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2.
Art. 258. When an employer may file petition. When requested to bargain collectively,
an employer may petition the Bureau for an election. If there is no existing certified
collective bargaining agreement in the unit, the Bureau shall, after hearing, order a
certification election.
All certification cases shall be decided within twenty (20) working days.
The Bureau shall conduct a certification election within twenty (20) days in accordance
with the rules and regulations prescribed by the Secretary of Labor.
4. run-off election
Q: What is a run-off election?
A: An election conducted when:
1. A Certification Election which provides for three or more choices results in
none of the contending unions receiving a majority of the valid votes cast, and
2. There are no objections or challenges which if sustained can materially alter the
results, provided
3. The total number of votes for all the contending unions is at least 50% of the
number of votes cast. [Sec. 1, Rule X, Book V, IRR]
4. None of the choices obtained the majority of the valid votes cast (50% + 1
second majority);
5. 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 the total votes cast.
Note: The certification of the CBA by the BLR is not required to make such
contract valid. Once it is duly entered into and signed by the parties, a CBA
becomes effective as between the parties whether or not it has been certified by
the BLR [Liberty Flour Mills Employees Association v. Liberty Flour Mills, G.R.
Nos. 58768-70, (1989)].
6. STRIKE
Q: What is a strike?
A: It means any temporary stoppage of work by the concerted action of Ees as a result of
an industrial or labor dispute. (Sec.1 [uu], Rule I, Book V, IRR)
The term strike shall comprise not only concerted work stoppages, but also
slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage plant
equipment and facilities and similar activities. Thus, the fact that the conventional term
strike was not used by the striking employees to describe their common course of
action is inconsequential, since the substance of the situation and not its appearance, will
be deemed to be controlling.
The right to strike, while constitutionally recognized, is not without legal
constrictions. Art. 264(a) of the LC, as amended, provides that no strike or lockout shall
be declared after assumption of jurisdiction by the President or the Secretary or after
certification or submission of the dispute to compulsory or voluntary arbitration or during
the pendency of cases involving the same grounds for the strike or lockout. The court has
consistently ruled that once the Secretary of Labor assumes jurisdiction over a labor
dispute, such jurisdiction should not be interfered with by the application of the coercive
processes of a strike or lockout. A strike that is undertaken despite the issuance by the
Secretary of Labor of an assumption order and/or certification is a prohibited activity and
thus illegal [Solidbank Corporation v. Ernesto U. Gamier/ Solid Bank Union, G.R. No.
159460, (Nov. 2010)].
Note: The fact that the conventional term strike was not used by the striking employees
to describe their common course of action is inconsequential, since the substance of the
situation and not its appearance will be deemed controllin [Toyota Motor Phils. Corp.
Workers Association v. NLRC, 537 SCRA 174 (2007)]. It shall comprise not only
concerted work stoppages, but also slowdowns, mass leaves, sit downs, attempt to
damage, destroy or sabotage plant equipment and facilities, and similar activities
[Samahang Manggagawa sa Sulpicion Lines v. Sulpicio Lines, Inc., G.R. No. 140992,
(2004)].
7. DEADLOCK BAR RULE, a petition for certification election can only be entertained if
there is no pending bargaining deadlock submitted to conciliation or arbitration or had
become the subject of a valid notice of strike or lockout.
and
duties,
working conditions
Q: What are the factors considered in determining the Substantial Mutual Interest
Doctrine?
A:
1. Similarity in the scale and manner of determining earnings
2. Similarity in employment benefits, hours of work, and other terms and
conditions of employment
3. Similarity in the kinds of work performed
4. Similarity in the qualifications, skills and training of Employees
5. Frequency of contract or interchange among the Employees
6. Geographical proximity
7. Continuity and integration of production processes
8. Common supervision and determination of labor-relations policy
9. History of CB
10. Desires of the affected Employees or
11. Extent of union organization
rights
of all workers
to
self-organization,
13. UNION
SECURITY
CLAUSES;
CLOSED
SHOP,
UNION
SHOP,
Q: What is the distinction between the jurisdiction of the labor arbiter and the National
Labor Relations Commission?
A:
1. The NLRC has exclusive appellate jurisdiction on all cases decided by the LA.
2. The NLRC does not have original jurisdiction on the cases over which the LA have
original and exclusive jurisdiction.
3. The NLRC cannot have appellate jurisdiction if a claim does not fall within the
exclusive original jurisdiction of the LA.
Q: What are the cases falling under the jurisdiction of labor arbiters?
A: Exclusive and original jurisdiction to hear and decide the following cases involving all
workers:
1. ULP cases
2. Termination disputes
3. 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
4. Claims for actual, moral, exemplary and other forms of damages arising from Er-Ee
relations
5. Cases arising from any violation of Art. 264, LC including questions involving the
legality of strikes and lockouts except claims for Employment Compensation, Social
Security, Philhealth and maternity benefits, all other claims arising from Er-Ee relations,
including those of persons in domestic or household service, involving an amount
exceeding P5000 regardless of whether accompanied with a claim for reinstatement
6. Monetary claims of overseas contract workers arising from Er-Ee relations under the
Migrant Workers Act of 1995 as amended by RA 10022
7. Wage distortion disputes in unorganized establishments not voluntarily settled by the
parties pursuant to RA 6727
8. Enforcement of compromise agreements when there is non-compliance by any of the
parties pursuant to Art. 227 of the LC, as amended; and
9. Other cases as may be provided by law
Note: Although the provision speaks of exclusive and original jurisdiction of LAs, the
cases enumerated may instead be submitted to a voluntary arbitrator by agreement of the
parties under Art. 262 of the LC. The law prefers voluntary over compulsory arbitration.
Q: What is the nature of the cases which the labor arbiter may resolve?
A: The cases that an LA can hear and decide are employment related. Where no Er-Ee
relationship exists between the parties and no issue is involved which may be resolved by
reference to the LC, other labor statutes, or any CBA, it is the RTC that has jurisdiction
[Lapanday Agricultural Devt. Corp v. CA, G.R. No. 112139, (2000)].
The LA has jurisdiction over controversies involving Ers and Ees only if there is a
reasonable causal connection between the claim asserted and the Er-Ee relations. Absent
such link, the complaint is cognizable by the regular court. [Eviota v. CA, G.R. No. 152121,
(2003)]
Q: What is the extent of the jurisdiction of the labor arbiter if there are unresolved
matters arising from the interpretation of the CBA?
A: GR: LAs have no jurisdiction over unresolved or unsettled grievances arising from the
interpretation or implementation of the CBA and those arising from the interpretation or
enforcement of company personnel policies.
XPN: Actual termination disputes
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, (1998)].
Note: Not all illegal acts are ULP. Only those enumerated in the LC are ULP.
Q: What are the UNFAIR LABOR PRACTICES that may be committed by employers?
A:
1. Interference
2. Yellow dog condition
3. Contracting out
4. Company unionism
5. Discrimination for or against union membership
6. Discrimination because of testimony
7. Violation of duty to bargain
8. Paid negotiation
9. Gross violation of CBA
NOTE: Violation must be gross with respect to economic provisions of the CBA.
Note: This is one of the cases of ULP that may be committed in the absence of an Er-Ee
relationship.
2. Any Ee who has rendered at least one year of service, whether such service is
continuous or broken, shall be considered a regular Ee with respect to the activity in
which he is employed and his employment shall continue while such activity exists. (Sec.
5 [b], Rule I, Book VI, IRR)
Note: The connection can be determined by considering the nature of the work
performed and its relation to the scheme of the particular business or trade in its
entirety. [Highway Copra Traders vs. NLRC, G.R. No. 108889, (1998)]
2. Also, the performance of a job for at least a year is sufficient evidence of the
jobs necessity if not indispensability to the business. This is the rule even if its
performance is not continuous and merely intermittent. The employment is
considered regular, but only with respect to such activity and while such activity
exists [Universal Robina Corp. vs. Catapang, G.R. No. 164736, (2005)].
Note: The status of regular employment attaches to the casual Ee on the day immediately
after the end of his first year of service. The law does not provide the qualification that
the Ee must first be issued a regular appointment or must first be formally declared as
such before he can acquire a regular status [Aurora Land Projects Corp. vs. NLRC, G.R.
No. 114733,(1997)].
*NOTE: The standard which the probationary employee is to meet must be made known
by the employer to the employee at the time of the engagement.
*Probationary employees may be terminated for the same causes as a regular employee,
except that there is an additional ground failure to meet the standard. be for a period of
6 months?