In order for an employer to be bound under a union security clause in the CBA, to dismiss an
employee for lack of or loss of union membership, the stipulation must be so clear and
unequivocal as to leave absolutely no room for doubt.
There must be a provision that union members must be in good standing to keep their job.
8.6 CLOSED SHOP AGREEMENT

1. When is a closed shop provision not applicable?
All EEs in the bargaining unit covered by a closed shop agreement are subject to its terms,
except:
a.
Any EE who at the time the closed shop agreement takes effect is a bona fide
member of a religious organization which prohibits its members from joining labor
unions on religious grounds (Victoriano vs. Elizalde Rope Workers Union)
b.
EEs already in the service and already members of a labor union or unions other
than the majority union at the time the closed shop agreement took effect. (Sta.
Cecilia Sawmills vs. CIR)
c.
Supervisors ineligible to join the majority union because of the membership

therein of EEs under their supervision. (BISCOM vs. PAFLU)
d.
EEs excluded from the closed shop by express terms of the agreement. These
exclusions applies to other types of union security arrangements, such as the agency
shop. (National Brewery and Allied Industries Labor Union vs. SMC)
2. X union has a CBA with Y. Co. which provides The Company undertakes not to employ
anyone who is not a member of the Union and to dismiss from employment any EE who
resigns or is expelled from the Union. Z, an EE, resigns from the union. By reason of
the agreement, he is dismissed. Is the dismissal valid?
Yes. His dismissal was effected pursuant to the closed shop provision of the CBA.
The validity of such provision is recognized. (Just vs. CIR)
3. Union A wins over Union B in a certification election, then enters into a CBA with the ER.
The CBA contained a closed shop provision. Is the ER obliged to dismiss the members
of union?
No. The closed shop agreement cannot be enforced against EEs who are already
members of another union at the time of the signing of the CBA. To compel the
members of a minority union to disaffiliate from their union and join the majority or
contracting union would render nugatory the right of the EEs to self-organization.
(Freeman Shirt vs. CIR)
4. The Bagong Buhay Union had with the Artex Development a CBA with a closed shop
stipulation. 3 of its members affiliated themselves with another union. When being
dismissed, they claimed they were unaware of the contents of the CBA. Is the
contention tenable?
No. Neither their ignorance, nor their dissatisfaction with the CBA would justify
breach thereof or the formation by them of a union of their own. A union member who
is employed under an agreement between the union and his ER is bound by the
provisions thereof. (Manalang vs. Artex Development)
A closed shop provision in a CBA should not be applied retroactivity
8.7 MAINTENANCE OF MEMBERSHIP

1. A CBA provides : Both parties agree that all EEs of the company who are already
members of the union at the time of the signing of this agreement shall continue to
remain members of the union for the duration of the agreement. 3 members of the union
resigned to join a new union. They were dismissed. Is their dismissal legal?
No. The contractual provision relied upon does not expressly provide that
membership in the union is a condition for continued employment in order that an ER
may be bound to dismiss EEs who does not maintain their membership in the union
is a condition for continued employment. In order that an ER may be bound to
dismiss EEs who do not maintain their membership in the union, the stipulation to
this effect must be so clear as to leave no room for doubt. An undertaking of this
nature is so harsh that it must be strictly construed and doubts must be resolved
against the existence of the right to dismiss. (Manila Cordage vs. CIR)
2. About 8 months after the execution of a CBA, some union members joined another
union and even filed a petition for certification election. As the CBA contained a
maintenance of membership clause the bargaining agent sought the dismissal of the
EEs. Is this valid?
Yes. The union members committed acts of disloyalty. When members seek the
destruction of the organization to which they belong, they forfeit their right to remain
as members. (Tanduay Distillery Union vs. NLRC)
3. Does the expiration of the CBA preclude the dismissal of the guilty unionmembers?
No. The expiration of the CBA did not cleanse from them from the acts of disloyalty.
They committed such acts while the CBA was in force. (Id.)
4. If the act of disloyalty was committed during the freedom period, could the union
security clause still be enforced?
No. The requirement for union members to maintain their membership is good
standing ceases to be binding during the 60-day freedom period immediately
preceding the expiration of the CBA. (Id.)
5. X union has a CBA with Y Co., containing a maintenance of membership clause. Due to
the refusal of Z to join it, X demanded the dismissal of Z pursuant to the clause. Is this
valid?
No. The maintenance of membership clause only applies to EEs who are members
of the contracting union at the time of the execution of the CBA and to those who
may thereafter on their own volition join the union. (Alcantara)
Although union security clauses are valid and enforceable, this does not erode the
fundamental requirement of DUE PROCESS
8.8 FINANCIAL SECURITY AGENCY SHOP

Art. 248 : EEs of an appropriate collective bargaining unit who are not members of the
recognized collective bargaining agent may be assessed a reasonable fee equivalent to the
dues and other fees paid by members of the recognized collective bargaining agent, if such
non-union members accept the benefits under the CBA. The individual authorization required
under Art. 242 of this Code shall not apply to the nonmembers of the recognized collective
bargaining agent.
CHECK-OFF: Art. 113 b:
No employer, in his own behalf or in behalf of any person, shall make any deduction from the
wages of his employees except: for union dues, in cases where the right of the worker of his
union to check-off has been recognized by the employer OR authorized in writing by the
individual worker concerned.
Art. 241 m,n,o:
m. The books of accounts and other records of the financial activities of any labor org shall be
open to inspection
-by any officer or member thereof
-during office hours;
n. No special assessment or other extraordinary fees may be levied upon the members of a
labor org:
-unless authorized by a written resolution
-of a majority of all the members of a general
membership meeting
-duly called for the purpose.
--
The secretary of the org shall record:

-the minutes of the meeting
-including the list of all members present,
-he votes cast,
-the purpose of the special assessment or fees and
-the recipient of such assessments or fees.
--
The record shall be attested to by the president. (No need to be

under oath)
o. Other than for mandatory activities under the Code,

no special assessments, atty.s fees, negotiation fees or any other extraordinary fees may
be checked off from any amount due to an employee
-without an individual written authorization duly signed by the Ee.
-The authorization should specifically state
-the amount,
-purpose and
-beneficiary of the deduction;
ABS-CBN SUPERVISORS EMPLOYEES UNION V. ABS-CBN , 1999
A check-off is a process or device whereby the employer, on agreement with the Union,
recognized as the proper bargaining representative, OR on PRIOR authorization from its
employees, deduct union dues or agency fees from the latters wages and remit them directly
to the union. Its desirability in a labor organization is quite evident. It is assured thereby of
CONTINOUS FUNDING. As this Court has acknowledged, the system of check-off is primarily
for the benefit of the Union and only indirectly, for the individual employees.
the legal basis of check-off is found in statutes or in contracts. The statutory limitation on checkoffs are found in Article 241 g : No officer, agent, or member of a labor organization shall collect
any fees, dues, or other contributions in its behalf or make any disbursement of its money or
funds unless he is duly authorized pursuant to its constitution and by-laws. etc. See also 241
m,n,o.
FROM PROFESSORS LECTURE
requisites so that special assessment for unions incidental expenses be valid
Article 241 speaks of three (3) requisites that must be complied with in order that the special
assessment for Unions incidental expenses, attorneys fees and representation expenses be
valid and upheld:
1.
authorization by a written of the majority of all the members at the general
meeting for that purpose.
2.
secretarys record of the meeting.
3.
Individual written authorization for check-off.
National Brewery and Allied Industries Labor Union v. SMC , 8 SCRA 805 (1963)
This case justifies the practice of charging AGENCY FEE to NON-UNION MEMEBERS who
benefit from the CBA negotiated by the representative union.
It is true, as the union claims, that whatever benefits the majority union obtains from the
employer accrue to its members as well as to non-members. But this alone does not justify the
collection of agency fee from non-members. For the benefits of a collective bargaining
agreement are extended to all employees regardless of their membership in the union because
to withhold the same from the non- members would be to discriminate against them.
(International Oil Factory Workers Union (FFW) v. Martinez, et al., G.R. No. L-15560, Dec. 31,
1960).
Moreover, when a union bids to be the bargaining agent, it voluntarily assumes the
responsibility of representing all the employees in the appropriate bargaining unit. That is why
Section 12 of the law states that "The labor organization designated or selected for the purpose
of collective bargaining by the majority of the employees in an appropriate collective bargaining
unit shall be the exclusive representative of all the employees in such unit for the purpose of
collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions
of employment."
The union's contention that non-members are "free riders" who should be made to pay for
benefits received by them is answered in the concurring opinion of Mr. Jenkin in the General
Motors case, supra at 498, thus: "This statement of the limits to permissible encouragement of
union membership restricts unions, in contractually guaranteeing their own financial security
against 'free riders,' to agreements of the type contemplated by Congress, i.e., 'permitted union
shop' or 'maintenance of membership contract,' both being agreements explicitly 'requiring
membership.' "
And now We come to the next point raised by the union, namely, that non-members should be
made to pay on the principle of quasi contract. The union invokes Article 2142 of the Civil Code
which provides that
"Certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasicontract to the end that no one shall be unjustly enriched or benefited at the expense of
another." (Italics ours)
But the benefits that accrue to non-members by reason of a collective bargaining agreement
can hardly be termed "unjust enrichment" because, as already pointed out, the same are
extended to them precisely to avoid discrimination among employees. (International Oil Factory
Worker's Union (FFW) v. Martinez, et al., G.R. No. L-15560, Dec. 31, 1960).
Besides, as the trial court held, there is no allegation in the complaint that the amount of P4.00
represents the expense incurred by the union in representing each employee. For the benefits
extended to non-members are merely incidental.
RATIONALE of agency fee: Lastly, it is contended that the collection of agency fee may be
justified on the principle of agency. In answer to this point, it may be
stated that when a union acts as the bargaining agent, it assumes
the responsibility imposed upon it by law to represent not only its
members but all employees in the appropriate bargaining unit of
which it is the agent. The Civil Code states that agency is
presumed to be for compensation unless there is proof to the
contrary. (Art. 1875). There can be no better proof that the agency
created by law between the bargaining representative and the
employees in the unit is without compensation than the fact that
these employees in the minority voted against the appellant union.
AGENCY FEE now has a statutory basis
Art. 248 e 2nd paragraph: employees of an appropriate bargaining unit who are not
members of the recognized collective bargaining agent mat be assessed a reasonable fee
equivalent to the dues and other fees paid by members of a recognized collective bargaining
agent, if such non-union member accepts the benefit under the CBA
Take note: In the case of agency fee, individual authorization not applied, or not required. This
is for practical reasons, because the law recognizes the extreme difficulty of imposing agency
fee on non-union members, more especially to members of rival unions.
AL Ammen Trans v Bicol Transportation Employees Mutual Association , 91 Phil 649
Check-off may be enforced:
1) with the consent of the employer
or
2) by authority in writing by the employees.
When the union and the employer agree, the attitude of the employees is immaterial.
When the employees duly authorize the check-off, as provided by the last clause, the
employer's consent is unnecessary and its recognition of the right is obligatory.
If this were not so, if in any case the employer's conformity were essential, it would have to be
concluded that the second clause is superfluous and meaningless, for the first clause already
provides for such conformity as a condition precedent.
On the economic and practical side, petitioner complains that the practice imposes an extra
burden on the employer. This alone is no reason for opposing the arrangement. Wage
increases, reduction of working hours, sick leave, hospitalization and other privileges granted to
the employed entail diminution of profits and additional duties and obligations to an extent much
greater than the inconvenience and additional expense involved in the adoption of the check-off
system. In fact, the circumstances of this case make said adoption more compelling than in
ordinary cases.
The petitioner is operating in four provinces comprising nearly the whole Bicol region. The
employees, the majority of whom are affiliates of the respondent labor union, are scattered
in these provinces. It is not difficult to see how much easier and less expensive it is for the
company to handle the collection of membership dues than it would be for individual
members to make remittances to their union's office, or for the union to send out collectors
in so wide a territory. The extra work and expense incurred by the company in deducting
from its employees' salaries the amounts the employees owe their union are small in
comparison with the savings in time and money by the union and the employees, savings
which can not fail to effect increased efficiency and redound to the benefit of the employer
itself in the long run. In the adjustment of industrial conflicts concessions have to be made
and some rights to be surrendered, or enforced if necessary in the interest of conciliation
and peace.
The system of check-off is avowedly primarily for the benefit of the union and only indirectly of
the individual laborers. However, the welfare of the laborers depends directly upon the
preservation and welfare of the union. It is the union which is the recognized instrumentality and
mouthpiece of the laborers. Only through the union can the laborers exercise the right of
collective bargaining and enjoy other privileges. Without the union laborers are impotent to
protect themselves against "the reaction of conflicting economic changes" and maintain and
improve their lot. To protect the interests of the union ought therefore to be the concern of
arbitration as much as to help the individual laborers.
8.9 LIABILITIES OF UNION AND ER
LIABILITY OF UNION TO PAY WAGES AND FRINGE BENEFITS OF ILLEGALLY
DISMISSED EE
Where the ER compelled the EE to go on forced leave upon recommendation of the
union for alleged violation of the EE of the closed shop agreement, the union is the party liable
to pay the wages and fringe benefits which the EE failed to receive. The ER would not have
compelled the EE were it not for the unions insistence. (Manila Mandarin EEs Union vs.
NLRC)
ER IN GOOD FAITH NOT LIABLE
Where the ER dismissed his EEs in the belief in good faith that such dismissal was
required by the closed shop provisions of the CBA with the union, he may not be ordered to pay
back compensation to such EEs although their dismissal is illegal. (NLU vs. Zip Venetian
Blind)
* although union security clauses are valid and enforceable, this does not erode the
fundamental requirements of due process
IMPLEMENTATION OBLIGATION AND LIABILITIES

Guijarno v. CIR
Union pays back wages for illegally dismissed employees due to its insistence.
Liberty Cotton Mills Workers Union v. Liberty Cotton Mills , 1979
Considering, however, that their dismissal was effected without previous hearing, and at the
instance of PAFLU, this mother federation should be, as it is hereby, held liable to the petitioners
for the payment of their back wages.
Tanduay v. NLRC
Union members cannot escape CBA they approved.
Carino v. NLRC , 1990
Turning now to the involvement of the Company in the dismissal of petitioner Cario, we note
that the Company upon being formally advised in writing of the expulsion of petitioner Cario
from the Union, in turn simply issued a termination letter to Cario, the termination being made
effective the very next day.
We believe that the Company should have given petitioner Cario an opportunity to explain his
side of the controversy with the Union. Notwithstanding the Union's Security Clause in the CBA,
the Company should have reasonably satisfied itself by its own inquiry that the Union had not
been merely acting arbitrarily and capriciously in impeaching and expelling petitioner Cario.
In Liberty Cotton Mills Worker's Union, et al v. Liberty Cotton Mills, et al. the Court held
respondent company to have acted in bad faith in dismissing the petitioner workers without
giving them an opportunity to present their side in their controversy with their own union.
"xxx
xxx
xxx
It is OUR considered view that respondent company is equally liable for the payment of
backwages for having acted in bad faith in effecting the dismissal of the individual petitioners.
Bad faith on the part of respondent company may be gleaned from the fact that the petitioner
workers were dismissed hastily and summarily. At best, it was guilty of a tortious act, for which it
must assume solidary liability, since it apparently chose to summarily dismiss the workers at the
union's instance secure in the union's contractual undertaking that the union would hold it "free
from any liability" arising from such dismissal.
xxx
xxx
xxx
While respondent company, under the Maintenance of Membership provision of the Collective
Bargaining Agreement, is bound to dismiss any employee expelled by PAFLU for disloyalty,
upon its written request, this undertaking should not be done hastily and summarily. The
company acted in bad faith in dismissing petitioner workers without giving them the benefit of a
hearing. It did not even bother to inquire from the workers concerned and from PAFLU itself
about the cause of the expulsion of the petitioner workers. Instead, the company immediately
dismissed the workers on May 29, 196 in a span of only one day stating that it had no
alternative but to comply with its obligation under the Security Agreement in the Collective
Bargaining Agreement, thereby disregarding the right of the workers to due process, selforganization and security of tenure.
xxx
xxx
xxx
The power to dismiss is a normal prerogative of the employer. However, this is not without
limitations. The employer is bound to exercise caution in terminating the services of his
employees especially so when it is made upon the request of a labor union pursuant to the
Collective Bargaining Agreement, as in the instant case. Dismissals must not be arbitrary and
capricious. Due process must be observed in dismissing an employee because it affects not
only his position but also his means of livelihood. Employers should therefore respect and
protect the rights of their employees, which include the right to labor. . . .
xxx
xxx
xxx"
In Manila Cordage Company v. Court of Industrial Relations, et al., 10 the Court stressed the
requirement of good faith on the part of the company in dismissing the complainant and in effect
held that precipitate action in dismissing the complainant is indication of lack of good faith.
xxx
xxx
xxx
The contention of the petitioners that they acted in good faith in dismissing the complainants
and, therefore, should not be held liable to pay their back wages has no merit. The dismissal of
the complainants by the petitioners was precipitate and done with undue haste. Considering that
the so-called 'maintainance of membership' clause did not clearly give the petitioners the right to
dismiss the complainants if said complainants did not maintain their membership in the Manco
Labor Union, the petitioners should have raised the issue before the Court of Industrial
Relations in a petition for permission to dismiss the complainants.
xxx
xxx
xxx"
We conclude that the Company had failed to accord to petitioner Cario the latter's right to
procedural due process. The right of an employee to be informed of the charges against him
and to reasonable opportunity to present his side in a controversy with either the Company or
his own Union, is not wiped away by a Union Security Clause or a Union Shop Clause in a CBA.
An employee is entitled to be protected not only from a company which disregards his rights but
also from his own Union the leadership of which could yield to the temptation of swift and
arbitrary expulsion from membership and hence dismissal from his job.
Section 9 : UNION CONCERTED ACTIVITIES

9.1 BASIS OF RIGHT TO ENGAGE IN CONCERTED ACTIVITIES
1. CONSTITUTION Article XIII, Sec 3: LABOR.
The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike IN ACCORDANCE
WITH LAW.
They shall be entitled to security of tenure, humane conditions of work, and a living wage. They
shall also participate in policy and decision-making processes affecting their rights and benefits
as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers
and the preferential use of voluntary modes in settling 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
labor to its just share in the fruits of production and the right of enterprises to reasonable
returns on investments, and to expansion and growth.
TAKE NOTE: The boxed portion above states the PURPOSE and MEANS test which is the
test for the legality of the strike.
PURPOSE: For purpose of enforcing right to
1) self-organization (strikes against ULP) and
2) collective bargaining and negotiations (economic strikes based on bargaining deadlock)
MEANS: Peaceful and in accordance with the law
2.
STATUTORY Art. 263 (b)
Workers shall have the right to engage in concerted activities for purposes of collective
bargaining or for their mutual benefit and protection.
The right of legitimate labor organizations to strike and picket and of employers to lockout,
CONSISTENT WITH THE NATIONAL INTEREST, shall continue to be recognized and
respected.
However, no labor union may strike and no employer may declare a lockout on grounds
involving inter-union and intra-union disputes.
TAKE NOTE: Observation: The right to strike is constitutionally guaranteed and also
statutorily guaranteed, while the right to lock-out is only statutorily guaranteed.
Even under the Labor Code, the Purpose and Means Test is also enunciated:
PURPOSE: Collective bargaining or (for their mutual aid and protection)
MEANS: Consistent with the National Interest.
LIMITATIONS: The Constitution and the Labor Code grudgingly grants the right to strike or
lock-out because among all the rights granted to the workers, the law sets
limitations for the exercise of the right. It is the most regulated activity.
Limitation by the Constitution:
Should be exercised IN ACCORDANCE WITH LAW.
Limitation set by the Labor Code:
Should be exercised CONSISTENT

NATIONAL INTEREST.
(read in relation to Art. 263 g)
Implication of the Limitation:
The joint coordinated activities may be forbidden or

restricted by law or by contract. (Ilaw at Buklod v. NLRC)
WITH
THE
Here is an example of a case wherein a strike is limited or forbidden by a provision of

law. This case involves a case of wage distortion.
Ilaw at Buklod v NLRC , 198 SCRA 586 (1991)
Among the rights guaranteed to employees by the Labor Code is that of engaging in concerted
activities in order to attain their legitimate objectives.
Article 263 of the Labor Code, as amended, declares that in line with "the policy of the State to
encourage free trade unionism and free collective bargaining, workers shall have the
right to engage in concerted activities for purposes of collective bargaining or for their mutual
benefit and protection." A similar right to engage in concerted activities for mutual benefit and
protection is tacitly and traditionally recognized in respect of employers.
The more common of these concerted activities as far as employees are concerned are:
a) strikes
the temporary stoppage of work as a result of an industrial or labor dispute;
b) picketing the marching to and from at the employer's premises, usually accompanied by
the display of placards and other signs making known the facts involved in a
labor dispute; and
c) boycotts the concerted refusal to patronize an employer's goods or services and to
persuade others to a like refusal.
On the other hand, the counterpart activity that management may licitly undertake is the
lockout the temporary refusal to furnish work on account of a labor dispute.
In this connection, the same Article 263 provides that the "right of legitimate labor organizations
to strike and picket and of employer to lockout, consistent with the national interest, shall
continue to be recognized and respected."
Test of legality
The legality of these activities is usually dependent on:
1) the legality of the purposes sought to be attained and
2) the means employed therefor.
It goes without saying that these joint or coordinated activities may be forbidden or restricted
by law or contract.
Restricted by law:
In the particular instance of "distortions of the wage structure within an establishment" resulting
from "the application of any prescribed wage increase by virtue of a law or wage order," Section
3 of Republic Act No. 6727 prescribes a specific, detailed and comprehensive procedure for the
correction thereof, thereby implicitly excluding strikes or lockouts or other concerted activities as
modes of settlement of the issue.
The legislative intent that solution of the problem of wage distortions shall be sought by
voluntary negotiation or arbitration, and not by strikes, lockouts, or other concerted activities of
the employees or management, is made clear in the rules implementing RA 6727 issued by the
Secretary of Labor and Employment pursuant to the authority granted by Section 13 of the Act.
Section 16, Chapter I of these implementing rules, after reiterating the policy that wage
distortions be first settled voluntarily by the parties and eventually by compulsory arbitration,
declares that, "Any issue involving wage distortion shall not be a ground for a strike/lockout."
Restricted by contract:
Moreover, the collective bargaining agreement between the SMC and the Union, relevant
provisions of which are quoted by the former without the latter s demurring to the accuracy of
the quotation, also prescribes a similar eschewal of strikes or other similar or related concerted
activities as a mode of resolving disputes or controversies, generally, said agreement clearly
stating that settlement of "all disputes, disagreements or controversies of any kind" should be
achieved by the stipulated grievance procedure and ultimately by arbitration. The provisions are
as follows:
The Union was thus prohibited to declare and hold a strike or otherwise engage in non-peaceful
concerted activities for the settlement of its controversy with SMC in respect of wage distortions,
or for that matter; any other issue "involving or relating to wages, hours of work, conditions of
employment and/or employer-employee relations."
The partial strike or concerted refusal by the Union members to follow the five-year-old work
schedule which they had therefore been observing, resorted to as a means of coercing
correction of "wage distortions," was therefore forbidden by law and contract and, on this
account, illegal.
BLT Bus Co. v. NLRC
HELD: The right to strike is one of the rights recognized and guaranteed by the constitution as
an instrument of labor for its protection against exploitation by management. By virtue of this
right, the workers are able to press their demands for better terms of employment with more
energy and persuasiveness, posing the threat to strike as their reaction to the employer's
intransigence.
History of Concerted Activities
Bisig ng Manggagawa v. NLRC
Strike has been considered the most effective weapon of labor in protecting the rights of
employees to improve the terms and conditions of their employment. It may be that in highly
developed countries, the significance of strike as a coercive weapon has shrunk in view of the
preference for more peaceful modes of settling labor disputes.
In underdeveloped countries, however, where the economic crunch continues to enfeeble the
already marginalized working class, the importance of the right to strike remains undiminished
as indeed it has proved many a time as the only coercive weapon that can correct abuses
against labor. It remains as the great equalizer.
In the Philippine milieu where social justice remains more as a rhetoric than a reality, labor has
vigilantly fought to safeguard the sanctity of the right to strike. Its struggle to gain the right to
strike has not been easy and effortless. Labor's early exercise of the right to strike collided with
the laws on rebellion and sedition and sent its leaders languishing in prisons. The spectre of
incarceration did not spur its leaders to sloth; on the contrary it spiked labor to work for its
legitimization. This effort was enhanced by the flowering of liberal ideas in the United States
which inevitably crossed our shores. It was enormously boosted by the American occupation of
our country. Hence, on June 17, 1953, Congress gave statutory recognition to the right to strike
when it enacted RA 875, otherwise known as the Industrial Peace Act.
For nearly two (2) decades, labor enjoyed the right to strike until it was prohibited on September
12, 1972 upon the declaration of martial law in the country. The 14-year battle to end martial
rule produced many martyrs and foremost among them were the radicals of the labor
movement.
It was not a mere happenstance, therefore, that after the final battle against martial rule was
fought at EDSA in 1986, the new government treated labor with a favored eye. Among those
chosen by then President Corazon C. Aquino to draft the 1987 Constitution were recognized
labor leaders like Eulogio Lerum, Jose D. Calderon, Blas D. Ople and Jaime S.L. Tadeo. These
delegates helped craft into the 1987 Constitution its Article XIII entitled Social Justice and
Human Rights. For the first time in our constitutional history, the fundamental law of our land
mandated the State to ".. guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the right to strike in
accordance with law."
This constitutional imprimatur given to the right to strike constitutes signal victory for labor. Our
Constitutions of 1935 and 1973 did not accord constitutional status to the right to strike. Even
the liberal US Federal Constitution did not elevate the right to strike to a constitutional level.
With a constitutional matrix, enactment of a law implementing the right to strike was an
inevitability. RA 6715 came into being on March 21, 1989, an intentional replication of RA 875.
In light of the genesis of the right to strike, it ought to be obvious that the right should be read
with a libertarian latitude in favor of labor. In the wise words of Father Joaquin G. Bernas, S.J., a
distinguished commissioner of the 1987 Constitutional Commission ". . . the constitutional
recognition of the right to strike does serve as a reminder that injunctions, should be reduced to
the barest minimum".
BLT Bus Co. v. NLRC
HELD: The strike is indeed a powerful weapon of the working class. But precisely because of
this, it must be handled carefully, like a sensitive explosive, lest it blow up in the workers' own
hands. Thus, it must be declared only after the most thoughtful consultation among them,
conducted in the only way allowed, that is, peacefully, and in every case conformably to
reasonable regulation.
Any violation of the legal requirements and strictures, such as a defiance of a return-to-work
order in industries affected with public interest, will render the strike illegal, to the detriment of
the very workers it is supposed to protect. Even war must be lawfully waged. A labor dispute
demands no less observance of the rules, for the benefit of all concerned.
POLICY STATEMENT
In line with the policy of the State to encourage free trade unionism and free collective
bargaining, workers shall have the right to engage in concerted activities for purposes of
collective bargaining or for mutual benefit and protection. A similar right to engage in concerted
activities for mutual benefit and protection is tacitly and traditionally recognized in respect of
ERs. (Ilaw at Buklod ng Manggagawa vs. NLRC)
9.2 STRIKE ACTIVITY
1. Define a strike. It is a temporary stoppage of work by the concerted action of EEs as a

result of an industrial or labor dispute. (Art. 212) A valid strike needs a labor dispute.
(Azucena)
Labor dispute Any controversy or matter concerning terms and conditions of
employment or the association of representation of persons in negotiation, fixing,
maintaining, changing or arranging the terms and conditions of employment, regardless of

whether or not the disputants stand in the proximate relations of ERs and EEs. (Art. 212)
IMPLICATION: An inter-union and intra-union cannot be a valid ground for a strike or
lock-out. Since a Labor dispute is technically defined under art. 212
> Absent a labor dispute there can be no concerted activities under the labor code.
Take note: welga ng bayan (political strike) is not a valid strike under the labor code since
no labor dispute is involved. A labor dispute is technically defined as to include controversies
or matters relating to terms and conditions of employment or representation issues. A welga
ng bayan for purpose of lowering oil price is not a valid strike under the labor code. (but may
be upheld as a valid exercise of speech, although employee may still suffer consequence of
abandonment of work.)
Exceptional case: Phil Blooming Mills case, not right to strike but freedom of expression.
Wage distortion issues are not also valid ground for a strike since the law provides for a
procedure to settle the problem. (Ilaw at Buklod case, see digest in this reviewer)
A labor dispute can nevertheless exist regardless of whether the disputants stand in the
proximate relation of ER and EE provided the controversy concerns, among others, the
terms and conditions of employment or a change or arrangement thereof. Put
differently, as defined by law, the existence of a labor dispute is not negatived by the fact
that the plaintiffs and defendants do not stand in the proximate relations of ER and EE.
(SMC employees Union vs. Bersamira, 186 SCRA 496 )
2. Fruit Canning Co. has been requiring workers to render overtime work of 5 hours
everyday for the past 6 months. Due to the refusal of the ER to stop this practice, all the
EEs refused to work overtime and left the plant after working 8 hours during the day.
They reported for the regular work schedule the following morning. Is this a strike?
Yes. It is a temporary stoppage of work by the concerted action of the EEs by
reason of a labor or industrial dispute. A labor dispute includes any controversy or
matter concerning terms and conditions of employment. (Alcantara)
3. The EEs due to a dispute involving wages worked for only 8 hours a day instead of 10
hours in accordance with a practice which had been followed for 5 years. Is the refusal
of the workers to adhere to the 10-hours work schedule a strike?
Yes. It is a limited or partial strike. (Id.)
RESTRICTION ON THE RIGHT TO STRIKE

1- It must result from an industrial or labor dispute
2- It must be consistent with the national interest
NATURE AND PURPOSE

A strike is coercive activity resorted to by laborers to 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 interrupted, mush less, paralyzed. Because of this threat or danger of
loss, the company gives in to the demand of the strikers, just so it can maintain continuity in
production. (Philippine Can Company vs. CIR)
TEMPORARY IN NATURE
IMPLICATION:
Employee-Employer relationship continues to exist, it is only at best

suspended. Mere participation in a strike in not a ground for termination.
EFFECT OF WORK RELATIONSHIP

EEs who go on strike do not quit their employment. It is a mere temporary stoppage of
work. The declaration of a strike does not amount to renunciation of the employment relation.
The relationship of ER and EE continues. (Rex Taxi vs. CIR) During a strike, the ER-EE
relationship is not terminated but merely suspended as the work stoppage is not permanent but
only temporary. The EEs status during a strike remains but the effects of employment are
suspended, hence, a striking EE, as a rule, is not entitled to his wage during a strike. (Azucena)
GROUNDS FOR STRIKING
A. ALLOWABLE STRIKES
Art. 263 (c)
1)
In cases of bargaining deadlock,(ECONOMIC STRIKES)
> the duly certified or recognized bargaining agent may file a notice of strike or the employer
may file a notice of lockout with the Department at least thirty (30) days before the intended date
thereof.
TAKE NOTE: Only a recognized bargaining agent may file a notice of strike regarding a
bargaining deadlock. Thus it implies that only a legitimate labor organization may
file such notice of strike.
2)
In cases of unfair labor practice,
> the period of notice shall be fifteen (15) days and in the absence of a duly certified or
recognized bargaining agent, the notice of strike may be filed by any legitimate labor
organization in behalf of its members.
TAKE NOTE: In absence of a bargaining agent, ONLY a legitimate labor organization may file.
Not just any labor organization. Another way the law encourages union
registration.
3)
Union Busting
> However, in case of dismissal from employment of union officers duly elected in accordance
with the union constitution and by-laws, which may constitute union busting where the existence
of the union is threatened,
> the 15-day cooling-off period shall not apply and the union may take action immediately.
TAKE NOTE: Concept of union busting is a technical definition. The following must concur:
1)
A union officer was dismissed from employment
2)
Such union officer was duly elected

Implication: An appointed union officer is not contemplated by this
provision.
3)
He was elected in accordance with the procedure prescribed in the

Constitution and By-laws of the Union. This means that he was VALIDLY
elected.
IMPLEMENTING RULES:
Grounds for strike and lockout. A strike or lockout may be declared in cases of:
1) bargaining deadlocks and
2) unfair labor practices.
Violations of collective bargaining agreement shall not be considered unfair labor practice and
shall not be strikeable.
EXCEPTION: except flagrant and/or malicious refusals to comply with its economic provisions.
These will be considered as a ULP which is a ground for striking.
> No strike or lockout may be declared on ground involving inter-union ad intra-union disputes
or on issues brought to voluntary or compulsory arbitration.
Sec. 2 Who may declare a strike or lockout. Any certified or duly recognized
bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor
practices. The employer may declare a lockout in the same cases. In the absence of a certified
or duly recognized bargaining representative, any legitimate labor organization in the
establishment may declare a strike but only on grounds of unfair labor practices.
B. PROHIBITED STRIKES
1)
Inter-union and intra-union disputes

> because no labor dispute is involved.
Art. 263 (b) : However, no labor union may strike and no employer may declare a lockout on
grounds involving inter-union and intra-union disputes.
2)
In an industry indispensable to the national interest, when already certified by

the Sec. Of Labor or President
Art. 263 (g) : When, in his opinion, there exists a labor dispute causing or likely to cause a
strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and
Employment may assume jurisdiction over the dispute and decide it or certify the same to the
Commission for compulsory arbitration.
Such assumption or certification shall have the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or certification order.
If one has already taken place at the time of assumption or certification, all striking or locked out
employees shall immediately return to work and the employer shall immediately resume
operations and readmit all workers under the same terms and conditions prevailing before the
strike or lockout. The Secretary of Labor and Employment or the Commission may seek the
assistance of law enforcement agencies to ensure compliance with this provision as well as with
such orders as he may issue to enforce the same.
3)
Did not bargain collectively, Did not file notice of strike or did not take strike vote
Art. 264. Prohibited activities.

(a) No labor organization or employer shall declare a strike or lockout without first having
bargained collectively in accordance with Title VII of this Book or without first having filed the
notice required in the preceding Article or without the necessary strike or lockout vote first
having been obtained and reported to the Department.
4)
When controversy submitted to compulsory arbitration or voluntary arbitration
Still under Art. 264

> No strike or lockout shall be declared after assumption of jurisdiction by the President or the
Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration
or during the pendency of cases involving the same grounds for the strike or lockout.
5)
When in an improved offer balloting, majority of union members accept the

improve offer
Art. 265. Improved offer balloting. - In an effort to settle a strike, the Department of Labor and
Employment shall conduct a referendum by secret balloting on the improved offer of the
employer on or before the 30th day of the strike.
When at least a majority of the union members vote to accept the improved offer, the striking
workers shall immediately return to work and the employer shall thereupon readmit them upon
the signing of the agreement.
In case of a lockout, the Department of Labor and Employment shall also conduct a referendum
by secret balloting on the reduced offer of the union on or before the 30th day of the lockout.
When at least a majority of the board of directors or trustees or the partners holding the
controlling interest in the case of a partnership vote to accept the reduced offer, the workers
shall immediately return to work and the employer shall thereupon readmit them upon the
signing of the agreement. (As amended by RA 6715)
6)
No strike, when law prescribes a procedure for settling the dispute or when
grievance procedure under CBA has not been exhausted yet
Ilaw at Buklod ng Manggagawa v. NLRC
The CBA clearly states that settlement of "all disputes, disagreements or controversies of any
kind" should be achieved by the stipulated grievance procedure and ultimately by arbitration.
The Union was thus prohibited to declare and hold a strike or otherwise engage in non-peaceful
concerted activities for the settlement of its controversy with SMC in respect of wage distortions,
or for that matter, any other issue "involving or relating to wages, hours of work, conditions of
employment and/or employer-employee relations." The partial strike or concerted refusal by the
Union members to follow the five-year-old work schedule which they had theretofore been
observing, resorted to as a means of coercing correction of "wage distortions," was therefore
forbidden by law and contract and, on this account, illegal.
This case is sort of an exception to the ruling above
Phil Metal Foundries v. CIR
It is admitted by petitioner that it accepted the invitation of Baylon for a grievance conference on
October 5, 1963. Yet, two hours after it accepted the letter of invitation, it dismissed Baylon
without prior notice and/or investigation. Such dismissal is undoubtedly an unfair labor practice
committed by the company.
Under these facts and circumstances, Baylon and the members of the Union had valid reasons
to ignore the schedule grievance conference and declared a strike. When the Union declared a
strike in the belief that the dismissal of Baylon was due to union activities, said strike was not
illegal.
It is not even required that there be in fact an unfair labor practice committed by the employer. It
suffices, if such a belief in good faith is entertained by labor, as the inducing factor for staging a
strike. The strike declared by the Union in this case cannot be considered a violation of the "no
strike" clause of the Collective Bargaining Agreement because it was due to the unfair labor
practice of the employer.
Moreover, a no strike clause prohibition in a Collective Bargaining Agreement is applicable only
to economic strikes.
The strike cannot be declared as illegal for lack of notice. In strikes arising out of and against a
company's unfair labor practice, a strike notice is not necessary in view of the strike being
founded on urgent necessity and directed against practices condemned by public.
AVOIDANCE OF STRIKES
1. Pacific measures must first be exhausted before strikes are to be declared. Strikes and
other coercive means of settling the dispute are deemed justified only when peaceful
alternatives have proved unfruitful in settling the dispute. (PHILMAROA vs. CIR)
2. The union sent demands for the dismissal of a foreman on grounds that he maltreated
an EE. The company refused to dismiss the foreman but reopened his case in the
fiscals office. Because of the companys refusal, the union went to strike. Is the strike
legal?
No. The demand for the dismissal had been accorded the attention it merited. (NLU
vs. CIR)
An agency that helps in avoiding strikes by exhaustion of pacific remedies/measure is

the NCMB
A dispute undergoing preventive mediation or arbitration cannot serve as a reason for

holding a strike or lockout
NO STRIKE CLAUSE IN CBA

Master Iron Labor Union v. NLRC
As this Court has held in Philippine Metal Foundries, Inc. vs. CIR (90 SCRA 135 [1979]), a nostrike clause in a CBA is applicable only to economic strikes.
Corollarily, if the strike is founded on an unfair labor practice of the employer, a strike declared
by the union cannot be considered a violation of the no-strike clause.
Is the No strike clause a valid stipulation in a CBA?
Yes. But it is applicable only to economic strikes.
What is an economic strike?
An economic strike is defined as one which is to force wage or other concessions from the
employer which he is not required by law to grant (Consolidated Labor Association of the
Philippines vs. Marsman & Co., Inc., 11 SCRA 589 [1964]).
In this case, the striking workers enumerated in their notice of strike the following grounds:
violation of CBA or the Corporation's practice of subcontracting workers; discrimination; coercion
of employees; unreasonable suspension of union officials, and unreasonable refusal to entertain
grievance.
Professor Perfecto Fernandez, in his book Law on Strikes, Picketing and Lockouts, states that
an economic strike involves issues relating to demands for higher wages, higher pension or
overtime rates, pensions, profit sharing, shorter working hours, fewer work days for the same
pay, elimination of night work, lower retirement age, more healthful working conditions, better
health services, better sanitation and more safety appliances.
The demands of the workers, being covered by the CBA, are definitely within the power of the
Corporation to grant and therefore the strike was not an economic strike.
PROTECTION OF STRIKE
What are the general protections of the right to strike?
The right to strike is given the following protections:
1. It is generally not subject to labor injunctions or restraining order. (Art. 254)
2. EEs may not be discriminated against merely because they have exercised the right to
strike. (Art. 248)
3. The use of strike breakers is prohibited. (Art. 264)
9.3 TYPES, CHANGES AND CONVERSION - STRIKES
DEFINITIONS
1. Economic strike Intended to forge wage and other concessions from the ER, which is
not required by law to grant. (Consolidated Labor Association vs. Marsman) Also
known as bargaining strikes.
2. Unfair labor practice strike Called against the unfair labor practices of the ER,
usually for the purpose of making him desist from further committing such practices.
(Azucena)
3. Sympathetic strike One in which the striking EEs have no demands or grievances of
their own, but strike for the purpose of property of directly or indirectly aiding others,
without direct relation to the advancement of the interest of the strikers. (Id.)
4. What are the tests in determining the existence of an unfair labor practice strike?
There are two tests in determining the existence of an unfair labor practice strike:
a. Objectively, when the strike is declared in protest of unfair labor practice which
is found to have been actually committed;
b. Subjectively, when a strike is declared in protest of what the union believed to
be unfair labor practices committed by management, and the circumstances
warranted such belief in good faith although subsequently as not committed. (Id.)
It is not required that there be as such in fact unfair practice committed by the
ER. It suffices if such a belief in good faith is entertained by labor as the inducing
factor for staging a strike. (Shell Oil Workers Union vs. Shell)
Violations of CBAs except flagrant and/or malicious refusal to comply with its
economic provisions shall not be considered unfair labor practice and shall not be
strikeable. (Sec. 1, Rule XIII, Book V, IRRs)
No strike clause-No lockout: Valid
applicable only to economic strikes not ULP strikes
CHANGE IN TYPE
An economic strike may be converted into an unfair labor practice strike, as when a
strike for greater benefits is called off in anticipation of negotiations and eventual agreement but
is resumed upon the commission by the ER of acts of discrimination against the leaders of the
strike. (Consolidated Labor Association vs. Marsman)
* An economic strike changes in character to one of an unfair labor practice from the time a
company refuses to reinstate some of its striking employees because of their union activities
after it had offered to readmit all the strikers and in fact did readmit the others (non-union
strikers).
May a strike be converted into a lock-out?
An economic strike changes in character to one for ULP from the time the company refuses to
reinstate some of its striking employees because of their union activities after it had offered to
readmit all the strikers and in fact did readmit the others (Consolidated Labor Association v.
Marsman and Co.)
NON-CONVERSION STRIKE TO LOCKOUT
A strike is not converted into a lockout by the filing of notice of offer to return to work
during pendency of dispute. (Rizal Cement Workers Union vs. CIR)
SYMPATHETIC STRIKE
Because a valid strike presupposes a labor dispute, it follows that a sympathetic strike is
illegal. (Azucena) ex. Welga ng bayan
Are work slowdowns also a form of strike?
Work slowdowns are an illegal strike. They are a strike on installment basis, were apparently a
pattern of manipulating production depending on whether the unions demand were met. (Phil
Thread Workers Union v. Confessor, supra)
> Slowdown is generally condemned as inherently illicit and unjustifiable, because while the
employer continues to work and remain at their position and accept the wages paid to them,
they at the same time select what part of their allotted task they want to perform to the
employers damage, they work on their own terms. (Ilaw at Buklod v. NLRC, supra)
9.4 LOCKOUT
DEFINITION
Define a lockout : Lockout means that temporary refusal to any ER to furnish work as a result
of an industrial or labor dispute. (Art. 212) It is an ERs act excluding EEs who are union
members from his business and factory premises. (Sta. Mesa Slipways vs. CIR) A valid lockout
needs a labor dispute. (Azucena)
NATURE AND PURPOSE
Lockout is recognized as a valid weapon of management in collective bargaining. It may
be declared to bring pressure upon the union, where a impasse has arisen during bargaining
negotiations or where the union commits unfair labor practices, subject to statutory
requirements. (Azucena)
EFFECT OF WORK RELATIONSHIP

Strike and lockout are similar in the sense that they connote temporary stoppage of
work. The relationship of ER and EE continues. (Id.)
9.5 LEGALITY OF STRIKE OR LOCKOUT
What are the 6 factors affecting the legality of strike or a lockout?
An illegal strike or lockout is one which :
1. Is contrary to a specific prohibition of law;
2. Violates a specific requirement of law;
3. Declared for an unlawful purpose
4. Employs unlawful means;
5. Declared in violation of an existing injunction;
6. Contrary to an existing agreement (Azucena)
CONTRARY TO SPECIFIC PROHIBITION OF LAW
Government EEs have the right to organize but they do not have the right to strike.
Since the terms and conditions of government EEs are fixed by law, government workers
cannot use the same weapons employed by workers in the private sector to secure concessions
from their EEs. (SSEA vs. CA)
Who may declare a strike or lockout ?
Any certified or duly recognized bargaining representative may declare a strike & the employer
may declare a lockout.
> In the absence of a certified or duly recognized bargaining representative, any legitimate
labor organization in the establishment may declare a strike BUT only on grounds of unfair labor
practices.
PROCEDURAL REQUIREMENTS
GENERALLY, the following are procedural requirements for a strike. They have been held to be
mandatory. Not following them has the consequence of declaring the strike an illegal one. (nfsw
vs. ovejera)
What are the procedural requisites for a strike to enjoy the protection of law?
1. A NOTICE OF STRIKE OR LOCKOUT with the required contents, should be filed with
the DOLE, specifically the regional branch of the National Conciliation and Mediation
Board, copy furnished the ER or the union, as the case may be. (Art. 263) [notice of
intent]
> Point where cooling-off period is counted from
2. A COOLING OFF PERIOD must be observed i.e. a time gap is required to cool off
tempers between the filing of notice and the actual execution of the strike or lockout; the
cooling off period is 30 days in case of bargaining deadlock and 15 days in case of unfair
labor practice. However, in cases of dismissal from employment of union officers duly
elected in accordance with the union constitution and by-laws, which may constitute
union busting where the existence of the union is threatened, the cooling off period need
not be observed. (Id.)
But strike vote is still conducted and the results submitted to the NCMB
3. During the cooling-off period, the NCMB mediates and conciliates the parties. They are
not allowed to do any act which may disrupt or impede the early settlement of the
dispute. A part of their duty to bargain, they are obliged to participate fully and promptly
in the NCMB meetings. (Id.)
4. Before a strike or lockout may actually be started, a STRIKE VOTE OR LOCKOUT
VOTE should be taken by secret balloting, with 24-hour prior notice to the NCMB. The
decision to declare a strike requires the secret ballot approval of the majority of the total
union membership in the bargaining unit concerned. Similarly, a lockout needs the secret
ballot concurrence of majority of the directors or partners. (Id.)
Purpose: So that there will be no wild card strike.
> Observe that not all members of an appropriate bargaining unit are to
participate in a strike vote. Only UNION member in such appropriate
bargaining unit. Non-union members are not included in strike votes.
Voting base: majority of the total union membership
5. The RESULT OF THE STRIKE OR LOCKOUT VOTE should be reported to the NCMB at
least 7 days before the intended strike or lockout, subject to the cooling off period. (Id.)
This is intended to give the DOLE an opportunity to verify whether the projected strike or
lockout really carries the imprimatur of the majority of union members or board of
directors, as the case may be. A strike or lockout held within 7-day waiting period is
plainly illegal. (Lapanday Workers Union vs. NLRC)
An NCMB primer indicates that the 7-day reporting period and the cooling off
period (if required) run separately and are counted separately
The 7 days are in addition to the 15 or 30 days cooling-off period
6. No strike or lockout may be declared on grounds involving inter-union and intra-union
disputes. (Id.)
7. No strike or lockout shall be declared without the labor organization or the ER first
having bargained collectively i.e. exhaustion of grievance procedure before declaration
of strike. (Art. 264)
8. No strike or lockout shall be declared after assumption of jurisdiction by the President of
the Secretary of Labor. (Art. 263)
9. No strike or lockout shall be declared after certification or submission of the dispute to

compulsory or voluntary arbitration, nor may a strike or lockout be declared during the
pendency of cases involving the same grounds for the strike or lockout. (Azucena)
10. Non-observance of procedural requirement makes strike illegal. (NFSW vs. Ovejera)
Only a LLO can legally hold a strike (ULP only not economic except if EBA)
Any certified or duly recognized bargaining representative may declare a strike
incase of bargaining deadlocks and ULPs. The ER may declare a lock out in the
same cases.
In the absence of a duly certified or duly recognized bargaining representative, any
LLO in the establishment may declare a strike but only on ground of ULP.
Under the law, the ff can declare a strike:
Certified Bargaining representative (The fact
that the union was certified means that it is a registered union can be certified)
2Duly recognized bargaining representative
(the union can either be registered or non-registered, as the ER may voluntarily
recognize it despite its not being registered)
3LLO (by definition, means a registered
union, but only in the absence of #1 or #2 and only on ULP)
1-
ununionized employees cannot hold a lawful work stoppage because only a

union can file a notice of strike and only a union can take a strike vote amoung its
members and then report its result to the NCMB.
Is there a cooling-off period for a UNION-BUSTING strike?
The Professor Dissini believes that the cooling-off period, as well as the seven day strike ban is
WAIVED in cases of UNION-BUSTING strike.
The reason for this is that the law provides for the word IMMEDIATELY. And the reason for the
law providing for the word immediately Is that because the existence of the union is threatened
by the dismissal of the union officer. If they still wait for the seven day or fifteen day period, the
union might not exist anymore to hold its strike.
Professor Azucena thinks otherwise. (I havent read professor Azcunea, but this is what my
professor says, when it comes to labor law and our exam, he is the boss!) Prof. Azucena
believes that even in Union-Busting strikes the seven-day strike ban period is still observed.
Immediately is interpreted in such a way that the 15-day cooling-off period for ULP will be
reduced to seven days.
National Federation of Sugar Workers (NSFW) vs. Ovejera [ May 31, 1982 ]
(a)
Language of the law. The foregoing provisions (Art. 264 and 265) hardly leave any
room for doubt that the cooling-off period in Art. 264(c) and the 7-day strike ban after the strikevote report prescribed in Art. 264(f) were meant to be, and should be deemed, mandatory.
When the law says "the labor union may strike" should the dispute "remain unsettled until the
lapse of the requisite number of days (cooling-off period) from the mandatory filing of the
notice," the unmistakable implication is that the union may not strike before the lapse of the
cooling-off period.
Similarly, the mandatory character of the 7-day strike ban after the report on the strike-vote is
manifest in the provision that "in every case," the union shall furnish the MOLE with the results
of the voting "at least seven (7) days before the intended strike, subject to the (prescribed)
cooling-off period." It must be stressed that the requirements of cooling-off period and 7-day
strike ban must both be complied with, although the labor union may take a strike vote and
report the same within the statutory cooling-off period.
If only the filing of the strike notice and the strike-vote report would be deemed mandatory, but
not the waiting periods so specifically and emphatically prescribed by law, the purposes
(hereafter discussed) for which the filing of the strike notice and strike-vote report is required
would not be achieved, as when a strike is declared immediately after a strike notice is served,
or when as in the instant case the strike-vote report is filed with MOLE after the strike had
actually commenced.
Such interpretation of the law ought not and cannot be countenanced. It would indeed be selfdefeating for the law to imperatively require the filing on a strike notice and strike-vote report
without at the same time making the prescribed waiting periods mandatory.
(b)
Purposes of strike notice and strike-vote report. In requiring a strike notice and a
cooling-off period, the avowed intent of the law is to provide an opportunity for mediation and
conciliation. It thus directs the MOLE "to exert all efforts at mediation and conciliation to effect a
voluntary settlement" during the cooling-off period.
So, too, the 7-day strike-vote report is not without a purpose. As pointed out by the Solicitor
General
"Many disastrous strikes have been staged in the past based merely on the insistence of
minority groups within the union. The submission of the report gives assurance that a strike vote
has been taken and that, if the report concerning it is false, the majority of the members can
take appropriate remedy before it is too late."
If the purpose of the required strike notice and strike-vote report is to be achieved, the periods
prescribed for their attainment must, as aforesaid, be deemed mandatory.
". . . when a fair interpretation of the statute, which directs acts or proceedings to be done in a
certain way, shows the legislature intended a compliance with such provision to be essential to
the validity of the act or proceeding, or when some antecedent and prerequisite conditions must
exist prior to the exercise of power or must be performed before certain other powers can be
exercised, the statute must be regarded as mandatory. So it has been held that, when a statute
is founded on public policy [such as the policy to encourage voluntary settlement of disputes
without resorting to strikes], those to whom it applies should not be permitted to waive its
provisions.
(c)
Waiting period after strike notice and strike-vote report, valid regulation of right to
strike. To quote Justice Jackson in International Union vs. Wisconsin Employment Relations
Board, 336 U.S. 245, at 259
"The right to strike, because of its more serious impact upon the public interest, is more
vulnerable to regulation than the right to organize and select representatives for lawful purposes
of collective bargaining . . ."
The cooling-off period and the 7-day strike ban after the filing of a strike-vote report, as
prescribed in Art. 264 of the Labor Code, are reasonable restrictions and their imposition is
essential to attain the legitimate policy objectives embodied in the law. We hold that they
constitute a valid exercise of the police power of the state.
(d) (I omitted paragraph d para mabawasan yung binabasa niyo)
(e)
NFSW strike is illegal. The NFSW declared the strike six (6) days after filing a strike
notice, i.e., before the lapse of the mandatory cooling-off period. It also failed to file with the
MOLE before launching the strike a report on the strike-vote, when it should have filed such
report "at least seven (7) days before the intended strike."
Under the circumstances, we are perforce constrained to conclude that the strike staged by
petitioner is not in conformity with law
ECONOMIC AND UNFAIR LABOR PRACTICE STRIKE
1. The Labor Code recognizes only two valid grounds for the declaration of a strike.
The 2 are :
a. collective bargaining deadlock; and
b. ERs unfair labor practice.

A strike not based on any of these 2 causes is necessarily tainted with illegality.
(Azucena)
2. When does a deadlock arise? A deadlock arises when there is an impass which
presupposes reasonable effort at good faith bargaining which, despite noble intentions,
does not conclude the agreement between the parties. Where for instance, the ER never
made any serious efforts to respond to proposals from the union, it cannot be maintained
that a deadlock arose. (Divine Word University vs. Secretary of Labor)
3. Legality of strike is not dependent upon the ability of management to grant demands. If
said demands cannot be granted for being unjust or unreasonable, the only
consequence should be their rejection and not the punishment of the workers who
presented them. (Caltex vs. PLO)
HOW TO KNOW IF THE STRIKE IS LEGAL?

PURPOSE AND MEANS TEST
> If the purpose is trivial, unjust, and unreasonable or it was carried out through unlawful
means, the strike is illegal.
> In cases no falling within the prohibition against strikes, its legality depends upon:
1- the purpose for which it is maintained
2- the means employed in carrying it on
Luzon Marine Dept. Union v. Roldan

The strike was illegal because the reason for it was merely to prove that the union numbered
more than 30 members. We have adverted to the ruling of this Court in Rex Taxicab Company
vs. Court of Industrial Relations, supra, that in cases not falling within the prohibition against
strikes,
the legality or illegality of a strike depends, first, upon the purpose for which it is maintained,
and, second, upon the means employed in carrying it on.
Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial,
unreasonable or unjust or if in carrying on the strike, the strikers should commit violence or
cause injuries to persons or damage to property, the strike, although not prohibited by
injunction, may be declared by the court illegal, with the adverse consequences to the strikers.
Phil. Marine Officers Guild v. Cia. Maritima

In this jurisdiction, however, acts of violence in carrying on a strike are not so easily overlooked
in the determination of its legality or illegality. To overlook them "would encourage abuses and
terrorism and would subvert the very purpose of the law which provides for arbitration and
peaceful settlement of disputes.
This Court has repeatedly frowned upon the use of unlawful means in carrying out a strike.
In cases not falling within the prohibition against strikes, the legality or illegality of a
strike depends first, upon the purpose for which it is maintained, and, second, upon the means
employed in carrying it on.
Thus, if the purpose which the laborers intend to accomplish by means of a strike is
trivial, unreasonable, or unjust or if in carrying on the strike the strikers should commit violence
or cause injuries to persons or damage to property, the strike, although not prohibited by
injunction, may be declared by the court illegal with the adverse consequences to the strikers.
Here we find that the majority opinion predicated the illegality of the strike not merely on
the infringement of said agreement by the union but on the proven fact that, in carrying out the
strike, coercion, force, intimidation, violation (sic) with physical injuries, sabotage and the use of
unnecessary and obscene language or epithets were committed by top officials and members of
the union in an attempt to prevent arbitration and peaceful settlement of labor disputes. As aptly
said in one case: 'A labor philosophy based upon the theory that might is right, in disregard of
law and order, is an unfortunate philosophy of regression whose sole consequences can be
disorder, class hatred and intolerance. The CIR, in finding the PMOG responsible for the
aforementioned acts of violence, said:
As some of the above offenses were perpetrated by the picketers not only in Yenko's presence
but in direct cooperation with him and under his leadership PMOG cannot seriously pretend
innocence and avoid complicity in or liability for their acts and conduct and the consequent
effects thereof upon Maritima's property.
Rule on vicarious liability has been abandoned: True, Section 9(c) of the Act has discarded
the principle of "vicarious liability" under which a striking labor organization is necessarily held
responsible for the acts of even a single striker.
That the law, as it is now, requires in order to hold an association or organization liable for the
unlawful acts of individual officers, members, or agents, 'proof of actual participation in, or
actual authorization of such acts or of ratifying of such acts after actual knowledge thereof.' It is
not essential that two or three of these elements should concur. One suffices. In the case at bar,
the unlawful acts, as already pointed out, were done in the presence of Yenko as well as with
his cooperation and under his direction and, hence, conclusive of the actual participation and
ratification thereof of PMOG. Moreover, there is nothing in the record to show that this union
disauthorized or objected to Yenko's acts and those of the other picketers despite the fact that
such acts had undoubtedly come to its knowledge or that of its officers and members. Under
the circumstances, the CIR correctly held that the PMOG strike against MARITIMA was illegal.
Caltex Phil Inc. v. Phil. Labor Org., Caltex Chapter

These demands, if granted, would certainly tend to improve the conditions of the laborers and
employees affected, and cannot be said to be trivial, much less illegal. But whether the same
are unreasonable or unjust is a matter to be decided after proper consideration.
If said demands cannot be granted for being unjust or unreasonable, the only consequence, in
the appropriate words of the Court of Industrial Relations in banc, should "be their rejection and
not the punishment of the workers who presented them."
To make the legality or illegality of strikes dependent solely on whether the demands of laborers
may or may not be granted, is in effect to outlaw altogether an effective means for securing
better working conditions.
Union of Filipro Employees v. Nestle Phil.
The NLRC correctly upheld the illegality of the strikes and the corresponding dismissal of the
individual complainants because of their "brazen disregard of successive lawful orders of then
Labor Ministers Blas F. Ople, Augusto Sanchez and Labor Secretary Franklin Drilon dated
December 11, 1985, January 30, 1986 and February 4, 1986, respectively, and the cavalier
treatment of the provisions of the Labor Code and the return-to-work orders of the Minister (now
Secretary) of Labor and Employment, or Articles 264 and 265 (now renumbered Arts. 263 and
264).
In addition, the NLRC gave the following reasons: the strike was staged in violation of the
existing CBA provisions on "No Strike/No Lockout Clause" stating that a strike, which is in
violation of the terms of the collective bargaining statement, is illegal, especially when such
terms provide for conclusive arbitration clause; instead of exhausting all the steps provided for
in the grievance machinery provided for in the collective bargaining agreement to resolve the
dispute amicably and harmoniously within the plant level, UFE went on strike; the prescribed
mandatory cooling-off period and then 7-day strike and after submission of the report of strike
vote at Nestle's Makati Offices and Muntinlupa and Cabuyao Plants were not complied with,
while no notice of strike was filed by respondents when they staged the strike at Nestle's
Cagayan de Oro Plant contrary to the pertinent provision of Articles 263 and 264 of the Labor
Code, emphasizing that "the mandatory character of these cooling-off periods has already been
categorically ruled upon by the Supreme Court; in carrying out the strike, coercion, force,
intimidation, violence with physical injuries, sabotage, and the use of unnecessary and obscene
language or epithets were committed by the respondent officials and members of either UFE or
WATU. It is well-settled that a strike conducted in this manner is illegal.
Reliance Surety and Insurance Co, v, NLRC

In effecting a change in the seating arrangement in the office of the underwriting department,
the petitioner merely exercised a reasonable prerogative employees could not validly question,
much less assail as an act of unfair labor practice.
The Court is indeed at a loss how rearranging furniture, as it were, can justify a four-month-long
strike.
GUIDELINES AND BALANCING OF INTEREST
Shell Oil Workers Union v. Shell Co. of the Phils.
Under the circumstances, it would be going too far to consider that it thereby became illegal.
This is not by any means to condone the utilization of force by labor to attain its objectives. It is
only to show awareness that in labor conflicts, the tension that fills the air as well as the feeling
of frustration and bitterness could break out in sporadic acts of violence.
If there be in this case a weighing of interests in the balance, the ban the law imposes on unfair
labor practices by management that could provoke a strike and its requirement that it be
conducted peaceably, it would be, to repeat, unjustified, considering all the facts disclosed, to
stamp the strike with illegally. It is enough that individual liability be incurred by those guilty of
such acts of violence that call for loss of employee status.
Almira v. BF Goodrich Phils, Inc.
Legal despite the presence of violence because there were injuries on both sides because
management did not, understandably, play a passive role confronted as it was with the unruly
disruptive tactics of labor. This is not, by any means, to condone activities of such character,
irrespective of the parties responsible. It is merely to explain what cannot be justified.
A strike otherwise valid, if violent in character, may be placed beyond the pale. Care is to be
taken, 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 illusory the recognition of the right to strike, responsibility in such a case
should be individual and not collective. A different conclusion would be called for, of course, if
the existence of force while the strike lasts is pervasive and widespread, consistently and
deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if
justified as to ends, it becomes illegal because of the means employed.
IS GOOD FAITH A DEFENSE?
Interwood Employees Assoc v. International Hardwood
If the determination whether a strike is legal or illegal were to depend upon the reason or
motive, no matter how groundless or false it may be, the striking members of a labor union had
in mind or believed in good faith at the time they staged the strike, there would then be no need
for the court to pass upon that question, because what the strikers had in mind or believed in
good faith at the time they struck can hardly be refuted, rebutted or disproved. If the Court of
Industrial Relations were bound to believe and so find what the striking members of a labor
union allege or claim to be the reason or motive for their staging a strike, because as claimed by
the petitioner the right of the members of a labor union to strike for mutual aid or protection, as
recognized in section 3, Republic Act No. 875, is an absolute right, then there would no longer
be any necessity for holding or conducting a hearing, where both parties to the controversy may
present their proofs and upon which the Court is to determine which of the claims or contentions
is true, correct and lawful, as disclosed by the evidence before it.
Luzon Stevedoring Corp. v. CIR
In Interwood Employees Association vs. International Hardwood & Veneer Co., L-7409, May 18,
1956. 52 O.G. 3936, 3941, the Court has ruled that if the strikers act from an unlawful,
illegitimate, unjust, unreasonable, or trivial ground, reason or motive, even if they do so in good
faith, and the Court of Industrial Relations so finds, the strike may be declared illegal
notwithstanding their good faith.
As a general rule, where the union believed that the employer committed ULP and the
circumstances warranted such belief in good faith, the resulting strike may be considered
legal although, subsequently, such allegations of ULP were found to be groundless.
HOWEVER, a mere claim of good faith would not suffice.
People Industrial and Commercial Employees and Workers Org.
v.
People Industrial and Commercial Employees and Workers Corp.
The strike is legal. A strike may be considered legal when the union believed that the
respondent company committed unfair labor acts and the circumstances warranted such belief
in good faith although subsequently such allegation of unfair labor practices are found out as not
true.
All told, the strike staged by the petitioners was a legal one even though it may have been
called to offset what the strikers believed in good faith to be unfair labor practices on the part of
the employer.
Verily, such presumption of legality prevails even if the allegations of unfair labor practices are
subsequently found out to be untrue. Consonant with these jurisprudential pronouncements, is
Article 263 of the Labor Code which clearly states "the policy of the State to encourage free
trade unionism and free collective bargaining".
Paragraph (b) of the sale article guarantees the workers' "right to engage in concerted activities
for purposes of collective bargaining or for their mutual benefit and protection" and recognizes
the "right of legitimate labor organizations to strike and picket and of employers to lockout" so
long as these actions are "consistent with the national interest" and the grounds therefor do not
involve inter-union and intra-union disputes.
Give some examples of strike having a lawful purpose.
1. Strike incident to collective bargaining. (Id.)
2. Self-defenses i.e. strike held against the formation of a company dominated union.
(Davao Free Workers vs. CIR)
3. Strike against ERs unfair labor practice. (Zamboanga Wood Products vs. NLRC)
4. Unfair labor practice strike in good faith, although such acts by the ER were not found to
be unfair labor practices. (Pepsi-Cola Labor Union vs. NLRC)
5. Strike to compel recognition of and bargaining with majority union. (Caltex Filipino
Managers and Supervisors Association vs. CIR) [However, a strike for union
recognition is through a certification election. (Azucena)
Give some examples of strikes with no lawful purposes:
1. Strike due to rearrangement of office. (Reliance Surety vs. NLRC)
2. Strike due to companys sales evaluation policy (GTE Directories vs. Sanchez)
3. Strike to compel removal of an EE not due to violation of union security arrangement.
(Azucena)
4. Salary distortion under the Wage Rationalization Act (IBM vs. NLRC)
5. Inter-union or intra-union dispute. (Art. 263)
6. Strike to compel company to produce bank statements to show actual financial condition
of the company. What the union may only require are up-to-date financial information
normally submitted to relevant government agencies such as balance sheets and
financial statements. (Sec. 5, Rule XIII, Book V, IRRs)
MEANS AND METHODS
1. Even if the purpose of a strike is valid, the strike may be held invalid where the means
employed are illegal. (United Seamens Union of the Philippines vs. Davao
Shipowners Association) The use of violence, intimidation, restraint or coercion in
carrying out concerted activities, which are injurious to the rights of property, or to
particular individuals make a strike illegal. (Liberal Labor Union vs. Phil. Can Co.)
However, minor disorders will not suffice to make a strike illegal (Insular Life EEs
Assn.vs. Insular Life)
2. The strike by a union in a gasoline company was attended with violence in 4 or 5
occasions. The strike is sought to be declared illegal on grounds that it was attended by
violence. Is this allegation tenable?
It depends on the factual circumstance of the case. If the acts of violence are not
pervasive, and the responsibility for the acts are individual, then the strike may be
considered still legal. (Shell Oil Workers Union vs. Shell)
3. If some management officials were unable to leave the premises because of a strike,
may the strikers be held guilty of illegal detention?
No. The detention was not done in criminal intent. While no doubt to be deplored,
such conduct cannot be made a basis for a finding of criminal guilt. (People vs.
Barba)
No person engaged in picketing shall:
1Commit any act of violence, coercion or intimidation
2Obstruct the free ingress to or egress from the ERs premises for lawful purposes
3Obstruct public thoroughfares
Coercing or threatening non-striking EEs is illegal
The union may persuade non-striking members, BUT cannot coerce or intimidate
them, to join the strike,
Will a violence committed during a strike make the strike an illegal one?
It depends.
Generally in ULP strikes, the court has been liberal.
> If violence is committed only by some individuals, the strike will not be declared illegal but the
person actually committing such illegal act will suffer the consequences.
> If the violence is pervasive and widespread, consistently and deliberately resorted to as a
matter of policy, it is illegal because of the means employed.
What is effect if strike is declared illegal?
FOR THE OFFICERS:
> if he knowingly participates in illegal strike: losses employment status.
FOR THE EMPLOYEE:

> Mere participation in illegal strike: not ground for termination of employment, even though
employer hired a replacement.
But participation in ILLEGAL ACTS during a strike (whether legal strike or illegal strike): means
loss of employment for the employee.
TAKE NOTE: Vicarious liability, meaning the fault of one is the fault of all, is not applicable in
strikes. Only those who performed the illegal acts will be punished.(Shell oil & Almira case)
Effect of Illegality
Art. 264.
Prohibited activities.
(a) No labor organization or employer shall declare a strike or lockout without first having
bargained collectively in accordance with Title VII of this Book or without first having filed the
notice required in the preceding Article or without the necessary strike or lockout vote first
having been obtained and reported to the Department.
No strike or lockout shall be declared after assumption of jurisdiction by the President or the
Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration
or during the pendency of cases involving the same grounds for the strike or lockout.
EFFECT OF UNLAWFUL LOCK-OUT
> Any worker whose employment has been terminated as a consequence of an unlawful
lockout shall be entitled to reinstatement with full backwages.
EFFECT OF UNLAWFUL STRKE
Who may be declare to have lost his employment status?
1) Any union officer who knowingly participates in an illegal strike
2) And any worker or union officer who knowingly participates in the commission of illegal acts
during a strike may be declared to have lost his employment status:
Who may NOT BE declared to have lost their employment?
Provided, that 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 strike.
IMPLEMENTING RULES: Hiring of replacements. The 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 strike. But any union officer
who knowingly participates in the commission of illegal acts during a strike may be declared to
have lost his employment status.
Diwa ng Pagkakaisa v. Filtex Internation Corp.
HELD: Work was resumed in the afternoon of February 20, 1961, and all the employees were
readmitted except the union officers. In other words the incident of February 19 was already
closed; and if a strike was called on February 26 it was because the readmission of the said
officers, as demanded in the letter of the union dated February 22, was refused. Since such
refusal appears to be groundless, the fact that a strike was called on February 26, 1961 would
not affect the resolution of this case, the only issue here being the legality or illegality of the
alleged strike of February 19. The decision appealed from is hereby modified by ordering the
reinstatement of the officers of the union who were refused admission by the respondent, with
backwages from the date of such refusal less whatever amounts earned by them from other
employment during the same period or could have been earned with the exercise of reasonable
diligence. In assessing the backwages the guidelines indicated by this Court in the case of
Itogon-Suyoc Mines, Inc. vs. Sagilo-Itogon Workers' Union, and subsequently applied in East
Asiatic Co., Ltd., et al. vs. CIR, should be observed, as follows:
First. To be deducted from the back wages accruing to each of the laborers to be
reinstated is the total amount of earnings obtained by him from other employment(s) from the
date of dismissal to the date of reinstatement. Should the laborer decide that it is preferable not
to return to work, the deduction should be made up to the time judgment becomes final. And
these, for the reason that employees should not be permitted to enrich themselves at the
expense of their employer. Besides, there is the `law's abhorrence for double compensation.'
Second. Likewise, in mitigation of the damages that the dismissed respondents are
entitled to, account should be taken of whether in the exercise of due diligence respondents
might have obtained income from suitable remunerative employment We are prompted to give
out this last reminder because it is really unjust that a discharged employee should, with folded
arms, remain inactive in the expectation that a windfall would come to him. A contrary view
would breed idleness; it is conducive to lack of initiative on the part of a laborer. Both bear the
stamp of undesirability.
Maria Christina Fertilizer Plant Employees Assoc. v. Tandayag
(see Dissenting Opinion also)
The Supreme Court affirmed the resolution of the Industrial Court lawful acts, had lost their
status as employees. A strike is illegal where the strikers resort to unlawful acts in the conduct
of the strike, such as conducting a highly coercive picketing, preventing the plant supervisor
from checking defects in the company plant, threatening with harm or violence a contractor
dealing with the company, using human barricades to block the ingress of nonstrikers, and
displaying inflammatory placards. It is not a grave abuse of discretion for the Court of Industrial
Relations to declare that union officers and members, who took part in an illegal strike,
authorized the unlawful acts, committed them or ratified them, had lost their status as
employees.
Dissent of Justice Fernando
On a more specific level, it may be stated that a strike does not automatically carry the
stigma of illegality even if no unfair labor practice were committed by the employer. It suffices if
such a belief in good faith is entertained by labor as the inducing factor for staging a strike. So it
was clearly stated by Chief Justice Concepcion, while still an Associate Justice of this Court: "As
a consequence, we hold that the strike in question had been called to offset what petitioners
were warranted in believing in good faith to be unfair labor practices on the part of Management,
that petitioners were not bound, therefore, to wait for the expiration of thirty (30) days from
notice of strike before staging the same, that said strike was not, accordingly, illegal and that the
strikers had not thereby lost their status as employees of respondents herein.
Why a mere finding of the illegality of a strike should not be automatically followed by
wholesale dismissal was once again stressed in the recent case of Almira v. B. F. Goodrich
Philippines, Inc. in these words: "It would imply at the very least that where a penalty less
punitive would suffice, whatever missteps may be committed by labor ought not to be visited
with a consequence so severe. It is not only because of the law's concern for the workingman.
There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows
on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then
could be avoided if there be acceptance of the view that under all the circumstances of this
case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what
had been done by them. For all this while, since private respondent considered them separated
from the service, they had not been paid. From the strictly juridical standpoint, it cannot be too
strongly stressed, to follow Davis in his masterly work, Discretionary Justice, that where a
decision may be made to rest on informed judgment rather than rigid rules, all the equities of the
case must be accorded their due weight. Finally, labor law determinations, to quote from
Bultmann, should be not only secundum rationem but also secundum caritatem." This decision,
it must be noted, was rendered after the effectivity of the present Constitution.
Hence this dissent, there being, to my mind, a failure to meet the more exacting standard to
justify dismissal of strikers, even on the assumption that the strike could be declared illegal.
Pepsi Cola Labor Union v. NLRC

Although the strike was declared illegal, there was absence of proof that the rank and file
members of the Union who participated therein deserve their loss of employment. Their sole
membership in the union or their given authority to it to strike, believing in good faith that it was
their sole bargaining representative, did not make them liable if they did not actually participate
therein. The officers of the Union who staged the strike in defiance of the Med-Arbiter's ruling
should be held solely responsible.
Bacus v. Ople
A mere finding of the illegality of a strike should not be automatically followed by wholesale
dismissal of the strikers from their employment
Union of Filipro Employees v. Nestle
A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or
certification order becomes a prohibited activity and thus illegal, pursuant to the second
paragraph of Art. 264 of the Labor Code as amended. The Union officers and members, as a
result, are deemed to have lost their employment status for having knowingly participated in an
illegal act.
Reliance Surety and Insurance v. NLRC
In staging the strike in question, a strike that was illegal in more ways than one, the reinstated
union officers were clearly in bad faith, and to reinstate them without, indeed, loss of seniority
rights, is to reward them for an act public policy does not sanction.
We can not apply, either, the ruling in Bacus v. Ople, where we held that the mere finding of
illegality attending a strike does not justify the "wholesale" dismissal of strikers who were
otherwise impressed with good faith. The Court must not be understood to be abandoning the
teachings of either Ferrer, Almira, or Bacus. The Court reiterates that good faith is still a valid
defense against claims of illegality of a strike. We do find, however, not a semblance of good
faith here, but rather, plain arrogance, pride, and cynicism of certain workers.
Luzon Marine Dept. Union v. Roldan
We have adverted to the ruling of this Court in Rex Taxicab Company vs. Court of Industrial
Relations, supra, that in cases not falling within the prohibition against strikes, the legality or
illegality of a strike depends, first, upon the purpose for which it is maintained, and, second,
upon the means employed in carrying it on. Thus, if the purpose which the laborers intend to
accomplish by means of a strike is trivial, unreasonable or unjust or if in carrying on the strike,
the strikers should commit violence or cause injuries to persons or damage to property, the
strike, although not prohibited by injunction, may be declared by the court illegal, with the
adverse consequences to the strikers.
Phil. Marine Officers Guild v. Cia Maritima
In this jurisdiction, however, acts of violence in carrying on a strike are not so easily overlooked
in the determination of its legality or illegality. To overlook them "would encourage abuses and
terrorism and would subvert the very purpose of the law which provides for arbitration and
peaceful settlement of disputes. this Court has repeatedly frowned upon the use of unlawful
means in carrying out a strike.
In cases not falling within the prohibition against strikes, the legality or illegality of a
strike depends first, upon the purpose for which it is maintained, and, second, upon the means
employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by
means of a strike is trivial, unreasonable, or unjust or if in carrying on the strike the strikers
should commit violence or cause injuries to persons or damage to property, the strike, although
not prohibited by injunction, may be declared by the court illegal with the adverse consequences
to the strikers.
Here we find that the majority opinion predicated the illegality of the strike not merely on
the infringement of said agreement by the union but on the proven fact that, in carrying out the
strike, coercion, force, intimidation, violation (sic) with physical injuries, sabotage and the use of
unnecessary and obscene language or epithets were committed by top officials and members of
the union in an attempt to prevent arbitration and peaceful settlement of labor disputes. As aptly
said in one case: 'A labor philosophy based upon the theory that might is right, in disregard of
law and order, is an unfortunate philosophy of regression whose sole consequences can be
disorder, class hatred and intolerance. The CIR, in finding the PMOG responsible for the
aforementioned acts of violence, said:
As some of the above offenses were perpetrated by the picketers not only in Yenko's
presence but in direct cooperation with him and under his leadership PMOG cannot seriously
pretend innocence and avoid complicity in or liability for their acts and conduct and the
consequent effects thereof upon Maritima's property. True, Section 9(c) of the Act has discarded
the principle of "vicarious liability" under which a striking labor organization is necessarily held
responsible for the acts of even a single striker. That the law, as it is now, requires in order to
hold an association or organization liable for the unlawful acts of individual officers, members, or
agents, 'proof of actual participation in, or actual authorization of such acts or of ratifying of such
acts after actual knowledge thereof.' It is not essential that two or three of these elements
should concur. One suffices.
In the case at bar, the unlawful acts, as already pointed out, were done in the presence of Yenko
as well as with his cooperation and under his direction and, hence, conclusive of the actual
participation and ratification thereof of PMOG. Moreover, there is nothing in the record to show
that this union disauthorized or objected to Yenko's acts and those of the other picketers despite
the fact that such acts had undoubtedly come to its knowledge or that of its officers and
members. Under the circumstances, the CIR correctly held that the PMOG strike against
MARITIMA was illegal.
Caltex Phil. Inc., v. Phil. Labor Org.
If after the decision of the Court of Industrial Relations declaring a strike illegal, new demands or
matters arise not connected with, or similar to, the demands in the former case, and the laborers
struck anew, the new strike cannot be held as a violation of the decision.
LABOR INJUNCTION
DEFINITION AND NATURE
Miriam Webster Dictionary INJUNCTION: An injunction is available as a remedy for harm
for which there is no adequate remedy at law. Thus it is used to prevent a future harmful action
rather than to compensate for an injury that has already been occurred, or to provide relief from
harm for which an award of money damages is not a satisfactory solution or for which a
monetary value is impossible to calculate. A defendant who violates an injunction is subject to
penalty for contempt.
Philippine Airlines, Inc. v. NLRC , 287 SCRA 672 (1998)
GENERALLY, injunction is a preservative remedy for the protection of one's substantive rights
or interest. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a
main suit.
It is resorted to only when there is a pressing necessity to avoid injurious consequences which
cannot be remedied under any standard of compensation. The application of the injunctive writ
rests upon the existence of an emergency or of a special reason before the main case be
regularly heard.
The essential conditions for granting such temporary injunctive relief are:
1)
that the complaint alleges facts which appear to be sufficient to constitute
a proper basis for injunction and
2) that on the entire showing from the contending parties, the injunction is
reasonably necessary to protect the legal rights of the plaintiff pending the
litigation.
INJUNCTION is also a special equitable relief granted only in cases where there is no plain,
adequate and complete remedy at law.
In labor cases, Article 218 of the Labor Code empowers the NLRC
"(e)
To enjoin or restrain any actual or threatened commission of any or all prohibited or
unlawful acts or to require the performance of a particular act in any labor dispute which, if not
restrained or performed forthwith, may cause grave or irreparable damage to any party or
render ineffectual any decision in favor of such party; . . . (Emphasis Ours)
Complementing the above-quoted provision, Sec. 1, Rule XI of the New Rules of Procedure
of the NLRC, pertinently provides as follows:
"Section 1.
Injunction in Ordinary Labor Dispute. A preliminary injunction or a restraining
order may be granted by the Commission through its divisions pursuant to the provisions of
paragraph (e) of Article 218 of the Labor Code, as amended,
-when it is established on the bases of the sworn allegations in the petition
-that the acts complained of,
a)
involving or arising from any labor dispute before the Commission,
which,
b)
if not restrained or performed forthwith, may cause grave or irreparable
damage to any party or render ineffectual any decision in favor of such party.
The foregoing ancillary power may be exercised by the Labor Arbiters:
-ONLY as an INCIDENT to the cases pending before them in order to
preserve the rights of the parties during the pendency of the case,
-BUT excluding labor disputes involving strikes or lockout.
From the foregoing provisions of law, the power of the NLRC to issue an injunctive writ
originates from "any labor dispute" upon application by a party thereof, which application if not
granted "may cause grave or irreparable damage to any party or render ineffectual any decision
in favor of such party."
The term "LABOR DISPUTE" is defined as "any controversy or matter concerning terms and
conditions of employment or the association or representation of persons in negotiating, fixing,
maintaining, changing, or arranging the terms and conditions of employment regardless of
whether or not the disputants stand in the proximate relation of employers and employees."
The term "CONTROVERSY is likewise defined as "a litigated question; adversary proceeding
in a court of law; a civil action or suit, either at law or in equity; a justiciable dispute."
A "justiciable controversy" is "one involving an active antagonistic assertion of a legal right on
one side and a denial thereof on the other concerning a real, and not a mere theoretical
question or issue."
Taking into account the foregoing definitions, it is an ESSENTIAL REQUIREMENT that: there
must first be a LABOR DISPUTE between the contending parties before the labor arbiter.
Why does injunction not apply to the facts of this case?
In the present case, there is no labor dispute between the petitioner and private respondents as
there has yet been no complaint for illegal dismissal filed with the labor arbiter by the private
respondents against the petitioner.
Furthermore, an examination of private respondents' petition for injunction reveals that it has no
basis since there is no showing of any urgency or irreparable injury which the private
respondents might suffer.
When is an injury considered irreparable?

An injury is considered irreparable if it is of such constant and frequent recurrence that no fair
and reasonable redress can be had therefor in a court of law, or where there is no standard by
which their amount can be measured with reasonable accuracy, that is, it is not susceptible of
mathematical computation.
It is considered irreparable injury when it cannot be adequately compensated in damages due to
the nature of the injury itself or the nature of the right or property injured or when there exists no
certain pecuniary standard for the measurement of damages.
In the case at bar, the alleged injury which private respondents stand to suffer by reason of their
alleged illegal dismissal can be adequately compensated and therefore, there exists no
"irreparable injury," as defined above which would necessitate the issuance of the injunction
sought for. Article 279 of the Labor Code provides that an employee who is unjustly dismissed
from employment shall be entitled to reinstatement, without loss of seniority rights and other
privileges, and to the payment of full backwages, inclusive of allowances, and to other benefits
or their monetary equivalent computed from the time his compensation was withheld from him
up to the time of his actual reinstatement.
The ruling of the NLRC that the Supreme Court upheld its power to issue temporary mandatory
injunction orders in the case of Chemo-Technische Mfg., Inc. Employees Union-DFA, et. al. vs.
Chemo-Technische Mfg., Inc. et. al., docketed as G.R. No. 107031, is misleading. As correctly
argued by the petitioner, no such pronouncement was made by this Court in said case. On
January 25, 1993, we issued a Minute Resolution in the subject case stating as follows:
"Considering the allegations contained, the issues raised and the arguments adduced in the
petition for certiorari, as well as the comments of both public and private respondents thereon,
and the reply of the petitioners to private respondent's motion to dismiss the petition, the Court
Resolved to DENY the same for being premature."
It is clear from the above resolution that we did not in anyway sustain the action of the NLRC in
issuing such temporary mandatory injunction but rather we dismissed the petition as the NLRC
had yet to rule upon the motion for reconsideration filed by petitioner. Thus, the minute
resolution denying the petition for being prematurely filed.
Finally, an injunction, as an extraordinary remedy, is not favored in labor law considering that it
generally has not proved to be an effective means of settling labor disputes.
POLICY behind prohibition of issuance of injunction:
> It has been the policy of the State to encourage the parties to use the non-judicial
process of negotiation and compromise, mediation and arbitration.
Thus, injunctions may be issued only in cases of extreme necessity based on legal grounds
clearly established, after due consultations or hearing and when all efforts at conciliation are
exhausted which factors, however, are clearly absent in the present case.
A. RULE ON INJUNCTIONS
As a GENERAL RULE, labor disputes are not subject to injunction. HOWEVER, the
protective force of the law will be applied when prohibited or unlawful acts are being or about to
be committed that will cause grave or irreparable damage to the complaining party. (Azucena)
* Labor dispute jurisdiction (NLRC)
Caltex Filipino Managers and Supervisors Association v. CIR , 44 SCRA 350 (1972)
RATIONALE for prohibition:1) It is well known that the scheme in Republic Act No. 875 for
achieving industrial peace rests essentially on a FREE AND
PRIVATE AGREEMENT between the employer and his
employees as to the terms and conditions under which the
employer is to give work and the employees are to furnish labor,
unhampered as far as possible by judicial or administrative
intervention. On this premise the lawmaking body has virtually

prohibited the issuance of injunctive relief involving or growing out
of labor disputes.
2)
The prohibition to issue labor injunctions is designed to
give labor a comparable bargaining power with capital and
must be liberally construed to that end.
It is said that the prohibition creates substantive and not purely procedural law. Within the
purview of our ruling, speaking through Justice Labrador, in Social Security Employees
Association (PAFLU), et al. vs. The Hon. Edilberto Soriano, et al. (G.R. No. L-20100, July 16,
1964, 11 SCRA 518, 520),:
GENERAL RULE:
there can be no injunction issued against any strike.
EXCEPTION:
EXCEPT in only one instance, that is, when a labor dispute arises in an
INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST and such
dispute is CERTIFIED BY THE PRESIDENT of the Philippines to the
Court of Industrial Relations in compliance with Sec. 10 of Republic Act
No. 875.
Purpose of an injunction in an UNCERTIFIED case:

As a corollary to this, an injunction in an uncertified case must be based on the strict
requirements of Sec. 9(d) of Republic Act No. 875; the purpose of such an injunction is not to
enjoin the strike itself, but only unlawful activities.
In this case Judge Tabigne cautioned the parties to maintain the status quo; he specifically
advised the employees NOT TO GO ON strike. Will disobedience to the judges advice
constitute contemp of court?
No. According to SC what Judge Tabigne stated during said hearing should be construed what
actually it was an advice. To say that it was an order would be to concede that respondent
court could validly enjoin a strike, especially one which is not certified in accordance with Sec.
10 of Republic Act No. 875. To adopt the view of respondent court would not only set at naught
the policy of the law as embodied in the said statute against issuance of injunctions, but also
remove from the hands of labor unions and aggrieved employees an effective lawful weapon to
either secure favorable action on their economic demands or to stop unfair labor practices on
the part of their employer.
B. REQUIREMENTS OF VALID INJUNCTION
Art. 218 :
1. Unlawful acts are being committed or threatened to be committed.
2. The act, if not enjoined or if not performed forthwith, may cause grave or irreparable
damage.
3. Witnesses must be heard an opportunity for cross-examination provided.
4. The complaint is made under oath.
5. As to each item of relief, the injury to the complainant will be greater by its denial than to
defendant by its grant.
6. Complainant has no adequate remedy at law.
7. Public officers are unwilling or unable to do their duty to adequately protect
complainants property.
Ilaw at Buklod ng Manggagawa (IBM) v. NLRC , 198 SCRA 586 (1991)
GENERAL RULE: Cannot issue EX PARTE
As a rule such restraining orders or injunctions do not issue ex parte, but only after
compliance with the following requisites, to wit:
a) a HEARING held "after due and PERSONAL NOTICE thereof has been served, in such
manner as the Commission shall direct, to all known persons against whom relief is sought, and
also to the Chief Executive and other public officials of the province or city within which the
unlawful acts have been threatened or committed charged with the duty to protect complainant's
property;"
b) reception at the hearing of "testimony of witnesses, with opportunity for crossexamination, in support of the allegations of a complaint made under oath," as well as
"testimony in opposition thereto, if offered . . .;
c) "a finding of fact by the Commission, to the effect:
(1)
That prohibited or unlawful acts have been threatened and will be

committed and will be continued unless restrained,
--
but no injunction or temporary restraining order shall be

issued on account of any threat, prohibited or unlawful act,
-except against the person or persons,
association or organization making the
threat or committing the prohibited or
unlawful act or actually authorizing or
ratifying the same after actual knowledge
thereof;
(2)
That substantial and irreparable injury to complainant's property

will follow;
(3)
That as to each item of relief to be granted, greater injury will be

inflicted upon complainant by the denial of relief than will be
indicted upon defendants by the granting of relief;
(4)
That complainant has no adequate remedy at law; and
(5)
That the public officers charged with the duty to protect

complainant's property are unable or unwilling to furnish adequate
protection."
EXCEPTION: When it can issue ex parte.

However, a temporary restraining order may be issued ex parte under the following conditions:
a) the complainant "shall also allege that, unless a temporary restraining order shall be
issued without notice,
-a SUBSTANTIAL and IRREPARABLE INJURY to complainant's
PROPERTY will be unavoidable;"
b) there is "TESTIMONY under OATH, sufficient, if sustained, to justify the Commission in
issuing a temporary injunction upon hearing after notice;"
c) the "complainant shall first file an undertaking with adequate security in an amount to
be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or
damage caused by the improvident or erroneous issuance of such order or injunction, including
all reasonable costs, together with a reasonable attorney's fee, and expense of defense against
the order or against the granting of any injunctive relief sought in the same proceeding and
subsequently denied by the Commission;" and
d) the "temporary restraining order shall be effective for no longer than twenty (20) days
and shall become void at the expiration of said twenty (20) days."
The reception of evidence "for the application of a writ of injunction may be delegated by the
Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he
may determine to be accessible to the parties and their witnesses and shall submit thereafter
his recommendation to the Commission."
The record reveals that the Commission exercised the power directly and plainly granted to it by
sub-paragraph (e) Article 217 in relation to Article 254 of the Code, and that it faithfully observed
the procedure and complied with the conditions for the exercise of that power prescribed in said
sub-paragraph (e).
It acted on SMC's application for immediate issuance of a temporary restraining order ex parte
on the ground that substantial and irreparable injury to its property would transpire
before the matter could be heard, on notice; it, however, first direct SMC Labor Arbiter
Carmen Talusan to receive SMC's testimonial evidence in support of the application and
thereafter submit her recommendation thereon; it found SMC's evidence adequate and issued
the temporary restraining order upon bond. No irregularity may thus be imputed to the
respondent Commission in the issuance of that order.
In any event, the temporary restraining order had a lifetime of only twenty (20) days and
became void ipso facto at the expiration of that period.
In view of the foregoing factual and legal considerations, all irresistibly leading to the basic
conclusion that the concerted acts of the members of petitioner Union in question are violative
of the law and their formal agreement with the employer, the latter's submittal, in its counterpetition that there was, in the premises, a "legal duty and obligation" on the part of the
respondent Commission "to enjoin the unlawful and prohibited acts and omissions of petitioner
IBM and the workers complained of" 20 a proposition with which, it must be said, the Office of
the Solicitor General concurs, asserting that the "failure of the respondent commission to
resolve the application for a writ of injunction is an abuse of discretion especially in the light of
the fact that the restraining order it earlier issued had already expired" must perforce be
conceded.
C. TEMPORARY RESTRAINING ORDER
The Code allows the issuance of a temporary restraining order without prior notice to
other parties concerned. The issuance is predicated on complainants testimony or petition
under oath that unless the order is issued without notice, substantial or irreparable injury to
complainants property will be unavoidable. A temporary restraining order, however,
automatically expires after 20 days. (Id.)
PROCEDURE for issuance of Temporary Restraining Order
a)
the complainant "shall also allege that, unless a temporary restraining order shall be
issued without notice,
-a SUBSTANTIAL and IRREPARABLE INJURY to complainant's PROPERTY
will be unavoidable;"
b)
there is "TESTIMONY under OATH, sufficient, if sustained, to justify the Commission in
issuing a temporary injunction upon hearing after notice;"
c)
the "temporary restraining order shall be effective for no longer than twenty (20) days
and shall become void at the expiration of said twenty (20) days."
d)
No such temporary restraining order or temporary injunction shall be issued except on
condition that
-- "complainant shall first file an undertaking with adequate security in an amount to be
fixed by the Commission sufficient to recompense those enjoined for any loss, expense or
damage caused by the improvident or erroneous issuance of such order or injunction, including
all reasonable costs, together with a reasonable attorney's fee, and expense of defense against
the order or against the granting of any injunctive relief sought in the same proceeding and
subsequently denied by the Commission;"
ILAW at Buklod ng Manggagawa v. NLRC

A TRO may be issued ex parte under the following conditionsa)
The complainant shall also allege that, unless a TRO shall be issued
without notice, a substancial and irreparable injury to the complainants
property will be unavoidable
b)
There is testimony under oath, sufficient, if sustained, to justify the
Commission in issuing the temporary injunction upon hearing after notice
c)
The complainant shall first file an undertaking with adequate security
in an amount to be fixed by the Commission sufficient to recompense those enjoined
for any loss, expense or damage caused by the improvident or erroneous issuance
of such order or injunction, including all reasonable costs, together with a reasonable
attorneys fee, and expense of defense against the order of against the ranting of any
injunctive relief sought in the same proceeding and subsequently denied by the
Commission; and
d)
The TRO shall be effective for no longer than 20 days and shall
become void at the expiration of said 20 days.
D. JURISDICTION TO ISSUE INJUNCTION

Lies not with the regular courts but with the Commission (NLRC). (Maria Cristina
Fertilizer Plant EEs Assn. Vs. Tandayag) However, regular courts may issue injunction if it is
to prevent strikers from preventing the lawful movement of 3 rd parties. (Republic Flour Mill
Workers Assn. vs. Reyes)
Role Of The Labor Arbiter (Book V Rule Xxi Sec. 13)
The reception of evidence for the application of the writ of injunction may be
delegated by the Commission to any Labor Arbiter who shall submit his
recommendations to the Commissions for its consideration and resolution.
Nestle Phils. Inc. V. NLRC , 195 SCRA 340 (1991)
The power of the NLRC to issue writs of injunction is found in Article 218 of the Labor Code,
which provides:
"Art. 218.
Powers of the Commission. The Commission shall have the power and
authority:
"(e)
To enjoin or restrain any actual or threatened commission
of any or all prohibited or unlawful acts or to require the
performance of a particular act in any labor dispute which, if not
restrained or performed forthwith, may cause grave or irreparable
damage to any party or render ineffectual any decision in favor of
such party: . . ."
MAIN POINT OF THE CASE: That power, as the statute provides, can only be
exercised in a LABOR DISPUTE.
Injunction and Med-Arbiter
Dinio v. Laguesma , 273 SCRA 109 (1997)
There is no question that the issuance of a temporary restraining order is addressed to the
sound discretion of the Med-Arbiter.
However, "this discretion should be exercised based upon the grounds and in the manner
provided by law."
In the case of labor injunctions or temporary restraining orders, one may issue only in instances
where the complainant or applicant will suffer grave or irreparable damages as provided in Sec.
5, Rule XVI, Book V of the Omnibus Rules Implementing the Labor Code:
Sec 5. Injunctions. No temporary injunctions or restraining order in any case involving or
growing out of a labor dispute shall be issued by any court or other entity. On the other hand,
the Office of the President, the Secretary of Labor, the Commission, the Labor Arbiter or medarbiter may enjoin any or all acts involving or arising from any case pending before any of said
offices or officials which if not restrained forthwith may cause grave or irreparable damage to
any of the parties to the case or seriously affect social or economic stability.
In the instant controversy, the first petition for injunction and temporary restraining order filed by
petitioners on 29 January 1992 was manifestly insufficient to show grave or irreparable injury
and it puzzles us to no end how the Med-Arbiter could have issued the temporary restraining
order on such flimsy basis. For instance, petitioners alleged that the PCIBEU-Comelec was
illegally constituted, yet, they unhesitatingly participated in the pre-election process. They
announced their candidates and actively campaigned for them. In the petition for injunction
itself, petitioners even stated that they filed their certificates of candidacy in compliance with the
directives of the PCIBEU-Comelec. 23 How can petitioners obey the orders of the PCIBEUComelec and at the same time reject its authority? This should have put the Med-Arbiter on
guard.
We thus concur with the findings of the public respondent:
While it is true that the Med-Arbiter has the authority to issue a writ of preliminary injunction, or a
temporary restraining order against any act arising from any case pending before him, the
exercise thereof shall always be subject to the test of reasonableness.
The Med-Arbiter should ascertain that the act complained of, if not restrained forthwith, may
cause grave or irreparable damage to any of the parties to the case.
Damage is considered "irreparable":
(a) if it is of such constant and frequent recurrence that no fair or reasonable redress can be
had therefor in a court of law (Allendorf vs. Abalanson, 38 Phil. 585), or
(b) where there is no standard by which their amount can be measured with reasonable
accuracy, that is, it is not susceptible of mathematical computation (SSC vs. Bayona, et al., L13555, May 30, 1962).
Measured against such test, the act complained of in the present case such as the conduct of
the election as originally set on 31 January 1992 may not be said to cause "grave or irreparable"
damage to the petitioner-appellee considering that any complaint or question on the conduct of
the election maybe the subject of protest, an administrative remedy available and convenient to
the parties in the case.
On the contrary, considering that the petition for issuance of a writ of injunction was filed barely
two days before the date set for the conduct of the election, when the election materials were
already readied and the other mechanics for election had already been threshed out, to say the
least, the damage that would result would substantially be more, should the election be
postponed to another indefinite time.
It is well to remember that "injunctions or restraining orders are frowned upon as a matter of
labor relations policy," and as a general reminder:
There is no power the exercise of which is more delicate which requires greater caution,
deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the
issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to
cases of great injury, where courts of law cannot afford an adequate or commensurate remedy
in damages. The right must be clear, the injury impending or threatened, so as to be averted
only by the protecting preventive process of injunction.
E. INJUNCTION IN NATIONAL INTEREST CASES
When is a strike enjoined by the assumption of jurisdiction of the president or the Secretary
of Labor and Employment?
A strike or lockout is prohibited after assumption of jurisdiction by the President or the
Secretary of Labor :
1. in industries indispensable to the national interest; or
2. after certification or submission of the dispute to compulsory or voluntary arbitration.

(Art. 264) The Code vests the President and the Secretary of Labor almost unlimited
discretion as to what industries may be considered indispensable to national interest.
(Azucena)
E.1 POWER TO ASSUME JURISDICTION CONSTITUTIONAL
Art. 263 and 264 have been enacted pursuant to the police power to the State. It is an
inherent power of the State which does not need to be expressly conferred by the Constitution.
(Union of Filipro EEs vs. Nestle)
E.2 CERTIFICATION OF LABOR DISPUTE : AUTOMATIC INJUNCTION
Such assumption of the Secretary or certification to the NLRC for compulsory arbitration
has the effect of automatically enjoining the intended or ongoing strike or lockout as specified in
the assumption or certification order. (Azucena) This assumption or certification order is
immediately effective even without a return-to-work order. (Union of Filipro EEs vs. Nestle) A
strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or
certification order becomes a prohibited activity and thus illegal. (Zamboanga Wood Products
vs. NLRC) Not only union officers but also union members who defy return-to-work order are
subject to dismissal for participation in an illegal act. (St. Scholasticas College vs. Torres)
Assumption and certification orders are executory in character and are to be strictly
complied with by the parties even during the pendency of any petition questioning their
validity.
E.3 EFFECT OF CERTIFICATION FOR COMPULSORY ARBITRATION

The certification for compulsory arbitration overrides other unresolved proceedings
before the NLRC. Proceedings in the injunction and unfair labor practice cases filed by the ER
necessarily have to be suspended to await the outcome of the compulsory arbitration
proceedings. (Bagong Bayan Realty vs. Ople)
E.4 INCIDENTAL ISSUES
May the Secretary of Labor, in the exercise of his jurisdiction under Article 263 (g) takes
cognizance of an issue which is merely incidental to the labor dispute over which he has
assumed jurisdiction? Yes, provided said issue is involved in the labor dispute itself or otherwise
submitted to him for resolution. (St. Scholasticas College vs. Torres)
Basically, the following points are what the Professor Disini emphasized in the
integration lecture.
1. Labor Injunction is not the same as the injunction under the rules of court.
2. General rule is stated in Art. 254
The exceptions are in Art. 218 and Art. 264
> If you are filing injunction under Art. 218, the allegations of the acts committed are
different from the allegations of acts committed under Art. 264. BUT the procedure to follow
is the same, Art. 218.
3. Procedure for issuance of TRO is different from procedure of issuance of Injunction.
> There similarity is in the testimony given.
> But TRO is different because it is valid only for 20 days.
4.
It is important to take note of the BOND filed. And what other remedies there are just
incase the injunction or TRO is wrongfully issued.
AGREEMENT OF THE PARTIES
1. A no strike prohibition in a CBA is applicable only to economic strikes. An unfair labor

practice strike is not covered and workers may go on strike based on the unfair labor
practice despite the no-strike provision. (Master Iron Labor Union vs. NLRC)
2. Is no-strike clause binding on the newly certified bargaining agent? No. This is a
personal undertaking of the old certified bargaining agent which does not bind the newly
certified bargaining agent. (Benguet Consolidated vs. BCI EEs Union)
3. There is no violation by the union of the no-strike clause if the work stoppage was not
initiated or supported by the union. (Azucena)
4. About 1,400 EEs of a company staged a mass walk-out. The strike was staged without
prior notice and in violation of the no-strike clause. It is not however disputed that the
company did not pay the salaries of the EEs for 2 months. In the exercise of his power
of compulsory arbitration, may the Secretary of Labor declare the strike illegal?
Even on the assumption that the illegality of the strike is predicated on its violation of the
lack of notice of strike and the no-strike clause, still the automatic finding of the illegality of
strike finds no authoritative support in the light of the attending circumstances. (Bacus vs.
Ople)
9.6 EMPLOYMENT OF STRIKE BREAKERS AND ROLE OF PEACE OFFICERS
DURING STRIKES
Art. 264 :
1. No ER shall use or employ any strike-breaker, nor shall any person be employed as a
strike-breaker.
2. No public official or EE including officers and personnel of the AFP or the PNP, or armed
person, shall bring in, introduce or escort any individual who seeks to replace strikers in
entering or leaving the premises of a strike are, or work in place of strikers. The police
force shall keep out of the picket lines unless actual violence or other criminal acts occur.
212 (r) Strike-breaker means any person who

obstructs
impedes, or
interferes with
BY
force,
violence,
coercion
threats, or
intimidation
ANY PEACEFUL PICKETING BY EEs
during any labor controversy affecting wages, hours or conditions of work or
in the exercise of RSO or CB
POLICE/MILITARY personnel should station themselves outside a 50-meter

radius from the picket line.
However, if the 50 meter radius includes a public thoroughfare, they may station
themselves at that thoroughfare to keep free flow of traffic
REQUIREMENT FOR ARREST & DETENTION
General Rule: With previous consultation with the Secretary of Labor
Exceptions:
1) Grounds of national security and public peace
2) In case of commission of crime
BY-STANDER RULE: The by-stander establishment, which is entitled to enjoin a labor

strike or picket must be entirely different from, without any communication whatsoever
to, either party to the dispute.
The bringing in of CAPCOM soldiers to the peaceful picket lines without any reported outbreak
of violence, was clearly in violation of the following prohibited activity under Article 264 (d) of the
Labor Code. As the Labor Arbiter himself found, no pervasive or widespread coercion or
violence were perpetrated by the petitioners as to warrant the presence of the CAPCOM
soldiers in the picket lines.
In this regard, worth quoting is the following excerpt of the decision in Shell Oil Workers' union
vs. Shell Company of the Philippines, Ltd., 39 SCRA 276 [1971], which was decided by the
Court under the old Industrial Peace Act but which excerpt still holds true: ". . . What is clearly
within the law is the concerted activity of cessation of work in order that .. employer cease and
desist from an unfair labor practice.
That the law recognizes as a right. There is though a disapproval of the utilization of force to
attain such an objective. For implicit in the very concept of a legal order is the maintenance of
peaceful ways. A strike otherwise valid, if violent in character, may be placed beyond the pale.
Care is to be taken, 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 illusory the
recognition of the right to strike, responsibility in such a case should be individual and not
collective.
A different conclusion would be called for, of course, if the existence of force while the strike
lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of
policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal
because of the means employed."
Arrest and Detention of Law Violators Art. 266 Requirement for arrest and detention. - Except
on grounds of national security and public peace, no union members or union organizers may
be arrested or detained for union activities without previous consultations with the Secretary of
Labor and Employment.
9.7 IMPROVED OFFER BALLOTING
What is meant by improved or reduced offer balloting?
1. Strike In an effort to settle a strike, the DOLE shall conduct a referendum by secret
balloting on the improved offer of the ER on or before the 30 th day of the strike. When at
least a majority of union members vote to accept the improved offer, the striking workers
shall immediately return to work and the ER shall thereupon readmit them upon signing
of the agreement.
2. Lockout In case of a lockout, the DOLE shall also conduct a referendum by secret
balloting on the reduced offer of the union on or before the 30 th day of the lockout. When
at least a majority of the board of directors or trustees or the partners holding the
controlling interest in the case of partnership vote to accept the reduced offer, the
workers shall immediately return to work and the ER shall thereupon readmit them upon
signing of the agreement. (Art. 265)
9.8 PICKETING, SLOWDOWN AND OTHER CONCERTED ACTIVITIES
A. DEFINITION
Define picketing Walking or patrolling in the vicinity of a place of business involved in a labor
dispute and, by word of mouth, banner or placard, undertaking to inform the public concerning
the dispute. Picketing includes stationing persons at the site of the labor dispute for the purpose
of exercising coercion or intimidation on other. However, the requirement of the law is that the
picket must be a moving picket. (Azucena)
Important from the Professor Disinis Integration:
1) Picketing is not mentioned in the law of strikes.
2) It is a form of exercising the freedom of expression.
3) It cannot be enjoined, but it may be regulated.
4) Stranger picketing is allowed.
5) RUN-AWAY SHOP: employees can picket in new work place.
Definition Law Dictionary Picketing by members of a trade union or strikers, consists in
posting members at all the approaches to the works struck against for the purpose of reporting
the workman going to or coming from the works; and to use suck influence as may be in their
power to prevent the workman from accepting the work there. (Bouviers Law Dictionary)
Nature and Purpose of Picket Line
Purpose: Publicize labor dispute and seek sympathy
Nature
Insular Life Assurance Co. Ltd. Employees Assoc. v. Insular Life Insurance Co. Ltd.
The heated altercations and occasional blows exchanged on the picket line do not affect or
diminish the right to strike. Persuasive on this point is the following commentary:
We think it must be conceded that some disorder is unfortunately quite usual in any extensive or
long drawn out strike. A strike is essentially a battle waged with economic weapons. Engaged in
it are human beings whose feelings are stirred to the depths. Rising passions call forth hot
words. Hot words lead to blows on the picket line. The transformation from economic to physical
combat by those engaged in the contest is difficult to prevent even when cool heads direct the
fight.
Violence of this nature, however much it is to be regretted, must have been in the contemplation
of the Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing therein
should be construed so as to interfere with or impede or diminish in any way the right to strike. If
this were not so, the rights afforded to employees by the Act would indeed be illusory.
We accordingly recently held that it was not intended by the Act that minor disorders of this
nature would deprive a striker of the possibility of reinstatement." (Republic Steel Corp. v. N. L.
R. B., 107 F2d 472, cited in Mathews, Labor Relations and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a necessary
incident of the strike and should not be considered as a bar to reinstatement. Thus it has been
held that: "Fist-fighting between union and non-union employees in the midst of a strike is no
bar to reinstatement."
Security Bank Employees Union v. Security Bank and Trust Co.
The union despite various TROs and return to work orders by the court, still held their strike.
The union contends that the lower court judge committed grave abuse of discretion when he
issued ex parte a restraining order prohibiting the workers from staging or continuing a strike or
picketing "of whatever kind or form, particularly, at plaintiff's main office at Escolta, Manila," as
well as any of its branches.
It is true that respondent Bank is in the unenviable position of an innocent bystander caught in
the cross-fire. It enlists one's sympathy, but it cannot with reason assert that its difficulties are in
no way connected with a labor controversy. Besides, it is now too late to consider as lacking the
elements of a labor dispute a situation where rival unions vie for supremacy. This court has so
indicated in at least two decisions, Balaquezon Trans. Labor Union v. Muoz-Palma and
Malayang Manggagawa sa Esso v. Esso Standard Eastern.
Even if it be granted, however, that the ordinary procedure provided by the Rules of Court could
be relied upon, the last mentioned order of respondent Judge dated January 3, 1968, which
modified what was issued by him on November 2, 1967 enjoining "the defendants or their
representatives from picketing of whatever kind or form", still could not survive the jurisdictional
test. It suffers from the fatal defect of prohibiting any picketing of whatever kind or form."
This cannot be done consistently with the Industrial Peace Act, which categorically provides that
no Court, Commission or Board of the Philippines "shall have jurisdiction except as provided in
section ten of this Act to issue any restraining order, temporary or permanent injunction in any
case involving or growing out of a labor dispute to prohibit any person or persons participating
or interested in such dispute from doing whether singly or in concert, any of the following acts:
(5) Giving publicity to the existence of, or the facts involved in any labor dispute, whether by
advertising, speaking, patrolling, or by any method not involving fraud or violence;.
Moreover, this Court, in Caltex Refinery Association v. Lucero, made explicit its disapproval of
an injunction against strikes, holding that "no Court can issue a restraining order against union
members who plan to hold a strike even if the same may appear to be illegal." That is so in view
of the unmistakable language employed in the Industrial Peace Act, with reference to strikes.
The statutory command on picketing likewise calls for a similar declaration. The obstacle that
bars the Bank from attaining its objective to bar all picketing is indeed too formidable to
surmount.
Also, even without such a categorical mandate expressed in the Act, the recognition of peaceful
picketing as a constitutional right embraced in the freedom of expression dating from the 1947
decision of Mortera v. Court of Industrial Relations, precludes the issuance of such a blanket
prohibition as that imposed in the challenged order of respondent Judge of January 3, 1968.
This is not to say that picketing, like freedom of expression in general, has no
limits. Certainly, to the extent that it is an instrument of coercion rather than of
persuasion, it cannot rightfully be entitled to the protection associated with free
speech.
Equally so, there can be no indiscriminate ban on the freedom to disseminate the
facts of a labor dispute and to appeal for public sympathy, which is the aim of
peaceful picketing, without a transgression of the Constitution, sufficient to oust a
court of jurisdiction, even on the assumption that it was originally possessed of
such a competence, which was not so in this case as had been earlier made
clear.
Mortera v. CIR
The prohibition should be understood to cover only illegal picketing, that is, picketing through
the use of illegal means.
Peaceful picketing cannot be prohibited. It is part of the freedom of speech guaranteed by the
Constitution. Therefore, the order of the Court of Industrial Relations prohibiting picketing must
be understood to refer only to illegal picketing, that is, picketing through the use of illegal
means.
Phil. Assoc. of Free Labor Unions v. Cloribel
INNOCENT BYSTANDER RULE AS DISCUSSED IN THIS CASE
The right to picket as a means of communicating the facts of a labor dispute is a phase of the
freedom of speech guaranteed by the constitution. If peacefully carried out, it can not be
curtailed even in the absence of employer-employee relationship.
The right is, however, not an absolute one. While peaceful picketing is entitled to protection as
an exercise of free speech, we believe that courts are not without power to confine or localize
the sphere of communication or the demonstration to the parties to the labor dispute, including
those with related interest, and to insulate establishments or persons with no industrial
connection or having interest totally foreign to the context of the dispute.
Thus the right 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 one case, decided by this Court, we upheld a trial court's injunction prohibiting the union from
blocking the entrance to a feed mill located within the compound of a flour mill with which the
union had a dispute. Although sustained on a different ground, no connection was found
between the two mills owned by two different corporations other than their being situated in the
same premises.
It is to be noted that in the instances cited, peaceful picketing has not been totally banned but
merely regulated.
And in one American case, a picket by a labor union in front of a motion picture theater with
which the union had a labor dispute was enjoined by the court from being extended in front of
the main entrance of the building housing the theater wherein other stores operated by third
persons were located.
B. PICKETING AND LIBEL LAWS
The mere fact that the language employed by the picketers is far from being courteous
and polite does not give rise to a cause for libel and damages. (PCIB vs. Philnabank EEs
Assn.)
* Picketing cannot be prohibited or enjoined but may be regulated.
C. ER-EE RELATIONSHIP
Absence of an ER-EE relationship does not make picketing illegal. (De Leon vs. NLU)
D. RESTRICTIONS
1. Art. 264 : No person engaged in picketing shall commit any act of violence, coercion or
intimidation or obstruct the free ingress to or egress from the ERs premises for lawful
purposes, or obstruct public thoroughfares.
2. A picketing labor union has no right to prevent EEs of another company from getting in
and out of its rented premises, otherwise it will be held liable for damages against an
innocent by-stander. (Liwayway vs. Permanent Concrete Workers Union)
3. Picketing as a concerted activity is subject to the same limitations as strike, particularly
as to lawful purpose and lawful means. Like the freedom of expression in general, it has
limits. Thus, to the extent that it is an instrument of coercion rather than of persuasion, it
cannot rightfully be entitled to the protection associated with free speech. (Security
Bank EEs Union vs. Security Bank)
Innocent 3rd Party Rule and Liabilities
Liwayway Publishing Co. v. Permanent Concrete Workers Union
We find and hold that there is no connection between the Liwayway Publications, Inc. and the
striking Union, nor with the company against whom the strikers staged the strike, and neither
are the acts of the driver of Liwayway its general manager, personnel manager, the man incharge of the bodega and other employees of Liwayway in reaching the bodega to obtain
newsprint therefrom to feed and supply its publishing business interwoven with the labor dispute
between the striking Union and the Permanent Concrete Products company. If there is a
connection between Liwayway publishing company and the Permanent Concrete Products
company, it is that both are situated in the same premises, which can hardly be considered as
interwoven with the labor dispute pending in the Court of Industrial Relations between the
strikers and their employer.
The right to picket as a means of communicating the facts of a labor dispute is a phase of the
freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be
curtailed even in the absence of employer-employee relationship.
The right is, however, not an absolute one. While peaceful picketing is entitled to protection as
an exercise of free speech, we believe that courts are not without power to confine or localize
the sphere of communication or the demonstration to the parties to the labor dispute, including
those with related interest, and to insulate establishments or persons with no industrial
connection or having interest totally foreign to the context of the dispute.
Thus, the right may be regulated at the instance of third parties or ìnnocent 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 one case decided by this Court, we upheld a trial court's injunction prohibiting the union from
blocking the entrance to a feed mill located within the compound of a flour mill with which the
union had a dispute. Although sustained on a different ground, no connection was found other
than their being situated in the same premises. It is to be noted that in the instances cited,
peaceful picketing has not been totally banned but merely regulated. And in one American case,
a picket by a labor union in front of a motion picture theater with which the union had a labor
dispute was enjoined by the court from being extended in front of the main entrance of the
building housing the theater wherein other stores operated by third persons were located.
E. PROHIBITED ACTIVITIES
Art. 264 : No person shall obstruct, impede or interfere with by force, violence, coercion,
threats or intimidation any peaceful picketing by EEs during any labor controversy or in the
exercise of the right of self-organization or collective bargaining, or shall aid or abet such
obstruction or interference.
F. POWER OF COURTS TO CONFINE PICKETING
While peaceful picketing is entitled to protection as an exercise of free speech, courts
are not without power to confine or localize the sphere of communication or the demonstration
to the parties to the labor dispute, including those with related interest, and to insulate
establishments or persons with no industrial connection or having interest totally foreign to the
context of the dispute. (PAFLU vs. Cloribel)
SLOWDOWN
1. Define slowdown: Method by which ones EEs, without seeking a complete stoppage
of work, retard production and distribution in an effort to compel compliance by the ER
with the labor demands made upon by him. (Azucena)
2. Slowdown is considered inherently illicit and unjustifiable because while the EEs
continue to work and remain at their positions and accept wages from them, they at the
same time select what part of their allocated task they care to perform of their own
volitions or refuse openly or secretly to the ERs damage to the other work. (IBM vs.
NLRC)
BOYCOTT
1. Define boycott : It is the concerted refusal to patronize an ERs goods and services and
to persuade others to a like refusal. (Id.)
2. Is a boycott lawful? EEs may lawfully exert economic pressure on their ER by means
of a boycott, provided they act peaceably and honestly. (Alcantara)
9.9 CONSEQUENCES OF CONCERTED ACTIONS

STRIKERS RETENTION OR LOSS OF EMPLOYMENT
Does participation in a strike mean loss of employment for the worker?
A 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 ER during such
lawful strike. (Art. 264) However, if the strike is illegal.:
1. The union officer who knowingly participated in an illegal strike; and
2. Any worker or union officer who knowingly participates in the commission of illegal acts
during a strike may be declared to have lost their employment status.
An ordinary striking worker cannot be terminated for mere participation in an illegal
strike. There must be proof that he committed illegal acts during a strike. (INPORT vs.
NLRC)
Anyone who commits an ILLEGAL ACT during a strike may be dismissed from
employment, whether he is a member or an officer of the union and regardless of
whether the strike itself is legal or not.
A LAWFUL STRIKE is a protected workers activity
- an EE on strike is still an EE
- after the strike, he has the right to re-assume his job unless in the meantime
he has lost it by committing certain illegal acts.
What the law prohibits is NOT the hiring of temporary replacements BUT the use
of strike breakers (troublemakers)
DO #10 does not permit an ER to engage the services of a
contractor/subcontractor to provide substitute services in place of the striking
workers.
WHO DECLARES LOSS OF EMPLOYMENT STATUS
The law grants the ER the option of declaring loss of employment status. (Id.)
NO FINANCIAL ASSISTANCE TO DISMISSED STRIKERS
Financial assistance is not required to be given to a worker who participated in an illegal
strike. (Chua vs. NLRC)
STRIKE ON GOOD FAITH BELIEF THAT COMPANY COMMITTED UNFAIR LABOR
PRACTICE
Strikers who conducted an illegal strike on the good-faith belief that the company had
committed unfair labor practice, which turns out to be false, do not forfeit their employment.
They are entitled to reinstatement. (Ferrer vs. CIR)
STRIKE NOT MARKED WITH GOOD FAITH
Strikers who conducted a strike which is illegal and not marked with good faith forfeit
their employment. (Reliance Surety vs. NLRC)
APPLICATION OF THE PARI-DELICTO RULE
Is the pari-delicto rule applicable in strikes and lockouts? Yes. When the parties are
in pari delicto the EEs having staged an illegal strike and the ER having declared an illegal
lockout such situation warrants the restoration of the status quo ante and brining back the
parties to their respective positions before the illegal strike and illegal lockout through
reinstatement, without backwages, of the dismissed EEs. (Philippine Inter-Fashion vs.
NLRC)
BACKWAGES
1. In an economic strike, the strikers are not entitled to backwages on the principle that a
fair days wage accrues only for a fair days labor. (SMB vs. NLU) For an unfair labor
practice strike, the right of the workers to receive backpay depends on whether they are
voluntary or involuntary strikers. If they are involuntary strikers, they are entitled to
backpay. (Macleod vs. Progressive Federation of Labor) However, when they are
voluntary strikers, that is, they were not discriminatorily dismissed by the ER, then they
are generally not entitled to backpay, except when they voluntary offer to return to work
and the ER refuses to readmit them. (Cromwell EEs Assn. vs. CIR)
2. Are EEs who are unable to work by reason of a lockout validly declared by the ER
entitled to wages corresponding to the period of the lockout?
No. The refusal of the ER to furnish work is lawful. And since the EEs did not render
any service, they should not get paid; this in accordance with the no work no pay
rule. (Alcantara)
INVOLUNTARY STRIKERS (ULP STRIKES)
Discriminatorily dismissed EEs receive backpay from the date of the act of
discrimination, that is, from the day of their illegal discharge.
VOLUNTARY STRIKERS (ULP STRIKES)
EEs who struck as a voluntary act of protest against what they considered ULP of
the company are not entitled to backwages. The stoppage of their work was not the
direct consequence of the companys ULP.
Nevertheless, even after the court has made a finding of ULP, it has the
discretion to determine whether or not to grant back pay.
ERS RIGHT TO HIRE REPLACEMENT DURING STRIKE
Discuss the principles governing the hiring of worker replacements during a strike?
During the pendency of an economic strike, the ER may hire replacements on a permanent
basis and is not bound to discharge such permanent replacements in the event that the strikers
decide to resume their employment. (Consolidated Labor Assn. vs. Marsman) On the other
hand, while replacements may also be hired by the ER to take the places left vacant by the EEs
engaged in unfair labor practice strike, such replacements are not permanent and the ER is
under a duty to dismiss them as soon as the strikers request reinstatement in their previous
position. (Insular Life EEs Assn. vs. Insular Life)
DAMAGES
Union officers may not be vicariously held liable for illegal act of strikers. The rule of
vicarious liability no longer applies. (Benguet Consolidated vs. BCI EEs Assn.)
WHO SUFFERS BURDEN OF ECONOMIC LOSS?

1. In a ULP Strike
a. If the worker was the direct victim of the ULP: Backpay, the employer suffers economic loss.
b. If the striker was not the direct victim and only voluntarily joined the strike: no backpay
Crownwell Employees and Laborers Union v. CIR
There are two types of employees involved in unfair labor practice cases should be
distinguished, namely, those who were discriminatorily dismissed for union activities and those
who voluntarily went on strike even if it is in protest of an unfair labor practice. Both types of
employees are entitled to reinstatement.
From the rule that employees who strike because of unfair labor practice are entitled to
reinstatement, however, must be excepted those who, although discriminatorily discharged,
must nevertheless be denied reinstatement because of (1) unlawful conduct or (2) because of
violence.
Discriminatorily dismissed employees receive back pay from the date of the act of
discrimination, that is, from the day of their discharge. However those employees who
voluntarily went on strike even if in protest against what they considered unfair labor practices of
the company are not entitled to backpay.
The stoppage of their work was not the direct consequence of the company's unfair labor
practice. Hence, their economic loss should not be shifted to the employer.
Consolidated Labor Association v. Marsman
In an economic strike, the strikers are not entitled to backpay, since the employer should get the
equivalent day's work for what he pays his employees. During the time that the strike was an
economic one, complainants had no right to back pay.
The Industrial Court could not have made a finding of unfair labor practice with respect to such
time, as none had so far been committed. This being an unfair labor practice case, it cannot,
therefore, order reinstatement much less back pay for that period.
SSS v. SSS Supervisors Union
We find for SSS based on the equitable tenet of a "fair day's wage for a fair day's labor."
"The age-old rule governing the relation between labor and capital or management and
employee is that of a `fair day's wage for a fair day's labor.' If there is no work performed by the
employee there can be no wage or pay, unless of course the laborer was able, willing and ready
to work but was illegally locked out, dismissed or suspended. It is hardly fair or just for an
employee or laborer to fight or litigate against his employer on the employer's time."
In this case, the failure to work on the part of the members of respondent Union was due to
circumstances not attributable to themselves. But neither should the burden of the economic
loss suffered by them be shifted to their employer, the SSS, which was equally faultless,
considering that the situation was not a direct consequence of the employer's lockout or unfair
labor practice. Under the circumstances, it is but fair that each party must bear his own loss."
Considering, therefore, that the parties had no hand or participation in the situation they were in,
and that the stoppage of the work was not the direct consequence of the company's lockout or
unfair labor practice, `the economic loss should not be shifted to the employer.'
Justice and equity demand that each must have to bear its own loss, thus placing the parties in
equal footing where none should profit from the other there being no fault of either."
Phil. Inter-Fashion v. NLRC
The findings show that both petitioner and the 114 strikers are in pari delicto, a situation which
warrants the maintenance of the status quo. This means that the contending parties must be
brought back to their respective positions before the controversy; that is, before the strike.
Therefore, the order reinstating the 114 employees is proper.
With such restoration of the status quo ante it necessarily follows, as likewise submitted by the
Solicitor General, that the petition must be granted insofar as it seeks the setting aside of the
award of three months' backwages to the 114 employees ordered reinstated on the basis of the
general rule that strikers are not entitled to backwages (with some exceptions not herein
applicable, such as where the employer is guilty of oppression and union-busting activities and
strikers ordered reinstated are denied such reinstatement and therefore are declared entitled to
backwages from the date of such denial). More so, is the principle of "no work, no pay"
applicable to the case at bar, in view of the undisputed finding of illegality of the strike.
Section 10. REMEDIES

WHAT ARE THE DIFFERENT REMEDIES AVAILABLE IN LABOR DISPUTES?
1. Grievance procedure In adjustment of complaint following steps prescribed in the
CBA or company policy.
2. Conciliation Process where a disinterested 3rd party meets with management and
labor, at their request or otherwise, during a labor dispute or in collective bargaining
conferences, and by cooling tempers, aids in reaching an agreement.
3. Mediation A 3rd party studies each side of the dispute then makes proposal for the
disputants to consider, but a mediator cannot render an award.
4. Enforcement or compliance order An act of the Secretary of Labor in the exercise of
his visitorial or administrative authority to enforce labor laws, polices, plans, programs,
rules and regulations.
5. Certification of bargaining representatives Determination of which union shall
represent EEs in collective bargaining. This is handled by Med-Arbiters of DOLE.
6. Arbitration The submission of a dispute to an impartial determination on the basis of
impartial evidence and arguments of the parties.
7. Assumption of jurisdiction An authority vested by law to the Secretary of Labor or
the President to decide a dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest.
8. Certification to NLRC An action of the Secretary of Labor empowering the NLRC to
compulsorily arbitrate a dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest.
9. Injunction An extraordinary remedy and is not favored in labor law. As a general law,
an injunction or a restraining order to prevent or stop the doing of an act is avoided in
resolving a labor dispute because the state policy and aim is to encourage the parties to
use the non-judicial processes of negotiation and compromise, mediation and arbitration.
10. Judicial action Complaint with regular court in cases falling under its jurisdiction i.e.
criminal case of unfair labor practice.
11. Appeal Process by which an order, decision or award is elevated to a higher authority,
on specified grounds, so that the order, decision or award may be modified or set aside
and a new one issued.
12. Judicial review No law allows appeal from decision of the Secretary of Labor or of the
NLRC, or of a voluntary arbitrator. In these cases, the special civil action of certiorari,
prohibition and mandamus may be lodged with the Supreme Court.
13. Compromise settlement In any stage of these settlement processes, the labor
dispute may be resolved by the parties through a compromise agreement, provided the
agreement is freely entered into and is not contrary to law, moral or public policy.
(Azucena)
DUE PROCESS
Sec. 4 Rule 5 of the New Rules of Procedure of the NLRC vests upon the Labor arbiter
the discretion to determine the need for a formal trial or hearing.
o
He may at his discretion, merely require the parties to submit their respective
position papers/memoranda and decide on the basis thereof without resorting to
technicalities.
Labor laws mandate the speedy disposition of cases with the lease attention to
technicalities but without sacrificing the fundamental requisites of due process.
What cases fall under the exclusive and original jurisdiction of labor arbiters?
Labor arbiters shall have exclusive and original jurisdiction to hear and decide within 30
working days after submission of the case by the parties for decision without extension
the following cases involving all workers, whether agricultural or non-agricultural :
1. Unfair labor practices.
2. Termination disputes.
3. If accompanied with a claim for reinstatement, those cases that workers may file
involving wages, rates of pay, hours of work and other terms and conditions of
employment.
4. Claims for actual, moral and exemplary and other forms of damages arising form the
ER-EE relations.
5. Cases arising from any violation of Art. 264 of this Code, including questions
involving the legality of strikes and lockouts.
6. Except claims for EEs compensation, social security, medicare and maternity
benefits, all other claims arising from ER-EE relations, including those of persons in
domestic or household service, involving an amount exceeding P5,000.00 whether or
not accompanied with a claim for reinstatement.
Does service of notice of hearing upon respondent confer jurisdiction of the
former? No. Notices of hearings are not summonses. In the absence of service of
summons or a valid waiver thereof, the hearings and judgment rendered by the Labor
Arbiter are null and void. (Larkins vs. NLRC)
Do labor arbiters have jurisdiction to hear and decide claims for damages arising
from unfair labor practices? Yes. The civil aspects of all cases involving unfair labor
practices, which may include claims for actual, moral, exemplary and other forms of
damages, attorneys fees and other affirmative reliefs, shall be under the jurisdiction of
the labor arbiters. (Art. 247)
Does the Regional Director of the DOLE have jurisdiction to hear and decide
money claims of workers? Yes. He is empowered through summary procedure, to
hear money claims and benefits, including legal interest, owing to a househelper
provided the complaint does not include a claim for reinstatement and the aggregate
money claims of each EE or househelper does not exceed 5,000. (Art. 129)
How are disputes arising from wage distortions settled? When there is a CBA,
through the grievance procedure and, if it remains unresolved, through voluntary
arbitration. When there is no CBA, the dispute shall be settled through the NCMB and, if
it remains unresolved after 10 calendar days of conciliation, shall be referred to the
appropriate branch of the NLRC. (Art. 124)
Expulsion of union members is an INTRA-UNION affair BUT it becomes a

termination dispute when the company dismisses the workersthe jurisdiction is
with the LABOR ARBITER.
JURISDICTION BY ESTOPPEL: A party to a case who participated actively in

the litigation before an office cannot subsequently question the jurisdiction of that
office.
The appellate jurisdiction of the SOLE is limited only to a review of cancellation

proceedings decided by the BLR in the exercise of its exclusive and original
jurisdiction (not in the exercise of BLR appellate jurisdiction),
Cases not falling under the jurisdiction of labor arbiters:

1. Civil action to collect sum of money owed by the EE to the ER. (Georg Gortjahm vs.
Isnani)
2. Action for damages for breach of contractual stipulations. (Dai-Ichi Electronis vs.
Villarama)
3. Tortious acts by the president of a company against EEs. (Medina vs. Bartolome)
4. Replevin case to recover fishing vessel from striking crew members. (Basaya vs.
Militante)
5. Civil case to annul the public auction sale of several properties of the ER used to pay
liabilities to the EEs on the ground that the properties were owned by 3 rd parties.
(Manliguez vs. CA) In contrast to the Pucan vs. Bengzon case, what was being
questioned was not the writ of executions issued by the DOLE but the ownership over
the property in question. (Alcantara)
6. Suit filed by an independent contractor. (Cabe vs. Tumang)
7. Intra-company disputes. (Dy vs. NLRC)
Cases falling under the jurisdiction of the labor arbiters:
1. Legality of strikes and lockouts. (Samahang Manggagawa ng Liberty Commercial
Center vs. Pimentel)
2. Suit for damages from picketing that accompany a strike. (NFL vs. Eisma)
3. Complaint arising from implementation of union security clause. (Sanyo Philippines
Workers Union vs. Canizares)
May an illegally dismissed EE still file a civil case for tort against the ER if he was
already awarded damages in the illegal dismissal case that he filed with the labor
arbiter?
No. The judgment of the labor arbiter granting the illegally dismissed EE separated
pay operated as a bar to his subsequent action for a tort against the ER if he was
already awarded damages in the illegally dismissed EE separation pay operated as a
bar to his subsequent action for the recovery of damages before the regular court under
the doctrine of res judicata. (Primero vs. IAC)
In his complaint with the labor arbiter for illegal dismissal, A sought payment for
holiday pay and the 13th month pay may A be awarded 13 th month pay and holiday
pay even if he did not prove that he was paid these benefits?
Yes. The claimants allegation of these benefits is a negative allegation which need
not be supported by evidence unless it is an essential part of the cause of action.
The burden of proving that payment of said benefits have been made rests with the
ER. (Seaborne Carriers vs. NLRC)
May the labor arbiter increase the original award it made after its decision was
rendered final and executory by a dismissal of the NLRC of an appeal with respect
to the said case?
Yes. The backwages merely correspond to the period of dismissal when the case
was originally heard by the labor arbiter. Recomputation is necessary to arrive at a
just and proper determination of the monetary awards. (Industrial Timber vs.
NLRC)
May the labor arbiter adjudicate on claims not alleged in the complaint?
Yes, provided the claims are made in the complaints position paper. But claims for
wage differentials are not made in the complaint or in the position paper cannot be
passed upon. (DBP vs. NLRC)
May the labor arbiter decide the case on the basis of a supplemental position
paper submitted after the parties have filed their position papers and agreed to
consider the case submitted for the decision?
No. After submitting the case for decision, the parties shall not be allowed to allege
facts not referred to and any cause of action not included in the complaint or position
papers, affidavits and other documents. (Manebo vs. NLRC)
Does the labor arbiter have jurisdiction over a claim of an EE of the SEAFDECAQD an international organization?
No. Being an international organization SEAFDEC-AQD enjoys functional
independence and freedom from control of the state in whose territory its office is
located. (SEAFDEC-AQD vs. NLRC)
How about JUSMAG? No. The act of hiring cannot be considered a waiver of the
foreign states immunity from suit. (JUSMAG vs. NLRC)
Does the Med-Arbiter have jurisdiction over inter-union conflicts? Yes. The
decision of the Med-Arbiter is appealable to the Secretary of Labor. (Pepsi Cola Sales
and Advertising Union vs. Secretary of Labor)
May a legally dismissed EE be entitled to receive moral and exemplary damages?
Yes, provided the dismissal is effected in an anti-social and oppressive manner.
(Quisaba vs. Sta. Ines Veneer and Plywood)
What matters falls under the exclusive and original jurisdiction of voluntary
arbitrators provided for in a CBA?
Unresolved grievances arising from the:
1. Interpretation or implementation of the CBA and those arising from the
interpretation of enforcement of company personnel policies;
2. Interpretation and enforcement of company personnel policies; and
3. All other disputes including unfair labor practices and bargaining deadlocks
submitted to them by agreement of the parties. (Art. 262)
Labor cases involving companies that are under receivership should be suspended
accordingly.
Within what period should a complaint for unfair labor practice, illegal dismissal
and money claims be filed with the labor arbiters?
1. Unfair labor practice 1 year from accrual thereof (Art. 290)
2. Illegal dismissal 4 years from accrual thereof (Art. 1146, NCC)
3. Money claims 3 years form the time the cause of actions accrues (Art. 291)
Give the effect of the pendency of a money claim before the labor arbiter on
criminal and civil actions arising from or based on the same cause of action?
Money claims shall be filed independently of the criminal action that may be instituted in
the proper courts.
Pending the final determination of the merits of the money claims, no civil action arising
from the same cause of action shall be filed with any court. (Art. 292)
Are the technical rules of evidence followed in proceedings before labor arbiters?
No. (Art. 221)
May non-lawyers appear before labor arbiters? Non lawyers may appear before labor
arbiters only if they represent themselves or their organizations or members thereof.
(Art. 222)
What are the grounds so that decisions of labor arbiters are appealable?
Decisions of labor arbiters are appealable within 10 calendar days to the NLRC on the
following grounds:
1. If there is prima facie evidence of abuse of discretion on the part of the labor
arbiter.
2. If the decision, order or award was secured through fraud or coercion, including
graft and corruption.
3. If made purely on questions of law.
4. If serious errors in the findings of facts are raised which would cause grave or
irreparable damage or injury to the appellant. (Art. 223)
How is appeal perfected? Filing by the appellant with the labor arbiter his
memorandum of appeal, copy furnished the appellee, and the payment of the appeal fee
within 10 calendar days. (Vir-Jen Shipping vs. NLRC)
Is the NLRC or labor arbiter empowered to conduct an ocular inspection? Yes, for
any information or date concerning any matter or question relative to the object of the
investigation. (Art. 219)
May the NLRC order the reinstatement of workers who did not appeal from a
decision of the labor arbiter ordering payment of separation pay in lieu of
reinstatements? No. An appellee who has not himself appealed cannot obtained from
the appellate court any affirmative relief other than those granted in the decision of the
court below. (SMI Fish Industries vs. NLRC)
Is the decision of the NLRC appealable to the Secretary of Labor? No. Decisions of
the NLRC may only be questioned before the Supreme Court by means of a petition for
certiorari. (Alcantara)
May the NLRC consider evidence submitted for the first time on appeal? Yes.
(Bristol Laboratories vs. NLRC)
Does the NLRC exercise any original jurisdiction? Yes. In cases of labor disputes
certified to it by the Secretary of Labor for compulsory arbitration and it can also
entertain petitions for injunction. (Id.)
Is PD 1508, the Katarungang Pambarangay Law, applicable to labor cases? No.
(Montoya vs. Escayo)
Give the scope of visitorial powers of the Secretary of Labor and Employment and
regional directors under Art. 128 of the Labor Code?
The visitorial power provided for under Art. 128 is confined to checking compliance
with labor standard laws. However, this does not include adjudication of money
claims clearly within the ambit of the labor arbiters authority under Art. 217 of the
Labor Code. (Ong vs. Parel)
If a party submits to the jurisdiction of a labor tribunal and obtains an unfavorable
judgment, can later on question the jurisdiction of the said tribunal?
No. When a party has voluntarily submitted to the jurisdiction of a court tribunal, he
cannot later on, if he gets an unfavorable judgment adopt an inconsistent posture
and attack the latters jurisdiction. (Tijam vs. Sibonghanoy)
Is the reinstatement aspect of the decision of the labor arbiter self-executory even
pending appeal?
No. There must be a writ of execution which may be issued by the Labor Arbiter
motu proprio or on motion of an interested party. (Maranaw Hotel vs. NLRC)
Do courts or administrative bodies have the power to set or fix rates of pay,
wages, hours of work and other terms and conditions of employment?
As a rule, courts and administrative bodies cannot fix the terms and conditions of
employment because what is being promoted is collective bargaining. (Alcantara)
Section 11. CHOICE QUESTIONS ON PUBLIC SECTOR EES

1. J, a supervisor of Casino Filipino was dismissed by PAGCOR due to loss of
confidence. He filed a case for damages with the RTC. PAGCOR filed a motion to
dismiss on ground of lack of jurisdiction of the RTC to hear thecase. Is the ground
valid?
Yes. The case involving whether J was illegally dismissed falls under the jurisdiction
of the Merits Systems Protection Board and the Civil Service Commission. The claim
for damages was merely incidental to the illegal dismissal. (PAGCOR vs. CA)
2. Is the case not cognizable by the labor arbiter? No. PAGCOR is a GOCC with an
original charter. (Id.)
3. What is GOCC with original charter? It is a GOCC with a legislative charter i.e.
PAGCOR and DBP. (Alcantara)
4. May EEs of the government go on strike and may the latter declare a lockout? No.
The terms and conditions of government EEs are fixed by law and thus they are
prohibited from using the normal instruments available to private sector EEs. However,
under Sec. 13 of EO 180, the terms and conditions or improvements thereof not fixed by
law may be the subject of negotiations between duly recognized EEs organizations and
appropriate government authorities. (Id.)
5. Assuming that EEs of GOCCs with original charters cannot go on strike, may
they nevertheless from unions and petition for certification election?
Yes. Although they are covered by civil service laws, they are guaranteed the right to
self-organization. Under EO 180, where there are two or more duly registered EEs
organizations in the appropriate bargaining unit, the BLR shall, upon petition order
the conduct of certification election and certify the winner as the exclusive
representative of the rank-and-file EEs in the said organizational unit. (TUPAS vs.
NHA)
6. Some 800 public school teachers did not conduct their classes and instead
converged at Liwasang Bonifacio to protest the non-payment of their benefits. Is
the mass action lawful? No. EEs in the public service do not have the right to strike.
(MPSTA vs. Laguio)
7. The NHC is 100% government-owned organized in accordance with EO 399, the
Uniform Charter of Government Corporations. Are its EEs covered by the
provisions of the Labor Code?
Yes. The NHC is incorporated under and pursuant to a general legislation and not by
an act of Congress or by special law. (TUPAS vs. NHC)
8. The Public Sector Management Council has jurisdiction to hear charges of unfair labor
practice filed by a government EE against their ER. In deciding the unfair labor practice
charge, the PSLMC may also rule on the complainants dismissal if the two issues are
unavoidably linked. (PLM vs. CSC)
{ notes }
LIBERAL CONSTRUCTION OF PROCEDURAL RULES MAY BE APPLIED

ONLY ON THE FFG:
1Where a rigid application will cause miscarriage of justice
2Where the interest of substantial justice will be served
3-
Where the resolution of the motion is addressed in sole to the sound

and judicious discretion of the court
4Where the injustice to the adverse party is not commensurate with the
degree of his thougtlessness
Dismissal of appeals bases solely on technicality is frowned upon.

Strict rules on evidence should not be applicable in workmens compensation
cases
Probability not ultimate proof/degree of certainty is the test of proof in compensation
proceedings
An EE who refuses to submit any evidence is deemed to admit her guilt.
Notice to counsel is notice to party, thus appeal out of time cannot be

entertained, mistakes of lawyer bind the client
Perfection of an appeal within the reglementary period is not only mandatory but
also jurisdictional
The posting of a cash or surety bond by the ER is an indispensable requirement

in order for the ER appeal may be perfected
The order of reinstatement by the LA is not stayed by the filing of an appeal, such
order is immediately executory.

Labor Law 2 (Labor Relations) : Section 1. INTRODUCTION

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Labor Law 2 (Labor Relations) : Section 1. INTRODUCTION

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Labor law 2 ( Labor Relations )

Updated and enhanced with additional cases by ATTY. RENE CALLANTA

B. Constitution and by-laws, statement on set of officers, and books of accounts

1.3 LABOR RELATIONS POLICY