Professional Documents
Culture Documents
Majority of the topics included here that were not discussed in class were If the proper disciplinary authority does not finally decide the administrative case within a period
sourced from: of 90 days from the start of preventive suspension pending investigation, and the respondent
Notes of Ate Anna Patricia Bravo is not a presidential appointee, the preventive suspension is lifted and the respondent is
SLU Reviewer 2010 "automatically reinstated” in the service.
Chan Pre-Week Reviewer 2015
Chan Reviewer 2016 In the case of presidential appointees, the preventive suspension pending investigation shall be
I had no time to proofread so please watch out for corrections. If there are "for a reasonable time as the circumstances of the case may warrant.
errors, kindly inform us.
Refer to other reviewers for supplement. Baculi should be paid his back salaries and other benefits for the entire time that he should have been
Cases assigned were not included here. automatically reinstated at the rate owing to his position that he last received prior to his
You can share this to our refreshers preventive suspension on September 4, 1992.
Review: Such time corresponded to the period from December 4, 1992 until June 25, 2003, but excluding the
interval from March 12, 2001 until December 31, 2001 when he was briefly reinstated.
Preventive suspension both in public and private sectors
Private
RIGHT TO SELF-ORGANIZATION
Preventive: not a sanction but a remedial measure undertaken in order not to hamper
an investigation of an alleged misconduct of an employee Lecture:
Not all employees may be subject of preventive suspension. Right to self-organization includes the right not to self-organize. It is not something that
If the subject employee is a clerical employee, one who is not in a position to the employer may impose upon the employee.
hamper the conduct of the investigation, then it is not proper to subject him to Violation of this right: may amount to unfair labor practice.
preventive suspension.
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They shall be working with alien employment permit. Without this, even if they
Coverage are victims of illegal dismissal, they cannot expect any relief to be granted from
our country.
I. INCLUSIONS
Government Employees
A. GENERAL Except those members of AFP and PNP.
E.O. 180: governs right of workers to self-organize.
FORMAL SECTOR (CIA-CREM) May organize, unionize and may negotiate Collective Negotiation Agreements or
MOA only on conditions NOT FIXED BY LAW for furtherance and protection of
their interests but not for collective bargaining.
ALL PERSONS employed in: All other employees in the CSC shall have the right to form Associations for
purposes not contrary to law.
Commercial Enterprises Charitable All rank-and-file employees of all branches, subdivisions, instrumentalities, and
Industrial Enterprises Religious agencies of government, including government-owned and/or controlled
Agricultural Enterprises Educational corporations with original charters, can form, join or assist employees’
Medical organizations of their own choosing.
Institutions, for profit or not.
New Employees
Purpose:
For collective bargaining, including staging of collective actions such as strikes.
Iglesia Ni Kristo Members – Religious Sects
For mutual aid and protection
Religious organizations which prohibit them from exercising the right to self-
organize
INFORMAL SECTOR: (AIR WIS)
They have the right to self-organize, but they choose not to exercise such right.
Ambulant workers
Intermittent workers
Rural Workers
Security guards
may join Labor Organization of rank-and-file or supervisory union depending on
Workers with no definite employers (e.g. industrial homeworkers)
rank
Itinerant workers They used to be exempted because they also bear arms. Now they are already
Self-employed entitled to this right.
Purpose: For their mutual aid and protection
II. EXCLUSIONS (HEMACEN)
B. SPECIAL (STAG NIS)
High level government employees
Managerial employees
Supervisory Employees Those engaged in policy-making functions
Supervisory employees shall not be eligible for membership in a labor union of Confidential employees
the rank-and-file employees but may form, join or assist separate labor unions of Employees of Cooperatives who are members
their own. Not all employees of cooperatives are members
Is mixed membership of supervisors and rank-and-file union in one union a If they are simply employees, there is no prohibition
ground to cancel its registration? If they are members, their interest is also the same as the cooperative. It is as if
No. In case there is mixed membership of supervisors and rank-and-file they are the employers. They cannot self-organize against themselves.
employees in one union, the new rule enunciated in Article 245-A of the Labor Managerial Employees
Code, unlike in the old law, is that it cannot be invoked as a ground for the AFP and Police personnel
cancellation of the registration of the union. The employees so improperly By nature of their functions, they bear arms.
automatically deemed removed from the list of members of said union. Their
removal from the said list is by operation of law.
Confidential Employees
This evolved by way of adoption or application of principle of necessary
implication. They are likened to managerial employees in terms of function and
Terminated Employees who are contesting their termination affinity of employer
Requisites: What the law has expressly exempted may necessarily apply to confidential
1. That their termination is a subject of a pending case employees as the evil sought to be avoided might be obtained
2. They have not subsequently an equivalent employment. Employees of International Organizations with immunity
e.g. those attached to the United Nations
Aliens who have obtained and alien employment permit Non-employees
If his country of origin also recognizes the right of our Filipino migrant workers
there to self-organize.
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3. The names of all its members comprising at least 20% of the employees in the
LABOR ORGANIZATIONS Bargaining Unit;
Bargaining Unit: either all of the employees sought to be represented by the Labor
Definition organization for purposes of collective bargaining and negotiations
Any union or association of employees which exists in whole or in part for the purpose of collective There must be commonality or mutuality of interest which could be best promoted by the
bargaining or of dealing with employers concerning terms and conditions of employment labor organization as long as the same will not undermine or oppress the employer.
Legitimate Labor Organization Q: Should this 20% be maintained all through the life of the labor organization to continuously
Any labor organization duly registered with the DOLE and includes any branch or local thereof maintain the legitimacy of the labor organization? If this 20% was lost, can the union be divested
of this legitimate personality?
Kinds of Labor Organizations A: No. This is not one of the grounds to revoke the legitimate personality of a labor organization. It is
*based on our notes from 2nd year* necessary only to be met at the time of registration. If it is a continuing requirement to attain
legitimacy, it should have been one of the grounds to cancel the registration of the union.
Trade Union Center
any group of registered national unions or federations organized for the mutual aid and protection of 4. The annual financial reports if the applicant has been in existence for one or more
its members, for assisting such members in collective bargaining, or for participating in the
years, unless it has not collected any amount from its members, in which case, a
formulation of social and employment policies, standard and programs and is registered by the BLR.
statement to this effect shall be included in the application; and
Alliance
5. The applicant’s constitution and by- laws, minutes of its adoption or ratification and
Loose association formed by labor organizations made for specific purpose only; it
cannot represent the members; it cannot engage in collective bargaining the list of the members who participated in it.
The list of ratifying members shall be dispensed with where the constitution and
Company union
company- dominated union under the influence of the employer; by- laws was ratified or adopted during the organizational meeting. In such a
may amount to unfair labor practice since labor organizations must be independent case, the factual circumstances of the ratification shall be recorded in the
minutes of the organizational meeting;
Chapter
Labor organization which is a member of a federation 6. Registration fee
WHERE TO APPEAL
Independent Labor Organization Bureau of Labor Relations
Requirements for Registration
1. The name of the applicant labor union, its principal address, the names of its officers When is legitimate personality vested?
and their respective addresses, approximate number of employees in the Bargaining Upon the issuance of the certificate of registration as a legitimate
Unit where it seeks to operate, with a statement that it is not reported as a chartered labor organization.
local of any federation or national union;
2. The minutes of the organizational meeting and the list of employees who participated Federation
in the meeting; WHERE TO APPLY: BLR
APPEAL: Secretary of Labor and Employment
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4. All the foregoing supporting requirements shall be certified under oath by the
Requirements secretary or treasurer of the chapter and attested by the President
1. A statement indicating the name of the applicant labor union, its principal address,
the name of its officers and their respective addresses; In chartering, they will acquire legitimate personality in two instances:
2. The minutes of the organizational meeting and the list of employees who participated 1. Provisional: upon the issuance of the charter certificate
in the same; Loss of legitimate personality- upon revocation of the charter
3. The annual financial reports if the applicant union has been in existence for one or 2. Complete: upon the submission of the required documents
more years, unless it has not collected any amount from the members, in which case,
a statement to this effect shall be included in the application; Revocation of charter certificate
Through a resolution passed by the Board of the Federation which issued the charter
4. The applicant union’s constitution and by- laws, minutes of its adoption or certificate.
ratification, and the list of the members who participated in it. The list of ratifying Effectivity: Upon giving notice of revocation to be served upon the union and submitted
members shall be dispensed with where the constitution and by- laws was ratified or to the Regional office where the documents for chartering have been submitted.
adopted during the organizational meetings. In such case, the factual circumstances Grounds:
of the ratification shall be recorded in the minutes of the organizational meetings; 1. Disloyalty
2. Other grounds under the Constitution and By-Laws of the Federation, National
5. The resolution of affiliation of at least ten LLO, whether independent union or Union or Worker’s Association
chartered locals, each of which must be a duly certified or recognized bargaining
agent in the establishment where it seeks to operate; and Affiliation
6. The name and addresses of the companies where the affiliate operate and the list of The affiliate which enters an agreement of affiliation to the federation
Affiliate would pertain to:
all the members in each company involved.
1. An independent union affiliated with a federation or national union; or
2. A local chapter which has been subsequently granted independent registration but did
7. A listing of the member organization including their addresses, the name of the
not disaffiliate from the federation or national union which created it.
president of the member LO;
Requirements:
8. If it is an industry union, the type of industry it operates
1. Resolution of the Labor union’s board of directors approving the affiliation;
2. Minutes of the general membership meeting approving the affiliation;
3. The total number of members comprising the labor union and the names of
Chartering members who approved the affiliation;
Short-cut procedure 4. The certificate of affiliation issued by the federation in favor of the
Process whereby legitimate personality is extended to a chartered local by mere issuance independently registered labor union; and
of a charter certificate by a federation and reporting and submission of required 5. Written notice to the employer concerned if the affiliating union is the
documents to the regional office or the BLR. incumbent bargaining agent
Provisional Legitimate Personality: The mere act of issuance of a charter certificate
by a federation or national union to a local chapter clothes legal personality to the NOTES (from 2nd year lecture)
latter but only for one purpose, that is, to file a petition for certification The affiliate and the mother union must both approve as to the affiliation. Then a certificate
election which it may validly do from the date it was issued such charter certificate. At of affiliation will be issued upon the compliance of the requirements
that point, the local chapter has not yet fully acquired its legal personality as would invest Affiliation can be done anytime
it with all the rights and privileges to which a LLO is entitled. Relationship of the affiliate and the federation: Principal (affiliate) - Agent (federation)
Complete legal personality: only attained upon compliance with the submission of the relationship.
required documents in addition to its charter certificate.
Disaffiliation
Requirements for chartering: Disaffiliation can only happen in two instances:
1. The charter certificate issued by the federation or national union indicating the 1. During the 60- day period immediately preceding the expiration of CBA; and
creation or establishment of the local/ chapter; 2. Even before the onset of the freedom period when such disaffiliation is effected by the
majority of the members of the labor organization.
2. The names of the chapter’s officers, addresses, and the principal office of the chapter;
and
Effects of Disaffiliation:
3. The chapter’s constitution and by-laws; provided that where the chapter’s SLU Reviewer
constitution and by-laws is the same as that of the federation or national union, this 1. If the union is not independently registered, it is not entitled to the rights and privileges
fact shall be indicated accordingly. granted to legitimate labor organization
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2. The federation is entitled to receive the dues from the employer ONLY as long as the union Source: SLU Reviewer 2010
is affiliated with the federation. Without said affiliation, the employer has no link with the
federation REGISTRATION OF AN INDUSTRY OR TRADE UNION CENTER
3. The CBA continues to bind the members of the new or disaffiliated and independent union 1. List of its member organizations and their respective presidents;
up to the CBA’s expiration date (Substitutionary Doctrine) 2. Resolution of membership of each member organization;
Under this doctrine, the employees cannot revoke the validly executed CBA with their 3. Name and Principal Address of the Applicant;
employer by the simple expedient of the changing of the bargaining agent. The new agent 4. Officer’s names and their addresses;
must respect the contract 5. Minutes of the organizational meeting; and
6. Constitution and By-Laws
Lecture:
Affiliation may be had anytime To be filed with the BLR.
In an organized establishment, it can be done during the freedom period
How to effect affiliation: by decision of majority of members of the affected labor REGISTRATION OF WORKER’S ASSOCIATION
organization. 1. Members’ names and addresses;
Issues on affiliation usually appear in petitions for certification election. 2. Principal office of the applicant;
If a certification election is held with the members of a bargaining unit believing that their 3. Minutes of the organization meetings;
choice of a union was affiliated and found out that there is already disaffiliation that may 4. Constitution and By-Laws.
affect the vote of the members, that may be assailed (?) *di ko to nagets, tinranscribe ko lang
sinabi nya* To be filed with the Regional Office where it operates.
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other assessments. The exemptions provided herein may be withdrawn only by a special law expressly b. Right to require that the account be duly audited and verified by affidavit and a
repealing this provision. (As amended by Section 17, Republic Act No. 6715, March 21, 1989) copy thereof be furnished to the DOLE secretary
c. Right to inspect the books of accounts and other financial records of the union
and to require full and detailed reports from their offices and representatives on
RIGHTS GIVEN TO UNION MEMBERS all financial transactions as provided for in the constitution and by- laws of the
Source: class lecture and notes from 2nd year organization
1. Decision making rights which includes: d. Right to be informed of the provisions of the constitution and by-laws, CBA, the
Right to participate in decision making processes involving policies involving their rights prevailing labor relations system and all their rights and obligations under
through secret ballot; if not possible, through their representative existing labor laws through the medium of labor relations seminars or other labor
Examples: education activities; and
the decision to or not to engage in a strike
the decision on disaffiliation e. Right to seek investigation of any irregularity
the right to initiate and participate in impeachment or expulsion proceedings
against an erring officer or member of the union
4. Political Rights
a. Right to vote and be voted for as an officer of the union, subject to the
2. Fiscal Rights qualifications and disqualifications, mentioned in article 241 of the LC (old
numbering)
a. Right against arbitrary, oppressive or excessive fees, fines and forfeitures;
b. Right to be appointed to appointive positions in the organization, subject to the
b. Right to full and detailed reports on all financial transactions in accordance with
qualifications and disqualifications mentioned in article 241 of LC
the constitution and by-laws of the union;
Lecture:
c. Right against unauthorized collection of any fees, dues or other contributions;
Qualification to VOTE: membership in good standing
Qualifications to be VOTED UPON:
d. Right to claim receipt for every payment of fees, dues or other contributions;
Not involved in subversive organizations
e. Right to prevent funds of the organization from being applied for any purpose or Not convicted of crime of moral turpitude
It is a labor dispute when one questions on the conduct of election
object other than those expressly provided by the union’s constitution and by-
Intra-union dispute: may amount to violation of rights of union members which is a
laws or allowed expressly by written resolution adopted by the majority of the political right
members at a general meeting duly called for the purpose; General Rule on Elections: follow which is provided for under constitution and by-
laws. Otherwise, follow the rules prescribed under the IRR of the Labor Code.
f. Right to demand or require that every income or revenue as well as every
expenditure of the union shall be recorded or receipted, which record or receipt
shall form part of the financial records of the union; Derivative Right
Given to participate in decisions affecting matters of organization of common importance
g. Right against unauthorized check- off for special assessments, attorney’s fees, e.g. Decision to stage or not to stage a strike
negotiation fees or any other extraordinary fees without an individual written How exercised? Through secret ballot.
authorization duly signed by the employee; Right to information
Obligation of the officers of the labor organization: to give proper information
h. Right to vote on the compensation of union officers; and To some extent, this is also an obligation of the employer, because under the law
he is obligated to check off from wages of employees and members and remit the
i. Right against unreasonable assessments to finance labor relations seminars and same to labor organization to defray fees to seminars
other labor education activities. What must be informed:
Of the financial standing of the labor organizations, which
3. Right to information Or any other existing labor relations system
a. Right to require the treasurer and the other officers of the union responsible for
the account of the union as well as for the collection, management, disbursement,
Money Matters
If a money comes into the labor organization, it is the obligation of financial officer to report
custody or control of the funds, moneys and other properties, to render a true and in detail such revenues, indicating therein the date, source, and amount.
correct account thereof, at least once a year within 30 days after the close of its That is to be duly recorded in books of accounts
fiscal year and at such other times as may be required by a resolution of the Disbursements shall be detailed in the books of accounts
majority members of the union and upon vacation his office; Date,
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purpose, Take note for requirements for affiliation
amount, and From passage of board resolution allowing the affiliation of federation with a specified local
must be covered by receipts union up to acceptance of board resolution passed by the smaller unions of such affiliation
Union members may demand this recording in details with the federation.
Disbursements of union funds: must be in consonance with the constitution and by-laws of
the labor organization.
You can disburse these funds on items that are allowed for purposes covered by COLLECTIVE BARGAINING
constitution and by-laws.
If no provisions are in the constitution, disbursement may be made as long as Legitimate Labor Organizations are organized for a purpose: one is to represent them for purposes of
same is covered by a duly passed and ratified resolution of board of directors. collective bargaining.
Any disbursement outside of these is invalid and will subject the union officers
concerned with appropriate sanctions.
Collection of union dues
Bargaining Unit
The officer must be guided with standards of what is reasonable. It should not be Cluster of workers sought to be represented by a legitimate labor organization
Appropriate Bargaining Unit: establish commonality of interest or mutuality between
arbitrary.
and among members so that these legitimate labor organizations will be in a better to
It should be done with due consideration to the amount of salaries of the
represent them.
employees.
Limitation: the same should not be unduly disadvantageous or oppressive to the
Another consideration: applicable rates collected by the labor organizations employer.
under similar industries in the same locality or near such locality. E.g. cannot merge rank and file and supervisory
Agency fee: collected from non-union members, conditioned on their receipt of benefits
from a CBA that was negotiated by the bargaining agent with the employer.
The amount of agency fees should atleast be equal to the union dues collected. How to determine appropriate bargaining unit?
When there is no obligation to pay union dues, no authority may be given to
union to collect agency fees from non-union members, 1. Mutuality of Interest
Special assessment: may be made as long as there is a special or general meeting held They seek to establish some common factors or interest that would unite these
for such purpose, which is ratified or approved by atleast majority of the members of the members of the bargaining unit for easier representation in dealing with the
organization. employer.
To be validly levied and check off from the salary, there shall be individual
written authorization coming from them. 2. Globe Doctrine
Financial officer’s duty: Give reports to members Determination of the will of the members of the bargaining unit
Upon his assumption of office
upon vacating office and
3. Common Geography or Location
other times when required.
Factors considered:
Check-off: refers to the process by which he employer effects deductions from the wages How they are paid wages
and benefits of the union members who are employees Nature of functions
Union Dues: the individual members should be able to give written authorization
Agency fees: no need to give individual written authorization because law allows such and 4. Common Bargaining History Rule
usually provided in a union security agreement contained in the CBA. This principle puts premium to the prior collective bargaining history and affinity
of the employees in determining the appropriate bargaining unit. However, the
Q: May the labor organization as matter of right demand from employer to be furnished copies of existence of a prior collective bargaining history has been held as neither decisive
audited financial statement from employer? nor conclusive in the determination of what constitutes an appropriate
A: Yes, in connection with the exercise with right to self-organization. Prior to collective bargaining bargaining unit.
and negotiation, the same may be demanded so that members will be in a proper position to make
negotiations even as early as formulation of proposal at the start of collective bargaining negotiations. All tests may be subsumed under the general and acknowledged test which is
mutuality of interest rule. Others are just factors that may establish common
Honorarium interest among employees.
If there are adjustments made by current officer, they cannot benefit from such
adjustments Determination of Majority Representation Status
The next officers will benefit from the increases
1. SEBA Certification (Sole and Exclusive Bargaining Agent)
2. Certification Election
Q: Will the non-registration of the labor organization result to its disestablishment?
3. Run-off, Consent, Re-run Election
A: No
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SEBA CERTIFICATION Organized vs. Unorganized Establishments
To the BLR or Regional Office
Applies both to organized or unorganized establishment ORGANIZED: it will be automatically conducted. It will be allowed as a matter of course.
In reality: it may just pertain to application of SEBA in an unorganized establishment, Meaning, there is no labor organization representing the bargaining unit in that part
If it is organized and you apply for SEBA with the BLR, it will refer you back to the process establishment. There is no CBA. What is acknowledged is proper representation and
of certification election. organization of workers, for stronger power of workers.
Acquisition of SEBA Certificate UNORGANIZED: may go to hearing in an appropriate case
Application
Grant
If single legitimate labor organization pertaining in an unorganized establishment provided Requirements for Filing
of course that that the Labor Organization is also supported by members of that bargaining Petition, filed by the labor organization, containing the following:
unit. 1. The name of petitioner and its address and affiliation, if any;
Difference with voluntary recognition: in here, initiative is purely on the labor organization. 2. Name, address and nature of the employer's business;
There is no need for participation of the employer 3. Description of the bargaining unit which shall be the employer unit unless circumstances
otherwise require; and provided further, that the appropriate bargaining unit of the rank-
CERTIFICATION ELECTION and-file employees shall not include supervisory employees and/or security guards;
4. Appropriate number of the employees in the alleged bargaining unit;
5. Names and addresses of other legitimate labor organizations in the bargaining unit;
“Certification election” refers to the process of determining through secret ballot the sole
6. In an organized establishment, the signatures of at least twenty-five (25%) percent of all
and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of
employees in the appropriate bargaining unit; and
collective bargaining or negotiations.
7. Other relevant facts.
Chan, 2015
Petition, when filed by an employer, shall contain the following:
What are the requisites for the validity of the petition for certification election? 1. The name, address and general nature of the employer's business;
The following requisites should concur: 2. Names and addresses of the legitimate labor organizations involved;
1. The union should be legitimate which means that it is duly registered and listed in the 3. Approximate number of the employees in the appropriate bargaining unit;
registry of legitimate labor unions of the BLR or that its legal personality has not been 4. Description of the bargaining unit which shall be the employer unit unless circumstances
revoked or cancelled with finality. otherwise required; and provided further, that the appropriate bargaining unit of the rank-
and-file employees shall not include supervisory employees and/or security guards;
2. In case of organized establishments, the petition for certification election is filed during 5. Other relevant facts.
(and not before or after) the 60-day freedom period of a duly registered CBA.
NOTE: The labor organization, in order to be a petitioner, must be a legitimate labor organization.
3. In case of organized establishments, the petition complied with the 25% written support
of the members of the bargaining unit. Q: If it is not a legitimate labor organization, is that a ground for dismissing?
4. The petition is filed not in violation of any of the four (4) bar rules A: Yes. If:
1. The petition is not included in the roster of legitimate labor organizations filed under the
Principles: BLR; or
2. It used to be a legitimate organization but there is final judgement of cancellation of
The pendency of a petition to cancel the certificate of registration of a union registration, or proof of revocation with finality of its charter certificate.
participating in a certification election does not stay the conduct thereof.
The pendency of an unfair labor practice case filed against a labor organization Q: What if upon filing a petition for certification election, the employer also filed a petition for
participating in the certification election does not stay the holding thereof. cancellation for union registration. What is the effect of the latter?
Direct certification as a method of selecting the exclusive bargaining agent of the A: None. It is not a prejudicial question. While it is true that legitimacy may only be directly assailed
employees is not allowed. This is because the conduct of a certification election is through a petition for cancellation of union registration, until that has been granted with finality and
still necessary in order to arrive in a manner definitive and certain concerning the therefore registration is cancelled, the labor organization which filed the petition and whose legitimacy
choice of the labor organization to represent the workers in a collective bargaining is in question may continue to exercise all rights and privileges that may accrue to such labor
unit. organization.
The No Union vote is always one of the choices in a certification election.
Where majority of the valid votes cast results in―No Union‖ obtaining the majority, Q: Once it is cancelled, will the effect of the cancellation retroact to the date of issuance of certificate
the Med-Arbiter shall declare such fact in the order. of registration?
Only persons who have direct employment relationship with the employer may A: No. There are vested rights that in the meantime has been acquired and adversely affected. It will
vote in the certification election, regardless of their period of employment be prospective in effect.
If in the meantime, it lost such that its registration is now cancelled, it cannot participate anymore in
the certification election
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If there are intervenors such as other legitimate labor organizations in that bargaining unit, as long as
they comply with the requirements of a valid certification election, then the proceedings must Contract Bar Rule: there can be no petition for certification election
continue. during the life of a validly subsisting registered CBA, except only within
the freedom period
Who may file If not registered/ if defective/ if concluded: anytime as long as
ORGANIZED ESTABLISHMENT: anytime, by any interested party, especially the labor other bars do not apply
organization Contract bar rule does not apply here.
General Rule: A non-legitimate labor organization cannot file
Except: if in the meantime it is issued a charter certificate which gives it provisional
legitimacy for purposes of filing petition for certification election. Bar Rules
1. Certification year bar rule
UNORGANIZED ESTABLISHMENT: A petition for certification election may not be filed within one (1) year:
Legitimate labor organization a. from the date the fact of voluntary recognition has been entered; or
Employer, where requested to bargain collectively. b. from the date a valid certification, consent, run-off or re-run election has been
Note: if establishment is organized where there is bargaining agent, the employer conducted within the bargaining unit.
cannot initiate. (lecture)
2. Negotiations bar rule
Bystander Rule No petition for certification election should be entertained while the sole and exclusive
General Rule: employer is merely a bystander bargaining agent and the employer have commenced and sustained negotiations in good
Exception: his participation is limited to the following faith within the period of one (1) year from the date of a valid certification, consent, run-
1. Being notified or informed of the petitions for certification election; and off or re-run election or from the date of voluntary recognition.
2. Submitting the list of employees during the pre-election conference should the Med- Once the CBA negotiations have commenced and while the parties are in the process of
Arbiter act favorably on the petition. negotiating the terms and conditions of the CBA, no challenging union is allowed to file a
petition for certification election that would disturb the process and unduly forestall the
Q: Can the employer move for dismissal of the petition for certification election based on alleged early conclusion of the agreement.
lack of legal personality of petitioner?
A: No, because of the bystander rule. 3. Bargaining deadlock bar rule
A petition for certification election may not be entertained when a bargaining deadlock to
But if really there is no legitimate personality, the Supreme Court in a lot of cases has allowed the which an incumbent or certified bargaining agent is a party has been submitted to
employer to so participate, limited in the following circumstances: conciliation or arbitration or has become the subject of a valid notice of strike or lockout.
1. If the labor organization is not in the roster of the legitimate labor organizations; or
2. The labor organization used to be a legitimate one but lost such legitimacy through final 4. Contract bar rule
revocation or judgment cancelling the union registration. A petition for certification election may not be filed when a CBA between the employer and
In a way this is an exception to the rule that the employer is a mere bystander. a duly recognized or certified bargaining agent has been registered with the BLR.
When somebody else move for dismissal grounded on lack of legal personality under these two Where the CBA is duly registered, a petition for certification election may be filed only
circumstances, it is not seeking an order declaring that this labor organizations shall lose legitimate within the 60-dayfreedom period prior to its expiry. The purpose of this rule is to ensure
personality. It is just pointing to a recognition of existing fact: that it has no legitimate personality. stability in the relationship of the workers and the employer by preventing frequent
modifications of any CBA earlier entered into by them in good faith and for the stipulated
original period.
If what is sought is cancellation of legitimate personality
Direct verified petition must be filed before the Regional Office of the DOLE for smaller The contract bar rule does not apply in the following:
organizations, or Med-arbiter in the region. 1. Where there is an automatic renewal provision in the CBA but prior to the date
For federations or bigger organization, petition is filed to the BLR. when such automatic renewal became effective, the employer seasonably filed a
manifestation with the Bureau of Labor Relations of its intention to terminate the
When Filed said agreement if and when it is established that the bargaining agent does not
represent anymore the majority of the workers in the bargaining unit.
UNORGANIZED ESTABLISHMENT: Can be filed any time 2. Where the CBA, despite its due registration, is found in appropriate proceedings that
a. It contains provisions lower than the standards fixed by law; or
ORGANIZED ESTABLISHMENT: b. The documents supporting its registration are falsified, fraudulent or
tainted with misrepresentation.
Without CBA: anytime as long as the bars do not apply 3. Where the CBA does not foster industrial stability, such as contracts where the
*bars are to be discussed later* identity of the representative is indoubt since the employer extended direct recognition
With CBA to the union and concluded a CBA therewith less than one (1) year from the time a
If validly registered/effective: within the 60-day freedom period certification election was conducted where the ―no union‖ vote won. This situation
prior to the expiration of the CBA
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obtains in a case where the company entered into a CBA with the union when its status Can the parties agree to the conduct of consent election even during the pendency of
as exclusive bargaining agent of the employees has not been established yet. certification election?
4. Where the CBA was registered before or during the last sixty (60) days of a
subsisting agreement or during the pendency of a representation case. It is well-settled Yes. The Med-Arbiter is required to determine if the contending labor unions are willing to
that the 60-day freedom period based on the original CBA should not be affected by submit themselves to a consent election. And if they do, the Med-Arbiter should conduct consent
any amendment, extension or renewal of the CBA for purposes of certification election election instead of certification election
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b. The voter is not a member of the appropriate bargaining unit which petitioner CANVASSING OF VOTES
seeks to represent.
Done in the presence of the representatives of the contending unions. Upon completion, the election
When a vote is properly challenged, the election officer shall place the ballot in an officer shall give each of the representatives a copy of the minutes of the election proceedings and
envelope, which shall be sealed in the presence of the voter and the representative of results of the election. The tally sheets and the ballots shall be sealed in an envelope, signed by the
the parties. election officer and the representatives, and transmitted to the Med-Arbiter.
When the enveloped may be opened: Only if opening would alter the result of the
election.
PROCLAMATION AND CERTIFICATION
3. PROTEST BY ELECTION OFFICER
Any party-in-interest may file a protest based on the conduct or mechanics of the
election. Protests not so raised are deemed waived. Protesting party must formalize Upon completion of the canvass and there being a valid election, the election officer shall proclaim
its protest with the Med-Arbiter, with specific grounds, arguments and evidence and certify as winner the union which obtained a majority of the valid votes cast under any of the
therefore, within 5 days after the close of the proceedings. following conditions:
Possible Results of the Election 1. No protest has been filed or, even if one is filed, the same was not perfected within the five
(5)-day period for perfection of the protest;
2. No challenge or eligibility issue was raised or, even if one was raised, the resolution of the
1. FAILURE OF ELECTION same will not materially change the result.
The total number of valid votes cast in a certification or consent election is LESS than
the majority of all the eligible employees in the bargaining unit. BY MED-ARBITER
NOTE: Failure of election shall not bar the filing of a petition for the immediate When a protest has been perfected or any challenged or eligibility issue has been raised which, if
holding of another certification or consent election. resolved, can materially change the result, only the Med-Arbiter can proclaim and certify the winner.
2. RUN-OFF ELECTION
An election between the labor unions receiving the two (2) highest number of votes in
APPEAL AS TO RESULT OF ELECTION
The decision of the Med-Arbiter may be appealed to the Sec. Of Labor ONLY on the grounds of
a certification election or consent election with three (3) or more choices, where such
violation of Sec. 9, Rule XII, IR Bk V regarding challenging of votes or of serious errors of fact or law
a certification election or consent election results in none of the three (3) or more
in the resolution of the protest.
choices receiving the majority of the valid votes cast, provided that the total number of
votes for all contending unions is at least fifty percent (50%) of the number of votes
cast.
Requisites
DUTY TO BARGAIN
a. A valid election took place because majority of the CBU members voted; Collective Bargaining
b. The election presented at least three choices; Collective Bargaining is the performance of the mutual obligation of the employer and the sole
c. Not one of the choices obtained the majority of the valid votes; bargaining representative to meet promptly, expeditiously, and in good faith, agree on
d. The total votes of the unions is at least 50% of the votes cast; Wages, Hours of Work and Other terms and conditions of employment (WHO) including
e. There is no unresolved challenge of voter or election protest; proposals for adjusting any grievances or questions arising under such agreement and executing
WHO Participates: The participants are the members of the labor unions receiving a contract incorporating such agreements if requested by either party but such duty does not compel
the two highest numbers of votes. any party to agree to a proposal or to make any concession.
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3. As a PROCESS
It is a mechanism in the settlement of labor dispute Procedure Proper (Art. 250)
Take note of Labor Protection Clause in the Constitution which mentions this right
Must be done collectively by workers through organization. It cannot be asserted by an 1. Written demand/ notice upon the employer with statement of
individual employee proposal.
Aim: promotion of industrial peace If the employer agrees with the proposal
Mechanism which seeks to adjust terms and conditions of employment including then CBA will be executed
grievance machinery in settlement of dispute within the establishment. Posting,
Publication,
Substitutionary Doctrine Ratification by members.
It refers to the substitution of the bargaining agent by a newly certified agent which defeated in in the
certification election. As new bargaining agent, it is duty-bound to respect the existing CBA but it can 2. If the employer does not agree, employer will submit counter-
renegotiate for new terms and conditions therein. proposal.
Employer replies by submitting counterproposal to union
Lecture: When? Within 10 days.
The mere fact that there is a new CBA will not yield to a situation where the new
agent will disregard a validly CBA. This has to be respected. Q: If employer is unable to reply within 10 days, can union file case of ULP?
New right to new CBA agent— the right to request or negotiate for shortening of life A: It depends. If the delay is unfounded, unreasonable or unjustified, that act of
of CBA to pave the way for re-negotiation of another CBA delaying the process of CBA and negotiation is considered an act hampering the
exercise of right to collectively bargain which is part of its right to self-organization.
SOURCE: APCB Notes Hence, it is considered as ULP.
Effect of substitutionary doctrine on the deposed union’s personal undertakings. Where to file ULP in this case?
In case of change of bargaining agent under the substitutionary doctrine, the new bargaining agent Labor Arbiter office within period of 1 yr from the cause of action.
is not bound by the personal undertakings of the deposed union like the no strike, no lockout‖
clause in a CBA which is the personal undertaking of the bargaining agent which negotiated it. The counterproposal may be accepted by the union
Execution of CBA based on such counterproposal.
Principles on substitutionary doctrine.
The substitutionary doctrine cannot be invoked to subvert an existing CBA, in 3. If still no agreement was arrived at, there is now DEADLOCK.
derogation of the principle of freedom of contract. The substitution of a bargaining Deadlock: when neither party would adjust from their respective position such that
agent cannot be allowed if the purpose is to subvert an existing CBA freely entered they are unable to come up with their mutual terms and conditions of the envisioned
into by the parties. Such act cannot be sanctioned in law or in equity as it is in collective bargaining agreement
derogation of the principle underlying the freedom of contract and good faith in Remedies
contractual relations. a. Conciliation to NCMB, upon request or motu proprio by NCMB if to prevent
The substitutionary doctrine is applicable also to a situation where the local union, strike and lockout.
which was created through the process of chartering by the mother union, b. Voluntary arbitration, through an arbitrator chosen by the parties either in the
disaffiliates from the latter after it secured an independent registration. The local CBA or through process determined in such CBA
union will thus be substituted to that of the federation which negotiated the CBA c. Submit the same as an issue or ground in a notice of strike or lockout.
as in Elisco-Elirol Labor Union v. Noriel, where petitioner union was created d. If employer is engaged in business that affects national security or economy and
through the mode of chartering by the National Federation of Labor Unions vested with national interest, the remedy of the employer is to petition for
(NAFLU) and later, it secured its independent registration with the BLR and assumption of jurisdiction either by office of president or SOLE.
disaffiliated with NAFLU by virtue of a resolution by its general membership. This is essentially a remedy in order to prevent escalation of any labor
dispute or dispute especially industries affected with national interest
NOTE: Pendency of a petition for cancellation of union registration is not a and regarding strikes and lockouts issue. It would hamper economic
prejudicial question before CBA negotiation may proceed. activities in the country.
REMINDER: Take note of rules, doctrines, principles related to topics. Own lookout na po ito ha Effect of Assumption of Jurisdiction by President or SOLE
a. When they intervene, they issue assumption of jurisdiction order,
b. They may also issue a return to work order.
Procedures When these are issued, what is being ordered to be done by employer and
Jurisdictional Preconditions workers?
1. Possession of majority representative status; Workers are ordered to go back to their former jobs without loss of
2. Proof of majority representative status; seniority rights
3. Written Demand of Bargain collectively. Employers are ordered to accept them to their former positions
4. Employer and employee relationship (According to other authors; but this is c. Also carries with it prohibition or warning not to undertake any act that would
already given) exacerbate the situation
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In effect the status quo prevailing prior to the dispute must be observed 6. Ratification Process
The agreement negotiated by the employees bargaining agent should be ratified or
Q: Can the employees be reinstated only in the payroll? approved by the majority of all workers in the bargaining unit, not just the members
A: No. Unless that is the prevailing condition prior to the dispute. of the bargaining union.
The process of ratification renders the CBA effective even to those who did not ratify
Notes: the same
When there is return to work order, the reinstatement of the worker should be in those Ratification is mandatory (Chan 2015)
position and under those situations prevailing prior to the dispute subject of the Except: Ratification of the CBA by the employees in the bargaining unit is not needed
assumption of jurisdiction order or even of the return to work order. when the CBA is a product of an arbitral award by appropriate government authority
Assumption of jurisdiction order: immediately executory or by a voluntary arbitrator
within 6 months
Reinstatement Order Return to Work Order
Premised upon a finding of illegal dismissal Follows assumption of jurisdiction by SOLE or
President Will it be effective on the first day immediately following the expiration of the old CBA?
Entitlement to Backwages No entitlement to backwages Yes, if this is negotiated within 6 months following the expiration of old CBA, it will retroact as
provided for by the law to the first day immediately following the expiration of the old CBA without
When strikers are asked to go back to their formal position, this is without entitlement need of the parties to agree thereon.
to backwages, unless they are victims of ULP committed by employers and not just
sympathizers, or they are strikers not engaged in economic strike but in ULP strike. In Old CBA ---------------- 6 months --------------New CBA
this case, they are entitled to backwages. Otherwise, they are not.
Beyond 6 months
4. Once deadlock is broken, they can now come up with CBA.
But if the new CBA was concluded beyond the 6 month period following expiration of the old CBA, it
5. Posting and Publication of CBA depends on the agreement of the parties. They can agree to have it retroact to the day immediately
following the old CBA or have it effective prospectively.
In two conspicuous places within establishment for 5 consecutive days
Purpose: to inform the members of the contents or the terms and conditions
Q: What is more beneficial to the workers?
contained in the CBA so that they know what they will be ratifying since it is the process
A: Apply it retroactively, if we operate under the premise that a newly concluded CBA most often has
of ratification that renders it effective.
terms more beneficial to the employees.
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prior to its expiration date. It shall be the duty of both parties to keep the status quo
2. IF CBA concluded is based on arbitral award and to continue in full force and effect the terms and conditions of the existing
When parties are unable to negotiation by themselves for the new CBA. agreement during the 60-day period and/or until a new agreement is reached by the
Rather they have to seek help of third person, either by parties.
conciliations of NCMB or
voluntary arbitrator or Freedom Period
by SOLE upon assumption or office of president The last sixty (60) days of the 5-year lifetime of a CBA immediately prior to its
Effectivity: determined by the hearing officer. expiration is called the ―freedom period.‖ It is the only time when the law allows the
E.g. by SOLE, President, or NLRC if under assumption of jurisdiction parties to freely serve a notice to terminate, alter or modify the existing CBA. It is also
Why NLRC? SOLE or President may choose not to decide the same but refer it to the time when the majority status of the bargaining agent may be challenged by
the NLRC (Certification to NLRC) another union by filing the appropriate petition for certification election.
Depending on the records submitted for its resolution, they can look into bargaining history
if they are traditionally applying for retroactive application of new CBAs. Purposes of the Meeting
1. Negotiate an agreement over WHO including proposals for adjusting grievances or
questions arising under such agreement;
Term of CBA 2. To execute a CBA, and
Source: SLU Reviewer
3. To respect and allow the old CBA to have force and effect, if a new CBA is forged.
Economic and Non-Economic Life: Three (3) Years.
Political Life (Representation aspect: identity and majority status of the union that
negotiated the CBA as EBR of the bargaining unit concerned): Five (5) Years.
Automatic Retroaction: Any agreement entered within six (6) months COLLECTIVE BARGAINING AGREEMENT
from the date of expiry of the term shall retroact to the date immediately CBA refers to a contract executed upon request of either the employees or the EBR of the employees
following such date. incorporating the agreement reached after negotiations with respect to wages, hours of work and all
If the agreement is beyond six (6) months, there would be an automatic other terms, and conditions of employment, including proposals for adjusting grievances or questions
retroaction. The date of the contract will be left to the parties. under such agreement. CBA is also a means of ensuring workers are entitled to participate in decision-
Automatic Renewal deemed incorporated in all CBAs: An existing making.
CBA is automatically renewed until the parties reached an agreement.
Essential Requisites of Collective Bargaining
Pending the renewal of the CBA, the parties are bound to keep the status quo and to treat the terms
Prior to any collective bargaining negotiations between the employer and the bargaining union, the
and conditions embodied therein still in full force and effect during the 60-day freedom period and/or
following requisites must first be satisfied:
until a new agreement is negotiated and ultimately concluded and reached by the parties.
1. Employer-employee relationship must exist between the employer and the members of the
bargaining unit being represented by the bargaining agent;
SOURCE: APCB Notes, Chan Reviewer & SLU Reviewer
2. The bargaining agent must have the majority support of the members of the bargaining unit
Phases of Collective Bargaining
established through the modes sanctioned by law; and
1. Legislative Phase
3. A lawful demand to bargain is made in accordance with law.
a. Negotiation and perfection of CBA.
2. Executive Phase
b. CBA administration. Contents of CBA
3. Judicial Phase 1. Enumeration or Reservation of Management Rights
c. Application and interpretation. 2. Union Recognition and Security
3. Wage and Fringe Benefits and its Administration
Two Situations when the Duty to Bargain Exists 4. Physical Working Conditions
5. Selected Personnel Management and Plant Operation Practices
A. When there is NO CBA (Art. 251) 6. Grievance and Arbitration
Purposes of the Meeting: 7. Duration of Contract
1. Negotiate an agreement over WHO including proposals for adjusting
grievances or questions arising under such agreement; and
2. To execute a CBA. Mandatory Stipulations of the CBA
Limitation: It does not compel any party: Chan 2015
1. To make an agreement, or The Syllabus mentions 4 provisions that are mandatorily required to be stated in the CBA, to wit:
2. To make concession. 1. Grievance Procedure;
2. Voluntary Arbitration;
B. When there is CBA (Art. 253) 3. No Strike-No Lockout Clause; and
When there is a CBA, the duty to bargain collectively shall mean that neither party 4. Labor-Management Council (LMC)
shall terminate nor modify such agreement during its lifetime. However, either party If these provisions are not reflected in the CBA, its registration will be denied by the BLR.
can serve a written notice to terminate or modify the agreement at least sixty (60) days
Administrative Process (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;
Before Labor Arbiter (b) To require as a condition of employment that a person or an employee shall not join a labor organization or
shall with-draw from one to which he belongs;
Parameters:
(c) To contract out services or functions being performed by union members when such will interfere with,
1. Existence of Employer – Employee Relationship; · restrain or coerce employees in the exercise of their rights to self-organization;
2. Act done is expressly defined in the Code as ULP (Arts. 248 and 249). (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor
Restrictive application rule: Only those acts specified in the law as ULP organization, including the giving of financial or other support to it or its organizers or supporters;
may be considered as such (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to
Any act though illegal but outside of enumeration in the law cannot be encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall
considered ULP stop the parties from requiring membership in a recognized collective bargaining agent as a condition for
employment, except those employees who are already members of another union at the time of the signing of
the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the
Two Aspects of ULP recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees
Civil Aspect paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits
• Includes claims for actual, moral, exemplary, and other forms of damages, attorney’s under the collective bargaining agreement: Provided, that the individual authorization required under Article
242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;
fees, and other affirmative relief.
(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being
• Under the jurisdiction of the Labor Arbiters, they are bound to resolve the civil aspect about to give testimony under this Code;
within 30 days from the time they are submitted for decision. (g) To violate the duty to bargain collectively as prescribed by this Code;
• Recovery of civil liability in the administrative proceedings shall bar recover under the (h) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue
Civil Code. in collective bargaining or any other dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations,
Criminal Aspect associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall
• No criminal prosecution may be instituted without a final judgment first obtained in be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981).
the administrative proceeding finding that a ULP was committed.
If the employer has no knowledge or did not give his consent to uttering of remarks, or if he prevented
such uttering, he could not be held liable since there is no connection between him and the remarks. 3. CONTRACTING OUT
Contracting out is to control out services or functions being performed by union members
Lecture: so that the management could to interfere with, restrain, or coerce employees in the exercise
Interference, restraint or coercion may be committed by the employer of their right to self-organization.
Restraint or coercion may also be a form of ULP committed by LABOR ORGANIZATION. It is the right to management prerogative for purposes of having more economical, effective
It cannot be by way of interference and efficient operation of business. As long as there is legitimate business purpose, it
As to labor organizations, they have the right to interfere with regards to the interest of remains as valid management prerogative.
members. This is NOT ULP. But they cannot prevent members from doing what they want It becomes ULP if the purpose is to constrain the right to self-organization.
nor coerce them.
Runaway Shop (ULP)
Examples of employer’s act of interference
Giving bonus not to join union
The only exception wherein the encouragement of membership in a labor organization is valid is in d. Maintenance of Membership Shop
the presence of a union security clause No employee is compelled to join the union, but all present or future members, as a
condition of employment, must remain in good standing in the union.
OTHERS: DISMISSAL pursuant to a closed shop agreement must clearly appear in the contract.
h. Hiring Shop Agreement
Membership in a union is required before hiring an employee, even though he need not
maintain this membership 6. DISCRIMINATION BECAUSE OF TESTIMONY
To dismiss, discharge or otherwise prejudice or discriminate against an employee for
i. Closed Shop with Closed Union
having given or being about to give testimony under the Labor Code.
j. Closed Shop with Open Union
Indirect Discrimination
*please look for these; might be asked in the exam.*
Slight modification will change the name.
It shall be ULP for an employer to dismiss or discriminate against an employee for having
filed charges or for having given or about to give testimony under said Act.
Outside of union security clauses, any act of the employer in encouraging or discouraging
membership in union organization is ULP
7. VIOLATION OF THE DUTY TO BARGAIN
To violate the duty to bargain collectively as prescribed by the Code.
VALIDITY of Closed Shop Agreements
A closed-shop agreement is one whereby an employer binds himself to hire only members of the
contracting union who must continue to remain members in good standing to keep their jobs. It is 8. PAID NEGOTIATION
the most prized of unionism. Another reason for enforcing the closed-shop agreement is the To pay negotiation or attorney’s fees to the union or its officers or agents as a part of the
principle of sanctity or inviolability of contracts guaranteed by the Constitution. settlement of any issue in collective bargaining or in any other dispute.
No matter how good the intention of the employer is, it is looked at unfavorably.
Non-economic provisions:
provision on grievance machinery, Featherbedding
voluntary arbitration, Under Article 249(d), it is ULP for a labor organization, its officers, agents or representatives to cause
a “no-strike-no-lockout” clause of the CBA or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things
listing of different managerial prerogatives of value, in the nature of an exaction, for services which are not performed or not to be
performed, including the demand for fee for union negotiations.
Violation of non-economic provision would not constitute ULP
This practice of the union is commonly known as “featherbedding” as it unduly and
Q: If for example, the CBA and company policy provides for seniority as basis for promotion unnecessarily maintains or increases the number of employees used or the amount
but this was not followed by the employer. Can it constitute ULP? of time consumed to work on a specific job. This is done by the employees to unduly
secure their jobs in the face of technological advances or as required by minimum health and
A: Tip in answering: Determine first if the provision violated is an economic safety standards, among other justifications. These featherbedding practices have been found to
provision. If it is economic provision, violation of such would be a form of ULP. be wasteful and without legitimate justifications
In this case, the provision is economic. Seemingly it would appear that is not an economic DEMAND FOR PAYMENT OF STANDBY SERVICES.
provision since it only provides criteria in promotion of employees. But if you look on the effects A union commits an unfair labor practice under this provision by causing or attempting to cause an
of the implementation of such provision, there would be economic benefits (since the one employer to pay or agree to pay for standby services. Payments for “standing-by,” or for the
promoted will have a bigger salary). The Supreme Court said that it is economic provision and thus substantial equivalent of “standing-by,” are not payments for “services performed” within the
violation of such would be a form of ULP. meaning of the law. When an employer received a bona-fide offer of competent performance of
relevant services, it remains for the employer, through free and fair negotiation, to determine whether
such offer should be accepted and what compensation should be paid for the work done.
Others (not discussed in make-up class but mentioned on 2nd year) Q: What happens when a strike is based on ULP but it turns out there is no actual ULP? Meaning,
3. When it is not in violation of the power of assumption of jurisdiction by the there was no basis for the staging of the strike. Is it still a valid strike?
SOLE or President and the orders that may be issued A: Yes. As long as there is good faith. The strike must be based on a valid ground for staging a strike
4. When it is not in violation of the contractual prohibitions even though it turns out not to be a valid one. Good faith may be a defense.
e.g. “No strike, no lockout” clause Maam: But there was one case saying that it is still an illegal strike.
Cooling-off Period
PROCEDURAL REQUIREMENTS Time gap to cool-off tempers between the filing of notice and the actual execution of the
strike
REQUISITES FOR A VALID STRIKE. THE Cooling – Off Period is:
Chan 2015 In case of BARGAINING DEADLOCK: 30 Days
In case of ULP: 15 Days
In accordance with Article 263 and pertinent prevailing jurisprudence, a strike, in order to Union Busting
be valid and legal, must conform to the following procedural requisites: In the face of UNION BUSTING where the union’s existence is threatened, the
1st requisite- It must be based on a valid and factual ground; cooling – off period need NOT be observed.
2nd requisite - A notice of strike must be filed with the NCMB-DOLE; UNION Busting Exists When:
3rd requisite- A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior The union officers are being dismissed;
to the taking of the strike vote by secret balloting, informing said office of the decision to conduct Those officers are duly elected in accordance with the union
a strike vote, and the date, place, and time thereof; Constitution and By-Laws;
4th requisite- A strike vote must be taken where a majority of the members of the union obtained The existence of the union is threatened.
by secret ballot in a meeting called for the purpose, must approve it;
5th requisite- A strike vote report should be submitted to the NCMB-DOLE at least seven
(7) days before the intended date of the strike; 2. 24-Hour Prior Notice for Strike-Voting
6th requisite- Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair To NCMB
labor practices of the employer, or 30 days, in case of collective bargaining deadlock, should be NOTE: the notice here is on the conduct of the strike-voting.
fully observed; and Whether NCMB will act on such notice does not matter.
7th requisite- The 7-day waiting period/strike ban reckoned after the submission of the
strike vote report to the NCMB-DOLE should also be fully observed in all cases.
2. Local / Particular Strike NOTE: Strikers who are permanently replaced during the economic phase of the strike are not entitled
One undertaken by workers in a particular enterprise, locality, or occupation, it usually to immediate reinstatement, while strikers replaced after the date of conversion are entitle to
involves only one union or only one industry. reinstatement.
2. ULP Strike
B. As to the Nature of the Act Called against the unfair labor practices of the employer, usually for making him desist from
further committing such practice.
1. Strike Proper
2. Sit-Down Strike
A strike that is provoked or prolonged by a refusal to bargain or a discriminatory discharge or any sort
Occurs when a group of employees or other interested in obtaining a certain objective in a
of ULP by the employer.
particular business forcibly take over possession of the property of such business, establish
themselves within the plant, stop its production and refuse access to the owners or the
ULP Strike in Good Faith
others desiring to work.
If the management performed acts, which under the circumstances, the strikers believed were ULP on
the part of the management, although they were not, the court ruled that the strike cannot be held
3. Slowdown
illegal. However, the union’s belief needs some rational basis.
Willful reduction in the rate of work by a group of employees for the purpose of restricting
the output of the employer
TWO Tests in Determining the Existence of ULP Strike
1. OBJECTIVE
4. Partial/Quickie Strike
When the strike is declared in protest of ULP that is found to have been actually committed;
Takes the form of intermittent, unannounced work stoppage, including slowdowns,
2. SUBJECTIVE
unauthorized extension of rest periods and walkouts for portions of a shift or for entire
When a strike is declared in protest of what the union believed to be ULP committed by the
shifts.
management, and the circumstances warranted such belief in good faith, although found
subsequently as not committed.
WILDCAT Strike—work stoppage that violates the labor contract and is not authorized by the union.
It is sudden and without compliance with the procedure.
Protection of Strike
It is generally not subject to labor injunction.
C. As to Degree of Employee Interest Employees may not be discriminated against merely because they have exercised the right
1. Primary Strike to strike.
One declared by the employees who have a direct and immediate interest, whether The use of strike-breakers is prohibited.
economic or otherwise, in the subject of the dispute, which exist between them and their
employer. STRIKE–BREAKER
A person who obstructs, impedes, violence, coercion, threats or intimidation any peaceful picketing
2. Secondary Strike by employees during any labor controversy affecting wages, hours or conditions of work in the exercise
Coercive measure adopted by the workers against an employer connected by product or of right of self-organization or collective bargaining Mere participation in a strike does not sever the
employment with alleged unfair labor condition or practice. employment relationship.
NOTE: EVEN if the purpose of a strike is valid, the strike may be held invalid where the means Prohibited Activities
employed are illegal. No labor organization or employer shall declare a strike or lockout without first having
bargained collectively in accordance with Title VII of this Book or without having filed the
required notice or without the necessity strike or lockout vote first having been obtained
Injunction and reported.
No temporary or permanent injunction or restraining order in any case involving or growing out of No strike or lockout shall be declared after assumption of jurisdiction by President or the
labor disputes shall be issued by any court or other entity, except as otherwise provided in Article 218 Sec of Labor or after certification or submission of the dispute to compulsory/ voluntary
and 264 of this Code (Art.254). arbitration or during the pendency of cases involving the same grounds for the strike or
lockout.
Article 218 (e) empowers the NLRC to enjoin or restrain any actual or threatened commission of any No person shall obstruct, impede or interfere with by force, violence, coercion, threats or
or all prohibited or unlawful acts to require the performance of a particular act in any labor dispute, intimidation any peaceful picketing by employees during any controversy or in the exercise
or in cases involving ―national interest‖ as provided in Article 263 (g). of the right to self-organization or collective bargain or shall aid or abet such obstruction or
interference.
Automatic Injunction No employer shall use or employ any strikebreaker, nor shall any person be employed as a
Injunction in ―national interest‖ cases is expressly allowed, in fact, an injunction may be issued strikebreaker.
automatically, that is even if none of the parties asks for it. No public official or employee, including officers and personnel of the AFP or the PNP, or
armed person shall bring in, introduce or escort in any manner any individual who seeks to
Assumption of Jurisdiction and Certification to the NLRC replace strikers in entering or leaving the premises of a strike area, or work in place of the
When, in his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an strikers. The police force shall keep out of the picket lines unless or other criminal acts occur
industry indispensable to the national interest, the Secretary of Labor may assume jurisdiction over therein. Nothing herein shall be interpreted to prevent any public officer from taking any
the dispute and decide it or certify the same to the NLRC for compulsory arbitration. measure necessary to maintain peace and order, protect life and property, and/or enforce
the law and legal order.
Effect of Assumption or Certification No person engaged in picketing shall commit any act of violence, coercion or intimidation
Such assumption or certification has the effect of automatically enjoining the intended or impending or obstruct the free ingress or egress from the employer’s premises for lawful purposes, or
strike or lockout as specified in the assumption or certification order. If the one has already taken obstruct public through fares.
place at the time of assumption or certification, all striking or locked out employees shall immediately
return to work and the employer shall immediately resume operations and readmit all workers under PENALTY FOR VIOLATION
the same terms and conditions prevailing before the strike or lockout. Any person violating the above provisions shall be punished by a fine of not less than P1,000.00 nor
more than P10,000.00 and/or imprisonment for not less than 3 months. Nor more than 3 years, or
Striking workers must cease and/or desist from all acts that tend to, or undermine the authority of the both such fine and imprisonment, at the discretion of the court.
Secretary of Labor, once the assumption and/or certification order is issued. They cannot ignore
return-to-work orders, citing ULP on the part of the company, to justify their actions. Prosecution under Article 272 of the LCP shall preclude prosecution for the same act under the RRC,
and vice versa.
If it is an economic strike, the strikers are bound to the provision but if it is a ULP strike, the strikers
are not bound to such provision.
Consequences of Strike and Lockout
Strikers’ Retain their Employment
Lockout Strikers remain as employees while they are on strike; the effects of employment are merely suspended
Means the temporary refusal of any employer to furnish work because of an industrial or labor dispute. during that time. When the strike is over, the employees go back to work and the effects of employer
– employee relationship are resumed.
Grounds for Lockout
• Collective Bargaining Deadlock
• ULP Act of a Union
Claim of Back Wages in an Economic Strike The PUBLIC EASEMENT OF WAY and PASSAGE permits of pickets to parade in front of
The strikers are NOT entitled to back wages on the principle that ―a fair day’s wage‖ accrues only for or near the picketed establishment. As members of the general public, they have the right,
a ―fair day’s labor‖ (no work, no pay policy). as one of passage – a pedestrian right. It does not create the additional right of squatting or
Exception: assembly on this portion of the employer’s land.
The strike is legal;
There is an unconditional offer to return to work; and Other Concerted Activities
There is a refusal on the part of the employer to accept strikers to work. 1. Collective Letter
Constitutes an informal action participated in by at least two employees for ―mutual aid or protection‖
In a ULP Strike in regard to their interests.
Strikers who were discriminatorily dismissed OR affected by the ULP are ENTITLED to back wages.
The law on illegal dismissal applies. 2. Publicity
Members of a labor union may make known the facts of a labor dispute by sign, handbill, or newspaper
In a LOCKOUT advertisement as a legitimate means of economic coercion.
Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be
ENTITLED to reinstatement with full back wages. NOTE: It is unlawful for a labor organization in a radio broadcast to express its honest opinion as to
the fairness of an employer toward organized labor and to advise the public and friends of labor not
EMPLOYER’S RIGHT TO HIRE REPLACEMENTS DURING STRIKE OR to patronize him. HOWEVER, the use of loud speakers in front of a picketed place of business has
REINSTATEMENT OF STRIKERS been condemned as form of intimidation.
During the pendency of an economic strike, the employer may hire replacements on a permanent basis
and is not bound to discharge such permanent replacement in the event that strikers resume to work. 3. Boycott
An attempt, by arousing a fear of loss, to coerce others, against their will to withhold from one
While replacement may also be hired by the employer to take the places left vacant by employees denominated ―unfriendly to labor‖ their beneficial business intercourse.
engaged in an ULP strike, such replacements are not permanent and their employer is under the duty
to dismiss them as soon as the strikers request reinstatement in their previous positions. Kinds of Boycott
a. Primary Boycott
IMPROVED OFFER OR REDUCED OFFER BALLOTING (ART. 265) Applied directly and alone to the offending person by withdrawing from him all
The DOLE shall conduct a referendum by secret balloting on the improved offer of the employer on or business relations on the part of the organization that initiated the boycott.
before the 30th day of strike. When at least a majority of the union members vote to accept the
improved offer, the striking workers shall immediately return to work and the employer shall b. Secondary Boycott
thereupon readmit them upon the signing of the agreement. A combination not merely to refrain from dealing with a person, or to advise or by
peaceable means persuade his customers to refrain, but to exercise coercive pressure
In cases of lockout, the DOLE shall also conduct a referendum by secret balloting on the reduced offer upon such customers, actual or prospective, in order to cause them to withhold or
of the union on or before the 30th day of the lockout. When at least a majority of the board of directors withdraw patronage from him through fear of loss or damage to themselves should
or trustees or the partners holding the controlling interests in the case of a partnership vote to accept they deal with him.
the reduced offer, the workers shall immediately return to work and the employer shall thereupon
readmit them upon the signing of the agreement.
Foreign Involvement in Trade Union Activities The only grounds on which the cancellation of a union's registration may be sought are those found in
PROHIBITION AGAINST ALIENS Article 247 of the Labor Code. . Pursuant to paragraphs (a) and (b) of Article 247 of the Labor
ALL ALIENS, natural or juridical, as well as foreign organizations are strictly prohibited from Code, it must be shown that there was misrepresentation, false statement or fraud in connection
engaging directly or indirectly in all forms of trade union activities without prejudice to normal with:
contracts between Philippine Labor Unions and recognized international labor centers
(1) the adoption or ratification of the constitution and by-laws or amendments thereto;
EXCEPTIONS 2) the minutes of ratification;
Aliens working in the country with valid permits issued by the DOLE may exercise the right to self- (3) the election of officers;
organization and join or assist labor organizations of their own choosing for purposes of collective (4) the minutes of the election of officers; and (5)the list of voters.
bargaining.
Failure to submit these documents together with the list of the newly elected- appointed officers and
Said aliens are nationals of a country which grants the same or similar rights to Filipino Workers. their postal addresses to the BLR may also constitute grounds for cancellation, lack of mutuality of
interests, however, is not among said grounds.
REGULATION OF FOREIGN ASSISTANCE
No foreign individual, organization or entity may give any donations, grants or other forms of
assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any Agency Fees
auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education, Peninsula Employees Union vs Michael Esquivel,
or communication, in relation to trade union activities without prior permission by the Secretary of GR No. 218454, 01 December 2016
Labor.
The recognized collective bargaining union which successfully negotiated the CBA with the employer
NOTE: This prohibition shall equally apply to foreign donations grants or other forms of assistance, is given the right to collect a reasonable fee called "agency fee" from non- union members who are
in cash or in kind, given directly or indirectly to any employer or employer’s organization to support employees of the appropriate bargaining unit, in an amount equivalent to the dues and other fees
any activity or activities affecting trade unions paid by union members, in case they accept the benefits under the CBA
The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and Three (3) documentary requisites in order to justify a valid levy of increased union
receiving of such donations, grants, or other forms of assistance, including the mandatory reporting dues:
of amounts of donations or grants, the specific recipients thereof, the projects or activities proposed a. an authorization by a written resolution of the majority of all the members at
to be supported and their duration the general membership meeting duly called for the purpose;
b. the secretary's record of the minutes of the meeting, which shall include the list
of all members present, the votes cast, the purpose of the special assessment or fees and
the recipient of such assessment or fees; and
c. individual written authorizations for check-off duly signed by the employees
concerned.
Violation of the Duty to Bargain Collectively Would the rank-and-file employees of the three companies constitute an appropriate
Guagua National Colleges v. Guagua National Colleges Faculty Labor Union and bargaining unit despite their different geographical location?
Guagua National Colleges Non-Teaching and Maintenance Union ‣ Yes. The basic test for determining the appropriate bargaining unit is the application of a
GR No. 204693, 13 July 2016 standard whereby a unit is deemed appropriate if it affects a grouping of employees who have
‣ Here, the collective conduct of GNC is indicative of its failure to meet its duty to bargain in substantial, mutual interests in wages, hours, working conditions, and other subjects of collective
good faith. Badges of bad faith attended its actuations both at the plant and NCMB levels. bargaining.
‣ Due to its bad faith in bargaining, the final CBA draft submitted by respondents to the ‣ Geographical location can be completely disregarded if the communal or mutual interests
NCMB was correctly imposed by the NLRC as the parties’ CBA for the period June 21, 2009 to May of the employees are not sacrificed.
31, 2014. This is on the premise that the said employers, by their acts which bespeak of insincerity, ‣ In the present case, there was communal interest among the rank-and-file employees of the
had lost their statutory right to negotiate or renegotiate the terms and conditions contained in the three companies based on the finding that they were constantly rotated to all three companies,
unions' proposed CBAs. and that they performed the same or similar duties whenever rotated.
‣ Therefore, aside from geographical location, their employment status and working
Return to Work Order conditions were so substantially similar as to justify a conclusion that they shared a community of
Manggawa ng Komunikasyon sa Pilipinas v. PLDT, Co. Inc., interest.
GR No. 190389, 19 April 2017
Are the affected and striking employees entitled to reinstatement and backwages from
January 2, 2003 when the SOLE directed the striking employees to return to work, up
to April 29, 2006, when the NLRC’s resolution upholding the validity of PLDT’s
redundancy program became final and executory?
‣ No. There is no order of reinstatement from a Labor Arbiter in the case at bar, instead, what
is at issue is the return-to-work order from the Secretary of Labor and Employment. An order of
reinstatement is different from a return-to-work order. The award of reinstatement, including
GR No. 220383, Oct 05, 2016 –SONEDCO WORKERS FREE LABOR UNION v.
UNIVERSAL ROBINA CORPORATION