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CBA; Certification Election; “No-Union" Win (2006)

Can a "no-union" win in a certification election? (2.5%)

SUGGESTED ANSWER: YES. Sec. 20, Rule 9, Book V provides that where the votes
cast results in "no union" obtaining the majority, the med arbiter shall declare such
fact in the order. Hence, the employees may choose not to be represented by anyone
(Reyes-Trajano v. Trajano, G.R. No 84433, June 2, 1992).

CBA; Run-Off Election (2006)

When does a "run-off' election occur? (2.5%)

SUGGESTED ANSWER: A run-off election occurs when the following elements occur:
1. Between three (3) or more choices, and no choice receiving a majority of the valid
votes cast; 2. The total number of votes for all contending unions is at least 50% of the
number of vote cast; and 3. Between the labor unions receiving the two highest
number of votes (Article 256, Labor Code).

CBU; Modes; Determination of Exclusive Bargaining Agreement (2006)

The modes of determining an exclusive bargaining agreement are:

a. voluntary recognition

b. certification election

c. consent election Explain briefly how they differ from one another. (5%)

SUGGESTED ANSWER: (a.) VOLUNTARY RECOGNITION — is the voluntary


recognition by the employer of the status of the union as the bargaining representative
of the employees [Section l(bbb), Rule I, Book V, Rules to Implement the Labor Code,
as amended by Department Order No. 40-03, Series of 2003 (17 February 2003)]. (b.)
CERTIFICATION ELECTION is the process of determining the sole and exclusive
bargaining agent of the employees in an appropriate bargaining unit [Section l(h), Rule
I, Book V, Rules to Implement the Labor Code, as amended by Department Order No.
40-03, Series of 2003 (17 February 2003)]. (c.) CONSENT ELECTION is an agreed
election, conducted with or without the intervention of the DOLE to determine the
issue of majority representation of all the workers in the appropriate bargaining unit
(Algire v. De Mesa, G.R. No. 97622, October 19, 1994).

Right to Strike; Effects; Hired Replacements (2006)

If due to the prolonged strike, ROSE Corporation hired replacements, can it


refuse to admit the replaced strikers?

SUGGESTED ANSWER: No. While present law recognizes the right of the employer to
continue his business in the course of an economic strike, it assures the right of the
strikers to return to their former positions at the expense of the replacements. Art.
264(a) of the Labor Code provides that mere participation of a worker in a lawful strike
shall not constitute sufficient ground for termination of his employment, even if a
replacement had been hired by the employer during such lawful strike (PT&T v. NLRC,
G.R. No. 109281, December 7, 1995; Diwa ng Pagkakaisa v. Filtex International
Corporation, Nos. L-23960 & L-23961, February 26, 1968).

Right to Strike; Effects; Strikers’ illegal Acts (2006)


Assuming the company admits all the strikers, can it later on dismiss those
employees who committed illegal acts?

SUGGESTED ANSWER: No, when the company admits all the strikers, it is deemed to
have waived the issue and condoned the strikers who committed illegal acts (Citizen's
Labor Union v. Standard Vacuum Oil Co., G.R. No. L-7478, May 6,1955; TASLI-ALU v.
CA, G.R. No. 145428, July 7, 2004).

Right to Strike; Lawful; Right to Reinstatement (2006)

As a result of bargaining deadlock between ROSE Corporation and ROSE


Employees Union, its members staged a strike. During the strike, several
employees committed illegal acts. The company refused to give in to the union's
demands. Eventually, its members informed the company of their intention to
return to work. (10%)

1. Can ROSE Corporation refuse to admit all the strikers?

SUGGESTED ANSWER: Rose Corporation cannot refuse to admit all the strikers.
Participants in a lawful strike generally have the right to reinstatement to their
positions upon the termination of the strike (Insular Life Assurance Co. Employees
Assn. v. Insular Life Assurance Co., G.R. No. L-25291, January 30, 1979;
Consolidated Labor Assn. of the Phil. v. Marsman & Co., Inc., G.R. No. L-17038, July
31, 1964). However, the Labor Code provides that any worker or union officer who
knowingly participates in the commission of illegal acts during a strike may be deemed
to have lost his employment status (Bascon v. CA, G.R. No. 144899, February 5, 2004;
First City Interlink Trans. Co., Inv. v. Confessor, G.R. No. 106316, May 5,1997;
Lapanday Workers' Union v. NLRC, G.R. Nos. 95494-97, September 7, 1995; Art. 264,
Labor Code).

Wage; Wage Distortion; Not a ground for Strike/Lockout (2006)

Can the issue of wage distortion be raised in a notice of strike? Explain. (10%)

SUGGESTED ANSWER:

NO. Section 16, Chapter I of Rules Implementing RA 6727 provides that "Any dispute
involving wage distortions shall not be a ground for strike/lockout." Article 124 of the
Labor Code, as amended by Republic Act 6727 prescribes a procedure for the
correction of a wage distortion, implicitly excluding strikes or lockouts or other
concerted activities as modes of settlement of the issue. The legislative intent that
wage distortion shall be solved by voluntary negotiation or arbitration is made clear in
the rules (Ilaiv at Buklod ng Manggagawa v. NLRC, G.R. No. 91980, June 27, 1991).

Wages; No Work No Pay Principle XIII (2008)

No. XIII. The rank-and-file union staged a strike in the company premises which
caused the disruption of business operations. The supervisors union of the same
company filed a money claim for unpaid salaries for the duration of the strike,
arguing that the supervisors' failure to report for work was not attributable to
them. The company contended that it was equally faultless, for the strike was
not the direct consequence of any lockout or unfair labor practice. May the
company be held liable for the salaries of the supervisor? Decide (6%)

SUGGESTED ANSWER:
No, following the ―No work No Pay‖ principle, the supervisors are not entitled to their
money claim for unpaid salaries. They should not be compensated for services skipped
during the strike. The age-old rule governing the relation between labor and capital, or
management and employee of a ―fair day‘s wage for a fair day‘s labor‖ remains as the
basic factor in determining employees‘ wage (Aklan Electric Cooperative, Inc. v. NLRC,
G.R. No. 121439, January 25, 2000).

Dismissal; Defiance of Return to Work Order (2008)

No. VI. c. On the day that the Union could validly declare a strike, the Secretary
of Labor issued an order assuming jurisdiction over the dispute and enjoining
the strike, or if one has commenced, ordering the striking workers to
immediately return to work. The return-towork order required the employees to
return to work within twenty-four hours and was served at 8 a.m. of the day the
strike was to start. The order at the same time directed the Company to accept
all employees under the same terms and conditions of employment prior to the
work stoppage. The Union members did not return to work on the day the
Secretary's assumption order was served nor on the next day; instead, they held
a continuing protest rally against the company's alleged unfair labor practices.
Because of the accompanying picket, some of the employees who wanted to
return to work failed to do so. On the 3rd day, the workers reported for work,
claiming that they do so in compliance with the Secretary's returnto-work order
that binds them as well as the Company. The Company, however, refused to
admit them back since they had violated the Secretary's return-to-work order
and are now considered to have lost their employment status.

The Union officers and members filed a complaint for illegal dismissal arguing
that there was no strike but a protest rally which is a valid exercise of the
workers constitutional right to peaceable assembly and freedom of expression.
Hence, there was no basis for the termination of their employment.

You are the Labor Arbiter to whom the case was raffled. Decide, ruling on the
following issues:

What are the consequences, if any, of the acts of the employees? (3%)

SUGGESTED ANSWER:

Defiance of the return-to-work order of the Secretary of Labor after he has assumed
jurisdiction is a ground for loss of the employment status of any striking officers or
member (Telefunken Semiconductors Employees Union-FFW v. CA, G.R. Nos. 143013-
14, December 18, 2000). However, this rule should not apply to the employees who
failed to return because of the accompanying picket that blocked free egress & ingress
to and from company premises.

Wages; Wage Distortion; Definition (2009)

No. IX. a. What is wage distortion? Can a labor union invoke wage distortion as a
valid ground to go on strike? Explain. (2%)

SUGGESTED ANSWER:

Wage distortion refers to a situation where an increase in the prescribed wage rates
results in the elimination or severe contraction of intentional quantitative differences
in wage or salary rates between and among employee groups in an establishment as to
effectively obliterate the distinctions embodied in such wage structure based on skills,
length of service and other logical bases of differentiation (Art. 124, Labor Code).
No. the existence of wage distortion is not a valid ground for staging a strike because
Art. 124 of the Labor Code provides for a specific method or procedure for correcting
wage distortion. In Ilaw at Buklod ng Manggagawa vs. NLRC, (198 SCRA586, 594-5
[1991]), the Court said.

Wages; Wage Distortion; Means of Solving (2009)

No. IX. b. What procedural remedies are open to workers who seek correction of
wage distortion? (2%)

SUGGESTED ANSWER:

The Procedural Remedies of Wage Distortion disputes are provided in Art. 242 of the
Labor Code, as follows.

Organized establishment – follow the grievance procedure as provided for in the CBA,
ending in voluntary arbitration.

Unorganized establishment – employer and workers, with the aid of the NCMB shall
endeavor to correct the wage distortion, and if they fail, to submit the issue to the
NLRC for compulsory arbitration.

Dismissal; Reinstatement; Backwages; Damages (2009)

No. XVIII. b. Explain the impact of the union security clause to the employees’
right to security of tenure. (2%)

SUGGESTED ANSWER:

A valid union security clause when enforced or implemented for cause, after according
the worker his substantive and procedural due process rights (Alabang Country club,
inc. v. NLRC, 545 SCRA 357 [2008]; does not violate the employee‘s right to security of
tenure. Art. 248(e) of the labor Code allows union security clauses and a failure to
comply with the same is a valid ground to terminate employment. Union security
clauses designed to strengthen unions and valid law policy.

Dismissal; Just Cause; Without Due Process (2012)

No. II. a. In the Collective Bargaining Agreement (CBA) between Dana Films and
its rank-and-file Union (which is directly affiliated with MMFF, a national
federation), a provision on the maintenance of membership expressly provides
that the Union can demand the dismissal of any member employee who commits
acts of disloyalty to the Union as provided for in its Constitution and By-Laws.
The same provision contains an undertaking by the Union (MMFF) to hold Dana
Films free from any and all claims of any employee dismissed. During the term
of the CBA, MMFF discovered that certain employeemembers were initiating a
move to disaffiliate from MMFF and join a rival federation, FAMAS. Forthwith,
MMFF sought the dismissal of its employeemembers initiating the disaffiliation
movement from MMFF to FAMAS. Dana Films, relying on the provision of the
aforementioned CBA, complied with MMFF's request and dismissed the
employees identified by MMFF as disloyal to it.

Will an action for illegal dismissal against Dana Films and MMFF prosper or not?
Why? (5%)

SUGGESTED ANSWER:
Yes, while Dana Films, under the CBA, is bound to dismiss any employee who is
expelled by MMFF for disloyalty (upon its written request), this undertaking should
not be done hastily and summarily. Due process is required before a member can be
dropped from the list of union members of good standing. The company‘s dismissal of
its workers without giving them the benefit of a hearing, and without inquiring from
the workers on the cause of their expulsion as union members, constitute bad faith.
(Liberty Cotton Mills Workers Union, et al v. Liberty Cotton Mills, Inc. et al., G.R. No L-
33987, May 31, 1979).

Dismissal; Striking Members and Officers (2012)

No. I. b3. A deadlock in the negotiations for the collective bargaining agreement
between College X and the Union prompted the latter, after duly notifying the
DOLE, to declare a strike on November 5. The strike totally paralyzed the
operations of the school. The Labor Secretary immediately assumed jurisdiction
over the dispute and issued on the same day (November 5) a return to work
order. Upon receipt of the order, the striking union officers and members, on
November 1, filed a Motion for Reconsideration thereof questioning the Labor
Secretary's assumption of jurisdiction, and continued with the strike during the
pendency of their motion. On November 30, the Labor Secretary denied the
reconsideration of his return to work order and further noting the strikers'
failure to immediately return to work, terminated their employment. In assailing
the Labor Secretary's decision, the Union contends that:

The strike being legal, the employment of the striking Union officers and
members cannot be terminated. Rule on these contentions. Explain. (5%)

SUGGESTED ANSWER:

Responsibility of the striking members and officers must be on an individual and not
collective basis. Art. 264 (a) of the Labor Code mandates that ―No strike or lockout
shall be declared after the assumption by the President or the Secretary of Labor.‖ In
Manila Hotel Employee Association v. Manila Hotel Corporation [517 SCRA 349
(2007)], it was held that defiance of the Assumption Order or a return-to-work order
by a striking employee, whether a Union Officer or a plain member, is an illegal act
which constitutes a valid ground for loss of employment status. It thus follow that the
defiant strikers were validly dismissed.