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G.LABORRELATIONSLAW

4.

1.RIGHTTOSELFORGANIZATION

5.
a.Whomayunionizeforpurposesofcollective
bargaining

Q: What is the extent of the right to self


organization?

A:Itincludestheright:

1. To form, join and assist labor


organizations for the purpose of
collective bargaining (CB) through
representatives of their own
choosing;and
2. To engage in lawful and concerted
activitiesforthepurposeofCBorfor
theirmutualaidandprotection.(Art.
246)

Q: Who are the persons/Ees eligible to join a


labororganization(LO)forpurposesofCB?

A:Theentitiescoveredareallpersonsemployedin:
1. Commercial industrial, and agricultural
enterprises;and
2. In religious, charitable, medical or
educational
institutions
whether
operatingforprofitornot.(Art.243)

Q: Who are the persons/Ees eligible to join a


labororganizationformutualaidandprotection?

A:Thefollowingenjoytherighttoselforganization
formutualaidandprotection:

1. Ambulantworkers
2. Intermittentworkers
3. Itinerantworkers
4. Selfemployedpeople
5. Ruralworkers
6. Those without and definite Ers. (Art.
243)

Q:Whoarethepersons/Eesnotgrantedtheright
toselforganization:

A:
1. High level or Managerial Government
Ees.(Sec.3,E.O.180)
2. Ees of International organizations with
immunities. (ICMC v. Calleja, G.R. No.
85750,Sep.28,1990)
3. ManagerialEmployees.(Art.212ofLC)

128

6.

7.
8.

9.

Members of the AFP including the police


officers, policemen, firemen, and jail
guards.(Sec.4,E.O.180)
Confidential Employees. (Metrolab
Industries Inc. v. Confesor, G.R. No.
108855,Feb.28,1996)
Employees of cooperatives who are its
members.(BenguetElec.Coop.v.Ferrer
Calleja, G.R. No. 79025, Dec. 29, 1989);
However they may form workers
association. (NEECO Ees Assoc. v. NLRC,
G.R.No.16066,Jan.24,2000)
NonEes.(RosarioBros.v.Ople,G.R.No.
L5390,July31,1984)
GovtEes,includingGOCCswithoriginal
charters.(Arizalav.CA,G.R.Nos.43633
34,Sep.14,1990)
Aliens without a valid working permit or
aliens with working permits but are
nationalsofacountrywhichdonotallow
Filipinos to exercise their right of self
organization and to join or assist labor
organizations.(Art.269ofLC;D.O.No.9
[1997],RuleII,Sec.2)

b.BargainingUnit

Q:Whatisabargainingunit?

A:ItisagroupofEesofagivenEr,comprisedofall
orlessthanalloftheentirebodyoftheEeswhich
thecollectiveinterestofalltheEesconsistentwith
equitytotheemployer,indicatetobebestsuitedto
servethereciprocalrightsanddutiesoftheparties
under the collective bargaining provisions of the
law.

Q:Whatisanappropriatebargainingunit?

A: 1.Agroupofemployees(Ees)
2. Ofagivenemployer
3. Comprised of all or less than all of the
entirebodyofEes
4. WhichthecollectiveinterestofalltheEes
consistentwithequitytotheEr
5. Indicate to be best suited to serve the
reciprocalrightsanddutiesoftheparties
underthecollectivebargainingprovisions
ofthelaw.

(1)Testtodeterminetheconstituencyofan
appropriatebargainingunit

Q:Whatarethefactorsconsideredindetermining
theappropriatenessofabargainingunit?

A:
1. WilloftheEes.(GlobeDoctrine)

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2.

3.
4.

AffinityandunityoftheEesinterest,such
as substantial similarity of work and
duties, or similarity of compensation and
working conditions. (Substantial Mutual
InterestRule)
Priorcollectivebargaininghistory
Similarityofemploymentstatus.(SMCv.
Laguesma, G.R. No. 100485, Sep. 21,
1994)

Q:Whatarethefactorsconsideredindetermining
thesubstantialmutualinterestdoctrine?

A: 1. Similarity in the scale and manner of


determiningearnings
2. Similarity in employment benefits, hours
of work, and other terms and conditions
ofemployment
3. Similarityinthekindsofworkperformed
4. Similarity in the qualifications, skills and
trainingofEes
5. Frequency of contract or interchange
amongtheEes
6. Geographicalproximity
7. Continuity and integration of production
processes
8. Common supervision and determination
oflaborrelationspolicy
9. HistoryofCB
10. DesiresoftheaffectedEesor
11. Extentofunionorganization

Q:AregisteredlaborunioninUP,ONAPUP,fileda
petitionforcertificationelection(PCE)amongthe
nonacademicEes.Theuniversitydidnotoppose,
however,anotherlaborunion,theAllUPWorkers
Union assents that it represents both academic
andnonacademicpersonnelandseekstouniteall
workers in 1 union. Do Ees performing academic
functions need to comprise a bargaining unit
distinctfromthatofthenonacademicEes?
A: Yes. The mutuality of interest test should be
takenintoconsideration.Therearetwoclassesof
rankandfileEesintheuniversitythatis,thosewho
performacademicfunctionssuchastheprofessors
andinstructors,andthosewhosefunctionarenon
academic who are the janitors, messengers, clerks
etc.Thus,notmuchreflectionisneededtoperceive
that the mutuality of interest which justifies the
formation of a single bargaining unit is lacking
between the two classes of Ees. (U.P. v. Ferrer
Calleja,G.R.No.96189,July14,1992)
Q:Isthebargaininghistoryadecisivefactorinthe
determination of appropriateness of bargaining
unit?

A:No.Whiletheexistenceofabargaininghistoryis
afactorthatmaybereckonedwithindetermining
the appropriate bargaining unit, the same is not
decisive or conclusive. Other factors must be
considered. The test of grouping is community or
mutuality of interests. This is so because the basic
testofanassertedbargainingunitsacceptabilityis
whetherornotitisfundamentallythecombination
whichwillbestassuretoallEestheexerciseoftheir
CB rights. (Democratic Labor Assn v. Cebu
Stevedoring Company, Inc., G.R. No. L10321, Feb.
28,1958)
Q:Whatisoneunion,onecompanypolicy?

A:GR:ItistheproliferationofunionsinanErunit.
Suchisdiscouragedasamatterofpolicyunless
therearecompellingreasonswhichwoulddeny
a certain class of Ees to the right to self
organization for purposes of collective
bargaining(CB).

XPNs:
1. SupervisoryEeswhoareallowedtoform
their own unions apart from the rank
andfileEesand
2. ThepolicyshouldyieldtotherightofEes
to form union for purposes not contrary
tolaw,selforganizationandtoenterinto
CBnegotiations.

Note: Two companies cannot be treated into a single


bargaininguniteveniftheirbusinessesarerelated.

Subsidiaries or corporations formed out of former


divisions of a mother company following a re
organization may constitute a separate bargaining
unit.

Q:UnionfiledaPCEamongtherankandfileEes
of three security agencies including the Veterans
Security.Thelatteropposedallegingthatthethree
security agencies have separate and distinct
corporatepersonalities.MayasinglePCEfiledbya
labor union in the three corporations instead of
filing3separatepetitions?
A: Yes. The following are indications that the 3
agencies do not exist and operate separately and
distinctly from each other with different corporate
direction and goals: 1) Veterans Security failed to
rebut the fact that they are managed through the
Utilities Management Corp with all their Ees
drawing their salaries and wages from the said
entity; 2) that the agencies have common and
interlockingincorporatorsandofficers;3)thatthey
haveasinglemutualbenefitsystemandfolloweda
single system of compulsory retirement. 4) they
could easily transfer security guards of one agency

129

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to another and back again by simply fillingup a
common proforma slip; 5) they always hold joint
yearly ceremonies such as the PGA Annual Awards
Ceremony;and6)theycontinuetoberepresented
byonecounsel.
Hence, the veil of corporate fiction of the 3
agencies should be lifted for the purpose of
allowing the Ees of the 3 agencies to form single
union.Asasinglebargainingunit,theEesneednot
file 3 separate PCE. (Philippine Scout Veterans
Security and Investigation Agency v. SLE, G.R. No.
92357,July21,1993)

through the Labor Relations Division shall, within 10


daysfromreceiptofthenotice,recordthefactofVRin
its roster of legitimate labor unions and notify the
laborunionconcerned.

Q:Whatarethethree(3)conditionstovoluntary
recognition(VR)?
A:VRrequires3concurrentconditions:
1.

2.

(2)VoluntaryRecognition
Q: What are the 3 methods of determining the
bargainingrepresentative?
A:
1.
2.

Voluntaryrecognition
Certificationelectionwithorwithoutrun
off
Consentelection

3.

3.

Q:Whatisvoluntaryrecognition(VR)?

A:Theprocessbywhichalegitimatelaborunionis
recognized by the employer (Er) as the exclusive
bargaining representative or agent in a bargaining
unit, reported with the Regional Office. (Sec. 1
[bbb],RuleI,BookV,IRR)

VR is possible only in an unorganized


establishment.

Onlyoneunionmustaskforrecognition.If
there 2 or more unions asking to be
recognized, the Er cannot recognize any
of them; the rivalry must be resolved
throughanelection.

The union voluntarily recognized should


bethemajorityunionasindicatedbythe
fact that members of the bargaining unit
did not object to the projected
recognition. If no objection is raised, the
recognitionwillproceed,theDOLEwillbe
informed and CBA recognition will
commence. If objection is raised, the
recognition is barred and a certification
election or consent election will have to
takeplace.

Q:WhataretherequirementsforVR?
A: The notice of VR shall be accompanied by the
originalcopyand2duplicatecopiesofthefollowing
reqts:
1.
2.

3.

JointstatementunderoathofVR

Certificate of posting of joint statement


for 15 consecutive days in at least 2
conspicuous places in the establishment
ofthebargainingunit

Certificateofposting

4.

Approximate number of Ees in the


bargaining unit and the names of those
whosupportedtherecognition

5.

Statementthatthelaborunionistheonly
LLOoperatingwithinthebargainingunit.

Note: Where the notice of voluntary recognition is


sufficient in form, number and substance and where
thereisnoregisteredlaborunionoperatingwithinthe
bargaining unit concerned, the Regional Office,

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Note: In an organized establishment, voluntary


recognitionisnotpossible.ApetitiontoholdaCEhas
tobefiledwithinthefreedomperiodwhichmeansthe
last 60 days of the 5th year of the expiring CBA. The
petition may be filed by any Legitimate Labor
Organization(LLO),butthepetitionmusthavewritten
support of at least 25% of the Ees in the bargaining
unit.

Q:WhereandwhentofilethepetitionforVR?

A: Within 30 days from such recognition, Er shall


submit a notice of VR with the Regional Office
which issued the recognized labor unions
certificate of registration or certificate of creation
ofacharteredlocal.
Q: What are the effects of recording of fact of
voluntaryrecognition(VR)?
A:
1.

2.

The recognized labor union shall enjoy


therights,privilegesandobligationsofan
existing bargaining agent of all the
employees(Ees)inthebargainingunit.
Itshallalsobarthefilingofapetitionfor
certification election by any labor

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organization for a period of 1 year from
thedateofentryofVR.

(3)CertificationElection

Q:Whatiscertificationelection(CE)?

Note:SomeoftheEesmaynotwanttohaveaunion;
hence,nounionisoneofthechoicesnamedinthe
ballot. If no union wins, the company or the
bargaining unit remains ununionized for at least 12
months, the period is known as 12month bar. After
thatperiod,apetitionforaCEmaybefiledagain.

A: It is the process of determining through secret


ballot the sole and exclusive representative of the
Eesinanappropriatebargainingunit,forpurposes
ofCBornegotiation.(Sec.1[h],RuleI,BookV,IRR)

Q:Distinguishtherequisitesforapetitionfor
certificationelectionbetweenanorganizedandan
unorganizedestablishment.

Note:TheprocessiscalledCEbecauseitservesasthe
official, reliable and democratic basis for the BLR to
determine and certify the union that shall be the
exclusive bargaining representative of the Ees for the
purposeofbargainingwiththeEr.

Art.256.ORGANIZED
Art.257.UNORGANIZED
Bargainingagent
Present
None
Petitionfiled
Hastobeaverified
Noneedtobeverified
petition
FreedomPeriod
NopetitionforCEexcept
Notapplicable.No
within60daysbeforethe
freedomperiod.Petition
expirationoftheCBA.
canbefiledanytime.
(SeeArt.253&253A)
Substantialsupportrule
Mustbedulysupported
Nosubstantialsupport
by25%ofallthe
rule.
membersofthe

appropriatebargaining
Why?Intentionoflawis
unit(ABU).
tobringintheunion,to

implementpolicybehind
Percentagebase:all
Art.211(a).
membersofanABU.

Q:Whatisthenatureofcertificationelection?

A: A certification election is not a litigation but


merely an investigation of a nonadversarial fact
finding character in which BLR plays a part of a
disinterested investigator seeking merely to
ascertain the desire of the employees as to the
matter of their representation. (Airline Pilots Assn
ofthePhilippinesv.CIR,G.R.No.L33705,April15,
1977)

Q:Whatisthepurposeofacertificationelection?

A:Itisameansofdeterminingtheworkerschoice
of:

1. Whether they want a union to represent


them for collective bargaining or if they
wantnouniontorepresentthematall.
2. And if they choose to have a union to
represent them, they will choose which
among the contending unionswill be the
sole
and
exclusive
bargaining
representative of the employees in the
appropriatebargainingunit.

Q:Whataretheissuesinvolvedinacertification
proceeding?
A: Certification proceedings directly involve two
issues:
1.
2.

Proper composition and constituency of


thebargainingunit;and
The veracity of majority membership
claims of the competing unions so as to
identity the one union that will serve as
the bargaining representative of the
entirebargainingunit.

A:

Note: The approval of the PCE in an unorganized


bargainingunitisNEVERappealable,thereasonbeing
thatthelawwantstheununionizedtobeunionized.

Q:Should the consent signatures of at least 25%


of the Ees in the bargaining unit be submitted
simultaneously with the filing of the petition for
certificationelection(PCE)?

A: No, the administrative rule requiring the


simultaneous submission of the 25% consent
signatures upon the filing of PCE should not be
strictlyappliedtofrustratethedeterminationofthe
legitimate representative of the workers.
Accordingly,theCourtheldthatthemerefilingofa
PCEwithinthefreedomperiodissufficientbasisfor
the issuance of an order for the holding of a CE,
subjecttothesubmissionoftheconsentsignatures
within a reasonable period from such filing. (Port
WorkersUnion ofthePhils.v.Laguesma,G.R.Nos.
9492930,Mar.18,1992)

Q: Who may file a petition for certification


election(PCE)?

A:
1. Anylegitimatelabororganization(LLO)

131

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2.

3.
4.

A national union or federation which has


already issued a charter certificate to its
localchapterparticipatingintheCE
A local chapter which has been issued a
chartercertificate
An Er only when requested to bargain
collectivelyinabargainingunitwhereno
registered CBA exists. (Sec. 1, Rule VIII,
BookV,IRRasamendedbyD.O.40F03)

Note:Anationalunionorfederationfilingapetitionin
behalf of its local/chapter shall not be required to
disclose the names of the local/chapters officers and
members, but shall attach to the petition the charter
certificate it issued to its local/chapter. (Sec. 1, Rule
VIII,BookV,IRRasamendedbyD.O.40F03)

Q:Mayanemployeeinterveneinthepetitionfor
certificationelection(PCE)?

A: Yes, for the purpose of protecting his individual


right.(Sec.1,RuleVIII,BookV,IRRasamendedby
D.O.4003)

Q:WhereisPCEfiled?

A: It shall be filed with the Regional Office which


issued the petitioning union's certificate of
registration/certificate of creation of chartered
local.(ImplementingRules,asamendedbyD.O.40
03)

Q:WhoshallhearandresolvethePCE?

A:TheMediatorArbiter.

Q:WhentofilePCE?

A: The proper time to file the PCE depends on


whethertheCertifiedBargainingUnithasaCBAor
not:

1. IfithasnoCBA,thepetitionmaybefiled
anytime outside the 12month bar
(certificationyear).
2. IfithasCBA,itcanbefiledonlywithinthe
th
last60daysofthe5 yearoftheCBA.

Note: Attheexpirationofthefreedomperiod,theEr
shall continue to recognize the majority status of the
incumbentbargainingagentwherenoPCEisfiled.

Q: Distinguish union election from certification


election.

A:
UNIONELECTION
Heldpursuanttothe
unionsconstitutionand

132

CERTIFICATIONELECTION
Theprocessisordered
andsupervisedbyDOLE

bylaws
Righttovoteisenjoyed
onlybyunionmembers

Winnersofunionelection
becomeofficersand
representativesofthe
uniononly

AllEeswhetherunionor
nonunionmemberswho
belongtotheappropriate
bargainingunitcanvote
ThewinnerinaCEisan
entity,aunion,which
becomesthe
representativeofthe
wholebargainingunit
thatincludeseventhe
membersofthedefeated
unions.

Note: Both in CE and union election, the prescribed


proceduresshouldbefollowed.

Q:Cana"nounion"wininacertificationElection
(CE)?
A:Yes.BecausetheobjectiveinaCEistoascertain
the majority representation of the bargaining
representative,iftheEesdesiretoberepresented
at all by anyone. Hence, no union is one of the
choicesinaCE.(2006BarQuestion)
AlternativeAnswer:
No.AnounioncannotwininaCE.Thepurposeofa
CE is to select an excusive bargaining agent and a
nounionvotewouldpreciselymeanthatthevoter
isnotchoosinganyofthecontendingunions.Ifthe
nounion votes constitute a majority of the valid
votescast,thisfactwillall themoremeanthatno
union won in CE. A oneyear bar will consequently
stop the holding of another CE to allow the Er to
enjoyindustrialpeaceforatleastoneyear.
Q: In what instance may a PCE be filed outside
the freedom period of acurrentCBA?
A: As a general rule, in an establishment where
there is a CBA in force and effect, a PCE may be
filed only during the freedomperiod of such CBA.
But to have that effect, the CBA should have been
filedandregisteredwiththeDOLE.(Art.231,253A
and256,LC).(1997BarQuestion)
Thus,aCBAthathasnotbeenfiledandregistered
with the DOLE cannot be a bar to a CE and such
electioncanbeheldoutsidethefreedomperiodof
suchCBA.
AlternativeAnswer:
APCEmaybefiledoutsidethefreedomperiodof
acurrentCBAifsuchCBAisanewCBAthathas
been prematurely entered into, meaning, it was
entered into before the expiry date of the old
CBA. The filing of the PCE shall be within the

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freedomperiodoftheoldCBAwhichisoutsidethe
freedom period of the new CBA that had been
prematurelyenteredinto.
Q: Are probationary employees (Ees) entitled to
voteinaCE?Why?
A: Yes, in a CE, all rankandfile Ees in the
appropriate bargaining unit (ABU) are entitled to
vote. This principle is clearly stated inArt.255 of
the LC which states that the "labor organization
designatedorselectedbythemajorityoftheEesin
such unit shall be the exclusive representative of
the Ees in such unit for the purpose of collective
bargaining(CB)."
CB covers all aspects of the employment relation
and the resultant CBA negotiated by the certified
unionbindsallEesinthebargainingunit.Hence,all
rankandfileEes,probationaryorpermanent,have
a substantial interest in the selection of the
bargaining representative. The LC makes no
distinction as to their employment status as basis
for eligibility to vote in the petition for CE. The
law refers to "all" the Ees in the bargaining unit.
All they need to be eligible to vote is to belong
to the "bargaining unit" (AirtimeSpecialists,Inc.v.
FerrerCalleja, G.R. No. 8061216, Dec. 29, 1989).
(1999BarQuestion)

A: Yes, it is now wellsettled that Ees who have


been improperly laid off but who have at present
an unabandoned right to or expectation of re
employment,areeligibletovoteinCEs.Thus,and
to repeat, if the dismissal is under question, as in
the case now at bar whereby a case of illegal
dismissal and/or ULP was filed,the Ees concerned
could still qualify to vote in the elections. (Phil.
Fruits & Vegetables Industries v. Torres, G.R. No.
92391,July3,1992)
Q:Isdirectcertification(DC)stillallowed?
A: No. Even in a case where a union has filed a
petition for CE, the mere fact that there was no
opposition does not warrant a DC. More so in a
casewhentherequiredproofisnotpresentedinan
appropriate proceeding and the basis of the DC is
the unions selfserving assertion that it enjoysthe
support of the majority of the Ees, without
subjecting such assertion to the test of competing
claims. (Samahang Manggagawa sa Permex v.
Secretary,G.R.No.107792,Mar.2,1998)
Q:WhatarethegroundsfordenyingthePCE?
A:
1.

Q:Whatisdirectcertification?
A: It is the process whereby the MedArbiter
directly certifies a labor organization of an
appropriate bargaining unit (ABU) of a company
after a showing that such petition is supported by
atleastamajorityoftheEesinthebargainingunit.

2.

3.

Q: Does the failure of SAMAFIL (an independent


union) to prove its affiliation with NAFLUKMU
federation affect its right to file a PCE as an
independentunion?
A:No,asaLLO,ithastherighttofileaPCEonits
own beyond question. Its failure to prove its
affiliation with the NAFLUKMU cannot affect its
right to file said PCE as an independent union. At
the most, its failure will result in an ineffective
affiliationwithNAFLUKMU.Despiteaffiliation,the
localunionremainsthebasicunitfreetoservethe
commoninterestofallitsmembersandpursueits
own interests independently of the federation.
(Samahan ng mga Manggagawa sa Filsystems v.
SLE,G.R.No.128067,June5,1998)
Q: May illegally dismissed Ees of the company
participateinthecertificationelection(CE)?

4.

5.

6.

Thepetitioningunionorfederationisnot
listed in the DOLEs registry of legitimate
labor unions or that its registration
certificate legal personality has been
revokedorcancelledwithfinality
Failure of a local chapter or national
union/federation to submit a duly issued
charter certificate upon filing of the
petition
Thepetitionwasfiledbeforeorafterthe
FREEDOM PERIOD of a duly registered
CBA; provided that the 60day period
based on the original CBA shall not be
affectedbyanyamendment,extensionor
renewaloftheCBA;(contractbarrule)
The petition was filed within 1 year from
entry of voluntary recognition or within
thesameperiodfromavalidcertification,
consentorrunoffelectionandnoappeal
ontheresultsofthecertification,consent
or runoff election is pending; (12month
bar;certificationyearbarrule)
A duly certified union has commenced
and sustainednegotiations with the Er in
accordancewithArt.250oftheLCwithin
the1yearperiod.(negotiationbarrule)
There exists a bargaining deadlock which
had been submitted to conciliation or
arbitration or had become the subject of
avalidnoticeofstrikeorlockouttowhich
an incumbent or certified bargaining
agentisaparty.(deadlockbarrule)

133

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7.

In case of an organized establishment,


failure to submit the 25% support reqt
forthefilingofthePCE.
8. Nonappearance of the petitioner for 2
consecutive scheduled conferences
before the medarbiter despite due
notice,and
9. AbsenceofErEerelationshipbetweenall
themembersofthepetitioningunionand
the owner of the establishment where
theproposedbargainingunitissoughtto
berepresented.(Sec.14[a],RuleVIII,Book
V,IRR,asamendedbyD.O.40F03)

Q: What is a prohibited ground for the


denial/suspension of the petition for certification
election?
A: The inclusion as union members of Ees outside
the bargaining unit. Said Ees are automatically
deemed removed from the list of membership of
saidunions.
Q: Does the filing of a petition to cancel the
petitioners registration cause the suspension or
dismissalofthepetitionforcertificationelection?
A:No.ToserveasagroundfordismissalofaPCE,
the legal personality of the petitioner should have
beenrevokedorcancelledwithfinality.
Q: UNIDAD, a labor organization claiming to
represent the majority of the rank and file
workers of BAGSAK Toyo Manufacturing Corp.
(BMTC), filed a petition for CE during the
freedom period obtaining in said corp.
Despite the opposition thereto by SIGAW
Federation on the ground that UNIDAD was not
possessedwithalltheattributesofaduly
registeredunion,theMedArbiterissuedanorder
calling for a CE on July 25, 2001. This order was
promulgated and served on the parties on July
12, 2001. On July 14, 2001, UNIDAD submitted
and served the required documents for its
registration as an independent union, which
documentswereapprovedbytheDOLEonJuly15,
2001.
During the elections, UNIDAD won over SIGAW.
SIGAWquestionedUNIDAD'svictoryonthe
ground that UNIDAD was not a duly registered
union when it filed the petition for a CE. Shall
SIGAWscaseprosperornot?Why?
A: No, SIGAW's case will not prosper. The
application of technicalities of procedural reqts
in CE disputes will serve no lawful objective or
purpose. It is a statutory policy that no obstacles
shouldbeplacedontheholdingofaCE,(Samahang

134

ng Manggagawa sa Pacific Plastic vs. Laguesma,


G.R.No.111245,Jan.31,1997)andthatthelawis
indisputablypartialtotheholdingofaCE.(Western
Agusanvs.TrajanoG.R.No.65833,May6,1991)
At any rate, UNIDAD completed all the reqts for
union registration on July 14,2001,andlegitimate
union status was accorded on July 15, 2000, or at
least10daysbeforethescheduleddateforholding
theCE.(2001BarQuestion)
Q:Whatismeantbycontractbarrule?
A: Contractbar rule means that while a valid and
registeredCBAissubsisting,theBLRisnotallowed
toholdanelectioncontestingthemajoritystatusof
the incumbent union except during the 60day
period immediately prior to its expiration, which
periodiscalledthefreedomperiod.
Note: Intheabsenceofsuchtimelynoticeorfilingof
petition, the contract executed during the automatic
renewalperiodisabartoCE.
There shall be no amendment, alteration, or
terminationofanyoftheprovisionsoftheCBAexcept
togivenoticeofonepartysintentiontoamend,alter
and terminate the provisions within the freedom
period.

Q: What are the requirements in order to invoke


thecontractbarrule?
A:TheexistingCBAmust:
1.
2.
3.
4.
5.
6.
7.

Beinwritingandsignedbyallcontracting
parties
Contain the terms and conditions of
employment
Cover employees in an appropriate
bargainingunit
Beforareasonableperiodorduration
Beratified
BeregisteredwiththeBLR;and
The violation of the contract bar rule or
the existence of a duly registered CBA
mustbespeciallypleadedasadefense.

Q:Whatistheeffectofaninvalidorunregistered
CBA?

A: There is no bar and therefore a certification


electionmaybeheld.

Note: Registration of CBA only puts into effect the


contractbarrulebuttheCBAitselfisvalidandbinding
evenifunregistered.

Q: What are the exceptions to the contract bar


rule?

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A:
1.
2.
3.

TheCBAisunregistered
TheCBAisinadequateandincomplete
The CBA was hastily entered into
(Doctrineofprematureextension)
4. Withdrawal of affiliation from the
contracting union brought about by
schismormassdisaffiliation
5. Contract where the identity of the
representative is in doubt. (ALU v. Ferrer
Calleja,G.R.No.85085,Nov.6,1989)
6. CBAenteredintobetweentheErandthe
union during the pendency of a petition
for CE (Vassar Industries Ees Union v.
Estrella,G.R.No.L46562,Mar.31,1978)
7. CBA conducted between the Er and the
unionisnotbartoacertificationelection
filed by another union and said CBA can
berenegotiatedattheoptionofthenew
bargainingagent.(ATUv.Hon.Noriel,G.R.
No.L48367,Jan.16,1979)
8. ACBAregisteredwithfalsifiedsupporting
documents
9. CBA was concluded in violation of an
orderenjoiningthepartiesfromentering
into a CBA until the issue of
representationisresolved
10. Petition is filed during the 60day
freedomperiod.

Note:Basictothecontractbarruleistheproposition
thatthedelayoftherighttoselectrepresentativescan
bejustifiedonlywherestabilityisdeemedparamount.
Excepted from the contract bar rule are certaintypes
of contracts which do not foster industrial stability,
such as contracts where the identity of the
representativeisindoubt.Anystabilityderivedfrom
such contracts must be subordinated to the Ees
freedom of choice because it does not establish the
type of industrial peace contemplated by law.
(Firestone Tire & Rubber Company Ees Union v.
Estrella,G.R.No.L4551314,Jan.6,1978)

Q: Can the BLR certify a union as the exclusive


bargaining representative after showing proof of
majority representation thru union membership
cardswithoutconductinganelection?
A:No.The LC (In Arts. 256,257and258)provides
only for a CE as the mode for determining
theexclusivecollectivebargaining representative
if there is a question of representation in an
appropriatebargainingunit.(1998BarQuestion)
Q:Whendoesdeadlockarise?
A: It arises when there is an impasse, which
presupposes reasonable effort at good faith

bargainingwhich,despitenobleintentions,didnot
concludeinanagreementbetweentheparties.
Q:Whatisdeadlockbarrule?
A: Apetitionforcertificationelection(PCE) cannot
be entertained if, before the filing of the PCE, a
bargaining deadlock to which an incumbent or
certified bargaining agent is a party, had been
submitted to conciliation or arbitration or had
becomethesubjectofavalidstrikeorlockout.
Q: What are the indications of a genuine
deadlock?
A:
1.
2.

Thesubmissionofthedeadlocktoathird
partyconciliatororarbitrator;and
The deadlock is the subject of a valid
noticestrikeorlockout.

Q:CapitolMedicalCenterEesAssociationAlliance
ofFilipinoWorkers(CMCEAAFW)emergedasthe
certifiedrepresentativeoftherankandfileEesat
Capitol Medical Center (CMC). Due to CMCs
refusaltobargaincollectively,CMCEAAFWfileda
noticeofstrikeandlateronstagedthestrikeafter
complying with the other legal reqts. The SLE
assumed jurisdiction over the case and issued an
order certifying the same to the NLRC for
compulsoryarbitration.Duringalloftheseevents
Capitol Medical Center Alliance of Concerned
employees (Ees)Unified Filipino Service Workers
filedapetitionforCEamongtheregularrankand
fileEesofCMC.ThepetitionforCEwasdismissed
and the CMC was directed to negotiate with
CMCEAAFW.WasthedismissalofthePCEproper?

A: Yes, if the law proscribes the conduct of a CE


when there is a bargaining deadlock submitted to
conciliationorarbitration,withmorereasonshould
itnotbeconductedif,despiteattemptstobringan
Er to the negotiation table by the certified
bargaining agent, there was "no reasonable effort
ingoodfaith"ontheErtobargaincollectively.

Thecircumstancesinthiscaseshouldbeconsidered
as similar in nature to a "bargaining deadlock"
whennoCEcouldbeheld.Thisisalsotomakesure
that no floodgates will be opened for the
circumvention of the law by unscrupulous Ers to
prevent any certified bargaining agent from
negotiatingaCBA.Sec.3,(RuleVIII),BookVofthe
IRRshouldbeinterpretedliberallysoastoincludea
circumstancewhereaCBAcouldnotbeconcluded
duetothefailureofonepartytowillinglyperform
its duty to bargain collectively. (Capitol Medical
CenterAllianceofConcernedEesv.Laguesma,G.R.
No.118915,Feb.4,1997)

135

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Q:Shouldthecertificationelectionproceedingsbe
suspended in view of the pending case for
cancellation of the unions certificate of
registration?

A:No,thependencyofacancellationcaseisnota
ground for the dismissal or suspension of a
representation proceeding considering that a
registeredlabororganization(LO)continuestobea
legitimateoneentitledtoalltherightsappurtenant
thereto until a final valid order is issued cancelling
suchregistration.
Once a LO attains the status of a LLO it begins to
possess all of the rights and privileges granted by
law to such organizations. As such rights and
privileges ultimately affect areas which are
constitutionallyprotected,theactivitiesinwhichLO,
associationsandunionsareengageddirectlyaffect
the public interest and should be zealously
protected.(ProgressiveDevtCorp.v.SLE,G.R.No.
115077,April18,1997)

Q:Whatisnegotiationbarrule?

A:APCEcannotbeentertainedif,beforethefiling
of the PCE, the duly recognized or certified union
has commenced negotiations with the Er in
accordancewithArt.250oftheLC.

Q:Whatiscertificationyearrule?

A: No PCE may be filed within one year from the


date of a valid certification, consent, or runoff
electionorfromthedateofvoluntaryrecognition.

(4)RunoffElection

Q:Whatisarunoffelection?

A:Anelectionconductedwhen:
1.

2.

3.

4.

5.

136

Anelectionwhichprovidesfor3ormore
choicesresultsinnoneofthecontending
unions receiving a majority of the valid
votescast,and
There are no objections or challenges
whichifsustainedcanmateriallyalterthe
results,provided
The total number of votes for all the
contending unions is at least 50% of the
numberofvotescast.(Sec.1,RuleX,Book
V,IRR)
Not one of the choices obtained the
majority of the valid votes cast (50%+ 1
secondmajority);
The two choices which garnered the
highest votes will be voted and the one
which garners the highest number of

votes will be declared the winner


provided they get the majority votes of
thetotalvotescast.

Q:Whoarethechoicesinarunoffelection?

nd
A:Theunionsreceivingthehighestand2 highest
number of the votes cast. (Sec.2, Rule X, Book V,
IRR)

Note: No Union shall notbe achoice in the runoff


election

(5)RerunElection
Q:WhendoesRerunElectiontakeplace?
A:

1.Ifonechoicereceivesapluralityofthe
voteandtheremainingchoicesresultsina
tie;or
2.Ifallchoicesreceivedthesamenumber
ofvotes.

Note:Inbothinstances,thenounionisalsoachoice.

(5)ConsentElection

Q:Whatisaconsentelection?

A: An election voluntarily agreed upon by the


parties, with or without the intervention by DOLE.
(Sec.1[h],RuleI,BookV,IRR)
Note: To afford an individual employeevoter an
informed choice where a local/chapter is the
petitioning union, the local/chapter shall secure its
certificate of creation at least 5 working days before
thedateoftheconsentelection.(Sec.1,RuleVIII,Book
V,IRRasamendedbyDO40F03)

Q: What are the requisites before a labor union


canbedeclaredawinner(doublemajorityrule)?
A:
1.
2.

Majority of the eligible voters cast their


votes.
Majorityofthevalidvotescastisforsuch
union.

Q:Howtodeterminethedoublemajorityrule?

A:
1. Indeterminingtheeligiblevotescast(first
majority)includespoiledballots
2. In determining valid votes (second
majority), eliminate spoiled ballots but
includedthechallengedvotes.

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Q: A certification election was conducted among
the rankandfile Ees of Holiday Inn Manila
Pavilion Hotel. In view of the significant number
of segregated votes, contending unions, National
UnionofWorkersinHotels,RestaurantsandAllied
IndustriesManila Pavilion Hotel Chapter
(NUWHRAINMPHC) and Holiday Inn Manila
Pavilion Hotel Labor Union (HIMPHLU), referred
thecasebacktotheMedArbitertodecidewhich
among those votes would be opened and tallied.
11 votes were initially segregated because they
were cast by dismissed Ees, albeit the legality of
theirdismissalwasstillpendingbeforetheCA.6
othervotesweresegregatedbecausetheEeswho
cast them were already occupying supervisory
positions at the time of the election. Still 5 other
votes were segregated on the ground that they
were cast by probationary Ees and, pursuant to
the existing CBA, such Ees cannot vote.
NUHWHRAINMPHC further avers that HIMPHLU,
which garnered 169 votes, should not be
immediatelycertifiedasthebargainingunit,asthe
opening of the 17 segregated ballots would push
the number of valid votes cast to 338, hence,the
169 votes which HIMPHLU garnered would be 1
vote short of the majority which would then
become170.
Was HIMPHLU able to obtain the required
majority for it to be certified as the exclusive
bargainingagent?
A: No, it is wellsettled that under the double
majority rule for there to be a valid certification
election,majorityofthebargainingunitmusthave
voted and the winning union must have garnered
majorityofthevalidvotescast.
Following the ruling that all the probationary Ees
votes should be deemed valid votes while that of
the supervisory Ees should be excluded, it follows
thatthenumberofvalidvotescastwouldincrease.
Under Art. 256 of the LC, the union obtaining the
majorityofthevalidvotescastbytheeligiblevoters
shall be certified as the sole exclusive bargaining
agent of all the workers in the appropriate
bargainingunit.Thismajorityis50%+1,inthiscase
atleast170.HIMPHLUobtained169,clearlyitwas
not able to obtain a majority vote. (NUWHRAIN
MPHCv.SLE,G.R.No.181531,July31,2009)
Q: Distinguish certification election, consent
election, direct certification, and runoff and re
runelections.
A:
Participationof
MedArbiter
CertificationElection

Purpose

Todeterminethesole
andexclusivebargaining
agentofalltheEesinan
appropriatebargaining
unitforthepurposeof
collectivebargaining.

RequirespetitionforCE
filedbyaunionorEr.A
MedArbitergrantsthe
petitionandanelection
officerisdesignatedby
regionaldirectorto
supervisetheelection.

Note:MedArbitermay
determineifthereisErEe
relationshipandifthe
votersareeligible.

ConsentElection
Todeterminetheissueof
majorityrepresentation
ofalltheworkersinthe
appropriateCBunit
mainlyforthepurposeof
determiningthe
Heldbyagreementofthe
administratoroftheCBA
unionswithorwithout
theparticipationofthe
whenthecontracting
MedArbiter.
unionsufferedmassive
disaffiliationandnotfor
thepurposeof
determiningthe
bargainingagentfor
purposeofCB.
DirectCertification
MedArbiterdirectly
ALOisdirectlycertified
certifiesthatalabor
asanappropriate
unionistheexclusiveCB
bargainingunitofa
representativeoftheEes
companyuponshowing
ofanappropriate
thatpetitionissupported
bargainingunitwithout
byatleastamajorityof
holdingaCE,butmerely
theEesinthebargaining
onthebasisofevidence
unit.
ofinsupportofthe

unionsclaimthatisthe
Note:Directcertificationis
choiceofthemajorityof
nolongerallowed.
theEes.
RunOffElection
Takesplacebetweenthe
unionswhoreceivedthe
twohighestnumberof
votesinaCEwith3or
morechoices,wherenot

oneoftheunions
obtainedthemajorityof
thevalidvotescast,
providedthetotalunion
votesisatleast50%of
thevotescast.
RerunElection
Takes place in 2
instances:
1. Ifonechoicereceivesa
plurality of the vote
and the remaining

choicesresultsinatie;
or
2. If all choices received
the same number of

137

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UST GOLDEN NOTES 2011


votes.

In both instances, the no


unionisalsoachoice.

2.

Note: Petition for cancellation of registration is not a


bar to a PCE. No prejudicial question shall be
entertained in a petition for certification election.
(D.O.4003)

(7)AffiliationandDisaffiliationoftheLocalUnion
fromtheMotherUnion
Q:Howisalocalchaptercreated?
A: A duly registered federation or national union
may directly create a local/ chapter by issuing a
chartercertificateindicatingtheestablishmentofa
local/chapter.

1. Thechaptershallacquirelegalpersonality
only for purposes of filing a petition for
certificationelectionfromthedateitwas
issuedachartercertificate
2. The chapter shall be entitled to all other
rights and privileges of a legitimate labor
organization (LLO) only upon the
submissionofthefollowingdocumentsin
additiontoitschartercertificate:
a. Names of the chapters officers,
their addresses, and the principal
officeofthechapter
b. Chaptersconstitutionandbylaws
c. Where the chapters constitution
and bylaws are the same as that of
thefederationorthenationalunion,
this fact shall be indicated
accordingly
3. The genuineness and due execution of
thesupportingrequirementsshallbe:
a. Certifiedunderoathbythesecretary
ortreasurerofthelocal/chapter,and
b. Attestedtobyitspresident(Sec.2[e],
Rule III, Book V, IRR, as amended by
D.O.40F03)

Note: Under the LC and therules, the powergranted


to LOs to directly create a chapter or local through
chartering is given to a federation or national union
only, not to a trade union center. (SMCEU v. San
Miguel Packaging Products Ees Union, G.R. No.
171153,Sep.12,2007)

Q:Whereistheapplicationforregistrationfiled?
A:
1.

138

Independent labor unions, chartered


localsorworkersassociationsItisfiled
with the Regional Office (RO). where the
applicant principally operates. It shall be

processedbytheLaborRelationsDivision
attheRO.

Federations, national unions or workers


association operating in more than one
regionItisfiledwiththeBLRoftheRO,
butshallbeprocessedbytheBLR.

Q:WhatisthedutyoftheBLRafteraLOhadfiled
the necessary papers and documents for
registration?
A:ItbecomesmandatoryfortheBLRtocheckifthe
reqts under Art. 234 of the LC have been
sedulously complied with. If its application for
registration is vitiated by falsification and serious
irregularities,especiallythoseappearingontheface
oftheapplicationandthesupportingdocuments,a
LO should be denied recognition as a LLO.
(ProgressiveDevtCorp.PizzaHutv.Laguesma,G.R.
No.115077,April18,1997)
Q: Within what period should the BLR act on the
applicationssubmittedbeforeit?
A: It shall act on all applications for registration
within10mdaysfromreceipteitherby:

1. Approvingtheapplicationandissuingthe
certificate of registration/acknowledging
thenotice/report;or
2. Denyingtheapplication/noticeforfailure
of the applicant to comply with the
requirementsforregistration/notice(D.O.
4003,RuleIV,Sec.4,seriesof2003)

Note:Allrequisitedocumentsshallbe:
1. Certified under oath by the secretary or
treasurer of the organization, as the case
maybeand
2. AttestedtoitbyitsPresident.

Q:MaytheBLRreviewtheissuanceofacertificate
ofregistration?

A: No. The BLR has the duty to review the


application for registration not the issuance of a
certificateofregistration.

Q: Why is a lesser requirement imposed for a


charteredlocal?
A:Theintentofthelawinimposinglesserreqtsin
the case of branch or local of a registered
federation or national union is to encourage the
affiliation of a local union in order to increase the
local unions bargaining power respecting terms
and conditions of labor. (Progressive Devt Corp v.
SLE,G.R.No.96425,Feb.4,1992)

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LABOR RELATIONS LAW


Q:Whataretherequirementsbeforeafederation
canbeissuedacertificateofregistration?

3.

A: The application for registration of federations


and national unions shall be accompanied by the
followingdocuments:

4.

1.

2.

A statement indicating the name of the


applicant labor union, its principal
address,thenameofitsofficersandtheir
respectiveaddresses;

The minutes of the organizational


meeting(s) and the list of Ees who
participatedinthesaidmeeting(s);

3.

4.

The annual financial reports if the


applicantunionhasbeeninexistencefor
1 or more years, unless it has not
collectedanyamountfromthemembers,
in which case a statement to this effect
shallbeincludedintheapplication;

Theapplicantunion'sconstitutionandby
laws, minutes of its adoption or
ratification, and the list of the members
whoparticipatedinit.Thelistofratifying
members shall be dispensed with where
the constitution and bylaws was ratified
or adopted during the organizational
meeting(s). In such a case, the factual
circumstances of the ratification shall be
recorded in the minutes of the
organizationalmeeting(s);

5.

6.

Theresolutionofaffiliation ofatleast10
LLOs, whether independent unions or
charteredlocals,eachofwhichmustbea
duly certified or recognized bargaining
agentintheestablishmentwhereitseeks
tooperate;and

The name and addresses of the


companies where the affiliates operate
and the list of all the members in each
company involved. (D.O. 4003, Rule, III,
Sec.2B,seriesof2003)

Q:Whataretherequirementsforaffiliation?

A: The report of affiliation of independently


registered labor unions with a federation or
national union shall be accompanied by the
followingdocuments:
1. Resolution of the labor union's board of
directorsapprovingtheaffiliation;
2. Minutes of the general membership
meetingapprovingtheaffiliation;

5.

Thetotalnumberofmemberscomprising
the labor union and the names of
memberswhoapprovedtheaffiliation;
The certificate of affiliation issued by the
federation in favor of the independently
registeredlaborunion;and
Written notice to the employer
concerned if the affiliating union is the
incumbent bargaining agent. (D.O. 4003,
Rule,III,Sec.7,seriesof2003)

Q:Whatistheeffectofaffiliation?

A:Thelaborunionthataffiliateswithafederationis
subjecttothelawsoftheparentbodyunderwhose
authority the local union functions. The
constitution, bylaws and rules of the mother
federation,togetherwiththecharteritissuestothe
local union, constitutes an enforceable contract
between them and between the members of the
subordinate union inter se. Thus, pursuant to the
constitution and bylaws, the federation has the
righttoinvestigateandexpelmembersofthelocal
union. (Villar v. Inciong, G.R. No. L5028384, April
20,1983)

Q: May a local union disaffiliate from the


federation?
A:
GR: A labor union may disaffiliate from the
mother union to form an independent union
only during the 60day freedom period
immediately preceding the expiration of the
CBA.
XPN: Even before the onset of the freedom
period,disaffiliationmaystillbecarriedout,but
such disaffiliation must be effected by the
majority of the union members in the
bargainingunit.
Note:Thishappenswhenthereisasubstantialshiftin
allegianceonthepartofthemajorityofthemembers
of the union. In such a case, however, the CBA
continues to bind the members of the new or
disaffiliated and independent union up to determine
the union which shall administer the CBA may be
conducted. (ANGLOKMU v. Samahan ng
Manggagawang Nagkakaisa sa Manila Bay Spinning
MillsatJ.P.Coats,G.R.No.118562,July5,1996)

Q:Whatisthelimitationtodisaffiliation?
A: Disaffiliation should be in accordance with the
rulesandproceduresstatedintheconstitutionand
bylaws of the federation. A local union may
disaffiliatewithitsmotherfederationprovidedthat
thereisnoenforceableprovisioninthefederations

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constitution preventing disaffiliation of a local
union.(TropicalHutEesUnionv.TropicalHut,G.R.
Nos.L4349599,Jan.20,1990)
Note: A prohibition to disaffiliate in the Federations
constitutionandbylawsisvalidbecauseitisintended
foritsownprotection.

Q:Whatistheeffectofcancellationofregistration
ofafederationoranationalunion?
A:
GR:Itshalloperatetodivestitslocals/chapters
oftheirstatusasLLO.
XPN: Locals/chapters retain status as LLO if
theyarecoveredbyadulyregisteredCBA.
Note Locals or chapters who retained status as LLO
shall be allowed to register as independent unions. If
they fail to register, they shall lose their legitimate
statusupontheexpirationoftheCBA.

Q: PSEA is a local union in Skylander company


which is affiliated with PAFLU. PSEA won the
certification election among the rank and file Ees
oftheSkylandercompanybutitsrivalunionPSEA
WATU protested the results. Pending the
resolution of such controversy, PSEA disaffiliated
with PAFLU and hence affiliated with NCW which
wassupportedbyitsmembers.Mayalocalunion
disaffiliatewithitsmotherfederationpendingthe
settlementofthestatusasthesoleandexclusive
bargainingagent?
A: Yes. The pendency of an election protest does
not bar the valid disaffiliation of the local union
which was supported by the majority of its
members.
The right of a local union to disaffiliate with the
federation in the absence of any stipulation in the
constitution and bylaws of the federation
prohibiting disaffiliation is well settled. Local
unionsremainasthebasicunitofassociation,free
toservetheirowninterestsubjecttotherestraints
imposedbytheconstitutionandbylawsofnational
federationandarefreetorenouncesuchaffiliation
upon the terms and conditions laid down in the
agreement which brought such affiliation to
existence.Inthecaseatbar,noprohibitionexisted
under the constitution and bylaws of the
federation.Hence,theunionmayfreelydisaffiliate
withthefederation.(PhilippineSkylandersv.NLRC,
G.R.No.127374,Jan.31,2002)
Q: Distinguish between an independently
registeredandunregisteredcharteredlocalunion.
A:

140

CHARTEREDLOCALUNION
Independently
Unregistered
Registered
Howtoaffiliate?
Byapplicationofwiththe
federationforthe
Bysigningcontractof
issuanceofacharter
affiliation
certificatetobe
submittedtotheBLR
EffectofDisaffiliationtotheunion(local)
WouldceasetobeLLO
Wouldnotaffectitsbeing
andwouldnolonger
aLLOandthereforeit
havethelegalpersonality
wouldcontinuetohave
andtherightsand
legalpersonalityandto
privilegesgrantedbylaw
possesallrightsand
toLLO,unlessthelocal
privilegesofLLO.
chapteriscoveredbyits
dulyregisteredCBA.
EffectofDisaffiliationtotheCBA
TheCBAwouldcontinue
AnexistingCBAwould
tobevalid.Thelocal
continuetobevalidas
chapterwillnotloseits
theLOcancontinue
personality,unlessit
administeringthenCBA.
registersanew.
EntitlementtounionduesafterDisaffiliation
Unionduesmayno
LOentitledtotheunion
longerbecollectedas
duesandnotthe
therewouldnolongerbe
federationfromwhich
anylaborunionthatis
theLOdisaffiliated.
allowedtocollectsuch
unionduesfromtheEes.

Q:Whatistheformofthedecisionofthedenialof
applicationforregistration?
A:Itshallbe:
1. Inwriting
2. Stating in clear terms the reason for the
decision
3. Applicantunionmustbefurnishedacopy
ofsaiddecision.

Q:Isthedenialofregistrationappealable?

A:Yes.
1. Decisions of the Regional Office shall be
appealabletotheBLRandCA.
2. The BLRs decisions on cases appealed
from Regional Director are final and not
appealabletotheSLE.
3. Decisions of the BLR denying the
registration of a LO (federation or
national union) is appealable to the SLE
within 10 days from receipt of the
decision,ongroundsof:
a. Graveabuseofdiscretion;or
b. Grossincompetence.
4. DecisionofSLEappealabletoCA.

LABORLAWTEAM:
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LABOR RELATIONS LAW


a.

Q: How is appeal taken with regard to denial or


cancellationofregistration?
A:
DENIALORCANCELLATIONOFREGISTRATION
ByRegionaloffice
ByBLR
Transmitrecordswithin24hours
fromreceiptoftheMemoofAppeal
BLRwilldecideonthe
SLEdecidesonthematter
matterwithin20days
within20daysfrom
fromreceiptofthe
receiptofrecords
records
AppealtoCAviaRule65

Note: Appeal is by memo of appeal within 10 days


fromreceiptofnotice.

Q:Whocancelsthecertificateofregistration?
A: The certificate of registration of any LLO,
whethernationalorlocal,maybecancelledbythe
BLR, after due hearing, only on the grounds
specifiedinArt.239.(asamendedbyR.A.9481)
Q:Whatistheeffectofapetitionforcancellation
orofunionregistration?
A: It shall not suspend the proceedings for
certification election (CE) nor shall it prevent the
filingofCE.
Incaseofcancellation,nothinghereinshallrestrict
the right of the union to seek just and equitable
remediesintheappropriatecourts.
Q: Where is a petition for cancellation of
registration or application for voluntary
dissolutionfiled?
A:
1.

2.

For legitimate independent labor unions,


local/chapter and workers association
It shall be filed with the Regional Office
which issued its certificate of registration
orcreation.
For federations, national or industry and
tradeunioncentersItshallbefiledwith
the BLR. (Sec. 1, Rule XIV, Book V, IRR as
amendedbyD.O.40F03)

Q: Who may file a petition for cancellation of


registration?
A:
1.

For legitimate individual labor union,


charteredlocalandworkersassociation
Any partyininterest may file a petition
for cancellation of registration if the
groundis:

2.

Failure to comply with any of the


reqtsunderArt.234,237and238of
theLC.
b. ViolationofanyprovisionunderArt.
239,LC.

For federations, national or industry


unions, trade union centers Only
members of the labor organization (LO)
concerned may file if the grounds are
actions involving violations of Art. 241,
subjecttothe30%rule.

Q:Whatistheeffectofcancellationofregistration
if the cancellation is made in the course of the
proceedings?
A: Where a labor union is a party in a proceeding
and later it loses its registration permit in the
course or during the pendency of the case, such
union may continue as party without need of
substitution of parties, subject however to the
understanding that whatever decision may be
renderedwillbebindingonlyuponthosemembers
oftheunionwhohavenotsignifiedtheirdesireto
withdrawfromthecasebeforeitstrialanddecision
onthemerits.
Note: Rationale: Principle of agency is applied the
Eesaretheprincipals,andtheLOismerelyanagentof
the former, consequently, the cancellation of the
unionsregistrationwouldnotdeprivetheconsenting
memberEesoftheirrighttocontinuethecaseasthey
areconsideredastheprincipals.

Q:Whatarethegroundsforcancellationofunion
registration?

A:
1. Misrepresentation, false statement or
fraudinconnectionwiththe:
a. Adoption or application of the
constitution and bylaws or
amendmentsthereto
b. Minutesofratificationand
c. Listofmemberswhotookpartinthe
ratification;
d. Electionofofficers
e. Minutes of the election of officers
and
f. Listofvoters(Art.239asamended)

2. Voluntary dissolution by the members.


(asamendedbyR.A.9481)

Note:Apronouncementastothelegalityofthestrike
isnotwithinthemeaningofArt.239oftheLC.

141

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
UNIVERSITYOFSANTOTOMAS
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
Facultad de Derecho Civil
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


Q: What are the prohibited grounds for
cancellationofunionregistration?
A:
1. TheinclusionasunionmemberofEeswho
are outside the bargaining unit shall not
be a ground to cancel the union
registration. The ineligible Ees are
automatically deemd removed from the
list of membership of the union as.(Art.
245AasamendedbyRA9481)
2. The affiliation of the rankandfile and
supervisory unions operating within the
same establishment to the same
federationornationalunionshallnotbea
ground to cancel registration of either
union. (Sec. 6, Rule XIV, Book V, as
insertedbyD.O.40F03)

Q: How is voluntary cancellation of registration


made?

A: Registration may be cancelled by the


organizationitselfprovided:

1. At least of its general membership


votes to dissolve the organization, in a
meetingdulycalledforthatpurpose;and

2. An application to cancel registration is


thereaftersubmittedbytheboardofthe
organization,attestedbyitspresident.

Q: What are the reportorial requirements


required to be submitted by a legitimate labor
organization(LLO)?

A: The following documents are required to be


submittedtoBLRbytheLLOconcerned:
1.

2.

3.
4.

142

Within 30 days from adoption or


ratification of the constitution and by
laws(CBL)oramendmentsthereto:
a. CBLoramendmentsthereto
b. Minutesofratification
c. Listofmemberswhotookpartinthe
ratification of the constitution and
bylaws;
Within 30 days from date of election or
appointment:
a. Listofelectedandappointedofficers
and agents entrusted with the
handingofunionfunds
b. Minutesofelectionofofficers
c. Listofvoters
Annual financial report within 30 days
afterthecloseofeveryfiscalyear
List of members at least once a year or
wheneverrequiredbytheBureau.(Sec.1,

Rule V, Book V, IRR, as amended by D.O.


40F03)

Note:Failuretosubmitreportorialrequirementsisno
longer a ground for cancellation but shall subject the
erring officers or members to suspension, expulsion
from membership, or any appropriate penalty (Art.
242A,asinsertedbyR.A.9481).

Q:Whatisthesuccessorininterestdoctrine?
A:
GR: It is when an Er with an existing CBA is
succeeded by another Er, the successorin
interest who is the buyer in good faith has no
liability to the Ees in continuing employment
and the bargaining agreement because these
contractsareinpersonam.
XPNs:
1. When the successorininterest expressly
assumesanobligation;
2. The sale is a device to circumvent the
obligation;or
3. Thesaleortransferismadeinbadfaith.

(a)SubstitutionaryDoctrine
Q:Whatisthesubstitutionarydoctrine?
A: It is where there occurs a shift in the Ees union
allegiance after the execution of a collective
bargaining (CB) contract with the Er, the Ees can
change their agent (labor union) but the CB
contract which is still subsisting continues to bind
the Ees up to its expiration date. They may
however, bargain for the shortening of said
expirationdate.
Note: The Er cannot revoke the validly executed CB
contract with their Er by the simple expedient of
changing their bargaining agent. The new agent must
respectthecontract.(BenguetConsolidatedInc.v.BCI
EesandWorkersUnionPAFLU,G.R.No.L24711,April
30,1968)
Itcannotbeinvokedtosupportthecontentionthata
newlycertifiedCBagentautomaticallyassumesallthe
personalundertakingsoftheformeragentliketheno
strikeclauseintheCBAexecutedbythelatter.

(8)UnionDuesandSpecialAssessments

(a)UnionDues

Q:Whatareuniondues?

A:Theseareregularmonthlycontributionspaidby
the members to the union in exchange for the

LABORLAWTEAM:
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LABOR RELATIONS LAW


benefits given to them by the CBA and to finance
theactivitiesoftheunioninrepresentingtheunion.
Q:Whatischeckoff?
A:ItisamethodofdeductingfromanEespayata
prescribed period, the amounts due the union for
fees,finesandassessments.
Deductionsforunionservicefeesareauthorizedby
law and do not require individual checkoff
authorizations.
Q:Whatisthenatureandpurposeofcheckoff?
A:Unionduesarethelifebloodoftheunion.
All unions are authorized to collect reasonable
membership fees, union dues, assessments and
fines and other contributions for labor education
and research, mutual death and hospitalization
benefits, welfare fund, strike fund and credit and
cooperativeundertakings.(Art.277[a])
Q:Whataretherequisitesofavalidcheckoff?
A:
GR: No special assessments, attys fees,
negotiationfeesoranyotherextraordinaryfees
maybecheckedofffromanyamountduetoan
employee (Ee) without individual written
authorizationdulysignedbytheEe.
Theauthorizationshouldspecificallystatethe:
1. Amount
2. Purpose&
3. Beneficiaryofthededuction.

XPNs:
1. FormandatoryactivitiesundertheLC
2. Foragencyfees
3. Whennonmembersoftheunionavailof
thebenefitsoftheCBA:
a. Nonmembers may be assessed
unionduesequivalenttothatpaidby
unionmembers;
b. Only by board resolution approved
by majority of the members in
general meeting called for the
purpose.

Q: What are the requisites for a valid levy of


specialassessmentorextraordinaryfees?

A:
1. Authorization by a written resolution of
themajorityofallmembersatthegeneral
membership meeting duly called for that
purpose;
2. Secretarys record of the minutes of the
meeting,whichmustincludethe:
a. Listofmemberspresent
b. Votescast
c. Purposeofthespecialassessments
d. Recipientofsuchassessments;
3. Individualwrittenauthorization tocheck
off duly signed by the Ee concerned to
levysuchassessments.

Q: What is the effect of failure to strictly comply


therequirementssetbylaw?

A: It shall invalidate the questioned special


assessments. Substantial compliance of the
requirementsisnotenoughinviewofthefactthat
the special assessment will diminish the
compensationofunionmembers.(Palacolv.Ferrer
Calleja,G.R.No.85333,Feb.26,1990)
Q:Whohasjurisdictionovercheckoffdisputes?
A: Being an intraunion dispute, the Regional
Director of DOLE has jurisdiction over check off
disputes.
Q:Distinguishcheckofffromspecialassessments.
A:
Checkoff

SpecialAssessment
Howapproved
(UnionDues)
Byobtainingtheindividual Bywrittenresolution
approvedbymajorityof
writtenauthorizationduly
allthemembersatthe
signedbytheEewhich
meetingcalledforthat
mustspecify:
purpose.
1. Amount

2. Purpose
3. Beneficiary
Exceptiontosuchrequirement

(b)SpecialAssessments

Q: What are special assessments or extraordinary


fees?
A:Theseareassessmentsforanypurposeorobject
other than those expressly provided by the labor
organizationsconstitutionandbylaws.

143

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
UNIVERSITYOFSANTOTOMAS
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
Facultad de Derecho Civil
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


(Agencyfees)
Notnecessarywhen:
1. Formandatoryactivities
undertheLC
2. Foragencyfees
3. Whennonmembersof
theunionavailofthe
benefitsoftheCBA:
a. Saidnonmembers
maybeassessed
unionduesequivalent
tothatpaidbyunion
members;
b. OnlybyBoard
resolutionapproved
bymajorityofthe
membersingeneral
meetingcalledforthe
purpose

UnionDues
Isdeductedfrom
membersforthe
paymentofuniondues
Maynotbededucted
fromthesalariesofthe
unionmemberswithout
thewrittenconsentof
theworkersaffected.

Noexception;written
resolutionismandatory
inallinstances.

Q: Are Ees who are members of another union


consideredfreeriders?
A: No. When the union bids to become the
bargaining agent, it voluntarily assumes the
responsibilityofrepresentingalltheEes.

(9)AgencyFees

Q:Whatisanagencyfee?

A:Itisanamountequivalenttouniondues,whicha
nonunion member pays to the union because he
benefitsfromtheCBAnegotiatedbytheunion.
Note:AgencyfeecannotbeimposedonEesalreadyin
the service and are members of another union. If a
closed shop agreement cannot be applied to them,
neither may an agency fee, as a lesser form of union
security, be imposed to them. Payment by nonunion
membersofagencyfeesdoesnotamounttoanunjust
enrichment basically the purpose of such dues is to
avoid discrimination between union and nonunion
members.

2.RIGHTTOCOLLECTIVEBARGAINING
Q:Whatiscollectivebargaining(CB)?

A:
1. It is the process of negotiation by an
organization or group of workmen, in
behalfofitsmembers,withtheemployer
(Er), concerning wages, hours of work,
and other terms and conditions of
employmentand

2. Thesettlementofdisputesbynegotiation
between an Er and the representative of
hisemployees(Ee)

3. It is the obligation to meet and convene


promptly and expeditiously 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 any grievances or
questions arising under such agreement
and executing a contract incorporating
such agreements if requested by either
partybutsuchdoesnotcompelanyparty
to agree to a proposal or to make any
concession.(Art.252,LC)

Note:
GR:Nocourtoradministrativeagencyorofficial
shallhavethepowertosetorfixwages,ratesof
pay,hoursofwork,orothertermsandconditions
ofemployment

A:
Theemployeeispartofthebargainingunit
Heisnotamemberoftheunion
HepartookofthebenefitsoftheCBA

XPNs:AsotherwiseprovidedundertheLC:
1.

Note:TheindividualauthorizationrequiredunderArt.
242, par. O of the LC shall not apply to the non
members of the recognized collective bargaining
agent.

2.
3.

Q:Distinguishunionduesfromagencyfees.

National Wages and Productivity


CommissionandRTWPBastowagefixing.
(Art.99and122,LC)
NCMB and NLRC as to wage distortion.
(Art.124,LC)
SLE and President of the Philippines as to
certification and assumption of powers
overlabordisputes.(Art.236[g],LC)

A:

144

Maybedeductedfrom
thesalaryoftheEes
withouttheirwritten
consent.

Q:WhataretherequisitesforassessmentofAgency
fees(Art.248[e],LC)?

1.
2.
3.

AgencyFee
Isdeductedfromnon
membersofthe
bargainingagent(union)
fortheenjoymentofthe
benefitsundertheCBA.

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LABOR RELATIONS LAW


Q:Whatisthepurposebehindthisrule?

A: It is to encourage a truly democratic method of


regulatingtherelationsbetweentheemployersand
employeesbymeansofagreementsfreelyentered
intothroughCB.

Q:WhoarethepartiestoaCB?

A:
1. Employer
2. Employees, represented by the exclusive
bargainingagent

Q: What are the jurisdictional preconditions in


collectivebargaining?

A:
1. Possession of the status of majority
representation of the employees
representative in accordance with any of
the means of selection or designation
providedfortheLaborCode
2. Proofofmajorityrepresentation
3. AdemandtobargainunderArt.250(a)of
the LC. (Kiok Loy v. NLRC, G.R. No. L
54334,Jan.22,1986)

a.DutytoBargainCollectively

Q: When does the duty of the employer (Er) to


bargaincollectivelyarise?

A:OnlyaftertheunionrequeststheErtobargain.If
thereisnodemand,theErcannotbeindefault.

Note: Where a majority representative has been


designated, it is an ULP for the Er, as a refusal to
collectively bargain, to deal and negotiate with the
minority representative to the exclusion of the
majorityrepresentative.

Wherethereisalegitimaterepresentationissue,there
isnodutytobargaincollectivelyonthepartoftheEr
(LakasngmgaManggagawangMakabayanv.Marcelo
Enterprises,G.R.No.L38258,Nov.19,1982)

Q: What is a collective bargaining agreement


(CBA)?

A: It is a contract executed upon request of either


theErortheexclusivebargainingrepresentativeof
theEesincorporatingtheagreementreachedafter
negotiationswithrespecttowages,hoursofwork,
terms and conditions of employment, including
proposals for adjusting any grievance or questions
undertheagreement.

Note: The certification of the CBA by the BLR is not


required to make such contract valid. Once it is duly
enteredintoandsignedbytheparties,aCBAbecomes
effectiveasbetweenthepartieswhetherornotithas
been certified by the BLR. (Liberty Flour Mills Ees
Association v. Liberty Flour Mills, G.R. Nos. 5876870,
Dec.29,1989)

Q:Whatisazipperclause?

A: It is a stipulation in a CBA indicating that issues


that could have been negotiated upon but not
contained in the CBA cannot be raised for
negotiationwhentheCBAisalreadyineffect.

A CBA is not an ordinary contract but one impressed


with public interest, only provisions embodied in the
CBA should be so interpreted and complied with.
Where a proposal raised by a contracting party does
not find print in the CBA, it is not a part thereof and
the proponent has no claim whatsoever to its
implementation. (SMTFMUWP v. NLRC , G.R. No.
113856,Sept.7,1998)

Q:Whenshallbargainingcommence?

A: It commences within 12 months after the


determinationandcertificationoftheEesexclusive
bargainingrepresentative.(certificationyear)

Q:WhatistheprocedureinCB?

A:Whenapartydesirestonegotiateanagreement:

1. It shall serve a written notice upon the


otherpartywithastatementofproposals
2. Reply by the other party shall be made
within10dayswithcounterproposals
3. In case of differences, either party may
request for a conference which must be
heldwithin10calendardaysfromreceipt
ofrequest
4. If not settled, NCMB may intervene and
encourage the parties to submit the
disputetoavoluntaryarbitrator
5. If not resolved, the parties may resort to
any other lawful means (either to settle
the dispute or submit it to a voluntary
arbitrator).

Note:DuringtheconciliationproceedingintheNCMB,
the parties are prohibited from doing any act which
may disrupt or impede the early settlement of
disputes.(Art.250[d],LC)

Q:WhatarethestagesinCB?

A:

145

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
UNIVERSITYOFSANTOTOMAS
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
Facultad de Derecho Civil
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


1.

2.
3.
4.
5.

6.
7.

Preliminary process: Sending a written


notice for negotiation which must be
clearandunequivocal
Negotiationprocess.
Execution process: The signing of the
agreement
Publication for at least 5 days before
ratification
Ratification by the majority of all the
workers in the bargaining unit
represented in the negotiation (not
necessaryincaseofarbitralaward)
Registrationprocess.
Administration process: The CBA shall be
jointly administered by the management
andthebargainingagentforaperiodof5
years.
InterpretationandApplicationprocess.

8.

Q: Does a petition for cancellation of a unions


certificate of registration involve a prejudicial
questionthatshouldfirstbesettledbeforeparties
couldberequiredtocollectivelybargain?

A: No. A pending cancellation proceeding is not a


bartosetmechanicsforcollectivebargaining(CB).
Ifacertificationelectionmaystillbeheldevenifa
petition for cancellation of a unions registration is
pending,moresothattheCBprocessmayproceed.
The majority status of the union is not affected by
the cancellation proceedings. (Capitol Medical
Centerv.Trajano,G.R.No.155690,June30,2005)
Q: What is the duty to bargain collectively when
thereisnoCBA?
A:Itistheperformanceofamutualobligation:
1.
2.

3.

4.

To meet and convene promptly and


expeditiouslyingoodfaith(GF)
For the purpose of negotiating an
agreement with respect to wages, hours
of work and all other terms and
conditionsofemployment
Including proposals for adjusting any
grievances or questions arising under
suchagreement;and
To execute a contract incorporating such
agreements if requested by either party.
(Art.252)

Q:Whatarethelimitationstothedutytobargain
collectively?

A:
1. Such duty does not compel any party to
agree to a proposal or to make any
concession.

146

2.

Parties cannot stipulate terms and


conditions of employment which are
below the minimum reqts prescribed by
law.

Q:Mayeitherpartybargaintoanimpasse?

A:Itdepends:

1. Where the subject of a dispute is a


mandatory bargaining subject, either
party may bargain to an impasse as long
ashebargainsinGF.

2. Where the subject is nonmandatory, a


party may not insist in bargaining to the
point of impasse. His instance may be
construedasevasionofdutytobargain.

Q:Whatisthetestofbargaininginbadfaith?

A: There is no perfect test of good faith (GF) in


bargaining. The GF or BF is an inference to be
drawnfromthefactsandislargelyamatterforthe
NLRCsexpertise.ThechargeofBFshouldberaised
whilethebargainingisinprogress.

Note:WiththeexecutionoftheCBA,BFcannolonger
be imputed upon any of the parties thereto. All
provisions in the CBA are supposed to have been
jointly and voluntarily incorporated therein by the
parties. This is not a case where private respondent
exhibited an indifferent attitude towards CB because
the negotiations were not the unilateral activity of
petitionerunion.TheCBAisgoodenoughthatprivate
respondent exerted reasonable effort of GF
bargaining. (Samahang Manggagawa sa Top Form
ManufacturingUnited Workers of the Phils v. NLRC,
G.R.No.113856,Sept.7,1998)

Q: Does an Ers steadfast insistence to exclude a


particular substantive provision in the
negotiations for a CBA constitute refusal to
bargainorbargaininginBF?

A: No. This is no different from a bargaining


representatives perseverance to include one that
they deem of absolute necessity. Indeed, an
adamantinsistenceonabargainingpositiontothe
point where the negotiations reach an impasse
doesnotestablishbadfaith.Obviously,thepurpose
ofCBisthereachingofanagreementresultingina
contract binding on the parties; but the failure to
reach an agreement after negotiations have
continued for a reasonable period does not
establish a lack of good faith. The statutes invite
and contemplate a collective bargaining contract,
but they do not compel one. The duty to bargain
does not include the obligation to reach an

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LABOR RELATIONS LAW


agreement. While the law makes it an obligation
for the Er and the Ees to bargain collectively with
each other, such compulsion does not include the
commitmenttoprecipitatelyacceptoragreetothe
proposals of the other. All it contemplates is that
both parties should approach the negotiation with
anopenmindandmakereasonableefforttoreach
a common ground of agreement. (Union of Filipro
Ees v. Nestle Phils., G.R. Nos. 15893031, Mar. 3,
2008)

Q:Whatisadeadlock?

A: It is synonymous with impasse or a standstill


which presupposes reasonable effort at GF
bargaining but despite noble intentions does not
concludeanagreementbetweentheparties.

Q: In case of deadlock in the renegotiationof the


CBA, what are the actions that may be taken by
theparties?

A:Thepartiesmay:

1. Call upon the NCMB to intervene for the


purpose of conducting conciliation or
preventivemediation;
2. Referthematterforvoluntaryarbitration
orcompulsoryarbitration;
3. Declare a strike or lockout upon
compliance with the legal reqts (This
remedyisaremedyoflastresort).

Q: May economic exigencies justify refusal to


bargain?

A: No. An employer is not guilty of refusal to


bargain by adamantly rejecting the unions
economicdemandswhereheisoperatingataloss,
on a low profit margin, or in a depressed industry,
as long as he continues to negotiate. But financial
hardship constitutes no excuse for refusing to
bargaincollectively.

Q: What is the duty to bargain collectively when


thereisaCBA?

A:
1. When there is a CBA the duty to bargain
collectively shall also mean that neither
party shall terminate nor modify such
agreementduringitslifetime.
2. Eitherpartycanserveawrittennoticeto
terminate or modify the agreement at
least60dayspriortoitsexpirationdate.
3. Itshallbethedutyofbothpartiestokeep
the status quo and to continue in full
forceandeffectthetermsandconditions

of the existing agreement during the 60


dayperiodand/oruntilanewagreement
isreachedbytheparties.(Art.253,LC)

Q:WhatistheautomaticrenewalclauseofCBAs?

A:AlthoughaCBAhasexpired,itcontinuestohave
legaleffectsasbetweenthepartiesuntilanewCBA
hasbeenenteredinto(Pier & Arrastre Stevedoring
Services, Inc. v. Confessor, G.R. No. 110854,
February 13, 1995). This is so because the law
makes it a duty of the parties to keep the status
quo and to continue in full effect the terms and
conditions of the existing agreement until a new
agreementisreachedbytheparties.(Art.253,LC).
(2008BarQuestion)

Q:Whatmaybedoneduringthe60dayfreedom
period?

A:
1. A labor union may disaffiliate from the
mother union to form a local or
independentuniononlyduringthe60day
freedom period immediately preceding
theexpirationoftheCBA.
2. Eitherpartycanserveawrittennoticeto
terminate or modify agreement at least
60dayspriortoitsexpirationperiod.
3. A petition for certification election may
befiled.

Q:WhentofileCBA?

A:Within30daysfromexecutionofCBA.

Q:Whataretherequirementsforregistration?

A: The application for CBA registration shall be


accompaniedbytheoriginaland2duplicatecopies
ofthefollowingreqts:
1.
2.

3.

CBA
A statement that the CBA was posted in
at least 2 conspicuous places in the
establishment concerned for at least 5
daysbeforeitsratification
Statement that the CBA was ratified by
the majority of the Ees in the bargaining
unit.

Note: The following documents must be certified


under oath by the representative of the Er and the
labor union. No other document shall be required in
theregistrationoftheCBA.

Q:Whatisasingleenterprisebargaining?

147

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A: It involves negotiation between one certified
laborunionandoneEr.Anyvoluntarilyrecognized
or certified labor union may demand negotiations
with its Er for terms and conditions of work
coveringEesinthebargainingunitconcerned.

Q:WhatisamultiErbargainingscheme?

A: It involves negotiation between and among


severalcertifiedlaborunionsandErs.

Q:WhatisthedurationofaCBA?

A:
1. Withrespecttotherepresentationaspect
(referstotheidentityandmajoritystatus
of the union that negotiated the CBA as
the exclusive bargaining representative):
5years
2. Withrespecttoallotherprovisions(refers
to the rest of the CBA, economic as well
as noneconomic provisions other than
representationalprovisions):3yearsafter
theexecutionoftheCBA

Q:WhataretheeconomicprovisionsofaCBA?

A:
1. Wages
2. Familyplanning
3. Effectivityoftheagreement
4. Other terms and conditions of
employment

Q: What are the noneconomic provisions of a


CBA?

A:
1. Coverageofthebargainingunit
2. Unionsecurityclauses
3. Management
prerogatives
and/or
rights/responsibilitiesofemployees
4. Grievance machinery and voluntary
arbitration
5. Nostrikenolockoutprovision

Q:Whatistheeffectivityandretroactivitydateof
othereconomicprovisionsoftheCBA?

A:
1. If the CBA is the very first for the
bargainingunit,thepartieshavetodecide
theCBAeffectivitydate.

2. Thosemadewithin6monthsafterdateof
expiry of the CBA are subject to
automatic retroaction to the day
immediatelyfollowingthedateofexpiry.

148

3.

Those not made within 6 months, the


parties may agree to the date of
retroaction.

Note: This rule applies only if there is an existing


agreement. If there isno existing agreement, there is
no retroactive effect because the date agreed upon
shallbethestartoftheperiodofagreement.

Art. 253A on retroactivity does not apply if the


provisions were imposed by the SLE by virtue of
arbitration. It applies only if the agreement was
voluntarilymadebytheparties.

Q:MaytheeconomicprovisionsofanexistingCBA
be extended beyond the 3 year period as
prescribed by law in the absence of a new
agreement?
A:Yes.Undertheprincipleofholdover,untilanew
CBAhasbeenexecutedbyandbetweentheparties,
they are duty bound to keep the status quo and
mustcontinueinfullforceandeffectthetermsand
conditionsoftheexistingagreement.Thelawdoes
notprovideforanyexceptionorqualificationasto
which of the economic provisions of the existing
agreement are to retain force and effect.
Therefore, it must be encompassing all the terms
and condition in the said agreement. (New Pacific
Timberv.NLRC,G.R.No.124224,Mar.17,2000)
Q: Mindanao Terminal Company and respondent
union has an existing CBA which was about to
expire. Thus, negotiations were held regarding
certain provisions of the CBA which resulted in a
deadlock. Thus the union filed a notice of strike.
During the conference called by the NCMB the
companyandtheunionwereabletoagreeonall
of the provisions of the CBA except for one.
However, the last unresolved provision was
subsequently settled but no CBA was signed.
Hence,intherecordsoftheMediationArbiter,all
issues were settled before the lapse of the 6
monthperiodaftertheexpirationoftheoldCBA.
DoesthesigningoftheCBAdeterminethedateit
wasenteredintowithinthe6monthperiod?
A:No.ThesigningoftheCBAdoesnotdetermine
whethertheagreementwasenteredintowithinthe
6 month period from the date of expiration of the
old CBA. In the present case, there was already a
meeting of the minds between the company and
the union prior to the end of the 6 month period
after the expiration of the old CBA. Hence, such
meeting of the mind is sufficient to conclude that
anagreementhasbeenreachedwithinthe6month
period as provided under Art. 253A of the LC.

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(MindanaoTerminalandBrokerageServicesInc.,v.
Confessor,G.R.No.111809,May5,1997)
Q:WhenistheeffectivityofaCBAarbitralaward
concludedbeyond6monthsfromtheexpirationof
theoldCBA?
A:TheCBAarbitralawardsgranted6monthsfrom
theexpirationofthelastCBAshallretroacttosuch
time agreed upon by both the Er and the union.
Absent such agreement as to retroactivity, the
awardshallretroacttothe1stdayafterthe6month
period following the expiration of the last day of
the CBA should there be one. In the absence of a
CBA, the SLEs determination of the date of
retroactivity as part of his discretionary powers
over arbitral award shall control. (Manila Electric
Company v. Quisumbing, G.R. No. 127598, Feb. 22
andAug.1,2000)
Q: PAL was suffering from a worsened financial
condition resulting to a retrenchment which
downsized its labor force by more than 1/3
thereby affecting numerous union members.
Hence, the union wenton strike. The PAL offered
that shares of stock be transferred to its Ees but
the union refused. Thus, PAL claimed it has no
alternative left but to close. Hence, the union
PALEA offered that the CBA be suspended for 10
yearsandtowaivesomeoftheeconomicbenefits
in the CBA provided they remain the certified
bargaining agent. PAL agreed and resumed
operations. Is the agreement to suspend the CBA
for 10 years abdicated the workers right to
bargain?
A:No.TheprimarypurposeofaCBAistostabilize
labormanagement relations in order to create a
climateofasoundandstableindustrialpeace.The
assailedagreementwastheresultofthevoluntary
CB negotiations undertaken in the light of severe
financialsituationfacedbyPAL.
Q: Is the agreement in conflict with Art. 253A of
theLC?
A:No.Thereisnoconflictbetweentheagreement
and Art. 253Aof the LCfor the latter hasa 2fold
purpose namely: a) to promote industrial stability
and predictability and b) to assign specific time
tables wherein negotiations become a matter of
right and requirement. In so far as the first
purpose, the agreement satisfies the first purpose.
Asregardthesecondpurpose,nothinginArt.253A
prohibits the parties from waiving or suspending
the mandatory timetables and agreeing on the
remediestoenforcethesame.

Q: Does the agreement violate the 5 year


representation limit as provided under Art. 253A
oftheLC?
A:No.Forunderthesaidarticle,therepresentation
limit of the exclusive bargaining agent applies only
when there is an existing CBA in full force and
effect. In this case, the parties agreed to suspend
the CBA and put in abeyance the limit on
representation.(Riverav.Espiritu,G.R.No.135547,
Jan.23,2002)
b.MandatoryprovisionsoftheCBA
Q:WhatarethemandatoryprovisionsoftheCBA?
A:
1.
2.
3.
4.
5.
6.
7.

Grievancemachinery
Voluntaryarbitration
Wages
Hoursofwork
Familyplanning
Ratesofpay
Mutualobservanceclause

Note: In addition, the BLR requires the CBA should


includeaclearstatementofthetermsoftheCBA.
Ersdutytobargainislimitedtomandatorybargaining
subjects; as to other matters, he is free to bargain or
not.

Q: How are cases arising from the


Interpretation or implementation of CBAs
handledanddisposed?

A: They are disposed through the grievance


machinery and if not resolved by the grievance
machinery,throughvoluntaryarbitration.(1995Bar
Question)

Q:Whatisgrievance?

A:Itisanyquestionbyeithertheemployerorthe
union
regarding
the
interpretation
or
implementation of any provision of the CBA or
interpretation or enforcement of company
personnelpolicies.(Sec.1[u],RuleI,BookV,IRR)

Q: What provisions must the parties include in a


CBA?

A:
1. Provisions that will ensure the mutual
observanceofitstermsandconditions.
2. A machinery for adjustment and
resolutionofgrievancesarisingfromthe:
a. Interpretation/implementation of
theCBAand

149

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UST GOLDEN NOTES 2011


b.

Interpretation/ enforcement of
company personnel policies. (Art.
260,par.1).

2.
(1)GrievanceProcedure

Q:Whatisgrievancemachinery?

A: It refers to the mechanism for the adjustment


and resolution of grievances arising from the
interpretation or enforcement of company
personnel policies. It is part of the continuing
processofcollectivebargaining(CB).

Note: It is a must provision in any CBA and no


collectiveagreementcanberegisteredintheabsence
ofsuchprocedure.

Q:Howisgrievancemachineryestablished?

A:

1. Agreementbytheparties
2. Agrievancecommitteecomposedofat
least 2 representatives each from the
members of the bargaining unit and the
employer, unless otherwise agreed upon
bythepartiesshallbecreatedwithin10
daysfromthesigningofCBA

Note: Although Art. 260 of the Labor Code mentions


parties to a CBA, itdoes not meanthata grievance
machinerycannotbesetupinaCBAlessenterprise.In
anyworkplacewheregrievancecanarise,agrievance
machinerycanbeestablished.

Q:Whatisgrievanceprocedure?

A: It refers to the internal rules of procedure


establishedbythepartiesintheirCBAwhichusually
consists of successive steps starting at the level of
thecomplainantandhisimmediatesupervisorand
ending, when necessary, at the level of the top
union and company officials and with voluntary
arbitrationastheterminalstep.

Q: What will happen to grievances submitted to


the grievance machinery which are not settled
within 7 calendar days from the date of their
submission?

A:Theyshallautomaticallybereferredtovoluntary
arbitration prescribed in the CBA. (Art. 260, par.2,
LaborCode)

Eitherpartymayservenoticeupontheotherofits
decisiontosubmittheissuetovoluntaryarbitration
(VA):
1. If the party upon whom such notice is
served fails/refuses to respond within 7

150

daysfromreceipt,VA/paneldesignatedin
the CBA shall commence arbitration
proceedings
If the CBA does not designate or if the
parties failed to name the VA/panel, the
regional branch of NCMB appoints
VA/panel

(2)VoluntaryArbitration

Q:Whatisvoluntaryarbitration?

A: It refers to the mode of settling labor


managementdisputesbywhichthepartiesselecta
competent,trainedandimpartialthirdpersonwho
shall decide on the merits of the case and whose
decision is final and executory. (Sec.1 [d], Rule II,
NCMBRevisedProceduralGuidelinesintheConduct
ofVoluntaryArbitrationProceedings,Oct.15,2004)

Q: What is the difference between compulsory


andvoluntaryarbitration?

A: Compulsory arbitrationisa systemwherebythe


parties to a dispute are compelled by the
government to forego their right to strike and are
compelledtoaccepttheresolutionoftheirdispute
rd
through arbitration by a 3 party. The essence of
arbitrationremainssincearesolutionofadisputeis
arrived at by resort to a disinterested third party
whose decision is final and binding on the parties,
but in compulsory arbitration, such a third party is
normallyappointedbythegovernment.

Under voluntary arbitration, on the other hand,


referral of a dispute by the parties is made,
pursuant to a voluntary arbitration clause in their
collective agreement, to an impartial third person
for a final and binding resolution. Ideally,
arbitration awards are supposed to be complied
withbybothpartieswithoutdelay,suchthatonce
an award has been rendered by an arbitrator,
nothing is left to be done by both parties but to
complywiththesame.Afterall,theyarepresumed
to have freely chosen arbitration as the mode of
settlement for that particular dispute. Pursuant
thereto, they have chosen a mutually acceptable
arbitrator who shall hear and decide their case.
Above all, they have mutually agreed to be bound
by said arbitrator's decision. (Luzon Devt Bank v.
AssnofLuzonDevtBankEes,G.R.No.120319,Oct.
6,1995)

Q:Whatisthebasisforvoluntaryarbitrationand
itsrationale?

A: The State shall promote the principle of shared


responsibilitybetweenworkersandemployersand

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LABOR RELATIONS LAW


the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrialpeace(Sec.3,Art.XIII,1987Constitution).

(3)NoStrikeNoLockoutClause

Q:WhendoestheNoStrikeNoLockoutclausein
theCBAapply?

A: The no strikeno lockout clause in the CBA


applies only to economic strikes. It does not apply
toULPstrikes.Hence,ifthestrikeisfoundedonan
unfair labor practice of the employer, a strike
declared by the union cannot be considered a
violationofthenostrikeclause.(MasterIronLabor
Unionv.NLRC,G.R.No.92009,Feb.17,1993)

(4)LaborManagementCouncil

Q: What is the role of the Department of Labor


and Employment in the creation of Labor
ManagementCouncils?

A:TheDepartmentshallpromotetheformationof
labormanagement councils in organized and
unorganized establishments to enable the workers
to participate in policy and decisionmaking
processes in the establishment, insofar as said
processes will directly affect their rights, benefits
and welfare, except those which are covered by
collective bargaining agreements or are traditional
areasofbargaining.

The Department shall promote other labor


management cooperation schemes and, upon its
own initiative or upon the request of both parties,
may assist in the formulation and development of
programs and projects on productivity,
occupational safety and health, improvement of
quality of work life, product quality improvement,
andothersimilarschemes.(Sec.1,RuleXXI,BookV,
IRR)

Q: How is the representative in the Management


CouncilSelected?

A: In organized establishments, the workers


representatives to the council shall be nominated
by the exclusive bargaining representative. In
establishments where no legitimate labor
organizationexists,theworkersrepresentativeshall
beelecteddirectlybytheemployeesatlarge.(Sec.
2,RuleXXI,BookV,IRR)

c.ULPinCollectiveBargaining

Q:WhataretheformsofULPinbargaining?

A:
1.
2.
3.

4.
5.
6.

Failuretomeetandconvene
Evading the mandatory subjects of
bargaining.
Bad faith in bargaining (boulwarism),
including failure to execute the CBA if
requested
GrossviolationoftheCBA
SurfaceBargaining
Blueskybargaining

Note:ViolationsofCBA,exceptthosewhicharegross
in character, shall no longer be treated as ULP but a
grievanceunderCBA.(Art.261,LC,Silvav.NLRC,G.R.
No.110226,June191997)

Q:Whenisthererefusaltobargain?

A:Aunionviolatesitsdutytobargaincollectivelyby
entering negotiations with a fixed purpose of not
reachinganagreementorsigningacontract.
Q:Whatisfeatherbedding/makeworkactivities?
A:Itreferstothepracticeoftheunionoritsagents
incausingorattemptingtocauseanemployer(Er)
to pay or deliver or agree to pay or deliver money
or other things of value, in the nature of an
exaction, for services which are not performed or
not to be performed, as when a union demands
that the Er maintain personnel in excess of the
lattersrequirements.
Note:Itisnotfeatherbeddingiftheworkisperformed
nomatterhowunnecessaryoruselessitmaybe.

Q:Whatisthesweetheartdoctrine?
A:ItiswhenaLOasksfororacceptsnegotiationsor
attysfeesfromemployersaspartofthesettlement
ofanyissueinCBoranyotherdispute.
Note:TheresultingCBAisconsideredasasweetheart
contractaCBAthatdoesnotsubstantiallyimprove
theemployeeswagesandbenefitsandwhosebenefits
arefarbelowthanthoseprovidedbylaw.

Q:Whatisblueskybargaining?
A: It is defined as making exaggerated or
unreasonableproposals.
Note:Whetherornottheunionisengagedinbluesky
bargainingisdeterminedbytheevidencepresentedby
the union as to its economic demands. Thus, if the
unionrequiresexaggeratedorunreasonableeconomic
demands,thenitisguiltyofULP.(StandardChartered
Bankv.Confessor,G.R.No.114974,June16,2004)

151

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Q:Whendoesboulwarismoccur?

1.

A: It occurs when employer (Er) directly bargains


withtheemployee(Ee)disregardingtheunion;the
aim was to deal with the labor union through Ees
ratherthanwiththeEesthrutheunion.Ersubmits
itsproposalsandadoptsatakeitorleaveitstand.

2.

d.UnfairLaborPractice

(1)ULPofEmployers

Q: What are the ULP that may be committed by


Ers?

A:
1. Interference
2. Yellowdogcondition
3. Contractingout
4. Companyunionism
5. Discrimination for or against union
membership
6. Discriminationbecauseoftestimony
7. Violationofdutytobargain
8. Paidnegotiation
9. GrossviolationofCBA

(a)Interference

Q:Whatismeantbyinterference?

A:TheactofErtointerferewith,restrainorcoerce
Eesintheexerciseoftheirrighttoselforganization.

Q:Whatisthetestofinterference?

A:WhethertheErhasengagedinconductwhich,it
mayreasonablybesaid,tendstointerferewiththe
freeexerciseoftheEesrighttoselforganization.

Note:DirectevidencethatanEewasinfactintended
orcoercedbythestatementsofthreatsoftheErisnot
necessaryifthereisareasonableinterferencethatthe
antiunion conduct of the Er does have an adverse
effect on selforganization and CB. (The Insular Life
AssuranceNATUv. The InsularLife Co.Ltd, G.R.No.L
25291,Jan.30,1971)

Q:Whatisthetotalityofconductdoctrine?

A:ItstatesthattheculpabilityofErsremarksisto
be evaluated not only on the basis of their
implications, but against the background of and in
conjunctionwithcollateralcircumstances.

Under this doctrine, expressions of opinion by an


Er,thoughinnocentinthemselves,frequentlywere
heldtobeULPbecauseof:

152

3.

Thecircumstancesunderwhichtheywere
uttered
The history of the particular Ers labor
relationsorantiunionbias
Their connection with an established
collateralplanofcoercionorinterference.
(The Insular Life AssuranceNATU v. The
Insular Life Co. Ltd, G.R. No.L25291, Jan.
30,1971)

Q: Phil. Marine Officers Guild (PMOG) is a union


representing some of Philsteams officers and
CebuSeamensAssociation(CSA)isanotherunion
representing some of Philsteams officers. PMOG
sentalettertoPhilsteamrequestingforCBbutthe
company asked the former to first prove it
represents the majority. Simultaneously,
Philsteam interrogated its captains, deck officers
andengineerswhileCSAlikewisesentitsdemands
to Philsteam. The company recognized CSA as
representingthemajorityandenteredintoaCBA.
Hence PMOG declared a strike. PMOG was
subjected to vilification and Philsteams pier
superintendent participated in the solicitation of
membership for CSA. Is the company guilty of
ULP?

A: Yes. Although the company is free to make


interrogationsastoitsEesunion,thesameshould
beforalegitimatepurposeandmustnotinterfere
withtheexerciseofselforganizationotherwiseitis
considered as ULP. Moreover, Philsteams
supervisoryEesstatementthatPMOGisamoney
makingunion,whichismadetoappeartobesaid
in behalf of the union and the participation of the
companys pier superintendent in soliciting
membership for the competing union, is ULP for
interfering with the exercise of the right to self
organization. (Philsteam and Navigation v.
Philippine Marine Officers Guild, G.R. Nos. L20667
andL20669,Oct.29,1965)

Q:Whatisalockout?

A: It means any temporary refusal of an Er to


furnish work as a result of an industrial or labor
dispute.(Art.212[p])

Q:WhendoeslockoutorclosureamounttoULP?

A: A lockout, actual or threatened, as a means of


dissuading the Ees from exercising their rights is
clearly an ULP. However, to hold an Er guilty, the
evidence must establish that the purpose was to
interferewiththeEesexerciseoftheirrights.

Q: What are other examples of acts of


interference?

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LABOR RELATIONS LAW

A:
1.
2.

3.

Outrightandunconcealedintimidation
In order that interrogation would not be
deemedcoercive:
a. The Er must communicate to the Ee
thepurposeofquestioning
b. Assure him that no reprisal would
takeplace
c. ObtainEeparticipationvoluntarily
d. Must be free from Er hostility to
unionorganization
e. Mustnotbecoerciveinnature
IntimidatingexpressionsofopinionbyEr

Note: An Er who interfered with the right to self


organization before a union is registered can be held
guilty of ULP. (Samahan ng mga Manggagawa sa
BandolinoLMLC v. NLRC, G.R. No. 125195, July 17,
1997)

It is the prerogative of the company to promote,


transfer or even demote its Ees to other positions
when the interests of the company reasonably
demand it. Unless there are circumstances which
directlypointtointerferencebythecompanywiththe
Ees right to selforganization, the transfer of an Ee
shouldbeconsideredaswithintheboundsallowedby
law. (RubberworldPhils.v.NLRC, G.R.No.75704, July
19,1989)

(b)YellowDog

Q:Whatisayellowdogcondition?

A:Itistorequireasaconditionofemploymentthat
apersonoranEeshallnotjoinalabororganization
orshallwithdrawfromonetowhichhebelongs.

Q:Whatisayellowdogcontract?

A:Itisapromiseexactedfromworkersascondition
of employment that they are not to belong to or
attempt to foster a union during their period of
employment.

Q:Isyellowdogcontractvalid?

A:No.Itisnullandvoidbecause:
1. It is contrary to public policy for it is
tantamounttoinvoluntaryservitude.
2. It is entered into without consideration
for Ees in waiving their right to self
organization.
3. Ees are coerced to sign contracts
disadvantageoustotheirfamily.

Note: This is one of the cases of ULP that may be


committedintheabsenceofanErEerelationship.

Q:Whatarethe3usualprovisionsunderayellow
dogcontract?

A:
1. ArepresentationbytheEethatheisnota
memberofalaborunion.
2. A promise by the Ee not to join a labor
union.
3. A promise by the Ee that upon joining a
laborunion,hewillquithisemployment.

(c)ContractingOut

Q:WhatiscontractingoutasaformofULP?

A: It is to contract out services or functions being


performed by union members when such will
interferewith,restrainorcoerceEesintheexercise
oftheirrightstoselforganization.
Q: Does it mean that an Er cannot contract out
work?

A:
GR:ContractingoutservicesisnotULPperse.

XPNs:ItisULPonlywhentheff.exists:
1. The services contracted out are being
performedbyunionmembers;and
2. Such contracting out interferes with,
restrains,orcoerceEesintheexerciseof
theirrighttoselforganization.

Note: When the contracting out is being done for


business reasons such as decline in business,
inadequacyofequipmentortoreducecost,thenitisa
validexerciseofmanagementprerogative.

Q: Company "A" contracts out its clerical and


janitorial services. In the negotiations of its
CBA,theunioninsistedthatthecompanymay no
longer engage in contracting out these types of
services, which services the union claims to be
necessaryinthecompany'sbusiness,without
prior consultation. Is the union's stand valid or
not?Forwhatreason(s)?

A: The union's stand is not valid. It is part of


management prerogative to contract out any
work,task,joborprojectexceptthatitisanULP to
contract out services or functions performed
by union members when such will interfere
with,restrainorcoerceEesintheexerciseoftheir
rights to selforganization. (Art.248[c]oftheLC).
(2001BarQuestion)

Q:Whatisarunawayshop?

153

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UST GOLDEN NOTES 2011


A:Itisanindustrialplantmovedbyitsownersfrom
onelocationtoanothertoescapelaborregulations
or State laws or to discriminate against Ees at the
oldplantbecauseoftheirunionactivities.

Q:IsresortingtorunawayshopULP?

A: Yes. Where a plant removal is for business


reasonsbuttherelocationishastenedbyantiunion
motivation, the early removal is ULP. It is
immaterialthattherelocationisaccompaniedbya
transfer of title to a new employer (Er) who is an
alteregooftheoriginalEr.

(d)CompanyUnionism

Q:Whatisacompanyunion?

A: Any labor organization whose formation,


functionoradministrationhasbeenassistedbyany
actdefinedasULP.(Art.212[i])

Q:Whataretheformsofcompanyunionism?

A:
1. Initiationofthecompanyunionideaby:
a. Outright formation by Er or his
representatives
b. Eeformationonoutrightdemandor
influencebyErand
c. Manageriallymotivatedformationby
Ees

2. Financialsupporttotheunionby:
a. Erdefraysunionexpenses
b. Pays attys feesto the attorneywho
drafted the Constitution or bylaws
oftheunion.

3. Er
encouragement
assistance

Immediately granting of exclusive


recognition as bargaining agent without
determining whether the union
representsthemajorityoftheemployees

4. Supervisory
assistance
Soliciting
membership, permitting union activities
during work time or coercing Ees to join
the union by threats of dismissal or
demotion

Q: What is meant by the act of company


dominationofunion?

A: This is to initiate, dominate, assist or otherwise


interfere with the formation or administration of
any labor organization including giving of financial

154

or other support to it or its organizers or


supporters.

Q: Why is company unionism/captive unionism a


formofULP?

A: ItisconsideredULPbecausetheofficerswillbe
beholdentotheErsandtheywillnotlookafterthe
interestofwhomtheyrepresent.

(e)Discriminationfororagainstunionmembership

Q: What is meant by discrimination as a form of


ULP?

A:Itistodiscriminateinregardtowages,hoursof
work and other terms and conditions of
employment in order to encourage or discourage
membershipinanylabororganization.

Q:WhenisadischargeofanEediscriminatory?

A: For the test of determining whether or not a


discharge is discriminatory, it is necessary that the
underlyingreasonforthedischargebeestablished.

The fact that a lawful cause for discharge is


available is not a defense where the Ee is actually
discharged because of his union activities. If the
discharge is actually motivated by lawful reason,
thefactthattheEeisengagedinunionactivitiesat
thetimewilllieagainsttheErandpreventhimfrom
the exercise of business judgment to discharge an
Eeforcause.(Phil.MetalFoundriesInc.v.CIR,G.R.
Nos.L3494849,May15,1979)

Q:Jobohas3hotels,theTaalVistaLodge,Manila
Hotel and the Pines Hotel. Among the 3, Pines
HotelhadmoreEesandtheonlyonewithalabor
organization(LO).Whenthebonuswasdistributed
among the 3 hotels, Pines Hotel Ees received the
leastamountcomparedtotheEesofManilaHotel
and Taal Vista Lodge. Did the company commit
ULP?

A:Yes.Thesharingofthebonusesisdiscriminatory
andsuchconstituteULP.ThePinesHotelEeswould
bereceivingfewerbonusescomparedtotheEesof
Taal Vista Lodge and Manila Hotel where neither
has a LO nor does the complainant union has a
member. Taking into account that Pines Hotel is
realizingprofitcomparedtothatofTaalVista.Same
analogyappliesinthesalaryincrease.(ManilaHotel
Co. v. Pines Hotel Ees Assn, G.R. No.L30139, Sep.
28,1972)
Q:Whencantherebeavaliddiscrimination?

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LABOR RELATIONS LAW


A: The employer is not guilty of ULP if it merely
complies in good faith with the request of the
certified union for the dismissal of employees
expelled from the union pursuant to the union
securityclauseintheCBA.(Sorianov.Atienza,G.R.
No.L68619,Mar.16,1989)
Q:Aprofitsharingschemewasintroducedbythe
companyforitsmanagersandsupervisorswhoare
notmembersoftheunion,hencedonotenjoythe
benefitsoftheCBA.Therespondentunionwanted
toparticipatewiththeschemebutwasdeniedby
the company due to the CBA. Subsequently the
company distributed the profit sharing to the
manager, supervisors and other nonunion
memberEes.Asaresulttheunionfiledanoticeof
strike alleging ULP. Is the nonextension of the
profit sharing scheme to union members
discriminatoryandanULP?
A: No. There can be no discrimination when the
Eesarenotsimilarlysituated.Thesituationofunion
members is different and distinct from nonunion
members because only union members enjoy the
benefit under the CBA. The profit sharing scheme
was extended to those who do not enjoy the
benefits of the CBA. Hence, there is no
discriminationandULPisnotcommitted.(Wiseand
Co.,Inc.v.NLRC,G.R.No.L87672,Oct.13,1989)
Q: Is dismissal of an Ee pursuant to a union
securityclauseaformofULP?
A: No. Union security clauses in the CBA, if freely
andvoluntarilyenteredinto,arevalidandbinding.
Thus, the dismissal of an Ee by the company
pursuant to a labor unions demand in accordance
with a union security agreement does not
constitute ULP. (Malayang Samahan ng mga
Manggagawa sa M. Greenfield v. Ramos, G.R. No.
113907,Feb.28,2000)
A union member who is employed under an
agreement between the union and his Er is bound
by the provisions thereof since it is a joint and
several contract of the members of the union
enteredintobytheunionastheiragent.(Manalang
v.ArtexDevt,G.R.No.L20432,Oct.30,1967)
Q: Is notice and hearing required in case an Ee is
dismissedpursuanttoaunionsecurityclause?
A: Yes. Although a union security clause in a CBA
may be validly enforced and dismissal pursuant to
thereto may likewise be valid, this does not erode
the fundamental requirement of due process. The
reason behind the enforcement of union security
clauses which is the sanctity and inviolability of
contractscannoterodeonesrighttodueprocess.

Notwithstanding the fact that the dismissal was at


theinstanceofthefederationandthatitundertook
toholdthecompanyfreefromanyliabilityresulting
fromsuchdismissal,thecompanymaystillbeheld
liable if it was remiss in its duty to accord the
wouldbe dismissed Ees their right to be heard on
thematter.
Q: Mabeza and her coEes were asked by the
company to sign an affidavit attesting to the
latters compliance with pertinent labor laws.
Mabeza signed the affidavit but refused to swear
toitsveracitybeforetheCityprosecutor.Mabeza
then filed a LOA which was denied by
management. After sometime, she attempted to
returntoworkbutthecompanyinformedhernot
toreportforworkandcontinuewithherunofficial
leave.DidthecompanycommitULP?
A: Yes. The act of compelling an Ee to sign an
instrument indicating the Ers compliance with
Laborlawswhichthecompanymighthaveviolated
together with the act of terminating or coercing
those Ees to cooperate is an act of ULP. This is
analogous with Art. 248 (f) of the LC which
provides: to dismiss, discharge or otherwise
prejudice or discriminate against an Ee for having
given or being about to give testimony under this
Code. For in not giving a positive testimony in
favoroftheEr,Mabezareservednotonlyherright
to dispute the claim but also to work for better
terms and condition. (Mabeza v. NLRC, G.R No.
118506,April18,1997)
(f)ViolationofDutytoBargain
Q: What is violation of the duty to bargain as a
kindofULP?
A: This is the act of violating the duty to bargain
collectivelyasprescribedintheLC.
Q:WhataretheformsofULPinbargaining?

A:
1. Failureorrefusaltomeetandconvene
2. Evading the mandatory subject of
bargaining
3. Badfaith(BF)bargaining,includingfailure
toexecutetheCBAifrequested
4. GrossviolationoftheCBA

Note: A companys refusal to make counterproposal,


if considered in relation to the entire bargaining
process, may indicate BF and this is especially true
where the unions request for a counter proposal is
left unanswered. (Kiok Loy v. NLRC, G.R. No. L54334,
Jan.22,1986)

155

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UST GOLDEN NOTES 2011


Q:WhataretheexamplesofULPinbargaining?

A:
1. Delaying negotiations by discussing
unrelatedmatters
2. Refusaltoacceptrequesttobargain
3. Rejecting a unions offer to prove its
majorityclaim
4. Shutdowntoavoidbargaining
5. Engaginginsurfacebargaining

Q: Balmar Farms Ees Association (BFEA) is


affiliated with Associated Labor Union (ALU). ALU
won in the certification election held in the
company. Thus, ALU sent its proposal for a CBA,
butthecompanyrefusedtoactonitallegingthat
BEA is the sole and exclusive bargaining
representativeandthatBFEAthroughitspresident
had sent a letter informing the company of its
disaffiliation with ALU. Is the company guilty of
ULPforrefusingtobargaincollectively?

A: Yes. ALU is the certified exclusive bargaining


representative after winning the certification
election. The company merely relied on the letter
of disaffiliation by BFEAs president without proof
and consequently refusing to bargain collectively
constitutes ULP. Such refusal by the company to
bargain collectively with the certified exclusive
bargainingrepresentativeisaviolationofitsdutyto
collectively bargain which constitutes ULP. (Balmar
Farmsv.NLRC,G.R.No.73504,Oct.15,1991)

beingamajorityunion.(1997BarQuestion)

Q: The Kilusang Kabisig, a newlyformed labor


union claiming to represent a majority of the
workers in the Microchip Corp., proceeded to
presentalistofdemandstothemanagementfor
purposes of collective bargaining (CB). The
Microchips Corp.,amultinationalcorp.engagedin
the production of computer chips for export,
declined to talk with the union leaders,
alleging that they had not as yet presented any
proof of majority status. The Kilusang Kabisig
then charged Microchip Corp. with ULP, and
declared a "wildcat" strike wherein means of
ingress andegress wereblocked and remote and
isolated acts of destruction and violence were
committed. Was the company guilty of an ULP
when it refused to negotiate with the Kilusang
Kabisig?

Note:AlltheULPactsmusthavearelationtotheEes
exercise of their right to selforganization. Antiunion
orantiorganizationmotivemustbeprovedbecauseit
isadefinitionalelementofULP.

A: No.ItisnotanULPnottobargainwithaunion
which has not presented any proof of its majority
status. The LC imposes on an Er the duty to
bargain collectively only with a legitimate labor
organizationdesignatedorselectedbythemajority
oftheEesinanappropriateCBunit.ItisnotaULP
for an Er to ask a union requesting to bargain
collectively that such union first show proof of its

156

Q:Whatissurfacebargaining?
A: It is the act of going through the motions of
negotiating without any legal intent to reach an
agreement. It involves the question of whether or
nottheErsconductdemonstratesanunwillingness
to bargain in good faith or is merely hard
bargaining. (Standard Chartered Bank v. Confessor,
G.R.No.114974,June16,2004)
Note: Occurs when the Er constantly changes its
positionovertheagreement.

(g)PaidNegotiation
Q:Whatismeantbypaidnegotiationasaformof
ULP?
A:Itistheactoftheemployertopaynegotiationor
attys fees to the union or its officers or agents as
part of the settlement of any issue in collective
bargainingoranyotherdispute.
(h)GrossViolationofCBA
Q: When is the violation of CBA considered as
ULP?
A:OnlywhentheviolationisgrossTheremustbe
a flagrant and/or malicious refusal to comply with
theeconomicprovisionoftheCBA.

If violation is not gross, it is not ULP but a grievance


under CBA. The grossly violate phrase is an
amendmentbyR.A.6715.

Q:AcomplaintforULPwasfiledbyaprosecutorof
the CIR against Alhambra company, upon the
charges of the union that 15 of its members
employedasdriversandhelpersarediscriminated
for being deprived of the benefits under the CBA
with no justifiable reason other than union
membership.IsthecompanyguiltyofULP?
A: Yes. The refusal to extend the benefits and
privileges under the CBA to Ees constitutes ULP.
Failure on the part of the company to live up in
good faith to the terms of the CBA is a serious
violation of the duty to collectively bargain which
againamountstoULP.The15driversandhelpers
are found to be Ees of the company, hence, the
benefit and privileges under the CBA should be

LABORLAWTEAM:
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LABOR RELATIONS LAW


extendedtothem.(AlhambraIndustriesv.CIR,G.R.
No.L25984,Oct.30,1970)

Q:WhatarethereliefsavailableinULPcases?

A:Thefollowingreliefsmaybeavailedof:
1. Ceaseanddesistorder
2. Affirmativeorder
3. Courtmayordertheemployertobargain.
CBAmaybeimposed.
4. Strikebyunionmembers

Note:ULPcasesarenotsubjecttocompromiseinview
of the public interest involve. The relation between
capital and labor is not merely contractual. They are
impressed with public interest that labor contracts
mustyieldtocommongood.

Q: Is the commission of an ULP by an employer


subject to criminal prosecution?

A: Yes,becauseULPsarenotonlyviolationsofthe
civil rights of both labor and management but are
alsocriminaloffensesagainstthe State which shall
be subject to prosecution and punishment. (Art.
247LC;SeealsoB.P.Blg.386as amendedbyR.A.
6715).However,thecriminalaspectcanonlybe
filed when the decision of the labor tribunals,
finding the existence of ULP, shall have become
finalandexecutory.(2005BarQuestion)
(2)ULPofLaborOrganizations
Q:WhataretheULPofLOs?
A: It shall be ULP for a LO, its officers, agents or
representatives:
1.

2.

3.

4.

To restrain or coerce Ees in the exercise


of their rights to selforganization.
However, a LO shall have the right to
prescribeitsownruleswithrespecttothe
acquisitionorretentionofmembership
To cause or attempt to cause an Er to
discriminate against an Ee, including
discrimination against an Ee with respect
to whom membership in such
organization has been denied or to
terminateanEeonanygroundotherthan
the usual terms and conditions under
which membership or continuation of
membership is made available to other
members
To violate the duty, or refuse to bargain
collectivelywiththeEr,provideditis the
representativeoftheEes
TocauseorattempttocauseanErtopay
or deliver or agree to pay or deliver any
money or other things of value, in the

5.

nature of an exaction, for services which


are not performed or not to be
performed, including the demand for fee
forunionnegotiations
Toaskfororacceptnegotiationsorattys
feesfromErsaspartofthesettlementof
any issue in collective bargaining (CB) or
anyotherdisputeor
ToviolateaCBA.

6.

Q:IsinterferencebyaLOanULP?

A:No,becauseinterferencebyaLOintheexercise
of the right to organize is itself a function of self
organizing.

Q:Whatareexamplesofinterferencewhichdoes
notamounttoULP?

A:
1. Union campaigns for membership even
amongmembersofanotherunion
2. Filingbyaunionofapetitiontodislodge
anincumbentbargainingunion
3. A bargaining union, through a union
security clause, requires an incoming
employeetojointheunion.

Q:MayaunioncoerceEestojoinastrike?

A:No.Aunionviolatesthelawwhen,torestrainor
coercenonstrikersfromworkingduringthestrike,
it:

1. Assaultsorthreatenstoassaultthem
2. Threatensthemwiththelossoftheirjobs
3. Blockstheiringresstooregressfromthe
plant
4. Damages nonstrikers automobiles or
forcesthemoffthehighway
5. Physicallypreventingthemfromworking
6. Sabotages the Ers property in their
presence,
thereby
creating
an
atmosphereoffearorviolence
7. Demonstrates loudly in front of a non
strikers residence with signs and shouts
accusingthenonstrikerofscabbing
8. Holdingthenonstrikeruptoridicule
9. Seekingpubliccondemnationofthenon
striker

Q:Whatisacaseofunioninduceddiscrimination
bylabororganization(LO)?

A: This pertains to the arbitrary use of union


securityclause.
A union member may not be expelled from the
union, and consequentlyfrom his job, for personal

157

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UST GOLDEN NOTES 2011


andimpetuousreasonsorforcausesforeigntothe
closed shop agreement. (Manila Mandarin Ees
Unionv.NLRC,G.R.No.76989,Sep.29,1987)
Laborunionsarenotentitledtoarbitrarilyexclude
qualified applicants for membership and a closed
shop applicants provision will not justify the
employerindischarging,oraunionininsistingupon
thedischargeofanemployeewhomtheunionthus
refuses to admit to membership without any
reasonable ground thereof. (Salunga v. CIR, G.R.
No.L22456,Sep.27,1967)
Q:Whenisthererefusaltobargain?
A:Aunionviolatesitsdutytobargaincollectivelyby
entering negotiations with a fixed purpose of not
reachinganagreementorsigningacontract.
3.RIGHTTOPEACEFULCONCERTEDACTIVITIES
Q: What is the constitutional basis of strikes,
lockoutsandotherconcertedactivities?
A: The State shall guarantee the rights of all
workers to selforganization, collective bargaining
andnegotiations,andpeacefulconcertedactivities,
includingtherighttostrikeinaccordancewithlaw
(Sec.3,Art.XIII,1987Constitution).
Note: The law does not look with favor upon strikes
and lockouts because of their disturbing and
perniciouseffectsuponthesocialorderandthepublic
interests;topreventoravertthemandtoimplement
Sec.6,Art.XIVoftheConstitution,thelawhascreated
severalagencies,namely:theBLR,theDOLE,theLabor
Management Advisory Board, and the CIR. (Luzon
Marine Devt Union v. Roldan, G.R. No. L2660, May
30,1950)

Q:Whatisaconcertedaction?
A: It is an activity undertaken by 2 or more
employees,byoneonbehalfoftheothers.
Q:Areallconcertedactionsstrikes?
A:Notallconcertedactivitiesarestrikes.Theymay
only be protest actions they do not necessarily
cause work stoppage by the protesters. A strike in
contrast is always a group action accompanied by
workstoppage.
Q: The Ees wrote and published a letter to the
bank president, demanding his resignation onthe
grounds of immorality, nepotism, favoritism and
discrimination in the appointment andpromotion
ofbankEes.Thebankdismissedthe8Eesonthe
allegedlibelousletter.WeretheEesengagedina
concertedactivity?

158

A:Yes,assumingthattheyactedintheirindividual
capacities when they wrote the letter, they were
nonethelessprotected,fortheywereengagedina
concertedactivity,intheirrightofselforganization
that includes concerted activity for mutual aid and
protection.Anyinterferencemadebythecompany
willconstituteasULP.

Thejoininginprotestsordemands,evenbyasmall
group of Ees, if in furtherance of their interests as
such is a concerted activity protected by the
IndustrialPeaceAct.Itisnotnecessarythatunion
activitybeinvolvedorthatcollectivebargainingbe
contemplated. (Republic Savings Bank v. CIR, G.R.
No.L20303,Oct.31,1967)

Q:Whatisastrike?

A:Itmeansanytemporarystoppageofworkbythe
concerted action of employees as a result of an
industrialorlabordispute.(Sec.1[uu],RuleI,Book
V,IRR)

It shall comprise not only concerted work


stoppages, but also slowdowns, mass leaves,
sitdowns, attempt to damage, destroy or sabotage
plantequipmentandfacilities,andsimilaractivities.
(Samahang Manggagawa sa Sulpicion Lines v.
SulpicioLines,Inc.,G.R.No.140992,Mar.25,2004)

Q:Whatisthepurposeofastrike?

A: A strike is a coercive measure resorted to by


laborerstoenforcetheirdemands.Theideabehind
a strike is that a company engaged in a profitable
business cannot afford to have its production or
activities interrupted, much less, paralyzed. (Phil.
CanCo.v.CIR,G.R.No.L3021,July13,1950)

Q:Whatisalockout?

A: It means any temporary refusal of an employer


tofurnishworkasaresultofanindustrialorlabor
dispute.(Art.212[p])

Q:Whatispicketing?

A:Itistheactofmarchingtoandfrotheemployers
premises which is usually accompanied by the
display of placard and other signs, making known
thefactsinvolvedinalabordispute.

The right to picket as a means of communicating


the facts of a labor dispute is a phase of the

freedomofspeechguaranteedbytheConstitution.
If peacefully carried out, it can not be curtailed

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LABOR RELATIONS LAW


evenintheabsenceofErEerelationship.(PAFLUv.
Cloribel,G.R.No.L25878,Mar.28,1969)

Q:Istherighttopicketanabsoluteright?

A: No, while peaceful picketing is entitled to


protectionasanexerciseoffreespeech,thecourts
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 interests, and to insulate
establishments or persons with no industrial
connectionorhavinginteresttotallyforeigntothe
context of the dispute. (Liwayway Pub., Inc. v.
Permanent Concrete Workers Union, G.R. No. L
25003,Oct.23,1981)

Therighttopeacefulpicketingshallbeexercisedby
the workers with due respect for the rights of
others.No person engaged in picketing shall
commit any act of violence, coercion or
intimidation.Stationary picket, the use of means
like placing of objects to constitute permanent
blockade orto effectively close points of entry or
exitincompanypremisesareprohibitedbylaw.

Q:Whoisastrikebreaker?

A: Any person who obstructs, impedes, or


interfereswithbyforce,violence,coercion,threats,
or intimidation any peaceful picketing affecting
wages, hours or conditions of work or in the
exercise of the right of selforganization or
collectivebargaining.(Art.212[r])

Q:Whatisastrikearea?
A:Itmeanstheestablishment,warehouses,depots,
plants or offices, including the sites or premises
usedasrunawayshops,oftheErstruckagainst,as
well as the immediate vicinity actually used by
picketing strikers in moving to and fro before all
points of entrance to and exit from said
establishment.(Sec.1[vv],RuleI,BookV,IRR)
Q:Whatisaninternaluniondispute?
A:Itincludesalldisputesorgrievancesarisingfrom
anyviolationofordisagreementoveranyprovision
oftheconstitutionandbylawsofaunion,including
any violation of the rights and conditions of union
membershipprovidedforinthisLC.(Art.212[q])
Q:Whatisaboycott?
A: It is an attempt, by arousing a fear of loss, to
coerce others, against their will to withhold from
one denominated unfriendly to labor their
beneficialbusinessintercourse.

Q:Whatisaslowdown?
A: It is a method by which ones employees,
without seeking a complete stoppage of work,
retard production and distribution in an effort to
compelcompliancebytheemployerwiththelabor
demandsmadeuponhim.
Q: Does an overtime boycott or work
slowdown by the employees constitute a strike
and hence a violation of the CBAs No strike, no
lockoutclause?

A: Yes, the concept of a slowdown is a "strike on


theinstallmentplan."Itisawillfulreductioninthe
rateofworkbyconcertedactionofworkersforthe
purpose of restricting the output of the employer
(Er),inrelationtoalabordispute;asanactivityby
which workers, without a complete stoppage of
work, retard production or their performance of
duties and functions to compel management to
granttheirdemands.

Such a slowdown is generally condemned as


inherentlyillicitandunjustifiable,becausewhilethe
employees (Ees) "continue to work and remain at
theirpositionsandacceptthewagespaidtothem,"
they at the same time "select what part of their
allotted tasks they care to perform of their own
volition or refuse openly or secretly, to the Er's
damage, to do other work;" in other words, they
"work on their own terms." (Interphil Laboratories
Ees UnionFFW v. Interphil Laboratories, Inc., G.R.
No.142824,Dec.19,2001)

Q:Whatarethecharacteristicsofastrike?
A:

1. ExistenceofanErEerelationship
2. Existenceofalabordispute
3. Employment relation is deemed to
continuealthoughinastateofbelligerent
suspension
4. Temporaryworkstoppage
5. Workstoppageisdonethroughconcerted
action
6. The striking group is a legitimate labor
organization; in case of a bargaining
deadlock, it must be the employees sole
bargainingrepresentative

Q: PAL dismissed strike leader Capt. Gaston as a


result of which the Union resolved to undertake
the grounding of all PAL planes and the filing of
applications for protest retirement of members
whohadcompleted5yearsofcontinuousservice,
and protest resignation for those who had
rendered less than 5 years of service in the
company. PAL acknowledged receipt of said
letters and among the pilots whose protest

159

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UST GOLDEN NOTES 2011


resignation or retirement was accepted by PAL
wereEnriquezandEcarma.

Before their readmission, PAL required Enriquez


and Ecarma to accept 2 conditions, namely: that
theysignconformitytoPALsletterofacceptance
of their retirement and or resignation and that
theysubmitanapplicationforemploymentasnew
employees(Ees)withoutprotestorreservation.As
aresultofthistheirseniorityrightswerelost.

Are the pilots entitled to the restoration of their


seniorityrights?

A:No,anEehasnoinherentrighttoseniority.He
hasonlysuchrightsasmaybebasedonacontract,
statute, or an administrative regulation relative
thereto. Seniority rights which are acquired by an
Ee through longtime employment are contractual
and not constitutional. The discharge of an Ee
thereby terminating such rights would not violate
the Constitution. When the pilots tendered their
respective retirement or resignation and PAL
immediately accepted them, both parties mutually
terminated
the
contractual
employment
relationship between them thereby curtailing
whatever seniority rights and privileges the pilots
hadearnedthroughtheyears.

Q:DoestheactionoftheEesofPALfallunderthe
ambitofconcertedactionsprotectedbylaw?

A: No, the pilots mass action was not a strike


because Ees who go on strike do not quit their
employment. Ordinarily, the relationship of Er and
Ee continues until one of the parties acts to sever
therelationshiportheymutuallyacttoaccomplish
thatpurpose.Astheydidnotassumethestatusof
strikers,theirprotestretirement/resignationwas
not a concerted activity which was protected by
law.(Enriquev.Zamora,G.R.No.L51382,Dec.29,
1986)

Q:Whatisalabordispute?

A: Any controversy or matter concerning terms or


conditions or representation of persons in
negotiating, fixing, maintaining, changing or
arrangingthetermsandconditionsofemployment,
regardlessofwhetherornotthedisputantsstandin
the proximate relation of Ers and Ees. (Gold City
Integrated Port Services, Inc. v. NLRC, G.R. No.
103560,July6,1995)

Q: When is a person or entity considered as


participatingorinterestedinalabordispute?

A:

160

1.
2.

3.
4.

Ifreliefissoughtagainsthimorit,and
He or it is engaged in the same industry,
trade, craft, or occupation in which such
disputeoccurs,or
Hasadirectorindirectinteresttherein,or
Is a member, officer, or agent of any
associationcomposedinwholeorinpart
of employees or employers engaged in
suchindustry,trade,craft,oroccupation.

Q:LiwaywayPublicationInc.isasecondsublessee
of a part of the premises of the Permanent
Concrete Products, Inc. It has a bodega for its
newsprintinthesubletpropertywhichitusesfor
its printing and publishing business. The daily
supply of newsprint needed to feed its printing
plant is taken from its bodega. The Ees of the
Permanent Concrete Products Inc. declared a
strike against their company.The union members
picketed, stopped and prohibited Liwayways
trucks from entering the compound to load
newsprintfromitsbodega.

Does the lower court have jurisdiction to issue a


writ of preliminary injunction considering that
there was a labor dispute between Permanent
ConcreteProducts,Inc.andtheunion?

A:Yes,LiwaywayPublicationInc.isnotinanyway
relatedtothestrikingunionexceptforthefactthat
it is the sub lessee of a bodega in the companys
compound.

The business of Liwayway is exclusively the


publication of magazines which has absolutely no
relation or connection whatsoever with the cause
of the strike of the union against their company,
muchlesswiththeterms,conditionsordemandsof
rd
the strikers. Liwayway is merely a 3 person or an
innocent bystander. (Liwayway Pub., Inc. v.
Permanent Concrete Workers Union, G.R. No. L
25003,Oct.23,1981)

Q: Because of financial problems, the company


decidedtotemporarilyshutdownitsoperationsat
the dyeing and finishing division. It notified the
DOLE of the shutdown. Raymund Tomaroy with
16 members of the union staged a picket in front
ofthecompanyscompound,carryingplacards.He
th
demanded a resumption of work and 13 month
pay. The company filed a petition to declare the
strike illegal. The union argues that they did not
stageastrike,forconsideringthatthedyeingand
finishing division of the company was shut down,
itcouldnothavecausedaworkstoppage.Wasthe
actionoftheunionastrike?

LABORLAWTEAM:
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LABOR RELATIONS LAW


A:Yes,theconcertedeffortsofthemembersofthe
union and its supporters caused a temporary work
stoppage.Theallegationthattherecanbenowork
stoppagebecausetheoperationinthedivisionhad
been shut down is of no consequence. It bears
stressing that the other divisions were fully
operational. (Bukluran ng Manggagawa sa
Clothman Knitting Corp. v. CA, G.R. No. 158158,
Jan.17,2005)

existenceoftheunionis
threatened.Itmuststillobserve
themandatory7daystrikeban
periodbeforeitcanstagea
validstrike

Q:Whatarethedifferentformsofstrike?

A:
1.

a.FormsofConcertedActivities
Q:Whatarethetypesofstrike?

2.

A:
1.

2.

Economic strike used to secure the


economic demands such as higher wages
and better working conditions for the
workers
ULP strike protest against ULP of
management

3.

Q:Distinguishbetweenaneconomicstrikeandan
ULPstrike.

A:
ULPSTRIKE
Astonature
Involuntarystrike;theLO is
forcedtogoonstrikebecause
Voluntarystrike
oftheULPcommittedagainst
becausetheEewill
thembytheEr.Itisanactof
declareastriketo
selfdefensesincetheEesare
compel
beingpushedtothewalland
managementto
theironlyremedyistostagea
grantitsdemands
strike
Whowillinitiate
TheCBagentof
theappropriate
EithertheCBagentortheLLOin
bargainingunitcan
behalfofitsmembers
declarean
economicstrike
Astothecoolingoffperiod
30daysfrom
noticeofstrike
beforethe
15daysfromthefilingofthe
intendeddateof
noticeofstrike
actualstrike
subjecttothe7
daystrikeban
Astotheexceptiontothecoolingoffperiod
Noexception
Thecoolingoffperiodmaybe
mandatory
dispensedwith,andtheunion
maytakeimmediateactionin

caseofdismissalfrom
Note:noticeof
employmentoftheirofficers
strikeandstrike
dulyelectedinaccordancewith
votemaybe
theunionsconstitutionandby
dispensedwith;
laws,whichmayconstitute
theymaystrike
unionbustingwherethe
immediately

4.

ECONOMICSTRIKE

5.

6.

7.

Legal Strikeone called for a valid purpose


and conducted through means allowed by
law.
Illegal Strikeone staged for a purpose not
recognizedbylaw,orifforavalidpurpose,
conducted through means not sanctioned
bylaw.
EconomicStrikeonestagedbyworkersto
forcewageorothereconomicconcessions
from the employer which he is not
required
by
law
to
grant
(Consolidated
Labor
Association
of the Phil. vs. Marsman, G.R. No. L
17038,July31,1964)
ULPStrikeonecalledtoprotestagainstthe
employers acts of unfair practice
enumerated in Article 248 of the Labor
Code, as amended, including gross
violation of the collective bargaining
agreement(CBA)andunionbusting.
Slow Down Strikeone staged without the
workers quitting their work but by merely
slackening or by reducing their normal
workoutput.
WildCat Strikeone declared and staged
without filing the required notice of strike
and without the majority approval of the
recognizedbargainingagent.
Sit Down Strikeone where the workers
stop working but do not leave their place
ofwork.
b.Whomaydeclareastrikeorlockout

Q:Whomaydeclareastrikeorlockout?
A:
1.

2.

Any certified or duly recognized


bargainingrepresentativemaydeclarea
strike in cases of bargaining deadlock
and unfair labor practice. Likewise, the
employer may declare a lockout in the
samecases.
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 the ground of unfair labor
practice. (Section 2, Rule XIII Book V,

161

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Omnibus Rules Implementing The Labor
Code,asamended).

Incaseofdismissalfromemploymentof
unionofficerswhichmayconstituteunion
busting, the time requirement for the
filing of the Notice of Strike shall be
dispensed with but the strike vote
requirement, being mandatory in
character, shall in every case be
compliedwith.

c.Requisitesforavalidstrike/lockout

Q:Whataretherequisitesofalawfulstrike/
lockout?

A: The requirements for a valid strike or


lockoutareasfollows:

1. Itmustbebasedonavalidandfactual
ground;

2. A strike or lockout NOTICE shall be filed


with the National Conciliation and
MediationBoard(NCMB)atleast15days
before the intended date of the strike or
lockout if the issues raised are unfair
labor practices, or at least 30 days
beforethe intended date thereof if the
issueinvolvesbargainingdeadlock.

3. Incasesofdismissalfromemploymentof
union officers duly elected in accordance
with the union constitution and bylaws,
which may constitute UNION BUSTING
where the existence of the union is
threatened,the15daycoolingoffperiod
shall not apply and the union may take
actionimmediatelyafterthestrikevoteis
conducted and the result thereof
submitted to the Department of Labor
andEmployment.
4.

A strike must be approved by a majority


vote of themembers of the Union and a
lockout must be approved by a majority
vote of the members of the Board of
Directors of the Corporation or
Association or of the partners in a
partnership,obtainedbysecretballotina
meetingcalledforthatpurpose.

5.

AstrikeorlockoutVOTEshallbereported
to the NCMBDOLE Regional Branch at
least7daysbeforetheintendedstrikeor
lockoutsubjecttothecoolingoffperiod.

6.

In the event the result of the


strike/lockout ballot is filed within the
coolingoffperiod,the7dayrequirement
shall be counted from the day following
the expiration of the coolingoff
period. (NSFW vs. Ovejera, G.R. No.
59743,May31,1982)

162

7.

Thedisputemustnotbethesubjectofan
assumption of jurisdiction by the
President or the Secretary of Labor and
Employment,
a
certification
for
compulsory arbitration, or submission to
compulsoryorvoluntaryarbitrationnora
subject of a pending case involving the
samegroundsforthestrikeorlockout.

Q:Whatarethevalidgroundsfordeclaringa
strikeorlockout?

A: The law recognizes 2 grounds for the valid


exerciseoftherighttostrikeorlockout,namely:

1. Collective Bargaining Deadlock (CBD)


economic;
2. UnfairLaborPractice(ULP)political

Note:Itispossibletochangeaneconomicstrikeintoa
ULP strike. (Consolidated Labor Assn of the Phils. v.
MarsmanandCo.,G.R.No.L17038,July31,1964)

Violations of CBA must be gross to be considered as


ULP.

Q:Whatisconversiondoctrine?

A: It is when a strike starts as economic and later,


asitprogresses,itbecomesaULP,orviceversa.

Q:Canastrikebeconvertedintoalockout?

A:No,astrikecannotbeconvertedintoapureand
simple lockout by the mere expedient of filing
beforethetrial courtanoticeofoffertoreturnto
work during the pendency of the labor dispute
between the union and the employer. (Rizal
Cement Workers Union v. CIR, G.R. No. L18442,
Nov.30,1962).

Q: Give examples of strike and explain their


legality.

A:
1. Sitdown strike Characterized by a
temporaryworkstoppageofworkerswho
seize or occupy property of the Er or
refusetovacatethepremisesoftheEr.

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LABOR RELATIONS LAW


Illegal Amounts to a criminal
actbecauseoftheEestrespass
onthepremisesoftheEr
2.

3.

4.

5.

Wildcat strike A work stoppage that


violates the labor contract and is not
authorizedbytheunion.
Illegal Because it fails to
comply with certain reqts of
thelaw,towit:noticeofstrike,
voteandreportonstrikevote

SlowdownStrikeonaninstallmentplan;
an activity by which workers, without
complete stoppage of work, retard
productionortheirperformanceofduties
and functions to compel management to
granttheirdemands

Illegal Ees work on their own


terms;whiletheEescontinueto
work and remain in their
positionsandacceptwagespaid
tothem,theyatthesametime
select what part on their
allotted tasks they care to
performontheirownvolitionor
refuseopenlyorsecretly

Sympathetic strike Work stoppages of


workers of one company to make
common cause with other strikers or
other companies without demands or
grievancesoftheirownagainsttheEr

Illegal There is no labor


dispute between the workers
whoarejoiningthestrikersand
thelattersEr

Secondary strike Work stoppages of


workers of one company to exert
pressureontheirErsothatthelatterwill
in turn bring pressure upon the Er of
another company with whom another
unionhasalabordispute

Illegal There is no labor


disputeinvolved.

Note: A strike can validly take


placeonlyinthepresenceofand
in relation to a labor dispute
betweenErandEe.

6.

Welga ng bayan (Cause Oriented Strikes)


A political strike and therefore there is
neitherabargainingdeadlocknoranyULP

IllegalItisapoliticalrally

7. Quickie strikes brief and unannounced


temporaryworkstoppage

Illegal failure to comply with notice


requirementsandetc.

Q: Two unions, joined a welga ng bayan. The


unions, led by their officers, staged a work
stoppagewhichlastedforseveraldays,prompting
FILFLEX and BIFLEX Corporations to file a petition
to declare the work stoppage illegal for failure to
comply with procedural reqts. Whether the Ees
committedanillegalworkstoppage?

A:Yes.Ees,whohavenolabordisputewiththeirEr
but who, on a day they are scheduled to work,
refuse to work and instead join a welga ng bayan
commit an illegal work stoppage. There being no
showing that the two unions notified the
corporations of their intention, or that they were
allowed by the corporations, to join the welga ng
bayan, their work stoppage is beyond legal
protection.(BIFLEX Phils. Inc. Labor Union (NAFLU)
vs.FILFLEXIndustrialandManufacturingCorp.,G.R.
No.155679,Dec.19,2006)

Q:Whatarethetestsindeterminingthelegalityof
strike?

A:Thefollowingmustconcur:
1. Purpose test the strike must be due to
either bargaining deadlock and/or the
ULP
2. Compliance with the procedural and
substantive reqts of the law. (See
requisitesofavalidstrike)
3. Means employed test It states that a
strike may be legal at its inception but
eventuallybedeclaredillegalifthestrike
is accompanied by violence which is
widespread, pervasive and adopted as a
matter of policy and not mere violence
whichissporadicwhichnormallyoccurin
astrikearea.

Q:Whataretheinstanceswhenastrikeorlockout
cannotbedeclared?

A:Nonstrikableissues:
1. CBAviolationsnotgrossincharacter
2. Grounds involving inter/intraunion
disputes
3. When there is no notice of strike or
lockout or without the strike or lockout
vote

163

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4.
5.

6.

After assumption of jurisdiction by the


SLE
After certification or submission of
dispute to compulsory or voluntary
arbitration or during the pendency of
cases involving the same grounds for
strikeorlockout
Labor standards cases such as wage
orders. (Guidelines governing Labor
Relations [Oct. 19, 1987] issued by Sec.
Drilon.SeealsoArt.261,LC)

Q: What are the procedural and substantive


requisitesbeforeastrikemaybedeclared?

A:
1. Notice of strike filed with the NCMB
taking into consideration the coolingoff
period

Note: The failure of the union to serve the


company a copy of the notice of strike is a
clearviolationofSection3,RuleXXII,BookV
of the Rules Implementing the LC. The
Constitutional precepts of due process
mandatethattheotherpartybenotifiedof
the adverse action of the opposing party.
(Filipino Pipe and Foundry Corp. v. NLRC,
G.R.No.115180,Nov.r16,1999)

2.

3.

164

30/15 day Coolingoff period before the


intended date of actual strike notice of
strike is filed with the NCMB taking into
consideration the coolingoff period, at
least:

a. 30 days before the intended strike


forbargainingdeadlocks;
b. 15 days before the intended strike
forULP

Strikevote
a. Thedecisiontodeclareastrikemust
be approved by a majority of the
total union membership in the
bargainingunitconcerned.
b. It must be obtained by secret ballot
throughmeetingsorreferendacalled
forthepurpose.
c. Its purpose is to ensure that the
intendedstrikeisamajoritydecision.
The report on the strike vote must
besubmittedtoDOLEatleast7days
beforetheintendedstrikesubjectto
thecoolingoffperiod.
d. The regional branch may supervise
theconductofthesecretballotingat

4.

5.

its own initiative or upon request of


anyparty.

FurnishtheregionalbranchoftheNCMB
with a notice to conduct a strike vote, at
least 24hours before the meeting for
such purpose (Sec. 10, Rule XXII of the
OmnibusRulesoftheNLRC).

7Daystrikebana7daywaitingperiod
before the date of the purported strike
(within which the union intending to
conduct a strike must at least submit a
report to DOLE as to the result of the
strikevote)

Note:TogiveDOLEanopportunitytoverify
whether the projected strike really carries
theimprimaturofthemajorityoftheunion
members in addition to the coolingoff
period before the actual strike. (Lapanday
Workers Union, et.al. v. NLRC, G.R. Nos.
9549497,Sep.7,1995)

Q:Whatisacoolingoffperiod?

A: It is the period of time given the NCMB to


mediateandconciliatetheparties.Itisthespanof
time allotted by law for parties to settle their
disputes in a peaceful manner before staging a
strikeorlockout.

Note: Coolingoff and waiting period may be done


simultaneously.

Q: What is the effect of noncompliance with the


requisitesofastrike?

A:Thestrikemaybedeclaredillegal.

Q: What is the purpose of giving notice of the


conduct of a strike vote to the NCMB at least 24
hoursbeforethemeetingforthesaidpurpose?

A:
1. Inform the NCMB of the intent of the
uniontoconductastrikevote;
2. Give the NCMB ample time to decide on
whether or not there is a need to
supervise the conduct of the strike vote
to prevent any acts of violence and or
irregularities;
3. Ample time to prepare for the
deployment of the requisite personnel.
(Capitol Medical Center v. NLRC, G.R. No.
147080,April26,2005)

Q:Isanostrike/lockoutclauselegal?

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LABOR RELATIONS LAW


A:Yes,butitisapplicableonlytoeconomicstrikes,
not ULP strikes. As a provision in the CBA, it is a
valid stipulation although the clause may be
invokedbyanemployer(Er)onlywhenthestrikeis
economic in nature or one which is conducted to
force wage or other concessions from the Er that
arenotmandatedtobegrantedbythelawitself.It
would be inapplicable to prevent a strike which is
grounded on ULP. (PanayElectricCo.v.NLRC,G.R.
No. 102672, Oct. 4, 1995; Malayang Samahan ng
mgaManggagawasaGreenfieldv.Ramos,G.R.No.
113907,Feb.28,2000)

Q:Whatisapreventivemediationcase?

A: It involves labor disputes which are the subject


ofaformalorinformalrequestforconciliationand
mediation assistance sought by either or both
parties or upon the initiative of the NCMB. (Sec. 1
[mm],RuleI,BookV,IRR)

Note: The regional branch may treat the notice as


preventive mediation case upon agreement of the
parties.

Q:Whatarethecontentsofthenoticeofstrikeor
lockout?

A:
1. NameandaddressesofEr
2. Unioninvolved
3. Nature of the industry to which the Er
belongs
4. Numberofunionmembers
5. Workersinthebargainingunit
6. Otherrelevantdate
7. In case of bargaining deadlocks:
unresolved issues, written proposals of
the union, counterproposals of the Er
and proof of request for conference to
settledifferences
8. In case of ULP: The acts complained of,
and the efforts taken to resolve the
dispute

Note:NCMBshallinformtheconcernedpartyincase
noticedoesnotconformwiththereqts.

Q:Whatactionwilltheboardtakeonthenoticeof
strikeofstrikeorlockout?

A:
1. Upon receipt of notice, the regional
branchoftheBoardshallexertallefforts
at mediation and conciliation to enable
thepartiestosettlethedisputeamicably.
It shall also encourage the parties to
submit the dispute to voluntary
arbitration.

2.

3.

4.

The regional branch of the NCMB may,


upon agreement of the parties, treat a
noticeasapreventivemediationcase.
During the proceedings, the parties shall
not do any act which may disrupt or
impede the early settlement of the
dispute.Theyareobliged,aspartoftheir
duty to bargain collectively in good faith
and to participate fully and promptly in
conciliation meetings called by the
regionalbranchoftheNCMB.
A notice, upon agreement of the parties,
may be referred to alternative modes of
dispute resolution, including voluntary
arbitration.

Q:Wasthestrikeheldbytheunionlegalbasedon
the fact that the notice of strike only contained
generalallegationsofULP?

A:No.RuleXIIISec.4BookVoftheImplementing
RulesoftheLCprovides:IncasesofULP,thenotice
of strike shall as far as practicable, state the acts
complainedofandtheeffortstoresolvethedispute
amicably. (Tiu v. NLRC, G.R. No. 123276, Aug. 18,
1997)
Q: NFSW, the bargaining agent of Central
Azucarera de la Carlota (CAC) rank and file
employees, filed a notice of strike based on non
th
payment of the 13 month pay and 6 days
thereafter they held the strike. A day after the
commencement of the strike, a report of the
strikevote was filed by NFSW with MOLE. CAC
filed a petition to declare the strike illegal due to
noncompliancewiththe15daycoolingofperiod
andthestrikewasheldbeforethelapseof7days
from the submission to the MOLE of the result of
thestrikevote.WasthestrikeheldbyNFSWlegal?
A:No.ThecoolingoffperiodinArt.264(c)andthe
7day strike ban after the strikevote report
prescribed in Art. 264 (f) were meant to be
mandatory.Thelawprovidesthatthelaborunion
may strike should the dispute remain unsettled
untilthelapseoftherequisitenumberofdaysfrom
thefilingofthenotice,thisclearlyimpliesthatthe
union may not strike before the lapse of the
coolingoffperiod.Thecoolingoffperiodisforthe
Ministry of Labor and Employment to exert all
efforts at mediation and conciliation to effect a
voluntarysettlement.
Themandatorycharacterofthe7daystrikebanis
manifest in the provision that in every case the
unionshallfurnishtheMOLEwiththeresultsofthe
votingatleast7daysbeforetheintendedstrike.
Thisperiodistogivetimetoverifythatastrikevote

165

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was actually held. (NFSW v. Ovejera, G.R. No. L
59743,May31,1982)
Q:FilTransitEesUnionfiledanoticeofstrikewith
the BLR because of alleged ULP of the company.
Because of failure to reach an agreement the
union went on strike. Several employees (Ees)
were dismissed because of the strike. The union
filedanothernoticeofstrikeallegingULP,massive
dismissalofofficersandmembers,coercionofEes
and violation of workers rights to self
organization. The Ministry of Labor and
Employment, after assuming jurisdiction over the
dispute, ordered all striking Ees including those
who were dismissed to return to work. The
company however countered that no strike vote
had been obtained before the strike was called
andtheresultofthestrikevotewasnotreported
to Ministry of Labor and Employment. Was the
strikeheldbytheunionillegalforfailuretoholda
strikevote?
A: Yes, there is no evidence to show that a strike
vote had in fact been taken before a strike was
called. Even if there was a strike vote held, the
strike called by the union was illegal because of
nonobservance by the union of the mandatory 7
day strike ban counted from the date the strike
voteshouldhavebeenreportedtotheDOLE.(First
City Interlink Transportation Co., Inc. v. Confessor,
G.R.No.106316,May5,1997)
Q: The company conceived and decided to
retrench its Ees and selected about 40 Ees to be
dismissedbecauseofthelackofwork.Becauseof
this about 200 Ees during breaktime boarded
busesandwenttotheMinistryofLaborbutthey
wereadvisedtoreturntowork.
Upon returning to the companys premises, the
Ees were only allowed to stay in the canteen and
were not given work because according to the
company the machines were undergoing repairs.
Are the Ees entitled to reinstatement and
backwages?
A:TheEesareentitledtoreinstatementbutnotto
backwages. Both parties being in pari delicto,
having conducted an illegal strike and lockout
respectively, there must be a restoration of the
statusquoanteandmustbringthepartiesbackto
their respective positions prior to the illegal strike
andlockoutwhichshallbedonebyreinstatingthe
remaining Ees. However, it is the general rule that
strikersarenotentitledtobackwages.Theprinciple
of no work, no pay is applicable in view of the
finding of the illegality of the strike. (Philippine
InterFashion,Incv.NLRC,G.R.No.L59847,Oct.18,
1982)

166

Q:Whataretheexceptionstothenobackwages
ruleofstrikers?

A:
1. When the Ees were illegally locked thus
compellingthemtostageastrike
2. WhentheErisguiltyofthegrossestform
ofULP
3. WhentheErcommitteddiscriminationin
therehiringofstrikersrefusingtoreadmit
those against whom there were pending
criminalcaseswhileadmittingnonstrikers
who were also criminally charged in
court;
4. When the workers who staged a
voluntary ULP strike offered to return to
work unconditionally but the Er refused
toreinstatethem.(ManilaDiamondHotel
vs.ManilaDiamondHotelEesUnion,G.R.
No.158075,June30,2006)

d.AssumptionofJurisdictionbytheSecretaryof
LabororCertificationoftheLabordisputetothe
NLRCforcompulsoryarbitration
Q: Discuss the assumption of jurisdiction by the
Secretary of Labor and Employment (SLE) on
strikes/lockouts.

A:
1. Discretionary
a. If in his opinion there exists a labor
dispute causing or likely to cause a
strike or lockout in an industry
indispensabletothenationalinterest.
b. He may certify the same to the NLRC
forcompulsoryarbitration
c. Effect Automatically enjoins the
intended or impending strike/lockout
butifonehasalreadytakenplace,all
striking or locked out Ees shall
immediatelyreturntoworkandtheEr
shall immediately resume operations
and readmit all workers under the
same terms and conditions prevailing
before the strike or lockout (Trans
Asia Shipping Lines, Inc.Unlicensed
Crews Ees Union v. CA, G.R. No.
145428,July7,2004)

Note: Amotionforreconsiderationdoesnot
suspend the effects as the assumption order
isimmediatelyexecutory.

2.

Mandatory(within24hours)
a. In labor disputes adversely affecting
the continued operation of hospitals,
clinicsormedicalinstitutions.

LABORLAWTEAM:
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LABOR RELATIONS LAW


b.

Mayassumejurisdictionorcertifyitto
theNLRCforcompulsoryarbitration
c. DutyofstrikingunionorlockingoutEr
to provide and maintain an effective
skeletal workforce of medical and
other health personnel, where
movement and service shall be
unhampered and unrestricted as are
necessary to insure the proper and
adequate protection of the life and
health of its patients most especially
emergency cases for the duration of
thestrikeorlockout(Art.263[g])

Q:Whatdoesthephraseunderthesameterms
andconditionscontemplate?

A:
GR: It contemplates only actual reinstatement.
This is in keeping with the rationale that any
work stoppage or slowdown in that particular
industry can be inimical to the national
economy.

XPN: Payroll reinstatement in lieu of actual


reinstatement but there must be showing of
special circumstances rendering actual
reinstatement impracticable, or otherwise not
conducivetoattainingthepurposeofthelawin
providing for assumption of jurisdiction by the
SLE in a labor dispute that affects the national
interest. (Manila Diamond Hotel Ees Union v.
SLE,G.R.No.140518,Dec.16,2004)

Q:WhatareissuesthattheSLEmayresolvewhen
heassumesjurisdictionoveralabordispute?

A:

1. IssuessubmittedtotheSLEforresolution
and such issues involved in the labor
dispute itself. (St. Scholasticas College v.
Torres,G.R.No.100158,June2,1992)
2. SLE may subsume pending labor cases
before LAs which are involved in the
dispute and decide even issues falling
under the exclusive and original
jurisdictionofLAssuchasthedeclaration
of legality or illegality of strike (Intl.
Pharmaceuticals v. SLE, G.R. Nos. 92981
83,Jan.9,1992)

Note: Power of SLE is plenary and discretionary. (St.


Lukes Medical Center v. Torres, G.R. No. 99395, June
29,1993)

Q:IsitnecessaryfortheSLEtoissueareturnto
workorderinanassumptionorder?

A: No, the mere issuance of an assumption order


automaticallycarrieswithitareturntoworkorder
althoughnotexpresslystatedtherein.(TSEUFFWv.
CA,G.R.Nos.14301314,Dec.18,2000)

Q: What is the extent of the powers of the


Presidentduringstrikes/lockouts?

A:
1. May determine the industries, which are
in his opinion indispensable to national
interest
2. May intervene at any time and assume
jurisdictionoveranysuchlabordisputein
order to settle or terminate the same.
(Art.263[g])

Note: The decision of the President/SLE is final and


executoryafterreceiptthereofbytheparties.

Q: May a return to work order be validly issued


pending determination of the legality of the
strike?

A: Yes. Where the return to work order is issued


pending the determination of the legality of the
strike, it is not correct to say that it may be
enforced only if the strike is legal and may be
disregardedifillegal.Precisely,thepurposeofthe
return to work order is to maintain the status quo
whilethedeterminationisbeingmade.(Sarmiento
v.Tuico,G.R.Nos.7527173,June27,1988)

e.NatureofAssumptionOrderorCertification
Order

Q: What is the nature of the power of SLE under


Art.263(g)?

A:Theassumptionofjurisdictionisinthenatureof
a police power measure. This is done for the
promotionofthecommongoodconsideringthata
prolonged strike or lockout can be inimical to the
national economy. The SLE acts to maintain
industrial peace. Thus, his certification for
compulsory arbitration is not intended to impede
the workers right to strike but to obtain a speedy
settlementofthedispute.(PhiltreadWorkersUnion
v.Confesor,G.R.No.117169,Mar.12,1997)

Art.263(g)doesnotinterferewiththeworkersright
to strike but merely regulates it, when in the
exercise of such right national interest will be
affected. The LC vests upon the SLE the discretion
to determine what industries are indispensable to
nationalinterest.

Q: What is the nature of assumption and


certificationordersoftheSecretaryofLabor?

167

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A: The underlying principle embodied in Art. 264


(g) on the settlement of labor disputes is that
assumptionandcertificationordersareexecutorin
character and are strictly complied with by the
parties even during the pendency of any petition
questioning their validity. This extraordinary
authoritygiventotheSecretaryofLaborisaimedat
arriving at a peaceful and speedy solution to labor
disputes,withoutjeopardizingnationalinterests.

Q: A notice of strike was filed by the PSBA Ees


UnionFFW,allegingunionbusting,coercionofEes
and harassment on the part of PSBA. The
conciliation being ineffective, the strike pushed
through.AcomplaintforULPandforadeclaration
of illegality of the strike with a prayer for
preliminary injunction was filed by PSBA against
theunion.

While the cases were pending, a complaint was


filedintheRTCofManilabysomePSBAstudents
againstPSBAandtheunion,seekingtoenjointhe
union and its members from picketing and from
barricading themselves in front of the schools
main gate. A TRO was then issued by the RTC,
which the union opposed on the ground that the
case involves a labor dispute over which the RTC
had no jurisdiction. The Acting SLE later on
assumed jurisdiction over the labor dispute and
ordered the striking Ees to return to work. Was
the SLE correct in ordering the striking Ees to
returntowork?

A: Yes. In the opinion of the Acting SLE, the labor


dispute adversely affected the national interest,
affecting as it did 9,000 students. He is authorized
by law to assume jurisdiction over the labor
dispute, after finding that it adversely affected the
nationalinterest.Thispowerisexpresslygrantedby
Art.263(g)oftheLC,asamendedbyB.P.Blg.227.

Q:DoestheRTChavejurisdictiontodecideonthe
casefiledbythePSBAstudents?

A: No, the RTC was without jurisdiction over the


subject matter of the case filed by some PSBA
students, involving as it does a labor dispute over
whichthelaboragencieshadexclusivejurisdiction.
That the regular courts have no jurisdiction over
labor disputes and to issue injunctions against
strikes is wellsettled. (PSBA v. Noriel, G.R. No.
80648,Aug.15,1988)

Q: Members of the union learned that a


redundancy program would be implemented by
thecompany.ThereuponitfiledaNoticeofstrike
on the grounds of ULP. A number of conciliation

168

meetings were conducted but to no avail so the


union staged a strike while the company
terminated 383 union members from service
pursuanttoitsredundancyprogram.Pursuantto
Art. 263(g) of the LC the SLE certified the labor
dispute for compulsory arbitration. Accordingly
the SLE enjoined the strike staged by the union
andallstrikingworkersweredirectedtoreturnto
work within 24 hours except for those who were
terminatedduetoredundancy.

WastheSLEcorrectinexceptingfromthereturn
toworkorderthosewhowereterminateddueto
redundancy?

A: No, Art. 263(g) is clear and unequivocal in


stating that all striking or lockout Ees shall
immediately return to work and the Er shall
immediately resume operations and readmit all
workers under the same terms and conditions
prevailing before the strike or lockout. Records of
the case would show that the strike occurred one
day before the members of the union were
dismissed due to alleged redundancy. Thus the
abovementioned article directs that the Er must
readmit all workers under the same terms and
conditions prevailing before the strike. (PLDT v.
Manggagawa ng Komunikasyon sa Pilipinas, G.R.
No.162783,July14,2005)

f.EffectofdefianceofAssumptionorCertification
Order

Q:Whatistheeffectofdefiancetothereturnto
workorder?

A:Itshallbeconsideredanillegalactcommittedin
the course of the strike or lockout and shall
authorizetheSLEortheNLRC,asthecasemaybe,
to enforce the same under pain or loss of
employment status or entitlement to full
employment benefits from the lockingout Er or
backwages, damages and/or other positive and/or
affirmative reliefs, even to criminal prosecution
against the liable parties. (Sec. 6, Rule IX, of the
New Rules of Procedure of the NLRC; St.
Scholasticas College v. Torres, G.R. No. 100158,
June2,1992)

g.IllegalStrike
Q:Whenisastrikeillegal?

A:

1. Contrary to specific prohibition of law,


such as strike by employees (Ees)
performinggovernmentalfunctions;
2. Violatesaspecificreqtoflaw;

LABORLAWTEAM:
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LABOR RELATIONS LAW


3.

4.

5.
6.

Declaredforanunlawfulpurpose,suchas
inducingtheemployer(Er)tocommitULP
againstnonunionEes;
Employsunlawfulmeansinthepursuitof
its objective, such as widespread
terrorismofnonstrikers;
Declared in violation of an existing
injunction;
Contrary to an existing agreement, such
as a no strike clause or conclusive
arbitrationclause

Q:Whatisgoodfaith(GF)strikedoctrine?

A:Astrikemaybeconsideredlegalwheretheunion
believedthatthecompanycommittedULPandthe
circumstances warranted such belief in GF,
although subsequently such allegations of ULP are
found out as not true. (Bacus v. Ople, GR No. L
56856, Oct. 23, 1984, Peoples Industrial and
CommercialEesandOrganization(FFW)v.Peoples
Industrial and Commercial Corp., G.R. No.37687,
Mar.15,1982)

Q: What is the effect of the GF of strikers on the


legalityofstrike?

A:
GR:AstrikegroundedonULPisillegalifnosuch
actsactuallyexist.

XPN:EvenifnoULPactsarecommittedbythe
Er,iftheEesbelieveinGFthatULPactsexistso
as to constitute a valid ground to strike, then
the strike held pursuant to such belief may be
legal. Where the union believed that the Er
committed ULP and the circumstances
warrantedsuchbeliefinGF,theresultingstrike
may be considered legal although,
subsequently, such allegations of ULP were
found to be groundless. (NUWHRAINInterim
Juntav.NLRC,G.R.No.125561,Mar.6,1998)
(1)LiabilityofOfficersoftheUnionandOrdinary
Workers

Q: Should separation pay and backwages be


awardedtotheparticipantsofanillegalstrike?

A: No backwages will be awarded to union


membersasapenaltyfortheirparticipationinthe
illegalstrike.Asfortheunionofficers,forknowingly
participating in an illegal strike, the law mandates
that a union officer may be terminated from
employmentandtheyarenotentitledtoanyrelief.
(GoldCityIntegratedPortServices,Inc.v.NLRC,G.R.
No.86000,Sep.21,1990)

Q: What is the rule on reinstatement of striking


workers?

A:Strikingemployeesareentitledtoreinstatement,
regardless of whether or not the strike was the
consequence of the employers ULP because while
out on strike, the strikers are not considered to
haveabandonedtheiremployment,butratherhave
only ceased from their labor; the declaration of a
strikeisnotarenunciationofemploymentrelation.

Q:Whoarenotentitledtoreinstatement?

A:

1. Union officers who knowingly participate


intheillegalstrike
2. Any striker or union who knowingly
participates in the commission of illegal
actsduringthestrike

Note:Thoseunionmemberswhohavejoinedanillegal
strike but have not committed any illegal act shall be
reinstatedbutwithoutbackwages.

Theresponsibilityfortheillegalactscommittedduring
the strike must be on an individual and not on a
collectivebasis.(FirstCityInterlinkTransportationCo.,
Inc.v.Confesor,G.R.No.106316,May5,1997)

Q: Are strikers entitled to their backwages or


strikedurationpay?

A:
GR:No,evenifsuchstrikewaslegal.

XPN:
1. Where the strikers voluntarily and
unconditionallyofferedtoreturntowork,
but the employer refused to accept the
offerworkersareentitledtobackwages
fromthedatetheirofferwasmade
2. Whenthereisareturntoworkorderand
the Ees are discriminated against other
Ees, workers are entitled to back wages
fromthedateofdiscrimination
3. IncaseofaULPstrike,inthediscretionof
theauthoritydecidingthecase

Q:Whatistheruleinstrikesinhospitals?

A:
1. It shall be the duty of the striking
employees or lockingout employer to
provideandmaintainaneffectiveskeletal
workforce of medical and health
personnelforthedurationofthestrikeor
lockout.
2. SLE may immediately assume jurisdiction
within 24 hours from knowledge of the

169

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UST GOLDEN NOTES 2011


occurrence of such strike or lockout
certify it to the NLRC for compulsory
arbitration.

Q:Moreorless1400Eesofthecompanystageda
masswalkout,allegedlywithoutanybodyleading
them as it was a simultaneous, immediate and
unanimous group action and decision, to protest
thenonpaymentoftheirsalariesandwages.The
MinisterofLaborandEmploymentwhofoundthe
strike to be illegal granted the clearance to
terminate the employment of those who were
instigatorsintheillegalstrike.Wasthedecisionof
the Minister of Employment in granting the
clearancecorrect?

A: No, a mere finding of the illegality of a strike


shouldnotbeautomaticallyfollowedbywholesale
dismissal of the strikers from their employment.
While it is true that administrative agencies
exercisingquasijudicialfunctionsarefreefromthe
rigiditiesofprocedure,itisequallywellsettledthat
avoidance of technicalities of law or procedure in
ascertaining objectively the facts in each case
should not, however, cause denial of due process.
(Bacusv.Ople,G.R.No.L56856,Oct.23,1984)

Q: 2 days after the union struck, the SLE ordered


the striking workers to return to work within 24
hours. But the striking union failed to return to
workandinsteadtheycontinuedtheirpickets.As
a result, violence erupted in the picket lines. The
service bus ferrying nonstriking workers was
stonedcausinginjuriestoitspassengers.Threats,
defamation,illegaldetention,andphysicalinjuries
also occurred. The company was directed to
acceptback all striking workers, except theunion
officers, shop stewards, and those with pending
criminal charges. Was the SLE correct in not
including the union officers, shop stewards and
thosewithpendingcriminalchargesinthereturn
toworkorder?

A:No,toexcludeunionofficers,shopstewardsand
thosewithpendingcriminalchargesinthedirective
tothecompanytoacceptbackthestrikingworkers
without first determining whether they knowingly
committed illegal acts would be tantamount to
dismissal without due process of law. (Telefunken
Semiconductors Ees UnionFFW v. SLE, G.R. No.
122743&127215,Dec.12,1997)

(2)WaiverofIllegalityofStrike

Q: When is there a waiver of the illegality of a


strikebytheemployer?

170

A: When an employer accedes to the peaceful


settlement brokered by the NLRC by agreeing to
accept all employees who had not yet returned to
work, it waives the issue of the illegality of the
strike. (Reformist Union v. NLRC, G.R. No.
120482,Jan.27,1997)

j.Injunctions
Q:Whatisaninjunction?
A: Itisanorderorawritthatcommandsaperson
to do or not to do a particular act. It may be a
positive (mandatory) or a negative (prohibitory)
command.
(1)RequisitesforLaborInjunctions
Q:Maythecourtorquasijudicialentityissueany
injunctionduringstrikes/lockouts?
A:GR:Nocourtorentityshallenjoinanypicketing,
strikeorlockout,oranylabordispute.
XPN:
1. When prohibited or unlawful acts are
beingorabouttobecommittedthatwill
causegraveorirreparabledamagetothe
complainingparty.(Art.218[e])
2. Onthegroundofnationalinterest
3. The SLE or the NLRC may seek the
assistanceoflawenforcementagenciesto
ensure compliance with this provision as
well as with such orders as he may issue
toenforcethesame(Art.263[g])

(2)InnocentBystanderRule

Q: What must an innocent bystander satisfy


beforeacourtmayenjoinalaborstrike?

A:Theinnocentbystandermustshow:

1. Compliancewiththegroundsspecifiedin
Rule58oftheRulesofCourt,and
2. That it is entirely different from, without
any connection whatsoever to, either
party to the dispute and, therefore, its
interestsaretotallyforeigntothecontext
thereof. (MSF Tire & Rubber v. CA, G.R.
128632,Aug.5,1999)

Q:MaytheRTCtakecognizanceofthecomplaint
where the same is but an incident of a labor
dispute?

rd
A: No, where the subject matter of the 3 party
claim is but an incident of the labor case, it is a
matter beyond the jurisdiction of the RTC, such

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LABOR RELATIONS LAW


courtshavenojurisdictiontoactonlaborcasesor
various incidents arising therefrom, including the
executionofdecisions,awardsororders.

Aparty,byfilingits3rdpartyclaimwiththedeputy
sheriff, it submitted itself to the jurisdiction of the
NLRCactingthroughtheLA.

The broad powers granted to the LA and to the


NLRCbyArt.217,218and224oftheLCcanonlybe
interpreted as vesting in them jurisdiction over
incidents arising from, in connection with or
relatingtolabordisputes,asthecontroversyunder
consideration, to the exclusion of the regular
courts.TheRTC,beingacoequalbodyoftheNLRC,
hasnojurisdictiontoissueanyrestrainingorderor
injunctiontoenjointheexecutionofanydecisionof
the latter. (Deltaventures v. Cabato, G.R. No.
118216,Mar.9,2000)

Q:TheemployerfiledwiththeRTCacomplaintfor
damages with preliminary mandatory injunction
againsttheunion,themainpurposeofwhichisto
dispense the picketing of the members of the
union.Theunionfiledamotiontodismissonthe
groundoflackofjurisdiction.TheRTCdeniedthe
motion to dismiss and enjoined the picketing, it
said that mere allegations of ErEe relationship
does not automatically deprive the court of its
jurisdiction and even the subsequent filing of
charges of ULP, as an afterthought, does not
deprive it of its jurisdiction. Was the issuance by
theRTCoftheinjunctionproper?

A:No,theconcertedactiontakenbythemembers
of the union in picketing the premises of the
departmentstore,nomatterhowillegal,cannotbe
regarded as acts not arising from a labor dispute
over which the RTCs may exercise jurisdiction.
(SamahangManggagawangLibertyCommercialv.
Pimentel,G.R.No.L78621,Dec.2,1987)

171

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UST GOLDEN NOTES 2011


H.PROCEDUREANDJURISDICTION

1.LABORARBITER

a.Jurisdiction
Q:Whatisthedistinctionbetweenthejurisdiction
of the labor arbiter (LA) and the National Labor
RelationsCommission(NLRC)?

A:
1. The NLRC has exclusive appellate
jurisdictiononallcasesdecidedbytheLA.
2. The NLRC does not have original
jurisdiction on the cases over which the
LAhaveoriginalandexclusivejurisdiction.
3. The NLRC cannot have appellate
jurisdiction if a claim does not fall within
the exclusive original jurisdiction of the
LA.

Q: What is the nature of jurisdiction of labor


arbiters(LAs)?

A:Itisoriginalandexclusive.LAshavenoappellate
jurisdiction.
Q:Whatarethecasesfallingunderthejurisdiction
oflaborarbiters(LAs)?
A: Exclusive and original jurisdiction to hear and
decidethefollowingcasesinvolvingallworkers:
1.
2.
3.

4.

5.

6.

7.

172

ULPcases
Terminationdisputes
If accompanied with a claim for
reinstatement, those that workers file
involving wages, rates of pay, hours of
work and other terms and conditions of
employment
Claims for actual, moral, exemplary and
other forms of damages arising from Er
Eerelations
Cases arising from any violation of Art.
264, including questions involving the
legalityofstrikesandlockouts;
Except
claims
for
Employment
Compensation, Social Security, Philhealth
and maternity benefits, all other claims
arising from ErEe relations, including
those of persons in domestic or
household service, involving an amount
exceeding P5000 regardless of whether
accompanied with a claim for
reinstatement
Monetary claims of overseas contract
workersarisingfromErEerelationsunder
the Migrant Workers Act of 1995 as
amendedbyRA10022

8.

Wage distortion disputes in unorganized


establishments not voluntarily settled by
thepartiespursuanttoRA6727
9. Enforcement of compromise agreements
when there is noncompliance by any of
the parties pursuant to Art. 227 of the
LaborCode(LC),asamended;and
10. Othercasesasmaybeprovidedbylaw

Note: Although the provision speaks of exclusive and


originaljurisdictionofLAs,thecasesenumeratedmay
instead be submitted to a voluntary arbitrator by
agreementofthepartiesunderArt.262oftheLC.The
lawprefersvoluntaryovercompulsoryarbitration.

Q:Whatisthenatureofthecaseswhichthelabor
arbiter(LA)mayresolve?

A: The cases that an LA can hear and decide are


employment related. Where no ErEe relationship
existsbetweenthepartiesandnoissueisinvolved
which may be resolved by reference to the LC,
other labor statutes, or any collective bargaining
agreement, it is the RTC that has jurisdiction.
(Lapanday Agricultural Devt. Corp v. CA, G.R. No.
112139,Jan.31,2000)
TheLAhasjurisdictionovercontroversiesinvolving
Ers and Ees only if there is a reasonable causal
connectionbetweentheclaimassertedandtheEr
Ee relations. Absent such link, the complaint is
cognizable by the regular court. (Eviota v. CA, G.R.
No.152121,July29,2003)
Q: Do labor arbiters exercise concurrent
jurisdictionwiththeNLRC?
A:Yes,withrespecttocontemptcases.
Q: What are the cases referred to grievance
machineryandvoluntaryarbitration?
A:Disputesarisingfromthe:

1. Interpretation or implementation of the


CBA
2. Interpretation or enforcement of
companypersonnelpolicies

Q: What is the extent of the jurisdiction of the


labor arbiter (LA) if there are unresolved matters
arisingfromtheinterpretationoftheCBA?

A:
GR:LAshavenojurisdictionoverunresolvedor
unsettled grievances arising from the
interpretation or implementation of the CBA
and those arising from the interpretation or
enforcementofcompanypersonnelpolicies.

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION

XPN:Actualterminationdisputes

Note: Where the dispute is just in the interpretation,


implementation or enforcement stage of the
termination, it may be referred to the grievance
machinery set up by the CBA or by voluntary
arbitration. Where there was already actual
termination, i.e., violation of rights, it is already
cognizable by the LA. (Maneja v. NLRC, G.R. No.
124013,June5,1998)

Q: Does the use of the word may in the


provisions of the Grievance Procedure allow the
alternativeofsubmittingthecasebeforethelabor
arbiter(LA)?

A: Yes. The use of the word may shows the


intention of the parties to reserve the right to
submit the illegal termination dispute to the
jurisdiction of the LA, rather than to a voluntary
arbitrator.Petitionervalidlyexercisedhisoptionto
submithiscasetoaLAwhenhefiledhiscomplaint
before the proper government agency. In other
words, the CA is correct in holding that voluntary
abitration is mandatory in character if there is a
specific agreement between the parties to that
effect.Itmustbestressedhoweverthat,inthecase
at bar, the use of the word may shows the
intention of the parties to reserve the right of
recourse to LAs. (Vivero v. CA, G.R. No. 138938,
Oct.24,2000)

Q:Whatarethecaseswhichdonotfallunderthe
jurisdictionofthelaborarbiters(LA)?

A:LAshavenojurisdictionovertheff:
1.
2.
3.

4.

5.

6.

Foreign governments (JUSMAGPhils. v.


NLRC,G.R.No.108813,Dec.15,1994)
Intl agencies (Lasco v. NLRC, G.R. Nos.
109095109107,Feb.23,1995)
Intracorporate disputes which fall under
P.D. 902A and now falls under the
jurisdictionoftheregularcourtspursuant
to the new Securities Regulation Code
(Nacpil v. IBC, G.R. No. 144767, Mar. 21,
2002)
Executing money claims against
government(DeptofAgriculturev.NLRC,
G.R.No.104269,Nov.11,1993)
Cases involving GOCCs with original
charters which are governed by civil
servicelaw,rulesorregulations(Art.IXB,
Sec.2,No.1,1987Constitution)
Localwaterdistrict(TanjayWaterDistrict
v.Gabaton,April17,1989) except where
NLRC jurisdiction is invoked (Zamboanga

City Water District v. Buat, G.R. No.


104389,May27,1994)
7. The aggregate money claim does not
exceed P5000 and without claim for
reinstatement(RajahHumabonHotel,Inc.
v. Trajano, G.R. Nos. 10022223, Sep.14,
1993)
8. Claim of employee (Ee) for cash prize
under the Innovation Program of the
company, although arising from ErEe
relationship, is one requiring application
of general civil law on contracts which is
within the jurisdiction of the regular
courts(SMCv.NLRC,G.R.No.80774,May
31,1988)
9. Cause of action based on quasidelict or
tort which has no reasonable connection
with any of the claims enumerated in
Art.217oftheLC(Ochedav.CA, G.R.No.
85517,Oct.16,1992)
10. Complaint arising from violation of
training agreement (Singapore Airlines v.
Pano,G.R.No.L47739,June22,1983)
Q: FASAP, the sole and exclusive bargaining
representative of the flight attendants, flight
stewardsandpursersofPAL,andrespondentPAL
entered into a CBA incorporating the terms and
conditions of their agreement for the years 01
05. Sec. 144, Part A of the CBA provides that
compulsoryretirementshallbe55forfemalesand
60 for males. They filed an action with the RTC
claiming that the CBA provision is discriminatory
andhenceunconstitutional.TheRTCissuedaTRO.
The appellate court ruled that the RTC has no
jurisdictionoverthecaseatbar.WhetherRTChas
jurisdictionoverthepetitioners'actionchallenging
the legality of the provisions on the compulsory
retirementagecontainedintheCBA?

A: Yes. The subject of litigation is incapable of


pecuniaryestimation,exclusivelycognizablebythe
RTC, pursuant to Sec. 19 (1) of BP Blg. 129, as
amended.Beinganordinarycivilaction,thesameis
beyondthejurisdictionoflabortribunals.

Not every controversy or money claim by an


employee (Ee) against the employer (Er) or vice
versa is within the exclusive jurisdiction of the LA.
Actions between Ees and Er where the ErEe
relationship is merely incidental and the cause of
action precedes from a different source of
obligationiswithintheexclusivejurisdictionofthe
regularcourt.Here,theErEerelationshipbetween
the parties is merely incidental and the cause of
action ultimately arose from different sources of
obligation, i.e., the Constitution and CEDAW.
(Halaguena vs. PAL Incorporated, G.R. No. 172013,
Oct.2,2009)

173

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UST GOLDEN NOTES 2011

Q: Who has the exclusive appellate jurisdiction


overallcasesdecidedbyLaborArbiters?

A:TheNLRC.

Q:Whatistheeffectofperfectionofanappealon
execution?

A: The perfection of an appeal shall stay the


execution of the decision of the Labor Arbiter on
appeal,exceptexecutionforreinstatementpending
appeal.

A:
1.

Note:TheprovisionofArt.223isclearthatanaward
by the LA for reinstatement shall be immediately
executor even pending appeal and the posting of a
bondbytheemployershallnotstaytheexecutionfor
reinstatement.(PioneerTexturizingCorp.v.NLRC,G.R.
No.118651,Oct.16,1997)

b.Effectofselfexecutingorderofreinstatementon
backwages

Q: May dismissed employees (Ees) collect their


wages during the period between the Labor
Arbiters (LAs) order of reinstatement pending
appeal and the NLRC decision overturning that of
theLA?
A: Yes. Par. 3 of Art. 223 of the Labor Code
provides that the decision of the LA reinstating a
dismissed or separated Ee, insofar as the
reinstatement aspect is concerned, shall
immediatelybeexcutory,pendingappeal.
Even if the order of reinstatement of the LA is
reversed on appeal, it is obligatory on the part of
theemployer(Er)toreinstateandpaythewagesof
the dismissed Ee during the period of appeal until
reversalbythehighercourt.Ontheotherhand,if
theEehasbeenreinstatedduringtheappealperiod
and such reinstatement order is reversed with
finality, the Ee is not required to reimburse
whatever salary he received for he is entitled to
such, more so if he actually rendered services
during the period. (Pfizer v. Velasco, G.R. No.
177467,March9,2011)
Unless there is a restraining order, it is ministerial
upon the LA to implement the order of
reinstatement and it is mandatory on the Er to
complytherewith.(Garciav.PAL,G.R.No.164856,
Jan.20,2009)
c.RequirementstoperfectappealtoNLRC
Q:HowisanappealfromLAtoNLRCperfected?

174

2.

Theappealisperfected:
a. Filed within the reglementary period
providedinSec.1ofthisRules
b. Verified by the appellant himself in
accordancewithSec.4,Rule7ofthe
RulesofCourt,asamended
c. In the form of a memorandum of
appealwhichshallstatethegrounds
relied upon and the arguments in
support thereof, the relief prayed
for,andwithastatementofthedate
the appellant received the appealed
decision,resolutionororder
d. In 3 legibly typewritten or printed
copies
e. Accompaniedby(i)proofofpayment
of the required appeal fee; (ii)
posting of a cash or surety bond as
providedinSec.6ofthisRule;(iii)a
certificate of nonforum shopping;
and (iv) proof of service upon the
otherparties.
Merenoticeofappealwithoutcomplying
withtheotherrequisitesaforestatedshall
not stop the running of the period for
perfectinganappeal.

Q: Is the posting of an appeal bond required for


theperfectionofanappealfromaLaborArbiters
(LAs)decisioninvolvingmonetaryaward?

A:Yes.IncasethedecisionoftheLAortheRegional
Director involves a monetary award, an appeal by
the employer may be perfected only upon the
postingofabond.(Sec.6,RuleVI,NLRC2005Rules
ofProcedure)

Q:Whataretheformsoftheappealbond?

A: It shall either be in the form of cash deposit or


suretybondequivalentinamounttothemonetary
award, exclusive of damages and attorney's fees.
(Sec.6,RuleVI,NLRC2005RulesofProcedure)

Q:Whomayissueasuretybond?

A: It shall be issued by a reputable bonding


companydulyaccreditedbytheCommissionorthe
SC,andshallbeaccompaniedbyoriginalorcertified
truecopiesof:

1. A joint declaration under oath by the Er,


his counsel, and the bonding company,
attestingthatthebondpostedisgenuine,
andshallbeineffectuntilfinaldisposition
ofthecase.

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION


2.
3.

4.
5.
6.
7.
8.

AnindemnityagreementbetweentheEr
appellantandbondingcompany;
Proof of security deposit or collateral
securingthebond:provided,thatacheck
shall not be considered as an acceptable
security;
A certificate of authority from the
InsuranceCommission;
CertificateofregistrationfromtheSEC;
Certificate of authority to transact surety
businessfromtheOfficeofthePresident;
Certificate of accreditation and authority
fromtheSC;and
A notarized board resolution or
secretary's certificate from the bonding
company showing its authorized
signatoriesandtheirspecimensignatures.
(Sec. 6, Rule VI, NLRC 2005 Rules of
Procedure)

Note: The appellant shall furnish the appellee with a


certifiedtruecopyofthesaidsuretybondwithallthe
abovementionedsupportingdocuments.

Q: What is the period within which a cash or


suretybondshallbevalidandeffective?

A: From the date of deposit or posting, until the


case is finally decided, resolved or terminated, or
theawardsatisfied.Thisconditionshallbedeemed
incorporated in the terms and conditions of the
suretybond,andshallbebindingontheappellants
and the bonding company. (Sec. 6, Rule VI, NLRC
2005RulesofProcedure)

Q:Whatistheeffectifthebondisverifiedbythe
NLRCtobeirregularornotgenuine?

A: The Commission shall cause the immediate


dismissal of the appeal, and censure or cite in
contempt the responsible parties and their
counsels, or subject them to reasonable fine or
penalty. (Sec.6, Rule VI, NLRC 2005 Rules of
Procedure)

Note: The appellee shall verify the regularity and


genuineness of the bond and immediately report any
irregularitytotheNLRC.

Q:Maythebondbereduced?

A:
GR:No.

XPN: On meritorious grounds, and only upon the


posting of a bond in a reasonable amount in
relationtothemonetaryaward.

Note: The mere filing of a motion to reduce bond


withoutcomplyingwiththerequisitesinthepreceding
paragraphsshallnotstoptherunningoftheperiodto
perfectanappeal(Sec.6,RuleVI,NLRC2005Rulesof
Procedure).

Q: Company "A", within the reglementary


period,appealed the decision of a Labor Arbiter
directing the reinstatement of an Ee and
awarding backwages. However, A's cash bond
wasfiledbeyondthe ten day period. Shouldthe
NLRCentertaintheappeal?Why?
A:No,theNLRCshouldnotentertaintheappeal,as
the same was not perfected for failure to file a
bond. In ABA vs. NLRC, G.R. No.122627, July 18,
1999, the SC ruled: "An appeal bond is
necessary...the appeal may be perfected only
upon the posting of cash or surety bond issued
by a reputable bonding company duly accredited
bytheCommissionintheamountequivalenttothe
monetary award in the judgment appealed from."
(2001BarQuestion)
Q: Is a motion for reconsideration (MR) of the
NLRC decision required before certiorari may be
availedof?
A:Yes.AMRisrequiredtoenableNLRCtocorrect
its mistakes. If no MR is filed, NLRCs decision
becomesfinalandexecutory.
Q:WhatistheremedyincaseofdenialoftheMR?
A:Ifthemotionisdenied,theaggrievedpartymay
file a petition for certiorari not later than 60 days
fromnoticeofthejudgment,orderorresolution.In
case a motion for reconsideration or new trial is
timely filed, whether such motion is required or
not,the60dayperiodshallbecountedfromnotice
of the denial of said motion. No extension of time
to file the petition shall be granted except for
compelling reason and in no case exceeding 15
days.(Sec.4,Rule65,RulesofCourt.)

Q:Whatistheeffectifnoserviceofsummonswas
made?
A: Intheabsenceofserviceofsummonsoravalid
waiver thereof, the hearings and judgment
renderedbythelaborarbiterisnullandvoid.
Q:Whatiscompulsoryarbitration?
A:Theprocessofsettlementoflabordisputesbya
government agency which has the authority to
investigate and make an award binding on all the
parties.

175

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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
Facultad de Derecho Civil
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
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UST GOLDEN NOTES 2011


Q:CantheLaborArbiter(LA)conductcompulsory
arbitration?
A: Yes. Under the Labor Code, it is the LA who is
clothed with the authority to conduct compulsory
arbitration on cases involving termination disputes
[Art.217,P.D.442,asamended].(PALv.NLRC,G.R.
No.55159,Dec.22,1989)
Q:Whataretherulesonvenueoffilingcases?

A:
1. All cases which the Labor Arbiters (LAs)
have authority to decide may be filed in
the Regional Arbitration Branch (RAB)
having jurisdiction over the workplace of
thecomplainant/petitioner.

Note: Workplace is understood to be the


placeorlocalitywheretheemployee(Ee)is
regularlyassignedwhenthecauseofaction
arose.ItshallincludetheplacewheretheEe
issupposedtoreportbackafteratemporary
detail,assignmentortravel.
In case of field Ees, as well as ambulant or
itinerant workers, their workplace is where
theyare
a.Regularlyassigned
b. Supposed to regularly receive their
salariesandwages
c.Receivetheirworkinstructionsfrom
d. Reporting the results of their
assignmenttotheiremployers(Er)

2.

3.

4.

5.

Where 2 or more RABs have jurisdiction


over the workplace, the first to acquire
jurisdictionshallexcludeothers.

Improper venue when not objected to


before filing of position papers shall be
deemedwaived.
Venue may be changed by written
agreement of the parties or when the
NLRCortheLAsoorders,uponmotionby
theproperpartyinmeritoriouscases.

ForOverseasContractWorkerswherethe
complainant resides or where the
principal office of the respondent Er is
located,attheoptionofthecomplainant.

Note: The Rules of Procedure on Venue is


merely permissive, allowing a different
venue when the interest of substantial
justice demands a different one. (Dayag v.
Canizares,GR.No.124193,Mar.6,1998)

176

2.NATIONALLABORRELATIONSCOMMISSION
(NLRC)

Q:WhatistheNLRC?
A: It is an administrative body with quasijudicial
functionsandtheprincipalgovernmentagencythat
hearsanddecideslabormanagementdisputes;itis
attachedtotheDOLEsolelyforprogramandpolicy
coordinationonly.
Q: How are the powers and functions of theNLRC
allocated?

A:
1. EnBanc
a. Promulgating rules and regulations
and governing the hearings and
disposition of cases before any of its
divisionsandregionalbranches.
b. Formulating policies affecting its
administrationandoperations.
c. Ontemporaryoremergencybasis,to
allow cases within the jurisdiction of
anydivisiontobeheardanddecided
by any other division whose docket
allows the additional workload and
suchtransferwillnotexposelitigants
tounnecessaryadditionalexpense.
2. Division(8Divisionswith3members)
a. Adjudicatory;
b. All other powers, functions and
duties;
c. Exclusive appellate jurisdiction over
cases within their respective
territorialjurisdiction.

Q: Does an individual Commissioner have


adjudicatorypower?

A: No. The law lodges the adjudicatory power on


each of the eight divisions, not on the individual
commissioners nor on the whole commission. The
division is a legal entity, not the person whosits
in it. Hence, an individual commissioner has no
adjudicatory power, although of course, he can
concurordissentindecidingacase.

a.Jurisdictions

Q: What are the two kinds of jurisdiction of the


NLRC?

A:
1. ExclusiveOriginalJurisdiction
a. Certified labor disputes causing or
likely to cause a strike or lockout in
anindustryindispensabletonational

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION

2.

interest, certified to it by the


Secretary of Labor or the President
forcompulsoryarbitration
b. Injunction in ordinary labor disputes
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,ifnotrestrainedorperformed
forthwith, may cause grave or
irreparabledamagetoanyparty
c. Injunction in strikes or lockouts
underArt.264oftheLaborCode(LC)
d. Contemptcases
ExclusiveAppellateJurisdiction
a. All cases decided by the Labor
Arbiters under Art. 217(b) of the LC
and Sec. 10 of R.A.8042 (Migrant
WorkersAct);and
b. Cases decided by the Regional
OfficesofDOLEintheexerciseofits
adjudicatory function under Art.129
of the LC over monetary claims of
workersamountingtonotmorethan
P5000andnotaccompaniedbyclaim
forreinstatement.

Q:WhatisthecompositionoftheNLRC?

A:
1. Chairman
2. 23Members
a. 8memberseach,shallbechosenonly
from among the nominees of the
workers and employers (Er)
organizationrespectively.
b. The Chairman and the 7 remaining
members shall come from the public
sector, with the latter to be chosen
preferably
from
among
the
incumbentLaborArbiters.
c. Upon assumption into office, the
members nominated by the workers
and Ers organization shall divest
themselves of any affiliation with or
interest in the federation or
associationtowhichtheybelong.

Note: There is no need for the Commission on


Appointments to confirm the positions in the NLRC.
Suchrequirementhasnoconstitutionalbasis.(Calderon
v.Carale,GR.No.91636,April23,1992)

Q:HowdoestheNLRCadjudicatecases?

A:
1. The NLRC adjudicates cases by division. A
concurrence of 2 votes is needed for a

validjudgment.

Note:Whenevertherequiredmembershipin
a division is not complete and the
concurrence of the Commissioners to arrive
at judgment or resolution cannot be
obtained, the Chairman shall designate such
number of additional Commissioners from
theotherdivisionsasmaybenecessary.

2.

It shall be mandatory for the division to


meetforpurposesofconsultation.

Note: The conclusion of a division on any


case submitted to it for decision should be
reached in consultation before the case is
assignedto a member forthewritingof the
opinion.

3.

Acertificationthataconsultationhasbeen
conducted, signed by the presiding
commissioner of the division, shall be
issued(copyattachedtotherecordofcase
andservedupontheparties).

Q:WhatarethequalificationsoftheChairmanand
theCommissioners?

A:
1. MemberofthePhilippineBar
2. Engaged in the practice of law in the
Philippinesforatleast15years
3. Atleast5yearsexperienceorexposurein
handlinglabormanagementrelations
4. Preferably a resident of the region where
heistoholdoffice

Q: What are the qualifications of an Executive


LaborArbiter?

A:
1. MemberofthePhilippineBar
2. Engaged in the practice of law in the
Philippinesforatleast10years
3. Atleast5yearsexperienceorexposurein
handlinglabormanagementrelations

Q: What is the term of office of the Chairman,


CommissionersandLaborArbiters(LAs)?

A: They shall hold office duringgood behavior until


theyreachtheageof65unlessremovedforcauses
as provided by law or become incapacitated to
dischargethefunctionofhisoffice.

Provided, however, that the President of the


Philippines may extend the services of the
Commissioners and LAs up to the maximum age of
70 years upon the recommendation of the

177

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Facultad de Derecho Civil
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UST GOLDEN NOTES 2011


Commissionenbanc.

Q: Some disgruntled members of Bantay


Labor Union filed with the Regional Office of the
DOLE a written complaint against their union
officers for mismanagement of union funds. The
Regional Director (RD) did not rule in the
complainants' favor. Not satisfied, the
complainants elevated the RDs decision to the
NLRC. The union officers moved to dismiss on the
groundoflackofjurisdiction.Aretheunionofficers
correct?Why?

A:Yes,theunionofficersarecorrectinclaimingthat
the NLRC has no jurisdiction over the appealed
ruling of the RD. in Barles v. Bitonio, G.R. No.
120220,June16,1999,theSCruled:
Appellate authority over decisions of the RD
involvingexaminationofunionaccountsisexpressly
conferred on the Bureau of Labor Relations (BLR)
under the Rule of Procedure on Mediation
Arbitration.
Sec. 4. Jurisdiction of the BLR (b) The BLR shall
exercise appellate jurisdiction over all cases
originating from the RD involving complaints for
examinationofunionbooksofaccounts.
The language of the law is categorical. Any
additional explanation on the matter is
superfluous."(2001BarQuestion)
Q:Company"A"andUnion"B"couldnotresolve
their negotiations for a new CBA. After
conciliation proceedings b e f o r e t h e NCMB
proved futile, Bwentonstrike.Violenceduring
the strike prompted A to file charges against
strikermembers of B for their illegal acts. The
SLE assumed jurisdiction, referred the strike to
the NLRC and issued a returntowork order.
The NLRC directedthe parties to submit their
respective position papers and documentary
evidence. At the initial hearing before the NLRC,
the parties agreed to submit the case for
resolution after the submission of the position
papersandevidence.

Subsequently, the NLRC issued an arbitral award


resolving the disputed provisions of the CBA and
ordered the dismissal of certain strikers for
having knowingly committed illegal acts during
the strike. The dismissed employees elevated
their dismissal to the CA claiming that they
were deprived of their right to due process and
that the affidavits submitted by A were self
serving and of no probative value. Should the
appeal prosper? State the reason(s) for your
answerclearly.

178

A:Theappealshouldnotprosper.TheSC,inmany
cases, has ruled that decisions made by the NLRC
maybebasedonpositionpapers.Inthequestion,it
isstatedthatthepartiesagreedtosubmitthecase
for resolution after the submission of position
papers and evidence. Given this fact, the striker
membersofBcannotnowcomplainthattheywere
denied due process. They are in estoppel. After
voluntarily submitting a case and encountering an
adversedecisiononthemerits,itistoolateforthe
loser to question the jurisdiction or power of the
court. A party cannot adopt a posture of double
dealing. (Marquez vs. Secretary of Labor, G.R. No.
80685,March16,1989).(2001BarQuestion)

Q: Is barangay conciliation available in labor


cases?

A: No. Labor cases are not subject to barangay


Conciliation since ordinary rules of procedure are
merely suppletory in character visvis labor
disputes which are primarily governed by labor
laws. (Montoya v. Escayo, G.R. No. 8221112,Mar.
21,1989)

Q:WhatarethepowersoftheNLRC?

A:
1. Rule making power promulgation of
rulesandregulations:
a. Governing disposition of cases
before any of its division/regional
offices.
b. Pertainingtoitsinternalfunctions
c. Asmaybenecessarytocarryoutthe
purposesoftheLaborCode.
2. Power to issue compulsory processes
(administer oaths, summon parties, issue
subpoenas)
3. Power to investigate matters and hear
disputes
within
its
jurisdiction
(adjudicatory power original and
appellatejurisdictionovercases)
4. Contemptpower
5. OcularInspection
6. Powertoissueinjunctionsandrestraining
orders

b.EffectofNLRCreversalofLaborArbitersorderof
reinstatement

Q: May dismissed employees (Ees) collect their


wages during the period between the Labor
Arbiters (LAs) order of reinstatement pending
appeal and the NLRC decision overturning that of
theLA?

LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


A: Yes. Par. 3 of Art. 223 of the Labor Code
provides that the decision of the LA reinstating a
dismissed or separated Ee, insofar as the
reinstatement aspect is concerned, shall
immediatelybeexcutory,pendingappeal.
Even if the order of reinstatement of the LA is
reversed on appeal, it is obligatory on the part of
theemployer(Er)toreinstateandpaythewagesof
the dismissed Ee during the period of appeal until
reversalbythehighercourt.Ontheotherhand,if
theEehasbeenreinstatedduringtheappealperiod
and such reinstatement order is reversed with
finality, the Ee is not required to reimburse
whatever salary he received for he is entitled to
such, more so if he actually rendered services
during the period. (Pfizer v. Velasco, G.R. No.
177467,March9,2011)
c.RequirementstoperfectappealtoCourtof
Appeals
Q: Is judicial review of the NLRCs decision
available?
A: Yes, through petitions for certiorari (Rule 65)
which should be initially filed with the CA in strict
observance of the doctrine on the hierarchy of
courts as the appropriate forum for the relief
desired.TheCAisprocedurallyequippedtoresolve
unclear or ambiguous factual finding, aside from
the increased number of its component divisions.
(St.MartinFuneralHomev.NLRC,G.R.No.130866,
Sep.16,1998)

Q: Within what period should the petition for


certioraribefiledwiththeCourtofAppeals?

A: Under Section 4, Rule 65 (as amended by A.M.


No.00203SC)oftheRulesofCivilProcedure,the
petition must be filed within sixty (60) days from
notice of the judgment or from notice of the
resolution denying the petitioners motion for
reconsideration. This amendment is effective
September1,2000,butbeingcurativemaybegiven
retroactiveapplication.(Narzolesv.NLRC,G.R.No.
141959,Sep.29,2000)

The period within which a petition for certiorari


againstadecisionoftheNLRCmaybefiledshould
be computed from the date counsel of record of
the party receives a copy of the decision or
resolution,andnotfromthedatethepartyhimself
receives a copy thereof. Article 224 of the Labor
Code,whichrequiresthatcopiesoffinaldecisions,
orders or awards be furnished not only the partys
counselofrecordbutalsothepartyhimselfapplies
totheexecutionthereofandnottothefilingofan

appeal or petition for certiorari. (Ginete v. Sunrise


ManningAgency,G.R.No.142023,June21,2001)

Q: What is an injunction or a temporary


restrainingorder(TRO)?

A: Orders which may require, forbid, or stop the


doingofanact.ThepoweroftheNLRCtoenjoinor
restrain the commission of any or all prohibited or
unlawfulactsunderArt.218ofLaborCodecanonly
beexercisedinalabordisputes.

Note: A restraining order is generally regarded as an


ordertomaintainthesubjectofcontroversyinstatus
quountilthehearingofanapplicationforatemporary
injunction. (BF Homes v. Reyes, G.R. No. L30690
November19,1982)

Q:WhomayissueaTRO?

A:
1. President(Art.263[g])
2. SecretaryofLabor(Art.263[g])
3. NLRC(Art.218)

Note: Art. 218 of the Labor Code limits the grant of


injunctive power to the NLRC. The LA is excluded
statutorily. Hence, no NLRC Rules can grant him that
power.

Q: What is the procedure for the issuance of


restrainingorder/injunction?

A:
1. Filingofaverifiedpetition
2. Hearingafterdueandpersonalnoticehas
been served in such manner as the
Commissionshalldirectto:
a. All known persons against whom
reliefissought
b. Also the Chief Executive or other
public officials of the province or
city within which the unlawful acts
have
been
threatened
or
commercial charged with the duty
to protect the complainants
property.
3. Reception at the hearing of the
testimonies of the witnesses with
opportunity for crossexamination, in
support of the allegations of the
complaint made under oath as well as
testimonyinoppositionthereto.
4. Finding of fact of the Commission to the
effectthat:
a. Prohibited or unlawful acts have
been threatened and will be
committed,orhavebeenandwillbe
continued unless restrained, but no

179

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b.

injunction or TRO shall be issued on


account of any threat, prohibited or
unlawful act, except against the
persons, association or organization
makingthethreatorcommittingthe
prohibitedorunlawfulactoractually
authorizing or ratifying the same
afteractualknowledgethereof.
The substantial and irreparable
injurytothecomplainantsproperty.
Note: Irreparable Injury an injury
which
cannot
be
adequately
compensated in damages due to the
natureoftheinjuryitselforthenature
of the right or property injured or
when there exist no pecuniary
standard for the measurement of
damages.

c.

d.

That as to each item of relief to be


granted, greater injury will be
inflicted upon the complainant by
the denial of the relief than will be
inflicteduponthedefendantsbythe
grantingoftherelief.
That complainant has no adequate
remedyatlaw
Note: Adequate remedy one that
affords relief with reference to the
matter in controversy and which is
appropriate to the particular
circumstances of the case if the
remedyisspecificallyprovidedby law.
(PALv.NLRC,GR.No.120567,Mar.20,
1998)

e.

5.

Thatpublicofficerschargedwiththe
duty to protect complainants
property are unable or unwilling to
furnishadequateprotection.
Postingofabond.

3.BUREAUOFLABORRELATIONS(BLR)MED
ARBITERS

a.Jurisdiction

Q: What is covered by the BLRs jurisdiction and


functions?

A: The BLR no longer handles all labor


management disputes; rather its functions and
jurisdictionarelargelyconfinedto:
1. Unionmatters
2. Collectivebargainingregistryand
3. Laboreducation.

Note:Jurisdictionoverlabormanagementproblemsor
disputesisalsoexercisedbyotheroffices:
1. DOLERegionalOffices
2. OfficeoftheSecretaryofLabor
3. NLRC

180

4.
5.
6.
7.
8.
9.

POEA
OWWA
SSSECC
RTWPB
NWPC
Regular courts
disputes.

over

intracorporate

Q:Whoisamediatorarbiter?

A: An officer in the Regional Office or Bureau


authorized to hear, conciliate and decide
representation cases or assist in the disposition of
intraorinteruniondisputes.

Q: What kinds of cases fall within BLRs


jurisdiction?

A: The BLR has original and exclusive jurisdiction


over:

1. Interuniondisputes
2. Intrauniondisputes
3. Otherrelatedlaborrelationsdisputes

Q: What is the coverage of inter/intraunion


disputes?

A:Theyshallinclude:

1. Conduct or nullification of election of


unionandworkersassociationofficers
2. Audit/accounts examination of union or
workersassociationfunds
3. Deregistration of collective bargaining
agreements(CBAs)
4. Validity/invalidity of union affiliation or
disaffiliation
5. Validity/invalidity of acceptance/ non
acceptanceforunionmembership
6. Validity/invalidityofvoluntaryrecognition
7. Opposition to application for union or
CBAregistration
8. Violations of or disagreements over any
provision of the constitution and bylaws
ofunionorworkersassociation
9. Disagreements over chartering or
registration of labor organizations or the
registrationofCBAs;
10. Violations of the rights and conditions of
membership in a union or workers
association;
11. Violationsoftherightsoflegitimatelabor
organizations(LLO),exceptinterpretation
ofCBAs;
12. Validity/invalidity of impeachment/
expulsion/suspension or any disciplinary
action meted against any officer and
member, including those arising from

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION


noncompliance with the reportorial
requirementsunderRuleV;
13. Such other disputes or conflicts involving
the rights to selforganization, union
membershipandCB
a. BetweenandamongLLOand
b. Between and among members of a
unionorworkersassociation.(Sec.1,
Rule XI, Book V, IRR as amended by
D.O.40F03)

Q: What is covered by the phrase other related


laborrelationsdisputes?

A:
1. Anyconflictbetween:
a.Alaborunionandtheemployer(Er);or
b.Alaborunionandagroupthatisnota
labororganization(LO);or
c. Alaborunionandanindividualwhois
notamemberofsuchunion
2. Cancellationofregistrationofunionsand
workersassociationsfiledbyindividual/s
other than its members, or group that is
notaLO.
3. ApetitionforInterpleaderinvolvinglabor
relations. (Sec. 2, Rule XI, Book V, IRR as
amendedbyD.O.40F03)

Q:Whomayfileacomplaintorpetitioninvolving
intra/interuniondisputes?

A: A legitimate labor organization or its members.


(Sec.5,RuleXI,D.O.4003)

Q: What if the issue involves the entire


membership?

A:Thecomplaintmustbesignedbyatleast30%of
theentiremembershipoftheunion.

Q:Whatiftheissueinvolvesamemberonly?

A: Only the affected member may file the


complaint.(Sec.5,RuleXI,D.O.4003)

Note:
GR:Redressmustfirstbesoughtwithintheunion
itself in accordance with its constitution and by
laws

XPNs:
1. Futilityofintraunionremedies;
2. Improperexpulsionprocedure;
3. Undue delay in appeal as to constitute
substantialinjustice;
4. Theactionisfordamages;

5.

6.
7.
8.

Lackofjurisdictionoftheinvestigatingbody;
action for the administrative agency is
patentlyillegal,arbitraryandoppressive;
Issueispurelyaquestionoflaw;
Where the administrative agency had
alreadyprejudgedthecase;and
Where the administrative agency was
practically given the opportunity to act on
thecasebutitdidnot.

Q: May a decision in an inter/intraunion dispute


beappealedfrom?

A:Yes.

Q:Withinwhatperiodmayanappealtoadecision
of the medarbiter or regional director in an
inter/intrauniondisputebefiled?

A: The decision may be appealed by any of the


parties within 10 days from receipt thereof. (Sec.
16,RuleXI,D.O.4003)
Q:Towhomisthedecisionappealable?

A:Thedecisionisappealabletothe:
1. Bureau of Labor Relations (BLR): if the
case originated from the MedArbiter or
RegionalDirector;
2. SLE:ifthecaseoriginatedfromtheBLR.

Q: What is the extent of the Bureau of Labor


Relations(BLRs)authority?

A:
1. Itmayholdareferendumelectionamong
the members of a union for the purpose
ofdeterminingwhetherornottheydesire
tobeaffiliatedwithafederation.

2. ButtheBLRhasnoauthorityto:

a. Order a referendum among union


memberstodecidewhethertoexpel
orsuspendunionofficers.
b. Forward a case to the Trade Union
Congress of the Philippines for
arbitrationanddecision.

Q: Is Katarungang Pambarangay applicable to


labordisputes?

A: No. Art. 226 of the LC grants original and


exclusive jurisdiction over the conciliation and
mediationofdisputesgrievancesorproblemsinthe
regionalofficesoftheDOLE.ItistheBureauandits
divisions (now the NCMB) and not the Barangay
Lupong Tagapamayapa which are vested by law
with original and exclusive authority to conduct

181

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Facultad de Derecho Civil
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UST GOLDEN NOTES 2011


conciliation and mediation proceedings on labor
controversies before endorsement to the
appropriatelaborarbiterforadjudication.

3.

Note: ConciliationMediation is now done by the


NCMB,notBureauLaborRelations.

Q: What are the administrative functions of the


BureauLaborRelations(BLR)?

A:
1. Regulationofthelaborunions
2. Keepingtheregistryoflaborunions
3. MaintenanceofafileoftheCBA
4. Maintenanceofafileofallsettlementsor
final decisions of the SC, CA, NLRC and
otheragenciesonlabordisputes

Q: What are the effects of filing or pendency of


inter/intrauniondisputeandotherlaborrelations
disputes?

A:
1. Therightsrelationshipsandobligationsof
thepartylitigantsagainsteachotherand
other partiesininterest prior to the
institution of the petition shall continue
to remain during the pendency of the
petitionanduntilthedateofthedecision
rendered therein. Thereafter, the rights,
relationshipsandobligationsoftheparty
litigants against each other and other
partiesininterest shall be governed by
thedecisionordered.

2. The filing or pendency of any inter/intra


union disputes is not a prejudicial
question to any petition for certification
election, hence it shall not be a ground
for the dismissal of a petition for
certification of election or suspension of
the proceedings for the certification of
election.(Sec.3,RuleXI,DO4003)

Q: State the rules on appeal in intra/interunion


disputes.

A:
1. FormalRequirements
a. Underoath
b. Consistofamemorandumofappeal.
c. Based on either of the following
grounds:
i.
Graveabuseofdiscretion
ii. Grossviolationoftherules
iii. Withsupportingargumentsand
evidence
2. Period within 10 days from receipt of
decision.

182

4.

Towhomappealable
a. BLRifthecaseoriginatedfromthe
MedArbiter/RegionalDirector.
b. SLEifthecaseoriginatedfromthe
BLR.
Where Filed Regional Office or to the
BLR, where the complaint originated
(records are transmitted to the BLR or
Sec. within 24 hours from the receipt of
the memorandum of appeal). (Rule XI,
D.O.4003)

4.NATIONALCONCILIATIONANDMEDIAITON
BOARD(NCMB)
Q: What are the alternative modes of settlement
oflabordisputeunderArt.211oftheLaborCode?

A:
1. VoluntaryArbitration
2. Conciliation
3. Mediation

a.Conciliationvs.Mediation

Q:WhatisConciliatonandMediation?

A:
CONCILIATION
Is conceived of as a
mild
form
of
intervention by a
neutralthirdparty
The
conciliator
Mediator, relying on
his
persuasive
expertise, who takes
an active role in
assisting parties by
trying
to
keep
disputants talking,
facilitating
other
procedural niceties,
carrying messages
back and forth
between the parties,
andgenerallybeinga
goodfellowwhotries
to keep things calm
and forwardlooking
inatensesituation
It is the process
whereadisinterested
3rd party meets with
management
and
labor,
at
their
requestorotherwise,
during
a
labor
dispute
or
in

MEDIATION
Isamildintervention
by a neutral third
party
The
conciliator
mediator, whereby
hestartsadvisingthe
parties or offering
solutions
or
alternatives to the
problems with the
end in view of
assisting
them
towards voluntarily
reaching their own
mutually acceptable
settlement of the
dispute

Itiswhena3rdparty
studies each side of
the dispute then
makes proposals for
the disputants to
consider.

The
mediator
cannot
make an award nor

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION


collective bargaining
conferences, and by
coolingtempers,aids
in
reaching
an
agreement

renderadecision

Conciliation is conceived of as a mild form of


intervention by a neutral third party, the
ConciliatorMediator, relying on his persuasive
expertise, who takes an active role in assisting
parties by trying to keep disputants talking,
facilitating other procedural niceties, carrying
messages back and forth between the parties,
and generally being a good fellow who tries to
keepthingscalmandforwardlookinginatense
situation.

rd
It is the process where a disinterested 3 party
meetswithmanagementandlabor,attheirrequest
orotherwise,duringalabordisputeorincollective
bargaining conferences, and by cooling tempers,
aidsinreachinganagreement.

Mediationisamildinterventionbyaneutralthird
party, the ConciliatorMediator, whereby he starts
advising the parties or offering solutions or
alternativestotheproblemswiththeendinviewof
assisting them towards voluntarily reaching their
ownmutuallyacceptablesettlementofthedispute.

rd
It is when a 3 party studies each side of the
disputethenmakesproposalsforthedisputantsto
consider.Themediatorcannotmakeanawardnor
renderadecision.

Q:WhatistheLegalBasisofConciliationand
Mediation?

A:Article13,Section3,ofourNewConstitution
provides:
The State shall promote xxx the preferential
use of voluntary modes of setting disputes
including conciliation and shall ensure mutual
compliance by the parties thereof in order to
fosterindustrialpeace.

Note: A similar provision is echoed in the


Declaration of Policy under Article 211 (a) of the
LaborCode,asamended.

Q:WhocanavailofConciliationandMediation
ServicesoftheNCMB?

A:Anypartytoalabordispute,eithertheunion
or management, may seek the assistance
of NCMB or any of its Regional Branches by
means of formal request for conciliation and
preventive mediation. Depending on the nature

of the problem, a request may be filed in the


form of consultation, notice of preventive
mediationornoticeofstrike/lockout.

Q: Where can a request for Conciliation and


Mediationbefiled?

A:Aninformalorformalrequestforconciliation
and mediation service can be filed at the NCMB
Central Office or any of its Regional Branches.
There are at present fourteen (14) regional
offices of the NCMB which are strategically
located all over the country for the convenient
useofprospectiveclients.

b.PreventiveMediation

Q:WhatisPreventiveMediationCases?

A: Refer to the potential labor disputes which


are the subject of a formal or informal request
for conciliation and mediation assistance sought
byeitherorbothpartiesorupontheinitiativeof
theNCMBtoavoidtheoccurrenceofactuallabor
disputes.

Q: What are the valid issues for a notice of


strike/lockoutorpreventivemediationcase?

A: A notice of strike or lockout maybe filed on


ground of unfair labor practice acts, gross
violation of the CBA, or deadlock in collective
bargaining. A complaint on any of the above
ground must be specified in the NCMB Form or
theproperformusedinthefilingofcomplaint.

In case of preventive mediation, any issue


maybebroughtbeforetheNCMBCentralOffice
oritsregionalofficesforconciliationandpossible
settlementthroughaletter.Thismethodismore
preferable than a notice of strike/lockout
because of the nonadversarial atmosphere that
pervadesduringtheconciliationconferences.

Q: What advantage can be derived from


conciliationandmediationservices?

A: Conciliation and mediation is non


litigious/nonadversarial, less expensive, and
expeditious. Under this informal setup, the
parties find it more expedient to fully ventilate
their respective positions without running
around with legal technicalities and, in the
course thereof, afford them a wider latitude of
possibleapproachestotheproblem.

Q: Are the parties bound by the agreement


enteredintobythem?

183

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A:Certainly,thepartiesareboundtohonorany
agreement entered into by them. It must be
pointed out that such an agreement came into
existenceasaresultofpainstakingeffortsamong
the union, management, and the Conciliator
Mediator.Therefore,itisonlylogicaltoassume
that the Conciliator assigned to the case has to
followupandmonitortheimplementationofthe
agreement.

Q: Is conciliation and mediation service still


possibleduringactualstrikeorlockout?

A: Definitely, it is possible to subject an actual


strikeoractuallockouttocontinuingconciliation
and mediation services. In fact, it is at this
criticalstagethatsuchconciliationandmediation
services by fully given a chance to work out
possible solution to the labor dispute. With the
ability of the ConciliatorMediator to put the
parties at ease and place them at a cooperative
mood, the final solutions of all the issues
involvedmayyetbeeffectedandsettled.

Q:Whenthedisputehasalreadybeenassumed
or certified to the NLRC, is it also possible to
remandthesametoconciliationandmediation
services?

A: Yes, the parties are not precluded from


availing the services of an NCMB Conciliator
Mediator as the duty to bargain collectively
subsists until the final resolution of all issues
involved in the dispute. Conciliation is so
pervasive in application that, prior to a
compulsory arbitration award, the parties are
encouraged to continue to exhaust all possible
avenues of mutually resolving their dispute,
especially through conciliation and mediation
services.

Q: What benefit can the parties have in


appearingduringconciliationconferences?

A: Generally speaking, any party appearing


during scheduled conciliation conferences has
the advantage of presenting its position on the
labor controversy. The issue raised in the
complaint can be better ventilated with the
presence of the concerned parties. Moreover,
the parties can observe a norm of conduct
usuallyfollowedinlikeforum.

c.Artbitration

Q:Whatisarbitration?

184

A: It is the submission of a dispute to an impartial


person for determination on the basis of evidence
andargumentsoftheparties.Thearbitersdecision
orawardisenforceableuponthedisputants.Itmay
be voluntary (by agreement) or compulsory
(requiredbystatutoryprovision).(LuzonDevtBank
v. Assn of Luzon Devt Bank Employees, G.R. No.
120319,Oct.6,1995)

Q:Canthecourtfixresorttovoluntaryarbitration
(VA)?

A:ResorttoVAdispute,shouldnotbefixedbythe
court but by the parties relying on their strengths
andresources.

Q:Whoarethepartiestolaborrelationscases?

A:
1. Employeesorganization
2. Management
3. Thepublic

Note: Employer and Ees are active parties while the


publicandtheStatearepassiveparties.(Poquiz,2006,
p.3)

Q:Whatistheconceptoftripartism?

A:Itistherepresentationof3sectors.Theseare:
1. Thepublicorthegovernment
2. Theemployers
3. Theworkers
inpolicymakingbodiesofthegovt.

Q: Can workers insist that they be represented in


thepolicymakinginthecompany?

A: No. Such kind of representation in the policy


making bodies of private enterprises is not
ordained, not even by the Constitution. What is
provided for is workers participation in policy and
decisionmaking process directly affecting their
rights,benefits,andwelfare.

5.DOLEREGIONALDIRECTORS

a.SmallMoneyClaims

Q: What is the rule on the recovery of simple


moneyclaims?

A:
1. The aggregate money claim of each
employee (Ee) or househelper (HH) does
notexceedP5,000.
2. TheclaimispresentedbyanEeorperson
employed in the domestic or household
serviceorHH.

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION


3.
4.

TheclaimarisesfromErEerelationship.
The
claimant
does
not
seek
reinstatement.

Note: In the absence of any of the ff. requisites, it is


the labor arbiter (LA) who shall have the jurisdiction
over the claims arising from ErEe relations, except
claims for Ees compensation, SSS, Philhealth, and
maternity benefits, pursuant to Art.217 of the Labor
Code.

The proceedings before the Regional Office shall be


summaryandnonlitigiousinnature.

Q:WhatistheadjudicatorypoweroftheRegional
Director(RD)?

A: The RD or any of his duly authorized hearing


officerisempoweredthroughsummaryproceeding
and after due notice, to hear and decide cases
involving recovery of wages and other monetary
claimsandbenefits,includinglegalinterests.

Q:Anairlinewhichfliesboththeinternationaland
domestic routes requested the SLE to approve the
policy that all female flight attendants upon
reaching age 40 with at least 15 years of service
shall be compulsorily retired; however, flight
attendantswhohavereachedage40buthavenot
worked for 15 years will be allowed to continue
workinginordertoqualifyforretirementbenefits,
but in no case will the extension exceed 4 years.
Does the SLE have the authority to approve the
policy?

A: Yes. Art.132 (d) of the Labor Code provides that


theSLEshallestablishstandardsthatwillensurethe
safety and health of women employees including
the authority to determine appropriate minimum
age and other standards for retirement or
termination in special occupations such as those of
flightattendantsandthelike.(1998BarQuestion)

Q: What is the difference between the power of


SecretaryofLaborandEmployment(SLE),Regional
Director(RD)andLaborArbiter(LA)?

A:
Art.128
VPandEPof
SLE
Inspectionof
establishments
andissuance
ofordersto
compel
compliance
withlabor
standards,
wageorders

Art.129
RD

Art.217(a)(6)
LA

Adjudicationof
Eesclaimsfor
wagesand
benefits

LAexercises
originaland
exclusive
jurisdiction

andother
laborlaws

Enforcement
oflabor
legislationin
general

Limitedto
monetaryclaims

Allotherclaims
arisingfromEr
Eerelations

Proceedingis
anoffshootof
routine
inspections

Initiatedby
sworncomplaints
filedbyany
interestedparty

No
jurisdictional
reqts

Jurisdictional
reqts:
1)Complaint
arisesfromErEe
relationship

2)Claimantisan
Eeorperson
employedin
domesticor
household
serviceoraHH
3)Complaint
doesNOTinclude
aclaimfor
reinstatement

4)Aggregate
moneyclaimof
EACHclaimant
doesnotexceed
P5,000

LAdecidescase
within30
calendardays
after
submissionof
thecasebythe
partiesfor
decision
1)Allother
claimsarising
fromErEe
relations

2)Including
thoseof
personsin
domesticor
household
service

3)Involvingan
amount
exceeding
P5,000

4)Whetheror
not
accompanied
withaclaimfor
reinstatement

Appealableto
SLE(Incase
compliance
orderisissued
byRegional
Office)

Appealableto
NLRC

Appealableto
NLRC

6.DOLESECRETARY

a.VisitorialandEnforcementPowers

Q:Whatarethe3kindsofpowersoftheSecretary
ofLaborandEmployment(SLE)?

A:
1. Visitorialpowers
2. Enforcementpowers
3. Appellateorpowertoreview

Q:Whatconstitutevisitorialpower?

185

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
UNIVERSITYOFSANTOTOMAS
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
Facultad de Derecho Civil
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


A:

4.

1.

2.
3.

Access to employers records and


premisesatanytimeofthedayornight,
wheneverworkisbeingundertaken
Tocopyfromsaidrecords
Question any employee and investigate
any fact, condition or matter which may
be necessary to determine violations or
whichmayaidintheenforcementofthe
Labor Code and of any labor law, wage
order, or rules and regulation issued
pursuantthereto.

Q: Give 4 instances where the visitorial power of


theSLEmaybeexercisedundertheLaborCode.

A:Powerto:

1. Inspect books of accounts and records of


any person or entity engaged in
recruitment and placement, require it to
submit reports regularly on prescribed
forms and act in violations of any
provisions of the LC on recruitment and
placement.(Art.37)
2. Have access to employers records and
premises to determine violations of any
provisions of the LC on recruitment and
placement.(Art.128)
3. Conduct industrial safety inspections of
establishments.(Art.165)
4. Inquire into the financial activities of
legitimate labor organizations (LLO) and
examinetheirbooksofaccountsuponthe
filing of the complaint under oath and
dulysupportedbythewrittenconsentof
at least 20% of the total membership of
theLOconcerned.

Q:Whatisenforcementpower?

A:ItisthepoweroftheSLEto:

1. Issuecomplianceorders
2. Issue writs of execution for the
enforcement of their orders, except in
cases where the employer (Er) contests
thefindingsofthelaborofficerandraise
issues supported by documentary proof
which were not considered in the course
ofinspection
3. Order stoppageof work or suspension of
operationwhennoncompliancewiththe
laworimplementingrulesandregulations
poses grave and imminent danger to
health and safety of workers in the
workplace

186

Require Ers to keep and maintain such


employmentrecordsasmaybenecessary
in aid to the visitorial and enforcement
powers
5. Conduct hearings within 24 hours to
determinewhether:
a. An order for stoppage of work or
suspension of operations shall be
liftedornot;and
b. Er shall pay employees concerned
their salaries in case the violation is
attributabletohisfault.(Asamended
by RA 7730; Guico v. Secretary, G.R.
No.131750,Nov.16,1998)

Q:WhataretheviolationsunderArt.128?

A:
1. Obstruct, impede, delay or otherwise
renderineffectivetheordersoftheSLEor
hisauthorizedrepresentatives
2. Any government employee found guilty
of,orabuseofauthority,shallbesubject
to administrative investigation and
summarydismissalfromservice.

Q:Whatarethelimitationstoothercourts?

A: Inrelationtoenforcementordersissuedunder
Art.128,noinferiorcourtorentityshall:

1. Issue temporary or permanent injunction


orrestrainingorderor
2. Assumejurisdictionoveranycase

Q: What are the instances when enforcement


powermaynotbeused?

A:
1. Case does not arise from the exercise of
visitorialpower
2. WhenErEerelationshipceasedtoexistat
thetimeoftheinspection
3. If employer contests the finding of the
Labor Regulation Officer and such
contestable issue is not verifiable in the
normalcourseofinspection

b.PowertoSuspendEffectsofTerminationArt.277
(b),LC

Q: Does the DOLE Secretary have the power to


suspendtheeffectsoftermination?

A:Yes,underArticle277(b)oftheLaborCode,the
Secretary of Labor may suspend the effects of the
terminationpendingresolutionofthedisputeinthe
event of a prima facie finding by the appropriate

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION


official of the Department of Labor and
Employment before whomsuch dispute is pending
that the termination may cause serious labor
disputeorisinimplementationofamasslayoff.

7.VOLUNTARYARBITRATORS

a.SubmissionAgreement

Q:Howisarbitrationinitiated?

A:
1. Submission agreement Where the
partiesdefinethedisputestoberesolved
2. Demand notice Invoking collective
agreementarbitrationclause

Q:Whoisavoluntaryarbitrator(VA)?

A:
1. Any person accredited by the NCMB as
such
2. Any person named or designated in the
CBAbythepartiestoactastheirVA
3. One chosen with or without the
assistance of the NCMB, pursuant to a
selection procedure agreed upon in the
CBA
4. Anyofficialthatmaybeauthorizedbythe
SLEtoactasVAuponthewrittenrequest
and agreement of the parties to a labor
dispute.(Art.212[n])

Q:Whatarethepowersofavoluntaryarbitrator?

A:

1. Holdhearings
2. Receiveevidence
3. Take whatever action necessary to
resolve the dispute including efforts to
effect a voluntary settlement between
parties.(Art.262A)

Q: How is a voluntary arbitrator (VA)/panel


chosen?

A:
1. The parties in a CBA shall designate in
advance a VA/panel, preferably from the
listingofqualifiedVAsdulyaccreditedby
theNCMB,or
2. Includeintheagreementaprocedurefor
the selection ofsuch VA or panel of VAs,
preferably from the listing of qualified
VAs duly accredited by the NCMB.
(Art.260,par.3)

Q: Who will designate the voluntary arbitrator


(VA)/panelincasethepartiesfailtoselectone?

A:ItistheNCMBthatshalldesignatetheVA/panel
based on the selection procedure provided by the
CBA. (Manila Central Line Free Workers Union v.
Manila Central Line Corp., G.R. No. 109383, June
15,1998)

Q: May Labor Arbiters (LA) be designated as


voluntaryarbitrators(VA)?

A:Yes.ThereisnothinginthelawthatprohibitsLAs
fromalsoactingasVAsaslongasthepartiesagree
tohavehimhearanddecidetheirdispute.(Manila
Central Line Free Workers Union v. Manila Central
LineCorp.,G.R.No.109383,June15,1998)

Q: What falls under the jurisdiction of Voluntary


Arbitrators(VA)?

A: Generally, the arbitrator is expected to decide


only those questions expressly delineated by the
submission agreement. Nevertheless, the
arbitrator can assume that he has the necessary
power to make a final settlement since arbitration
is the final resort for the adjudication of the
disputes. (Ludo and Luym Corp. v. Saornido, G.R.
No.140960,Jan.20,2003)

Q:WhatcasesarewithinthejurisdictionofVA?

A:Originalandexclusivejurisdictionover:

1. All unresolved grievances arising from


the:
a. Implementation or interpretation of
theCBA
b. Interpretation or enforcement of
companypersonnelpolicies

2. Wage distortion issues arising from the


application of any wage orders in
organizedestablishments

3. Those arising from interpretation and


implementation of productivity incentive
programsunderR.A.6971

4. ViolationsofCBAprovisionswhicharenot
grossincharacterarenolongertreatedas
ULP and shall be resolved as grievances
undertheCBA

Note:GrossviolationofCBAprovisionsshall
mean flagrant and/or malicious refusal to
comply with the economic provisions of
suchagreement.

187

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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
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UST GOLDEN NOTES 2011


5.

Anyotherlabordisputesuponagreement
by the parties including ULP and
bargainingdeadlock.(Art.262)

Q: May the NLRC and DOLE entertain


disputes/grievances/matters under the exclusive
and original jurisdiction of the voluntary
arbitrator?

A:No.Theymustimmediatelydisposeandreferthe
same to the grievance machinery or voluntary
arbitrationprovidedintheCBA

The parties may choose to submit the dispute to


voluntary arbitration proceedings before or at the
stageofcompulsoryarbitrationproceedings.

Q: What is the effect of the award of voluntary


arbitrator(VA)?

A:ThedecisionorawardoftheVAactingwithinthe
scope of its authority shall determine the rights of
thepartiesandtheirdecisionsshallhavethesame
legal effects as judgment of the courts. Such
mattersonfactandlawareconclusive.

Q: Are both the employer and the bargaining


representative of the employees required to go
through the grievance machinery in case a
grievancearises?

A: Yes, because it is but logical, just and equitable


that whoever is aggrieved should initiate
settlement of grievance through the grievance
machinery. To impose compulsory procedure on
employersalonewouldbeoppressiveofcapital.

Q: Who has jurisdiction over actual termination


disputes and complaints for illegal dismissal filed
byworkerspursuanttotheunionsecurityclause?

A: The Labor Arbiter and not the grievance


machinery.

Q:Whatisthenatureofthepowerofavoluntary
arbitrator?

A:Arbitratorsbythenatureoftheirfunctions,act
inaquasijudicialcapacity(BP129,asamendedby
R.A. 9702); where a question of law is involved or
thereisabuseofdiscretion,courtswillnothesitate
topassuponreviewoftheiracts.

b.Rule43,RulesofCourt

Q: Are decisions of voluntary arbitrators (VAs)


appealable?

188

A:GR:DecisionsofVAarefinalandexecutoryafter
10 calendar days from receipt of the copy of the
awardordecisionbytheparties.(Art.262A)

XPNs:
1. AppealtotheCAviaRule43oftheRules
of Court within 15 days from the date of
receipt of VAs decision. (Luzon Devt
Bank v. Assn of Luzon Devt Bank Ees,
G.R.No.120319,Oct.6,1995)
2. If decision of CA is adverse to a party,
appeal to the SC via Rule 45 on pure
questionsoflaw.

Note:AVAbythenatureofherfunctionsactsinquasi
judicial capacity. There is no reason why the VAs
decisions involving interpretation of law should be
beyond the SCs review. Administrative officials are
presumedtoactinaccordancewithlawandyettheSC
will not hesitate to pass upon their work where a
question of law is involved or where a showing of
abuseofauthorityordiscretionintheirofficialactsis
properly raisedin petitions for certiorari. (Continental
MarbleCorporationv.NLRC,G.R.No.L43825,May9,
1988)

Q: PSSLU had an existing CBA with Sanyo Phils.,


Inc. which contains a union security clause which
provides that: all members of the union covered
by this agreement must retain their membership
ingoodstandingintheunionasconditionofhis/
her continued employment with the company.
On account of antiunion activities, disloyalty and
for joining another union, PSSLU expelled 12
employees (Ees) from the Union. As a result,
PSSLU recommended the dismissal of said Ees
pursuant to the union security clause. Sanyo
approvedtherecommendationandconsideredthe
said Ees dismissed. Thereafter, the dismissed Ees
filed with the Arbitration Branch of the NLRC a
complaintforillegaldismissal.

Does the voluntary arbitrator (VA) have


jurisdictionoverthecase?

A: No, the VA has no jurisdiction over the case.


Although the dismissal of the Ees concerned was
made pursuant to the union security clause
provided in the CBA, there was no dispute
whatsoever between PSSLU and Sanyo as regards
the interpretation or implementation of the said
union security clause. Both PSSLU and Sanyo are
united and have come to an agreement regarding
the dismissal of the Ees concerned. Thus there is
no grievance between the union and management
whichcouldbebroughttothegrievancemachinery.
The dispute is between PSSLU and Sanyo, on the
one hand, and the dismissed union members, on
the other hand. The dispute therefore, does not

LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


involve the interpretation or implementation of a
CBA. (Sanyo Philippines Workers UnionPSSLU v.
Canizares,G.R.No.101619,July8,1992)

Q: X was employed as telephone operator of


Manila Midtown Hotel. She was dismissed from
her employment for committing the following
violations of offenses subject to disciplinary
actions, namely: falsifying official documents and
culpable carelessnessnegligence or failure to
follow specific instructions or established
procedures. X then filed a complaint for illegal
dismissalwiththeArbitrationbranchoftheNLRC.
The Hotel challenged the jurisdictionof the Labor
Arbitrator (LA) on the ground that the case falls
within the jurisdictional ambit of the grievance
procedure and voluntary arbitration under the
CBA.

DoestheLAhavejurisdictionoverthecase?

A: Yes, the LA has jurisdiction. The dismissal of X


doesnotcallfortheinterpretationorenforcement
ofcompanypersonnelpoliciesbutisatermination
dispute which comes under the jurisdiction of the
LA. The dismissal of X is not an unresolved
grievance.Neitherdoesitpertaintointerpretation
ofcompanypersonnelpolicy.(Manejav.NLRC,G.R.
No.124013,June5,1998)

Q: Sime Darby Salaried Employees (Ees)


AssociationALU (SDSEAALU) wrote petitioner
Sime Darby Pilipinas (SDP) demanding the
implementationofaperformancebonusprovision
identical to the one contained in their own CBA
with SDP. Subsequently, SDP called both
respondent SDEA and SDEAALU to a meeting
wherein the former explained that it was unable
togranttheperformancebonus.Inaconciliation
meeting, both parties agreed to submit their
dispute to voluntary arbitration. Their agreement
toarbitratestated,amongotherthings,thatthey
were"submittingtheissueofperformancebonus
tovoluntaryarbitration."

Doesthevoluntaryarbitrator(VA)havethepower
topassuponnotonlythequestionofwhetherto
grant the performance bonus or not but also to
determinetheamountthereof?

A:Yes,intheiragreementtoarbitrate,theparties
submitted to the VA the issue of performance
bonus.Thelanguageoftheagreementtoarbitrate
may be seen to be quite cryptic. There is no
indication at all that the parties to the arbitration
agreement regarded the issue of performance
bonusasatwotieredissue,onlyonetierofwhich
wasbeingsubmittedtoarbitration.Possibly,Sime

Darbys counsel considered that issue as having


dual aspects and intended in his own mind to
submit only one of those aspects to the VA, if he
did, however, he failed to reflect his thinking and
intent in the arbitration agreement. (Sime Darby
Phils.v.Magsalin,G.R.No.90426,Dec.15,1989)

Q:Apalisok,productionchiefforRPNStation,was
dismissed due to her alleged hostile, arrogant,
disrespectful, and defiant behavior towards the
Station Manager. She informed RPN that she is
waiving her right to resolve her case through the
grievance machinery as provided in the CBA. The
voluntary arbitrator (VA) resolved the case in the
employees(Ees)favor.

Onappeal,theCAruledinfavorofRPNbecauseit
considered the waiver of petitioner to file her
complaint before the grievance machinery as a
relinquishment of her right to avail herself of the
aidoftheVA.TheCAsaidthatthewaiverhadthe
effect of resolving an otherwise unresolved
grievance, thus the decision of the VA should be
setasideforlackofjurisdiction.Istherulingofthe
CAcorrect?

A: No. Art. 262 of the Labor Code provides that


uponagreementoftheparties,theVAcanhearand
decideallotherlabordisputes.

Contrary to the finding of the CA, voluntary


arbitration as a mode of settling the dispute was
notforceduponrespondents.Bothpartiesindeed
agreed to submit the issue of validity of the
dismissalofpetitionertothejurisdictionoftheVA
by the Submission Agreement duly signed by their
respective counsels. The VA had jurisdiction over
thepartiescontroversy.

TheEeswaiverofheroptiontosubmithercaseto
grievance machinery did not amount to
relinquishing her right to avail herself of voluntary
arbitration.(Apalisokv.RPN,G.R.No.138094,May
29,2003)

8.COURTOFAPPEALS

Q: Is judicial review of the NLRCs decision


available?

A: Yes, through petitions for certiorari (Rule 65)


which should be initially filed with the CA in strict
observance of the doctrine on the hierarchy of
courts as the appropriate forum for the relief
desired.TheCAisprocedurallyequippedtoresolve
unclear or ambiguous factual finding, aside from
the increased number of its component divisions.

189

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
UNIVERSITYOFSANTOTOMAS
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
Facultad de Derecho Civil
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
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UST GOLDEN NOTES 2011


(St.MartinFuneralHomev.NLRC,G.R.No.130866,
Sep.16,1998)

Note:Rule65,Section1,RulesofCourt

Petition for CertiorariWhen any tribunal, board or


officerexercisingjudicialorquasijudicialfunctionshas
actedwithoutorinexcessofitsorhisjurisdiction,or
with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a
verifiedpetitioninthepropercourt,allegingthefacts
withcertaintyandprayingthatjudgmentberendered
annulling or modifying the proceedings of such
tribunal,boardorofficer,andgrantingsuchincidental
reliefsaslawandjusticemayrequire.

The petition shall be accompanied by a certified true


copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn
certificationofnonforumshoppingasprovidedinthe
thirdparagraphofsection3,Rule46.

Q: Within what period should the petition for


certioraribefiledwiththeCourtofAppeals?

A: Under Section 4, Rule 65 (as amended by A.M.


No.00203SC)oftheRulesofCivilProcedure,the
petition must be filed within sixty (60) days from
notice of the judgment or from notice of the
resolution denying the petitioners motion for
reconsideration. This amendment is effective
September1,2000,butbeingcurativemaybegiven
retroactiveapplication.(Narzolesv.NLRC,G.R.No.
141959,Sep.29,2000)

The period within which a petition for certiorari


againstadecisionoftheNLRCmaybefiledshould
be computed from the date counsel of record of
the party receives a copy of the decision or
resolution,andnotfromthedatethepartyhimself
receives a copy thereof. Article 224 of the Labor
Code,whichrequiresthatcopiesoffinaldecisions,
orders or awards be furnished not only the partys
counselofrecordbutalsothepartyhimselfapplies
totheexecutionthereofandnottothefilingofan
appeal or petition for certiorari. (Ginete v. Sunrise
ManningAgency,G.R.No.142023,June21,2001)

9.SUPREMECOURT

Q:Howdoesapartyappealfromajudgment,or
finalorderorresolution,oftheCourtofAppeals?

A: A party desiring to appeal may file with the


Supreme Court a verified petition for review on
certiorari under Rule 45 within fifteen (15) days
from notice of the judgment, final order or

190

resolution appealed from. (Sea Power Shipping


Enterprises, Inc. v. CA, G.R. No. 138270, June 28,
2001)

Note:Rule45,Section1,RulesofCourt:

FilingofpetitionwithSupremeCourt.Apartydesiring
toappealbycertiorarifromajudgment,finalorderor
resolution
of
the
Court
of
Appeals,theSandiganbayan,theCourtofTaxAppeals,
the Regional Trial Court or other courts, whenever
authorized bylaw, may file withthe Supreme Court a
verified petition for review on certiorari. The petition
may include an application for a writ of preliminary
injunctionorotherprovisionalremediesandshallraise
only questions of law, which must be distinctly set
forth. The petitioner may seek the same provisional
remediesbyverifiedmotionfiledinthesameactionor
proceedingatanytimeduringitspendency.

Q:GivethepolicyoftheSupremeCourtregarding
appealsinlaborcases.

A: The Supreme Court is very strict regarding


appeals filed outside the reglementary period for
filingthesame.Toextendtheperiodoftheappeal
is to delay the case, a circumstance which could
give the employer the chance to wear out the
efforts and meager resources of the worker that
the latter is constrained to give up for less than
whatisduehim.(FirestoneTireandRubberCo.of
the Philippines v. FirestoneTire and Rubber Co.
EmployeesUnion,G.R.No.75363,Aug.4,1992)

10.PRESCRIPTIONOFACTIONS

Q:Givetherulesasregardstheprescriptiveperiod
providedforintheLaborCode(LC).

A:
SUBJECT
Offensespenalized
undertheLC
ULP

MoneyClaims

Allmoneyclaims
accruingpriortothe
effectivityoftheLC
Workmens
Compensationclaims
accruingpriortothe

PRESCRIPTIVEPERIOD
3years
One(1)yearfrom
accrualofsuchULP;
otherwiseforever
barred(Art.290)
3yearsfromthetime
thecauseofaction
accrued;otherwise
foreverbarred
Withinone(1)year
fromthedateof
effectivity,in
accordancewithIRR;
otherwise,theyshall
foreverbebarred
Dec.31,1974shallbe
filednotlaterthanMar.
31,1975beforethe

LABORLAWTEAM:
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PROCEDURE AND JURISDICTION


effectivityoftheLCand
betweenNov.1,1974
Dec.31,1974

IllegalDismissalCases

appropriateregional
officesofthe
DepartmentofLabor.
(Art.291)
4years.Itcommences
torunfromthedateof
formaldismissal.
(Mendozav.NLRC,G.R.
No.122481,Mar.5,
1998)

191

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
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Facultad de Derecho Civil
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